J.V. Gupta, J. - (1.) THE Plaintiff -Petitioners have filed this revision petition against the order of the Additional District Judge, Amritsar, dated 19th November, 1979, whereby the order of the trial Court returning the plaint to the Plaintiffs, has been maintained.
(2.) IN May, 1964, Surjan Singh and Gurdit Singh sons of Jhanda Singh (predecessors -in -interest of the present Plaintiffs) filed a suit for permanent injunction against the Union of India and others to the effect that the suit land was not an evacuee property and thus was not liable to be sold as such by the Union of India and also restraining it from auctioning and allotting the same as an avacuee pro -and thus interfering in their possession. This suit was contested on behalf of the Union of India. In the written statement filed by it, a preliminary objection was taken that the civil Court could not question the finality of the Competent Officer's orders vide Section 18 of the Evacuee Interest (Separation) Act, 1951. The copy of the written -statement is Exhibit P -7 on the record. On the pleadings of the parties in that suit, the following issues were framed. 1. Whether civil Courts have jurisdiction to try this case ? 2. Whether the Plaintiffs served a valid notice under Section 80 the Code of Civil Procedure on the Defendants ? Whether the suit is barred by rule of res judicata ? 3. WHETHER Sadhu and Dhanna are evacuees ? If so, to what effect ? 4. WHETHER the Plaintiffs have cause of action to bring the suit ? On issue No. 1, it was held that the Civil Court had the jurisdiction to try the suit. As regards the relevant issue No. 4, the finding was that "the above discussed evidence shows that Sadhu and Dhanna who were admittedly Brahmins never migrated to Pakistan nor converted themselves as Muslims. Rather they died as Brahmins in the riots of 1947 in their own village and there dead bodies came to be seen by a number of villagers referred to above and were cremated in the village. There appears thus no force in the testimonies of the D. Ws and they do not appear to be truthful witnesses. That being so, Sadhu and Dhanna, are not evacuees". On this finding, the Plaintiffs' suit was decreed and, consequently, a decree for permanent injunction against the Union of India restraining it from auctioning or allotting the property in dispute to any person treating it to be an evacuee property and from interfering in Plaintiffs' possession over it as mortgagees, was passed on 19th February, 1966, vide judgment copy of which is Exhibit P -2 on the record. An appeal against this judgment and decree of the trial Court was dismissed by the learned Additional District Judge Amritsar, as time barred on 4th January, 1968, vide judgment copy of which is Exhibit P -3 on the record.
(3.) THE present suit giving rise to this petition was filed in April 1972 by Surjan Singh substituted after death by Smt. Gian Devi widow and Ram Murti, son of Surjan Singh against Gulzar Singh and other permanent injunction that the suit land is not an evacuee property and is not liable to be sold as evacuee property by the Dominion of India and as consequential relief, suit for permanent injunction restraining Defendant No. 1, i.e., Gulzar Singh from interfering or distributing or taking the possession of the suit land from the Plaintiffs and Gurdit Singh. In para No. 1 of the plaint, the facts of the earlier case referred to above have been given and on the basis of that judgment, it has been claimed that the Tehsildar, Sales in spite of the raid judgment and decree, has again interfered in the right of the Plaintiffs by allotting this land illegally and without jurisdiction, to Gulzar Singh, Defendant No. 1 who has obtained warrants for possession and is trying to take possession of the suit land. It was further claimed that in view of the said judgment in earlier suit which amounts to res judicata, the Plaintiff's rights as mortgagees and Sadhu and Dhanna's title as owner over the suit land, had become final and this point cannot be re -opened. The suit was contested by Gulzar Singh Defendant No. 1. In the written statement, a preliminary objection was taken that the jurisdiction of the Civil Court is barred under the evacuee law property being a composite property and Competent Offices having already separated the evacuee interest, the Civil Court had no jurisdiction to try the present suit. However, no copy of the order of the Competent Officer was placed on the record. On the pleadings of the parties, various issues were framed, but issue No. 3 relating to the jurisdiction of the Civil Court, was tried as a preliminary issue. The trial court came to the conclusion that the Civil Court has no jurisdiction to entertain the same. In appeal, the learned Additional District Judge has affirmed this finding of the trial Court. Feeling aggrieved against this concurren finding of the two Courts, the Plaintiffs have came up in revision to this Court. Mr. H.L. Sarin, Senior Advocate, learned Counsel for the Plaintiff -Petitioners, has vehemently contended that in view of the earlier decision of the Civil Court vide Exhibit P -2, wherein it has been held that Sadhu and Dhannu were not evacuees had become final between the parties, and, therefore, the Union of India or the Rehabilitation Authorities had no right to allot the suit property to Gulzar Singh, Defendant -Respondent, after that decree in favour of the Plaintiffs, he has assailed the finding of the two Courts below on the ground that if subsequently a different view has been taken by the Supreme Court, that will not render the earlier decree infructuous as regard the parties. In support of his contention, he has cited Surjan Singh v. State of Punjab : A.I.R. 1975 P&H. 16, and Avtar Singh v. Jagjit Singh, 1979 P.L.J. 495.;