- (1.) J.S. Chawla purchased the House in dispute in open auction conducted by the Rehabilitation Department on 10th July, 1964. The auction was accepted and sale certificate Exhibit P-1 was issued in his favour. On this basis he claimed to be owner and filed suit for recovery of compensation for the use and occupation against Ishar Dass @ Rs. 15/- per month from 6.10.1965 to 5.10.1968. The suit was contested and the defendant disputed the validity of the sale certificate issued in favour of the plaintiff and pleaded that this revision for cancelling the sale certificate was pending before the Chief Settlement Commissioner under Section 24 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (hereinafter called the 'Act). It was further pleaded that he is allottee of the house and has applied for its transfer and, therefore, the same could not be auctioned. He pleaded that his possession was lawful as an allottee. On the pleadings of the parties, the following issues were framed : 1. Whether the plaintiff is owner of the house in dispute ? 2. To what amount of compensation, on account of use and occupation, is the plaintiff entitled ? OPD 3. Whether the defendant is a tenant of the property in dispute ? OPD 4. Whether the auction in favour of the plaintiff is invalid and whether the same can be challenged in this Court. OPD The trial Court by judgment and decree dated 22nd February 1972, decreed the suit as prayed for after recording finding under issues Nos. 1 and 3 that the plaintiff was the owner of house in dispute by virtue of the sale certificate, Exhibit P-1 granted in his favour and that no order or letter of allotment was produced by the defendant and the defendant could not be considered as a tenant since he was in arrears of rent which was due to the Rehabilitation Department, therefore, his possession could only be treated licensee in view of the decision of this Court in Gurcharan Singh v. Devki Nandan and another, 1969 RCR(Rent) 1101. Under issue No. 2, it was held that the claim made by the plaintiff was established. Issue No. 4 was decided against the defendant, it was held that it was not shown how auction sale was invalid and thus could not be challenged in the Civil Court.
(2.) The defendant went up in appeal. Before the Additional District Judge, the defendant produced certificate copy of the order of the Financial Commissioner, under Section 33 of the Act, dated 16th October, 1973, which was exhibited as D-2. The defendant relied upon the aforesaid order to contend that the sale certificate in favour of the plaintiff had been set aside, and therefore, the suit deserved to the dismissed, whereas on behalf of the plaintiff it was argued that by the aforesaid order, the sale certificate in his favour had not been set aside and merely the case was remanded to the Managing Officer for consideration of the request of the defendant for transferring the property in dispute in his favour as an occupant, and till such time the sale certificate in favour as of the defendant was not cancelled or set aside, he continued to be the owner thereof. Considering the rival contentions the lower appellate Court found force in the arguments raised on behalf of the defendant. The relevant observations were as follows :- ".....The basis of the respondent's claim of ownership of the house in question is the sale certificate, Exhibit P-1, issued to him by the Managing Officer (Sales), Jullundur, in pursuance of the auction held on 10.7.1961 but that sale in his favour has been made inchoate by the learned Financial Commissioner though his said order dated 16.10.1973, certified copy is Ex. D-2 passed under Section 22 of the said Act directed against the order passed on 20.12.1971 by the Chief Settlement Commissioner, Punjab, Jullundur, rejecting the revision petition against the finalisation of sale of this house in favour of the respondent...." On the aforesaid basis it was concluded under issue No. 1 that the sale certificate in favour of the plaintiff and his title have become inchoate in view of the Financial Commissioner's decision, unless and until the claim of the defendant was finally determined by the Rehabilitation authorities consequently, the findings giving by the trial Court on this issue were reversed. However, the findings of the trial Court on issues Nos. 2 to 4 were sustained but since the title of the plaintiff was held to be inchoate the appeal was allowed and the suit was dismissed. The plaintiff has come to this Court in Second appeal.
(3.) After hearing the learned counsel for the parties, I am of the view that the decision of the trial Court deserves to be restored. I have carefully read the order Exhibit D-2 passed under Section 33 of the Act and find that neither the sale certificate issued in favour of the plaintiff were set aside. The defendant has filed an application for transfer of the house to him as an occupant, which was dismissed up to the Cheif Settlement Commissioner but the Financial Commissioner acting under Section 33 of the Act came to the conclusion that th reason for dismissing the application of the defendant was not correct and therefore, remanded the matter for consideration of his application on merits. That order was passed a decade ago. No material has been placed before me as to what happen to that application and whether the defendant seriously proceeded with the same. If that application had been allowed, then necessarily the auction as also the sale certificate made in favor of the plaintiff had to be cancelled and would have cancelled. Therefore, in the absence of any order, the only assumption which is to be drawn is that the auction sale which was held way back in 1961 and on the basis of which sale certificate Exhibit P-1 was granted to the plaintiff continues to have the force with the result that it is the plaintiff alone who is to be considered as owner of the property in dispute. Once that is so, he was certainly entitled to masne profits from the occupants of the same. If the defendant had been tenant then also the plaintiff would have been entitled to the arrears of rent till such time the sale certificate stood in his name. Therefore, the Lower Appellate Court clearly fell in error in dismissing the suit merely because the sale certificate issued in favour of the plaintiff was called in question by the defendant. If the suit was to be dismissed as has been done by the lower Appellate Court and if ultimately it is found that the defendant was not entitled to transfer, fresh suit for the plaintiff for recovery of compensation for use and occupation for the period in dispute i.e. from 1965 to 1968 would be barred by time. Therefore, the proper course to be followed is that the judgment and decree of the trial Court deserve to be restored. It is not disputed that at present moment, the defendant is not owner of the property but wants to acquire ownership on the basis of his possession. Therefore, till such time he is not granted ownership rights and if the property had not been sold to the plaintiff, the defendant would have been liable to pay compensation for use and occupation to the Rehabilitation Department, and instead to paying to the rehabilitation department, he has to pay to the plaintiff in view of sale certificate Exhibit P-1. Therefore, if the suit is decreed there will be no injustice to the defendant and in case, the suit is dismissed and ultimately, it is found that the sale certificate in favour of the plaintiff is good, his remedy for the recovery of the rent for the period in dispute at a later date would be clearly bared by time. Therefore, viewing the case from any angle, the judgment and decree of the trial Court deserved to be restored.;