- (1.) THE above mentioned three regular second appeals i.e. RSA Nos. 319 of 2009, 102 of 2010 and 5091 of 2010 have been listed together for hearing as these arise out of a common judgment and decree of the Court of first instance as well as of lower appellate Court. As such, all the above mentioned second appeals are being disposed of by a common judgment.
(2.) THE aforementioned three second appeals have been preferred by the appellants -plaintiffs against the judgment and decree dated 17.11.2008 passed by learned Additional District Judge, Gurgaon, whereby judgment and decree dated 09.08.2007 passed by learned Civil Judge (Sr. Division), Gurgaon partly decreeing the suit of the appellantsplaintiffs has been set aside and suits of the plaintiffs have been dismissed. For convenience sake, hereinafter parties will be referred to as they are arrayed in the Court of first instance in Civil Suit No. 285 of 1994 from which RSA No. 319 of 2009 has arisen i.e. appellants as plaintiffs and respondents as defendants.
(3.) THE detailed facts are already recapitulated in the judgments of the Courts below and are not required to be reproduced. However, brief facts relevant for disposal of this second appeal are to the effect that one Smt. Sharbati Devi widow of Bhikhu son of Deen Dayal was owner in possession of agricultural land detailed in para no. 1(a), 1(b) and 1(c) of the plaint. It has been alleged that said Smt. Sharbati died in the year 1964 and she was succeeded by her sole heir Smt. Chandan Devi and mutation of inheritance No. 445 was sanctioned on 17.09.1965 in her name Chandan Devi was succeeded by her four sons, namely, Jugal Kishore, Madan Lal, Shanti Sarup and Mohinder Singh and one daughter namely, Smt. Sumitra, as a result of which the heirs of Chandan Devi became small land owners. The said land was never utilized during the life time of Smt. Chandan Devi. The land in question does not vest in the State of Haryana in view of Section 10 -A of the Punjab Security of Land Tenures Act. It has further been averred that the land was purchased by the plaintiffs in the year 1971 -72 and in the year 1986 from the legal heirs of Smt. Chandan Devi. Since the said purchase, the plaintiffs have been in continuous possession over the land in question and mutations have also been sanctioned. It has further been averred that previously defendant no.3 was the tenant who was subsequently evicted vide order dated 20.08.1971. It has further been averred that defendant nos. 1 and 2 secretly and without notice to the plaintiffs have got the land transferred in their favour vide mutation No. 1949 which was sanctioned on 12.11.1991, the same is illegal and null and void. Order declaring the land surplus and subsequent mutations are null and void. No notice of the mutation was given to the plaintiffs. Hence suit for declaration with consequential relief of permanent injunction and possession was filed. Upon notice, defendants appeared. Defendant nos. 1 and 2 filed joint written statement and defendant no.3 filed separate written statement. Defendant nos. 1 and 2 in their written statement took preliminary objections that civil Court has no jurisdiction to try the suit as jurisdiction is barred under Section 26 of the Haryana Ceiling of Land Holding Act, 1972; the plaintiffs have got no cause of action to file the suit; plaintiffs are estopped by their own act and conduct from filing the suit; the plaintiffs have not availed the remedies available under relevant enactment; the suit is barred by limitation; no notice under Section 80 CPC was given. On merits, it was admitted that Smt. Sharbati Devi was big land owner and in possession over the suit land at the time of appointed date i.e. 15.4.1953 and the suit land and other land was declared surplus in her hands. The order dated 05.09.1990 passed by the Special Collector is in accordance with law and as per the provisions of the Punjab Security of Land Tenures Act, 1953. The land in question was declared surplus on 14.03.1961 under the provisions of Punjab Security of Land Tenures Act, 1953 and the same vested in the Government of Haryana under the provisions of Haryana Ceiling on Land Holding Act, 1972. Mutation has rightly been sanctioned. The possession is being taken in accordance with law. Similarly, defendant no.3 in his written statement took preliminary objections that plaintiffs had got no locus standi and suit was barred by the principle of res -judicata. Besides this, it was averred that Smt. Sharbati was big land -owners. Her 116 acres of land was declared surplus. It was denied that heirs of Chandan Devi became owners of the property merely on the basis of sanctioning of mutation. It was further alleged that the land, detailed in para no.1(b) of the plaint was tenant's permissible area of defendant no.3, who had come in possession over the same prior to 1946 and being tenant's permissible area it was deemed to have been utilized by the surplus area authorities. Smt. Sharbati Devi and Smt. Chandan Devi and their successors -in -interest have no right, title or interest in the suit land. The land already stood vested in the State. Replication was filed to the written statement reiterating the averments in the plaint and denying the averments made in the written statements.;