Paramjeet Singh, J. - (1.) THIS regular second appeal has been filed by the plaintiff and is directed against the judgment and decree dated 05.08.1987 passed by learned Additional District Judge, Jalandhar, whereby the appeal preferred by the respondent/defendant against the judgment and decree dated 26.10.1984 passed by learned Senior Sub Judge, Jalandhar, whereby the suit for declaration filed by the appellant/plaintiff was decreed, has been allowed, the judgment of Court of first instance has been reversed and the suit of the plaintiff has been dismissed with costs. For convenience sake, reference to parties is being made as per their status in the civil suit.
(2.) THE detailed facts of the case are already recapitulated in the judgments of the Courts below and are not required to be reproduced. However, the facts relevant for disposal of this second appeal are to the effect that plaintiff (a registered society) was the successful bidder at a public auction made by Fisheries Department, Punjab, for catching fish from the waters in District Kapurthala for 11 months for the year 1981 -82 through licence No. 5/1981 -82 dated 2.9.1981. As per the pleadings in the plaint, major quantity of fishes i.e. about 70% were to be caught in the jheel water, detailed at serial No. 10 of the licence, known as jheel near village Bharoware, Sheikh Mange, Sarowal, District Kapurthala and the remaining from the other auctioned water. An amount of Rs. 3,45,000/ - was paid by the plaintiff to the defendants as first instalment for the, licence. According to the plaintiff, after obtaining licence, when the plaintiffs employees went to the said water to catch fishes, a number of armed Nihangs, who have constructed a Gurudwara at the bank of the jheel threatened to use force in case plaintiffs employees tried to catch fishes from the jheel because jheel has become a 'sacred talab' of Gurudwara and plaintiff s employees were not allowed to catch fishes. This fact was brought to the notice of the authorities but they failed to do anything. It is also pleaded in the plaint that several notices were issued and even a suit for injunction was filed for direction to the defendant to remove obstructions created by the Nihangs and also not to claim the balance amount of the licence fee but to no avail. Ultimately suit of the plaintiff became infructuous as no ad interim injunction was granted. It is further alleged that the Department cancelled the contract of the plaintiff without serving notice upon it. Disputed waters were re -auctioned and this was done at the risk of the plaintiff, instead of compensating the plaintiff for heavy losses as plaintiff had been deprived of catching fishes from the disputed water. Thereafter vide letter dated 19.05.1982 Collector, Jalandhar was directed to recover Rs. 6,57,570.60 paise as land revenue from the plaintiff. The said notice has been impugned in the civil suit for declaration and permanent injunction on the ground that such action of the Collector is against the law and demand has been raised without adjudication by the competent authority. Such action of the defendant is not sustainable in the eyes Of law. Hence, the plaintiff filed the suit. Upon notice defendant filed written statement contenting that plaintiff had paid Rs. 3,45,000/ - on 09.07.1981 as 1/3rd of the bid amount at the fall of hammer and the remaining amount -was to be paid in instalments, out of which the first instalment was due on 01.12.1981, which the plaintiff did not pay. Only the jheel water with the Government boundary was auctioned and not any water beyond it. It was mentioned in the written statement that jheel where present Gurudwara exists is a religious place and is outside the Dhusibandh. It was further submitted that plaintiff failed to pay first and second instalments which were due on 01.12.1981 and 20.03.1982, respectively, therefore, the licence of the plaintiff was cancelled by the Director and Warden of Fisheries, Punjab, and plaintiff was duly informed about it vide letter dated 22.04.1982. Notice of re -auction was also served on the plaintiff. Thereafter the contract was re -auctioned at the risk and responsibility of the plaintiff as per departmental Rules. As a result of re -auction loss of Rs. 6,57,570.60 paise became recoverable from the plaintiff as land revenue. The action of the authorities is in accordance with law.
(3.) COURT of first instance, on the basis of pleadings of the parties, framed following issues: - - "1. Whether the plaintiff was estopped to catch fish from the water detailed at serial No. 10 of the auction condition? OPP 2. If issue No. 1 is proved whether the defendant is entitled to recover Rs. 6,57,570/ - from the plaintiff? OPP 3. Whether the defendant is entitled to recover Rs. 6,57,570/ - as land revenue without getting it adjudicated from the court? OPP 4. Whether the demand of the defendant amount to Rs. 6,57,570/ - is illegal, void and is not binding upon the plaintiff? OPP 5. RELIEF ." ;