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DEEPAK GUPTA, J. –

Suit for declaration and permanent injunction filed by the plaintiff (appellant herein) was decreed by the trial court on 19.12.1988. However, in the appeal filed by the defendant-State of Haryana (respondent herein), the first appellate court dismissed the suit, by allowing the appeal on 03.08.1989. It is against the judgment/decree of the First Appellate Court that plaintiff has approached this Court by way of present RSA.

2. In order to avoid any confusion, parties shall be referred as per their status before the trial court. Trial court record was called, which has been perused with the able assistance provided by the learned counsel for both the sides.

3.1 Brief facts relevant for disposal of the present case are that provisions of Punjab Security of Land Tenures Act, 1953 (hereinafter referred to as `the 1953 Act') used to hold the field in the State of Haryana, till the State of Haryana enacted the Haryana Ceiling on Land Holdings Act, 1972 (hereinafter referred to as `the 1972 Act').

3.2 Inder Singh, the father of plaintiff of Smt. Reshami Devi was big land owner, holding 269.97 acre of land (referred at many places as 229.97 acres). By way of order of the Collector, Sirsa, 60 simple acres of land of Inder Singh was declared as his permissible area. 19.94 acres of land was reserved as the tenant’s permissible area; whereas, 190.3 simple acres land was declared as the surplus area. Consolidation took place in the village and in lieu of the land held by Inder Singh, the total land of Inder Singh became 1795 kanal 1 marla. Out of this, said Inder Singh transferred 1/5^th share i.e. 359 kanal in the name of his daughter - plaintiff- Smt. Reshami by virtue of a Civil Court decree dated 12.04.1969, regarding which mutation No.2921 was sanctioned. Obviously, the said transfer was effected by Inder Singh in favour of the plaintiff after the prescribed date of 30.07.1958, as per 1953 Act. Resultantly, plaintiff - Smt. Reshmi was also declared as a big land owner and out of 359 kanal area transferred in her name, 275 kanal was declared as her permissible area; whereas, 76 kanal 4 marla was declared as surplus area.

3.3 The case of the plaintiff is that total holdings belonging to her, her father Inder Singh and other co-sharers being still joint, the State is legally bound to initiate proceedings under Section 14 (1) of the 1972 Act and to separate the share of each co-owner and declare the particular Killa numbers in the surplus pool, equal to 76 kanal 4 marla in the hands of the plaintiff and only then, the State can utilize the area under the provisions of ‘Haryana Utilization of Surplus and other Areas Scheme,1976’ and then the State can dispossess her, as the State has not initiated the proceedings under Section 14 (1) of 1972 Act till date nor the co-owners have agreed to separate their shares by way of mutual consent, as some of the land owners are small land owners.

3.4 With these pleadings, plaintiff prayed for decree of declaration that she is the owner in possession of 275 kanal of land as permissible area being 5500/35901 share out of the total land measuring 1795 kanal 1 marla as detailed in the head note of the plaint; and 76 kanal 4 marla as surplus area, and that defendants be restrained permanently from dispossessing her from the aforesaid land measuring 275 kanal. Defendants are further sought to be restrained from dispossessing her from the land measuring 76 kanal 4 marla of the surplus pool, without separating the share of the plaintiff in the total land and without declaring particular Killa numbers of land as surplus area by utilizing the same under Section 14 (1) of the 1972 Act.

4. The stand of the defendant-State is that Inder Singh was entitled to 60 acres of land, which was reserved as his permissible area out of his total holding and as he transferred 1/5th share in favour of the plaintiff after 30.07.1958, therefore, plaintiff is entitled to only 12 acres of land being her permissible area and the area left as tenant's permissible area; whereas, the entire remaining land of the plaintiff being surplus vested in the State on 24.01.1971. It is submitted that the plaintiff being the big land owner had filed her declaration form under Section 9 of the 1972 Act and she was accordingly allowed one unit, whereas the remaining land was declared as surplus. In the order of the Prescribed Authority, there was a condition that if the land of plaintiff was already declared surplus under the old Act, the same shall remain surplus and as such, plaintiff is owner only to the extent of 12 acres of the land. However, it is conceded that allotment of the surplus land of the plaintiff is to be made after separating her surplus land by initiating proceedings under Section 14 (1) of the 1972 Act. The respondent-State also raised objection that the Civil Court did not have the jurisdiction in the matter.

5. In the rejoinder, the plaintiff re-iterated her case. It has also come on record that plaintiff has since married and therefore, she is entitled to independent unit.

6. Necessary issues were framed. After taking the evidence produced by the parties, the trial court decreed the suit. However, the First Appellate Court, after holding that the Civil Court did not have the jurisdiction, allowed the appeal of defendant-State and dismissed the suit.

7.1 Before this court, it is contended by the learned counsel for the appellant-plaintiff that proceedings regarding declaring the land as permissible area or tenant's permissible area or surplus area, pertaining to Inder Singh were done under the old Act of 1953. Those proceedings have not been finalized till date because of the pendency of a writ petition before Hon'ble Supreme Court. Learned counsel has drawn attention towards an order dated 21.01.1982 of Hon'ble Supreme Court in Writ Petitions Nos.799-801 of 1982, wherein, dispossession of the petitioners - Inder Singh etc. from the surplus land in dispute was stayed till further proceedings by allotting to the eligible tenants by way of resettlement on the surplus area. Learned counsel contends that thus, at least till 1982, the proceedings under the 1953 Act pertaining to the land of Inder Singh were not finalized. Learned counsel has then drawn attention towards Section 33 of the 1972 Act in order to contend that pending proceedings for determination of the surplus area under 1953 Act shall remain un-effected by the provisions of 1972 Act. To support his submissions, learned counsel relies upon Kirpal Singh and others vs. Kamla Devi and others, (2020) 11 SCC 273 = 2020(1) L.A.R. 150 = (2020) Law Today Live Doc. Id. 14968.

7.2 It is further the contention of learned counsel that as per 1953 Act, the vesting in the State takes place only on the execution of Kabuliyatnama by the allottee, who had been allotted the surplus area. However, in this case, it is not the stand of the respondent-State that the land declared as surplus was ever allotted to any deserving person.

7.3 It is further the contention of the learned counsel that after the decision of Hon'ble Supreme Court, the prescribed authority is required to decide the declaration form of Inder Singh, the father of the plaintiff. However, defendant cannot include and count the permissible area of the plaintiff in the declaration form of Inder Singh because the plaintiff being married and now being not a member of the family of Inder Singh, therefore, even the already declared surplus land of the plaintiff cannot be included in the hands of head of the family i.e. Inder Singh.

8. On the other hand, contention of the learned State counsel for the respondent is that plaintiff is entitled to retain only 12 acres of the land i.e. 1/5th of the total area, which was declared as permissible area of Inder Singh and that rest of the land in the hands of plaintiff will be surplus land.

9. Having considered the submissions of both the sides, this Court finds merit in the present appeal.

10. As far as the issue relating to jurisdiction is concerned, the said question is fully covered by a Five Judge Bench judgment of this Court in State of Haryana and others vs. Vinod Kumar and others, 1986 (1) PLR 222 and relying upon the same, it is held that in the facts and circumstances of the present case, the Civil Court will have the jurisdiction in the matter. As such, contrary finding od the first appellate court in this regard cannot be sustained.

11. Coming to the merits, it is not in dispute that proceedings to declare the land of Inder Singh as surplus were initiated under the 1953 Act. However, the said proceedings were not finalized at least till 1982, when the order was passed by Hon'ble Supreme Court staying the proceedings. It is during this period that Act of 1972 came into force. Although the 1972 Act repeals the 1953 Act, but section 33 of 1972 Act makes it clear that repeal of 1953 Act, shall not affect the proceedings for determination of the surplus area pending immediately before the commencement of 1972 Act. Reliance in this regard can be placed upon Kirpal Singh and others vs. Kamla Devi and others (supra), wherein it has been held by the Supreme Court that Section 33 (2)(ii) has clearly provided that repeal of 1953 Act shall not affect the proceedings for determination of surplus area pending immediately before the commencement of the 1972 Act under the provisions of 1953 Act, which shall be continued and disposed of as if this Act had not been passed.

12. In view of the legal position as explained above, it is clear that after the decision of Hon'ble the Supreme Court pertaining to the declaration of the land as surplus of Inder Singh, the father of the plaintiff, the defendant-prescribed authority is required to proceed further under the 1953 Act, in as much as, 1972 Act will not affect the proceedings for determining the surplus area of Inder Singh, as the proceedings were pending since prior to the commencement of the 1972 Act.

13. Still further, it is the admitted position that after the transfer of 1/5th share of his land by Inder Singh in favour of the plaintiff, she got 351 kanal 4 marla of land, out of which 275 kanal was declared as her permissible area, whereas 76 kanal 4 marla was declared as her surplus area. Not only this, the holding of the plaintiff, her father Inder Singh and other co-sharers is still joint. Meaning thereby, the permissible area and surplus area of the plaintiff has not been separated and identified till date. Section 14 of 1972 Act is relevant here, which read as under:

“14. POWER TO SEPARATE SHARES OF LANDOWNERS.--(1) Where a landowner owns land jointly with other landowners and his share of such land or part thereof has been, or is to be, declared as surplus area, the officer competent to declare such area, or where such area has been declared, the officer competent to utilize it, may on his own motion, after summary enquiry and affording to the persons interested in such land an opportunity of being heard, separate his share of such land or part there0f in the land owned by him jointly with other landowners.

(2) Where, after the declaration of surplus area of any person and before the utilisation thereof, his land has been subjected to the process of consolidation, the officers referred to in sub- section (1) shall be competent to separate the surplus area of such persons out of the area .of land obtained by him after consolidation.

14. In present case, it is not disputed by the defendant-State that 76 kanal 4 marla declared as surplus, has not been utilized till date as per Section 14 (1) of the Haryana ceiling of Land Holdings Act, 1972. Since the holding of the plaintiff, her father Inder Singh and other co-sharers is still joint and the permissible area & surplus area of the plaintiff has not been separated and distinctively identified till date, so the defendant-State cannot utilize the area declared as surplus in any manner whatsoever.

15. Reliance can be placed on Chandgi vs. Financial Commissioner Haryana, 1984 PLJ 437, wherein it has been held by this Court in that surplus land does not automatically vest in the State. There has to be a legal order declaring said land as surplus. In absence of such order, no surplus land can vest in the State authorities. Apart from this, it has been clarified by Hon'ble Supreme Court in Financial Commissioner, Haryana vs. Kela Devi, Law Finder Doc ID #73947 that as per Section 10 (a) of the 1953 Act, the completed title does not pass to the allottee on mere order of allotment. That order is defeasible if the other conditions prescribed by law are not fulfilled. Hon'ble Supreme Court upheld the findings of the High Court to the effect that mere allotment of land to other tenants under Section 10 (a) of the Act did not amount to utilization of the surplus area when the re-settled tenants had not taken the possession under the allotment orders.

16. In the present case, what to talk of completing the formalities, even the land declared as surplus of the plaintiff had not been allotted to any eligible tenants and thus, the proceedings have not been completed till date nor the possession has been taken from the plaintiff till date.

17. In view of above discussion, the present Regular Second Appeal is hereby disposed of with the direction that the defendants have to first complete proceedings under 1953 Act regarding the declaration of the land as surplus pertaining to Inder Singh and it is only thereafter that land of the plaintiff is to be declared as surplus or permissible as per 1972 Act by giving her the benefit of the fact that she has become an independent unit being a married lady and cannot be included as a unit of family of her father Inder Singh. Till all these proceedings are completed, defendant – respondent cannot dispossess the plaintiff from the land held by her as a co-sharer on the joint land. Accordingly, decree of injunction is passed, restraining the defendant – respondent State from dispossessing the plaintiff from any part of the suit land presently held by her, as was transferred to her by her father Inder Singh, except in due course of law in the manner as indicated above. The present Regular Second Appeal is disposed of in these terms, leaving the parties to bear their own costs. Decree sheet be prepared accordingly.

Order accordingly.

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