JUDGMENT

PARAMJEET SINGH, J.(ORAL) –

1. Instant civil writ petition has been filed under Articles 226/227 of the Constitution of India for setting aside the order dated 27.09.2001 (Annexure P-1) passed by respondent no.1-District Collector, order dated 24.05.2005 (Annexure P-2) passed by respondent no.2-Commissioner and order dated 13.12.2005 (Annexure P-3) passed by the respondent no.3-Financial Commissioner.

2. Shorn of unnecessary details, the facts relevant for disposal of the present petition are to the effect that forefathers of the petitioners had been joint owners in possession of land in dispute measuring 295 kanals 11 marlas situated within revenue estate of village Jandheri, District Ambala since times immemorial. Most of this land was 'banjar' and Collector, District Karnal (now Ambala) issued notice dated 18.05.1951 to the owners of such 'banjar' land including forefathers of the petitioners, to bring such land under cultivation within a period of 100 days from the date of notice and that otherwise, the land would be leased out to other cultivators for cultivation for a minimum period of 8-10 years and that if they wanted to bring the same under cultivation themselves, they could apply before 18.06.1951. In compliance of aforesaid notice, the forefathers of the petitioners gave an undertaking in August, 1951 to bring the land in dispute under cultivation themselves, however, the land in dispute was shown to have been leased out to them for a period of 20 years. They cultivated the land in dispute and continued to self-cultivate the same for the lease period which was to expire in 1971 and thereafter the land in dispute was mutated in favour of respondent-Gram Panchayat on the presumption that the same belonged thereto and had been leased out to forefathers of the petitioners. It is further averred that Mado Ram-predecessor-in-interest of the petitioners filed a suit for permanent injunction before Assistant Collector, Naraingarh against respondent no.4-Gram Panchayat on 24.03.1976 restraining interference in his possession, which was dismissed on 21.09.1976. An appeal was preferred against the order dated 21.09.1976 before Collector, Ambala. The respondent-Panchayat also filed an ejectment application before the Collector for eviction of Madho Ram from the land in dispute. Vide common order dated 09.06.1977, the Collector dismissed the appeal and allowed the application of respondent no.4. Feeling aggrieved by the order dated 09.06.1977, Madho Ram preferred a revision in which Commissioner, Ambala Division made a reference dated 14.09.1977 to the Financial Commissioner recommending that order dated 09.06.1977 may be set aside and case be remitted back to the Collector for deciding the suit and ejectment application by separate orders. Vide order dated 12.10.1978, the Financial Commissioner sent the record back to the Commissioner with the direction to proceed with the matter in accordance with his own powers and thereafter the Commissioner dismissed the revision petition vide order dated 07.08.1979. CWP filed by Madho Ram was dismissed by this Court on 11.12.1979 and SLP was also dismissed by the Hon'ble Supreme Court on 04.05.1987. In view of decision rendered in SLP Nos.1005 and 1006 of 1978, the petitioners filed a civil suit at Ambala for a declaration that the order dated 09.06.1977 passed by the Collector dismissing the appeal of Madho Ram and allowing the ejectment application of Gram Panchayat was null and void. The said suit was dismissed by the trial Court on 01.09.1992. Appeal preferred against the order dated 01.09.1992 was also dismissed by the Appellate Court on 03.09.1994. Feeling aggrieved by the order dated 03.09.1994, the petitioners filed regular second appeal which was dismissed on 09.02.1995 and further special leave petition was also dismissed on. Thereafter, the petitioners filed suit under Section 13-A of the Punjab Village Common Lands (Regulation) Act, 1961 (in short “the Act”) before the District Collector, Ambala on 10.08.2000 for a declaration of ownership of the land in dispute and for permanent injunction. The said suit was dismissed vide order dated 27.09.2001 (Annexure P-1). Feeling aggrieved by the order dated 27.09.2001, the petitioners preferred appeal which was dismissed by respondent no.2 on 24.05.2005 (Annexure P-2). The revision petition filed by the petitioners impugning the orders (Annexure P-1 and Annexure P-2) was also dismissed by respondent no.3 vide order dated 13.12.2005 (Annexure P-3). Hence, this writ petition.

3. Upon notice, the respondents put in appearance. Respondent no.4-Gram Panchayat, Jandheri filed written statement. It is averred that the petitioners have lost their case regarding the title up to the Hon'ble Supreme Court. The Collector vide order dated 09.06.1977 held that Madho Ram, predecessor-in-interest of the petitioners was a lessee of the Panchayat and has failed to prove that he was cultivating the land in dispute as co-sharer. It was also held that as per statement of Patwari, there is no record regarding the river action of the land and Madho Ram was in unauthorized possession of the land on expiry of the lease after 1971 and, therefore, the order of eviction was passed in favour of the Gram Panchayat after holding that Madho Ram had failed to prove his right or title over the land in dispute.

4. I have heard learned counsel for the parties and perused the record.

5. Learned counsel for the petitioners has vehemently contended that proceedings under Section 7 of the Act have been decided without deciding title suit under Section 13-A of the Act. The possession has already been taken by the Gram Panchayat during the proceedings for want of stay.

6. This Court is conscious of the fact that when possession has been delivered to the Gram Panchayat, it will be difficult for the petitioners to take back possession, but if the suit of title is decided and decreed in favour of petitioners, then under Section 144 of the Code of Civil Procedure, the petitioners will also be entitled to restitution of possession. The Hon'ble Supreme Court in Ram Kumar Agrawal & Anr. vs. Thawar Das (Dead) through Lrs. (1999) 7 SCC 303 has observed that if the decree is executed for want of stay, the right of appellants to prosecute the appeal is not lost. The position of law thus is that appeal by judgment debtor is not rendered infructuous, even if decree is executed. Therefore, on reversal of judgment and decree of trial Court in appeal, the consequences ensue and accordingly judgment debtor becomes entitled to restitution.

7. In Kartar Singh alias Naranjan Singh and others vs. State of Punjab (1995) 4 SCC 101, the Hon'ble Supreme Court has observed that under Section 144 CPC, the doctrine of restitution contemplates that where a property was received by decree holder in execution of a decree which, on appeal, either in whole or in part thereof is subsequently reversed or varied, the Court is empowered to restore to the judgment debtor what has been lost to him in execution of the decree and it is the consequence of the erroneous decree.

8. Since the documents Ex.P-1 to P-11 and Ex.D-1 to D-7 are not available, nor the same have been produced by the authorities concerned, without commenting on the merits of case, the case is remanded to the District Collector-Ambala for fresh decision after affording opportunity to the parties. Parties through their counsel are directed to appear before the District Collector, Ambala on 16.12.2013.

Order accordingly.

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