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1995 DIGILAW 561 (SC)

Punjab State v. Bachan Singh

1995-04-06

M.M.PUNCHHI, SUJATA V.MANOHAR

body1995
ORDER 1. Leave granted. 2. The State of Punjab is the appellant herein. The respondents are members of a family. The first respondent, Bachan Singh is the father, the second, third and fourth respondents are his sons and the fifth respondent is his wife. A sizeable agricultural holding measuring about 575 kanals, details of which are available in the judgments and orders of the courts below, was owned by Bachan Singh in an area covered under the Pepsu Tenancy and Agricultural Lands Act, 1955. Bachan Singh claimed that he had prior to the amendment of the Act on 21-8-1956 partitioned his properties in such manner so as to retain one-half thereof, surrendering the other half to his sons and wife in equal shares and that a mutation to that effect was recorded in the revenue papers. The Collector (Agrarian), vide order dated 28-2-1963 declared 25 standard acres and 5 1/2 standard units as surplus out of the whole land ignoring the partition effected. Challenging the said order by means of a suit, Bachan Singh and others claimed that the orders were void ab initio because those had been passed behind their back. The trial court decreed the suit of the sons and the wife of Bachan Singh, holding that they had not been given an opportunity of being heard before passing the impugned order by the Collector. The appeal of the State of Punjab was dismissed by the lower appellate court as also by the High Court in second appeal, which has given rise to this appeal. 3. Section 47 of the said Act says that no civil court shall have jurisdiction to settle, decide or deal with any matter which under this Act is required to be settled, decided or dealt with by the Financial Commissioner, the Collector or the prescribed authority. Further, no order of the Financial Commissioner, the Commissioner, the Collector or the prescribed authority made under or in pursuance of the Act shall be called in question in any court. This provision would get attracted if the facts could have favoured the respondents about the date of partition. The finding of the High Court is to the effect : "The plaintiffs have not produced any documentary evidence about the alleged partition. The oral evidence led by the plaintiffs also does not fix the date of partition. However, the fact remains that in the Jamabandi Ex. The finding of the High Court is to the effect : "The plaintiffs have not produced any documentary evidence about the alleged partition. The oral evidence led by the plaintiffs also does not fix the date of partition. However, the fact remains that in the Jamabandi Ex. P-5 for the year 1954-55 in the remarks column there is a mention of mutation No. 4752 decided on 17-5-1959, according to which, Plaintiffs 2 to 5 were recorded as owners of 1/2 share out of the land recorded in the ownership of Bachan Singh, plaintiff." 4. It was for the respondents to prove that the partition had been effected inter se between them before 21-8-1956. For transfers, up to that date, certain rights flowed to the transferees. Those rights we need not detail here. Therefore, that is with effect from that date, no transfer which would cause effectation to the rights of the State Government to the surplus area would be recognised, all the more when the transfer is in favour of prescribed relatives. Section 32-FF of the Act is clear on the point. That sons and wife are prescribed relatives is beyond doubt. Thus, it partition had taken place between the respondents after 21-8-1956, the transfer was bad as it hit Section 32-FF. The State could thus in that instance ignore the transfer. But, if partition had been effected prior to 21-8-1956, then the position would be different - governable under another set of principles. The plaintiff-respondents having failed to lead evidence of the date of partition, the courts below even assuming that they had the jurisdiction to go into the matter, could not grant the equitable relief of injunction in favour of the respondents without the establishment of the date of the reported partition. This is apart from the objection relating to jurisdiction raisable under Section 47. Thus, from whatever angle the matter be viewed, there was no cause for the courts below, in the resent set of facts, to be granting an equitable relief to Respondents 2 to 5 in the form of injunction, merely on the ground that no notice was served to them before passing the impugned order or that they were not bound by the impugned order when passed against Bachan Singh. 5. 5. Thus, for the foregoing reasons, we allow this appeal, set aside the impugned order of the High Court and that of the courts below thereby dismissing the suit of the plaintiff-respondents leaving it open to them to approach the authorities under the Pepsu Tenancy and Agricultural Lands Act, 1955, even at this stage, for appropriate relief, if due.