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2002 DIGILAW 711 (PNJ)

Gurbax Singh v. Jang Singh

2002-07-24

RUPAN DEOL BAJAJ

body2002
ORDER Rupan Deol Bajaj, FC. - The present are three inter-connected revision petitions under Section 39 of the Pepsu Tenancy and Agricultural Lands Act, 1955 read with Section 23 of the Punjab Land Reforms Act, 1972 against the order dated 26.3.1998, passed by the Commissioner, Patiala Division, Patiala and against the order dated 29.11.1984 of the Assistant Collector Ist Grade, Samana in the matter of conferring of Proprietary Rights. Since all three revision petitions are inter-connected and have common facts and questions of law and have been decided by the Commissioner, Patiala Division, Patiala with his common order dated 26.3.1998, therefore, these three revision petitions are also being decided vide my single order. 2. The brief facts of the case are that Jang Singh, Mastan Singh and Baru Singh sons of Phuman Singh, made applications before the prescribed Authority for the grant of proprietary rights, in respect of the land mentioned therein. Baru Singh died during the pendency of that case as such his four sons namely. Hari Singh, Kirpal Singh, Pal Singh and Ram Singh were impleaded as L.Rs. The applicants alleged in their applications that the disputed land is under their tenancy since prior to 1956 and that the land owner is a big land owner and as such P. Rights are liable to be granted in respect of the land mentioned in the purchase application land-owner this land for his personal cutlivation. These applications were contested by the land-owners on various grounds, including the ground of reservation of the land for personal cultivation. After hearing the parties the then prescribed Authority (Assistant Collector Ist Grade) vide his order dated 9.4.1962, partly accepted the application of the respondents and partly rejected them on the ground that some of the land- owners did not have more land then their prescribed limit. Both the parties i.e. petitioners and respondents preferred appeals before the Collector, Patiala who vide his order dated 31.5.1963 accepted the appeals and remanded the case for fresh decision after examining the question of reservation. The case was taken by the Prescribed Authority again and vide its order dated 31.8.1964 the application for the grant of proprietary rights was rejected, and it was held that the gift made in 1952 by land-owner Amar Singh, father of the petitioners in their favour was valid. The case was taken by the Prescribed Authority again and vide its order dated 31.8.1964 the application for the grant of proprietary rights was rejected, and it was held that the gift made in 1952 by land-owner Amar Singh, father of the petitioners in their favour was valid. Against this order an appeal was again filed before the Collector, Patiala who vide order dated 17.5.1965 decided the appeal observing that the directions of the Collector given in his order dated 11.5.1963 be thoroughly looked into. These two directions were as under :- a) Whether the area reserved by the land owner could not be more than prescribed limit under the Act ? b) That the legality and correctness of the reservation made by the land owner needs further and fuller investigation. 3. The Assistant Collector Ist Grade again took up the matter as ordered by the Collector and vide his order dated 31.3.1966 the applications for purchase of proprietary rights by the respondents were rejected. Once again, an appeal was preferred by them. This time the Collector, Patiala vide his order dated 15.1.1976 remanded the case for the a fresh decision to the Assistant Collector Ist Grade directing him to keep in view the following two points :- a) Whether the transaction of gift made in 1952 was a valid one ? b) Whether the area reserved by the landlords could not be more than the limit prescribed under the Presidents Act and that the legality and correctness of the reservation made by land-owners needs further and fuller investigation ? 4. The Assistant Collector Ist Grade, Samana after receiving the order of the Collector, took up the matter and once again rejected the application vide his order dated 10.1.1977, and held that the respondents were not entitled to the acquisition of proprietary rights under the law. 5. The Assistant Collector Ist Grade, Samana also came to the conclusion that the gift deed made by land-owner Amar Singh in 1952 was valid and in view of the gift of 1952, the landlords were small land-owners. 5. The Assistant Collector Ist Grade, Samana also came to the conclusion that the gift deed made by land-owner Amar Singh in 1952 was valid and in view of the gift of 1952, the landlords were small land-owners. The respondents again filed an appeal in the court of Collector, Patiala who accepted the appeal of the respondents vide his order dated 9.12.1978 and remanded the case back to the Assistant Collector Ist Grade with the observation that the directions given by the then Collector in his order dated 15.1.1976 were not complied with in toto and they be complied with. Against this order the present petitioners i.e. land-owners went in appeal before the Commissioner, Patiala Division, Patiala who also dismissed the appeal of the land-owners vide his order dated 29.1.1980 and observed that the directions given by the Collector in his order dated 15.1.976 be complied with and the case was again sent back to the Assistant Collector Ist Grade, Samana for disposal. 6. The Assistant Collector Ist Grade Samana again heard the case and after going through the record passed an order dated 29.11.1984 in which it was held that the transaction of gift made in 1952 by Amar Singh landlord was not a valid transaction as such he was a big land-owner on the date of commencement of Pepsu Tenancy Act, and that the land for which the proprietary rights were demanded by the respondents was not reserved by the land-owner. As a result, the Assistant Collector Ist Grade, Samana accepted the purchase application of the present three respondents and granted the proprietary rights to the respondents. 7. Against the order of the Assistant Collector Ist Grade, Samana dated 29.11.1984, the present petitioners filed three petitions (appeals) in the court of District Collector, Patiala and the learned Collector vide his order dated 19.9.1986 accepted the appeal of the petitioners and set aside the impugned order of the Assistant Collector Ist Grade, Samana dated 29.11.1984 and sent the case back to the Assistant Collector Ist Grade, Samana with the direction to decide the matter afresh in the light of the observations made in his order. 8. Against the order of the Collector dated 19.9.1986, the present respondents Mastan Singh etc. 8. Against the order of the Collector dated 19.9.1986, the present respondents Mastan Singh etc. filed three inter-connected appeals in the court of Commissioner, Patiala Division, Patiala and the learned Commissioner vide his single order dated 26.3.1993 accepted the appeal of the respondents and set aside the order of the Collector, District Patiala dated 19.9.1986 and at the same time upheld the order of the Assistant Collector Ist Grade, Samana dated 29.11.1984. Against the order of the Commissioner, Patiala Division, Patiala dated 26.3.1998 and also against the order of the Assistant Collector Ist Grade, Samana dated 29.11.1984, the present three revision petitions have been filed in this court on the grounds mentioned therein. 9. Counsel for the petitioners submitted that at the time when Presidents Act 1953 came into force, Amar Singh father of the petitioners and their uncles wife Ishar Kaur both were alive and both were recorded as owners of the land to the extent of 1/2 share each. Amar Singh transferred his entire land on 1.1.1952 to his sons Gurbax Singh and Gurcharan Singh, the present petitioners by way of gift and in this way the petitioners became the co-sharers jointly with Ishar Kaur. This position emerged on the date when Presidents Act 1953 came into force. The entire holding of Amar Singh was transferred before the Presidents Act, as such he became landless on the day when the Presidents Act of 1953 came into operation. Ishar Kaur died in the year 1957 and her entire holding was transferred to her husbands brother Amar Singh in the year 1957. So in the year 1957 the petitioners became the owners of half share and Amar Singh became the owner of the other half share. Amar Singh executed a registered will in favour of his grandson Gurjit Singh son of Gurbax Singh in the year 1960 and Amar Singh died on 1.3.1962. The basic question is that the land stood transferred on 1.1.1952 from Amar Singh to the petitioners. The gift became complete and on the date of commencement of the Presidents Act. Amar Singh was not the owner of half share of the land as such any gift or transfer of land which was made to any body prior to the Presidents Act cannot be looked to by the Prescribed Authority. The gift became complete and on the date of commencement of the Presidents Act. Amar Singh was not the owner of half share of the land as such any gift or transfer of land which was made to any body prior to the Presidents Act cannot be looked to by the Prescribed Authority. No officer can go into the validity of the gift deed which existed prior to the Presidents Act because at that time even Pepsu Tenancy Act was not in existence. All transactions and status of the land, the quality of the land, the continuation of the land and ownership of the land was to be seen on 30.10.1956 as such from all angles it is absolutely clear that the gift made by Amar Singh in favour of the petitioners cannot be looked into by any authority being in existence prior to the appointed day of Pepsu Tenancy i.e. 30.10.1956. On that day Amar Singh was a landless person and as such no action can be taken on the gift deed made by Amar Singh much before the commencement of the Act. As such the order of learned Assistant Collector Ist Grade, Samana dated 29.11.1984 is liable to be set aside as this order is based on the fact which was not within his purview. As such the Assistant Collector Ist Grade (President Authority) Saman over-stepped his jurisdiction by declaring gift made on 1.1.1952 as invalid and inoperative. The Commissioner also failed to appreciate that a gift can be cancelled only when the donee refused to accept the same. The donee i.e. the petitioner never refused to accept the gift which is clear from the revenue record as such gift deed is valid and the finding of learned Commissioner dated 26.3.1998 and of the Assistant Collector Ist Grade, Samana dated 29.11.1984 are not according to law and liable to be set aside on the ground that both the officers below have not proved the record properly and have decided the case without perusing the record thoroughly. The Assistant Collector Ist Grade as well as the Commissioner Patiala Division came to a wrong conclusion that the land with the land-owners is in excess of the permissible limit as such the respondents are entitled to grant the proprietary rights over such land. The Assistant Collector Ist Grade as well as the Commissioner Patiala Division came to a wrong conclusion that the land with the land-owners is in excess of the permissible limit as such the respondents are entitled to grant the proprietary rights over such land. Counsel for the petitioners prayed that both the orders of the Commissioner, Patiala Division, Patiala and the Assistant Collector Ist Grade, Samana dated 26.3.1998 and 29.11.1981 respectively are liable to be set aside. 10. Counsel for the respondents while arguing the matter contented that it has come on the record that there was no gift deed as alleged by the petitioners, made in 1952. There was no Rapat Roznamcha nor the gift has been entered and even not the possession has been transferred. Therefore, there was no gift deed in favour of the petitioner. The mutation No. 11 as alleged by the petitioner is only a paper transaction. The Rapat Roznancha has not been produced on record as admitted by the Patwari in his statement and moreover this fact has been admitted by the petitioner in his written arguments itself in sub-para (d) of the grounds at page 8 whereby it has been clearly stated that the production of original Rapat Raznamcha was beyond the control of the petitioner and the petitioner has not made any efforts to produce the said Rapat Roznamcha on record. Counsel further relied upon the case titled as State of Punjab and others v. Sant Singh cited as 1976 PLJ page 30 whereby the Division Bench has held as under :- "The landlord in 1954 got entered report in the Roznamcha of Patwari to the effect that he had gifted some land in favour of his wife, the mutation entered on the basis of the report in the Roznamcha was rejected, no effort was made by the wife to assert her right on the basis of the report of the Patwari after the rejection of the mutation and there was absence of proof of any act of the Donee in the direction of the acceptance, held the gift made by the land owner without a delivery of possession cannot be held to be legally valid gift which could be given recognition by the agrarian authority for exemption. Simple reporting to the Patwari may not prove a gift. It has to be shown that it was accepted by the donee. Simple reporting to the Patwari may not prove a gift. It has to be shown that it was accepted by the donee. In the absence of proof of any act of the donee in the direction of acceptance, a finding in favour of such acceptance cannot be given. There is a difference between gift and partition and the principle emmerated in partition cases cannot be taken as a guideline to decide the validity of a gift on the basis of the Report in the Roznamcha of the Patwari." In the case in hand there is no documentary proof in respect of the execution of the gift deed in favour of the petitioner. The essential ingredient of execution of the gift has not been complied with which is mandatory under the Act and Rules. The main ingredient in respect of the gift is the acceptance by the donee and transfer of its possession. In the case in hand none of the ingredients has been complied with nor the gift has been accepted by the donee and even the possession has not been transferred because the possession remained with the respondents as tenant. As such the alleged gift cannot be relied upon and the same has no validity in the eyes of law. Moreover, section 32 of the Pepsu Tenancy and Agricultural Land Act, 1955 provides as under :- "No transfer of land made by land-owner after the execution of the President Act shall affect the right of any person to acquire proprietary rights in such land under this Chapter." Further Section 32-ff provides as under :- "In the case of land acquired by the State Government (sic) executed the permissible limit, no transfer or other disposition of land effected after 21.8.1956 shall affect the right of teh State Government under this Act to the surplus area to which it would be entitled to for such transfer or dispossession.". Section 3 of the Pepsu Tenancy and Agricultural Lands Act, 1955 provides as under : "The permissible limit of the land-owner as 30 standard acres of land and where such 30 standard acres on being converted into ordinary acres exceed 80 acres, sub-section (1) of Section 3(c) further provides that any transfer of land made by the land-owner after the commencement of the Presidents Act shall be disregarded." Meaning thereby any transfer, sale, gift or disposition of land made by the land-owner after the enforcement of the Presidents Act has to be ignored for all intents and purposes. The Pepsu Tenancy and Agricultural Lands Act, 1955 came into force on 6.3.1955 as the assent of the President was received on 4.3.1955 and was published in the Patiala and East Punjab States Union Gazette (Extra Ordinary) on 4.3.1955. The main purpose of the Act, ibid, was to provide measures for land reforms to the tenancy of the agricultural lands and to secure the rights of tenants which provides for acquisition of proprietary rights in the land to the tenant. As per the aformentioned provisions of the Act, ibid, any transfer or disposition of the land after the commencement of the Presidents Act was liable to be ignored and was not recognised by the legislature in its wisdom. As per the admitted case of the petitioner, the mutation was sanctioned on 27.1.1956, meaning thereby any transaction after the commencement of the Act does not have any affect on the rights of the tenant to acquire proprietary rights. As such the Assistant Collector Ist Grade as well as the Commissioner have rightly passed the order which is in consonance with the provisions of the Act and Rules and as per the settled law laid down by the Division Bench of our own High Court. Counsel for respondents has further relied upon AIR 1968 Punjab and Haryana Page 495 whereby it has been held as under :- "Section 123 of the Transfer of Property Act extended to areas covered by Pepsu State on 15.5.1967. No corresponding law prior to that day gift executed and registered earlier, registration did not make gift complete and effective gift was governed by custom." Under the customary law in Punjab, a gift is ordered to be valid must ordinarily be followed by possession and must be free from undue influence. No corresponding law prior to that day gift executed and registered earlier, registration did not make gift complete and effective gift was governed by custom." Under the customary law in Punjab, a gift is ordered to be valid must ordinarily be followed by possession and must be free from undue influence. In the present case the alleged gift deed has not been followed by transfer of possession, as the possession remained with the respondents. Therefore, counsel argued that the question of any gift as alleged by the petitioners does not arise. Further, Amar Singh and Ishwar Kaur have got 91 standard of land and after the death of Ishwar Kaur, entire land was inherited in the hands of Amar Singh. The land was in possession of the tenants-respondent, therefore, the land owner was not competent the reserve the entire land and, as such, the petitioner land-owner was a big land-owner. Counsel further relied upon 1997(1) PLJ Page 52 titled as Inder Singh v. The Financial Commissioner Punjab, whereby it has been held by the Honble Apex Court as under :- "By operation of sub-section (1) of Section 7-I the tenancy must subsist at the commencement of the Pepsu Tenancy and Agricultural Lands Act, 1956 (Second Amendment). A tenant, immediately preceding the commencement of the President Act shall continue to remain for a period of 12 years either under one landlord or his predecessor so as to back on the continuous 12 years period." It does not appear to be that he should have remained in possession continuous for 12 years preceding the commencement of the President Act. What is required to be satisfied is that tenant must be tenant as defined under Punjab Tenancy Act, 1887. He should be in possession of the land in his character as a tenant prior to the President Act had come into force. Such a tenant is not liable to be ejected under Clause A and B of sub-section (1) of the Section 7-A. He must have a continuous possession of 12 years, either under one landlord or predecessor entitled in the land leased out to the tenant to exercise the right under Section 22. Such a tenant is not liable to be ejected under Clause A and B of sub-section (1) of the Section 7-A. He must have a continuous possession of 12 years, either under one landlord or predecessor entitled in the land leased out to the tenant to exercise the right under Section 22. The Honble Apex Court further held as under :- "The object of the Act is to confer proprietary rights on the tenant in occupation of the agriculture land so that the tiller of the sale should get proprietary rights over the land in his possession as a tenant, despite the fact that he came into possession as a tenant at the commencement of the Act, 1953. Three conditions to be satisfied : (1) he must be tenant as defined under Punjab Tenancy Act (2) he was in possession of the land as on 5.12.1953 and (3) he was a tenant under the land owner or predecessor entitled, he must have continuous 12 years before exercising the right to purchase a proprietary right." The respondents fulfill all the requisite qualifications and the ingredients and guidelines as framed by the Honble Apex Court. The respondents remained as a tenant as defined under the Punjab Tenancy Act and the respondents were in possession of the land as on 3.12.1953 and were tenant under the land-owner predecessor-in-interest of the petitioners. The possession of the respondents was continuous 12 years before exercising the right to purchase proprietary right as established from the revenue record. After the passing of the order by the Assistant Collector Ist Grade on 29.11.1984, the respondents deposited the assessed amount and to that effect the respondents have already placed on record the Challan Form, vide which the amount was deposited and the sale certificate was issued in compliance with the order dated 19.11.1984 and as such the respondents become the absolute owners. Counsel further contended that as provided under Sections 31 and 23 sub-section (3), the only restriction is for a period of 6 years as provided that no land in respect of which proprietary rights have been acquired of under this Chapter shall be transferred by sale, mortgaged gifted or otherwise during a period of 6 years from the date of certificate issued under sub-section (3) of Section 23, as such, there was no restriction upon the respondents and in any case as alleged by the petitioner in respect of the alleged sale deed which has been executed on 25.11.1997, same is not in violation of Section 31. As Section 31 provides the restriction only for 6 years whereas the sale certificate was issued in 1994, therefore, the allegation and the averments made by the petitioners are totally vague. Lastly counsel for the respondents prayed that the revision petition may be dismissed, and the order of the Commissioner, Patiala dated 26.3.19998 as well as the order of the Assistant Collector Ist Grade, Samana dated 29.11.1994 may be affirmed. 11. The Senior State Counsel for the State argued that the gift made on 1.1.1952 by the land-owner Amar Singh, father of the petitioners, is not in accordance with the terms of Section 123 of the Transfer of Property Act, 1908. He has further argued that Section 32-H of the Act ibid provides that save in the case of land acquired by the State Government under any law for the time being in force, or by any heir by inheritance or upto 30th July, 1958 by a landlord person or by a small land-owner, not being a relation as prescribed of the person making the transfer or dispossession of land, for consideration upto an area which, with or without the area owned or held by him does not in the aggregate exceed the permissible limit, no transfer or other dispossession of land effected after 21st August, 1956, shall affect the right of the State Government under this Act to the surplus area to which it would be entitled to (but) for such transfer or dispossession. He has also further argued that as per Section 3(1) of the Pepsu Tenancy & Agricultural Lands Act, 1955, a land-owner could not reserve more than 30 standard acres area whereas in this case the big land-owner reserved his entire area under his ownership. He has also further argued that as per Section 3(1) of the Pepsu Tenancy & Agricultural Lands Act, 1955, a land-owner could not reserve more than 30 standard acres area whereas in this case the big land-owner reserved his entire area under his ownership. Further it is evident that the big land-owner has failed to exercise to reserve the permissible area of 30 standard acres within the limit prescribed by the Act ibid. At the end the Senior State Counsel has prayed that the revision petitions may be dismissed. 12. I have gone through the records of all the courts below and also examined the written as well as oral arguments advanced by the counsel for the parties. I hold that the big land owner Amar Singh (deceased) did not exercise to reserve his permissible area of 30 standard acres within the limit prescribed under Section 3(1) of the Pepsu Tenancy and Agricultural Lands Act, 1955. The big land-owner could have reserved only 30 standard acres area out of his entire land. The Assistant Collector Ist Grade Samana in his order dated 29.11.1984 observed that in Jamabandi for the year 1953-54, tenants/applicants have been recorded as tenants on the land for which they have filed applications for acquisition of proprietary rights. I also observe that the Assistant Collector Ist Grade, vide his order dated 29.11.1984 has rightly brought out that the gift/transaction was not a valid transaction. Moreover, the original gift deed has not been produced before any revenue court below as well as before this court. The citation AIR 1960 Punjab & Haryana 495 referred to in the order of the Assistant Collector Ist Grade is completely relevant in these cases which lays down as under :- "If acceptance to gift is not found in pursuance of the gift, the gift was held to be inoperative." The citation 1976 PLJ 30 recorded in the order of the Assistant Collector Ist Grade is also relevant in these cases, which is reproduced below :- "(1) Pepsu Tenancy and Agricultural Lands Act (13 of 1955) Section 33-FF. Gift by landlord in favour of his wife of some land. Entry in Roznamcha of Patwari in 1954. Acceptance by donee has to be shown, simple reporting to Patwari may not prove a gift. Gift by landlord in favour of his wife of some land. Entry in Roznamcha of Patwari in 1954. Acceptance by donee has to be shown, simple reporting to Patwari may not prove a gift. Absence of evidence showing acceptance of gift by donee (gift hit by Section 32-FF)." Moreover, no original Roznamcha of Patwari regarding entering of gift has been produced before any revenue court below and no acceptance by the donee has been brought on record. Therefore, I observe that the gift made on 1.1.1952 was an afterthought and has been made just to defraud the tenants. It has been rightly held by the Assistant Collector Ist Grade as well as by the Commissioner Patiala in their orders dated 29.11.1984 and 26.3.1998 respectively that the collusive gift made without the acceptance by the donee cannot be accepted as valid. In view of the above discussion, I find no force in the revision petitions and the same are hereby dismissed and the orders of the Assistant Collector Ist Grade Samana dated 29.11.1984, that of the Commissioner, Patiala Division Patiala dated 26.3.1998 are hereby upheld. A copy of this order by placed on each file of the RORs. Announced. Petitions dismissed.