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2002 DIGILAW 840 (PNJ)

Rattan Singh v. Bachan Kaur

2002-08-24

RUPAN DEOL BAJAJ

body2002
ORDER Rupan Deol Bajaj, F.C. - The present is a revision petition under Section 16 of the Punjab Land Revenue Act, 1887 against the order dated 1.4.1999 passed by the Additional Commissioner (Appeals), Patiala Division, Patiala in the matter of sanction of mutation. 2. The brief facts of the case are that on the information given by Bachan Kaur d/o Darbara Singh and wife of Bachan Singh, resident of village Hassanpur, Tehsil Kharar, District Ropar, that her father Darbara Singh was not traceable for more than 20 years and could be presumed to be dead and therefore his land may be mutated in the names of his children, including the applicant. The Halqa Patwari entered the mutation No. 1684 of Ikhraj for deleting the name of Darbara Singh, son of Sunder Singh, son of Pal Singh from the revenue record and substituting the name of his 5 children in his place in favour of his 2 sons, namely Rattan Singh and Ram Singh, and 3 daughters, namely Bachan Kaur, Surinder Kant and Mohinder Kaur in equal shares being the natural successors. The mutation was sanctioned by A.C. IInd Grade on 29.3.1994. Aggrieved by order of A.C. Ist Grade Kharar, Ram Singh, Rattan Singh and Surinder Kaur and others filed an appeal before the Collector and alleged that Darbara Singh was very much alive and no proof of death had been produced and the daughter Surinder Kaur stated that her father had met her a couple of years previously. After going through the record and hearing the parties, the Collector Kharar allowed the appeal and rejected the Mutation No. 1684 vide his order dated 4.9.1995. 3. Aggrieved by the order of the Collector, Kharar, Smt. Bachan Kaur and others filed an appeal before the Commissioner, Patiala Division, Patiala, which was heard and decided by the Addl. Commissioner (A), Patiala Division. After hearing the arguments of both the sides, the Addl. Commissioner vide his order dated 1.4.1999 remanded the case to the A.C. Ist Grade (SDM) Kharar with the following observations: "I have considered the arguments put by both the parties and am of the view that before attesting the mutation the attesting officer should have satisfied himself regarding the fact of not hearing of Sh. Darbara Singh for more than thirty years. Till now, Sh. Darbara Singh has not been produced by the respondents, who allege that he is alive. Darbara Singh for more than thirty years. Till now, Sh. Darbara Singh has not been produced by the respondents, who allege that he is alive. Keeping the circumstances in view, I am of the considered view that the fact of non-hearing of Sh. Darbara Singh needs further investigation. So, the order of Collector, Kharar and A.C. IInd Grade Kharar dated 4.9.95 and 29.3.94 respectively are set aside. The case is remanded to A.C. Ist Grade (SDM), Kharar who will go to spot and enquire about the non-hearing of Darbara Singh. If from the spot verification it is proved that Darbara Singh had not been heard for more than seven years, mutation of Ikhrajnama of Darbara Singh should be attested. In case it is found that he was heard in last seven years, mutation will stand rejected." 4. Still feeling aggrieved by the orders of Additional Commissioner, Patiala Division the petitioners have filed the present petition before this Court. I have heard the Counsel for both the parties and have also gone through the record of the lower Courts. Both the Counsel were also directed to file the written arguments in support of their contentions. The same were filed and are placed on record. 5. Counsel for the petitioner in his written arguments stated that Darbara Singh, son of Sunder Singh, son of Dal Singh was the owner of the property. The said property was in possession of Rattan Singh and Ram Singh, sons of Darbara Singh, son of Sunder Singh and is continuing in their possession. Smt. Bachan Kaur, daughter, alleging that Darbara Singh has died 20 years back got entered entry with Patwari in the roznamcha on 25.3.94 alleging that mutation of his inheritance be entered in their names presuming him to be dead, and it was stated in the patwari roznamcha dated 25.3.94 affidavit is attached, but in fact no affidavit was attached with the said entry, and later on, an affidavit dated 31.3.94 was attached with that. But the Mutation No. 1684 was sanctioned on 29.3.94 on the basis of the said affidavit admitting that whereabouts of Darbara Singh were not known, and as such he be presumed to be dead, in favour of the legal heirs of Darbara Singh. But the Mutation No. 1684 was sanctioned on 29.3.94 on the basis of the said affidavit admitting that whereabouts of Darbara Singh were not known, and as such he be presumed to be dead, in favour of the legal heirs of Darbara Singh. The basis of attestation of mutation No. 1684 in favour of Bachan Kaur and others on the basis of an affidavit is patently illegal, and the said entry should be ignored. On the basis of the said mutation Smt. Bachan Kaur, Mohinder Kaur daughters of Darbara Singh, sold the land in favour of Kulwinder Singh and others, vide registered sale deed and Mutation No. 1698 was entered regarding sale effected by Bachan Kaur and Mohinder Kaur on the basis of Mutation No. 1684. The land in question was in possession of the petitioners, as also held by the Civil Court in civil suit. 6. Counsel for the petitioners further contended that the petitioners had changed the mutation entry in favour of Bachan Kaur etc. on the ground that Darbara Singh was dead. The said appeal was heard by Collector and the same was rightly accepted and Mutation No. 1684 was rejected by him. He has also challenged the orders of the Commissioner in the revision on different,rounds, his main grouse being that the Commissioner had wrongly allowed the continuation of proceedings in Mutation No. 1684 got entered by respondent No. 1 on the basis of false assertions regarding the death of Darbara Singh and without insisting on any solid proof therefor. Counsel argued that an affidavit could not be treated as sufficient proof of the death of Darbara Singh. 7. He also stated that appeal before the Commissioner, Patiala Division, Patiala has been preferred by Bachan Kaur, Mohinder Kaur, daughters of Darbara Singh and appellant No. 3 in the said appeal is Darbara Singh, son of Sunder Singh. The dispute in this case is qua the inheritance of Darbara Singh. As the said appeal was preferred on 20.12.95 through Amrik Singh Advocate, it goes to show that Darbara Singh was alive on the said date, as the said appeal has been preferred by Darbara Singh. The dispute in this case is qua the inheritance of Darbara Singh. As the said appeal was preferred on 20.12.95 through Amrik Singh Advocate, it goes to show that Darbara Singh was alive on the said date, as the said appeal has been preferred by Darbara Singh. When Darbara Singh is filing the appeal on 20.12.95, as was evident from the grounds of appeal before the Commissioner, Patiala Division, Patiala and judgment under challenge before this Court, then question of inheritance of Darbara Singh to anybody on the basis of presumption of being not known for more than 7 years stood automatically rebutted by respondents from the grounds of appeal before the Commissioner, and filing of appeal by Darbara Singh is pointed fact that Darbara Singh is alive. Counsel has also made a reference to one civil suit filed by Kulwinder Kaur, Amrik Singh and Tejinder Singh in the Civil Court (vendees of Bachan Kaur etc.) which is pending in the Court of Addl. Civil Judge (Jr. Division) Kharar, in which all the present points have been raised. He prayed that the order of the Addl. Commissioner, Patiala Division be set aside and that of the Collector be restored. 8. Counsel for the respondents in his written arguments vehemently rebutted the contentions of counsel for the petitioners. He stated that the present petitioners had also filed civil suit No. 165 dated 17.5.94 in the Court of Sub Judge Ist Class Kharar praying for permanent injunction, restraining Bachan Kaur from alienating the land in dispute, in which application under Order 39 Rules 1 and 2 CPC moved by the plaintiff was dismissed on 23.6.94. The said civil stilt was ultimately withdrawn on 28.8.1995 on the statement of plaintiff upon an undertaking given by the Counsel for the defendants S. Amrik Singh, Advocate counsel to the effect that the defendant shall not take possession forcibly from the plaintiff and shall rather take recourse to legal means for the same and in case the plaintiffs succeeded in the suit, the defendant shall not claim any damages etc. As regards the civil suit filed by Kulwinder Singh, Amrik Singh and Tejinder Singh (vendees) against the petitioners, petitioners had filed the written arguments in the said suit and the same was pending for adjudication. 9. As regards the civil suit filed by Kulwinder Singh, Amrik Singh and Tejinder Singh (vendees) against the petitioners, petitioners had filed the written arguments in the said suit and the same was pending for adjudication. 9. He (Counsel) further stated that Darbara Singh has not been heard for the last more than 30 years and as such is presumed to be dead. According to him, it is for the petitioner to prove that Darbara Singh was alive 7 years before the sanctioning of mutation, but the petitioners failed to discharge their onus and in the absence of any evidence, the presumption is that Darbara Singh is dead. He relied upon authority cited as 2000(4) RCR(Civil) 593 Gurmit Kaur v. Govt. of India. Thus onus of proof of Darbara Singh being alive lay upon the present petitioners, who had not been able to produce the same either in Civil Court, or before the revenue authorities below or even before this Court, upto the concluding of the arguments. On the other hand, as stated above. the Sarpanch, Panch, Lambardar and other prominent persons of the village had sworn on oath that Darbara Singh had not been heard for the last 30 years. Counsel for the respondents pointed out that the contentions recorded in the Civil Court order dated 23.6.1994 regarding the proof of death of Darbara Singh were quite material for the decision of the present case, 10. As per Counsel for respondent, Commissioner has rightly remanded the case to ascertain the factual position in respect of the death of Darbara Singh. The learned Commissioner had rightly direct the SDM Kharar to enquire into the matter and to pass an appropriate order, which order of the Commissioner did not prejudice the rights of either of the parties. As per Counsel for respondent, Commissioner has rightly remanded the case to ascertain the factual position in respect of the death of Darbara Singh. The learned Commissioner had rightly direct the SDM Kharar to enquire into the matter and to pass an appropriate order, which order of the Commissioner did not prejudice the rights of either of the parties. He relied upon Full Bench Judgment of Honble Punjab & Haryana High Court cited as 1992 PLJ 658, Gurnam Kaur v. State of Punjab in which their Lordships were pleased to consider revisional jurisdiction and held as under : "Revisional jurisdiction, exercise of - Immaterial as to whether action taken suo motu or at the instance of aggrieved or concerned party - Revisional authority if comes to the conclusion after going through records of case pending or decided by subordinate authority that such order needed modification or annulment and hence modified or annuls such order - Order passed would be within jurisdiction - Revisional powers - In nature of inherent powers - If any error committed by subordinate authorities in passing orders under the Act - Can be corrected under revisional powers." As per counsel for respondents, orders of the Commissioner were quite legal. 11. Counsel for the respondents further stressed that the petitioners had failed to produce on record even a single piece of evidence to prove that Darbara Singh was alive. On the other hand the Sarpanch, Panch, Lambardar and Chowkidar and other prominent persons of the village had filed the affidavits to the effect that Darbara Singh had not been seen for the last 30 years and had never visited the village Hassanpur and even never written a letter to any person and, therefore, the presumption was that Darbara Singh had died. A.C. Ist Grade had rightly sanctioned the mutation in favour of all the natural heirs of Darbara Singh in equal shares with discrimination to none. The respondents had sold only their respective shares and no excess land had been sold and mutation had been rightly sanctioned. The present petitioners had failed to establish their claim that Darbara Singh is alive and his clients are only availing legal remedies to get their respective share of land, which remained wrongly in the possession of the petitioners, who were unnecessarily prolonging the issue and were getting the benefit from the land in dispute. The present petitioners had failed to establish their claim that Darbara Singh is alive and his clients are only availing legal remedies to get their respective share of land, which remained wrongly in the possession of the petitioners, who were unnecessarily prolonging the issue and were getting the benefit from the land in dispute. As per Para 7.5 sub-para (3) of the Land Records Manual it is for the Revenue Officer attesting mutation to satisfy himself about the death of the absentee right holder and to give opportunity to him to appear and the Commissioner had rightly remanded the case under these provisions of the revenue law. In view of these contentions counsel for the respondents has requested to uphold the orders of the Commissioner. 12. I have gone through the R.O.R. and the record minutely and have given careful consideration to the arguments of the counsel for the parties, both written and oral as well as the citations of judicial pronouncements quoted by them. I have also gone through the orders of Sh. Harminder Singh Madaan, P.C.S., Sub Judge Ist Class Kharar dated 17.4.1994, in the pending civil suit No. 165 before him while disposing of an application under Order 39 Rules 1 and 2 CPC moved by the plaintiff (present petitioners) for grant of ad interim injunction in which he stated : "The bone of contention between the parties is as to whether Shri Darbara Singh is alive or dead. The defendants have placed on file an affidavit of Balbir Singh Sarpanch, Jasmer Singh Panch, Darbara Singh Numberdar, Harnek Singh, Samund Singh, Kehar Singh, Gurdev Singh Chowkidar, Pritam Singh, Dial Singh and Ajit Singh to the effect that Darbara Singh is missing for the last 29/30 years and he has never visited the village or any of his relations or acquaintance during that period. So much so, he never wrote any letter to such persons and that Darbara Singh is presumed to be dead. The defendants have placed on file, voter list wherein Darbara Singh is not shown to be a registered voter in the village. Furthermore, copy of mutation order reflects that the mutation was entered and sanctioned by the revenue authorities on the basis of affidavit of Bachan Kaur, and on attestation by Hari Singh Panch. The defendants have placed on file, voter list wherein Darbara Singh is not shown to be a registered voter in the village. Furthermore, copy of mutation order reflects that the mutation was entered and sanctioned by the revenue authorities on the basis of affidavit of Bachan Kaur, and on attestation by Hari Singh Panch. Shri Harbant Singh Advocate, attacked the mutation order contending that it was sanctioned in undue hurry, inasmuch as, the entry by Halqa Patwari was made on 25.1.1994 and sanctioned on 29.1.1994 i.e. within four days, that too at Kurali and not in the village and that no notice was published in any newspaper giving notice to Darbara Singh to appear before the revenue authorities. He drew my attention to Para 7.25 sub-para (3) of the Land Records Manual, wherein it is provided that the revenue officer attesting the mutation should satisfy himself about the death of absentee right holder and should give him an opportunity to appear. Although the mutation seems to have been entered and sanctioned in hurry but from that, it can not be presumed that the revenue officer had not satisfied himself regarding the death of Darbara Singh before sanctioning the mutation in favour of his heirs. The Court cannot substitute its own satisfaction, in place of that of the revenue officer, attesting the mutation. The mutation has been sanctioned in favour of all the natural heirs of Darbara Singh. Although the plaintiff claims that Shri Darbara Singh had visited the house of his daughter Surinder Kaur about two years back, but then affidavit of Surinder Kaur to that effect has not been placed on the file. Furthermore, no documentary evidence is coming forth to show that Shri Darbara Singh had been alive or was heard of or he wrote any letter etc. to any of his relations or acquaintance within a period of seven years prior to sanctioning of the mutation. Under Section 108 of the Indian Evidence Act, where the question is whether a man is alive or dead and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it. Here in the present case, prima facie, the plaintiff has failed to establish that Shri Darbara Singh has been alive during the period of last 7 years prior to the sanctioning of the mutation." In addition S. Amrik Singh, Advocate made a statement in the Court : "That the defendants admit the possession of the suit land at the spot of plaintiff and they shall not take possession from him forcibly and shall rather take recourse to legal means for taking possession and in case the plaintiff succeeds in suit, the defendants shall not claim any damages etc. from him on account of execution of the sale deed and for any improvements made by them. Even otherwise, under Section 52 of the Transfer of Property Act, the sale deed, if any, by defendants No. 1 and 2 shall be hit by principle of lis pendence and same shall have no affect on the rights of the plaintiff, if the plaintiff ultimately succeeds in his suit. Furthermore, the plaintiff has given the address of Darbara Singh as of village Hassanpur inspite of the fact that as per his own case, Darbara Singh has not visited this village for the last four years. Therefore, I find that no case for grant of temporary injunction is made out. As such, ex parte status quo order granted on 17.5.1994, stands vacated and application under Order 39 Rules 1 and 2 CPC moved by the plaintiff stands dismissed. However, the defendants No. 1 and 2 shall remain bound by statement of their Counsel S. Amrik Singh, made in the Court today i.e. 23.6.1994." I find that the above observations of the learned Sub Judge are quite relevant and applicable in the present case. 13. I am of the view that the orders of the Addl. Commissioner Appeals, Patiala Division dated 1st April, 1999 are reasonable and he had correctly remanded the matter to the A.C. Grade I for making on the spot enquiry in the village itself. His orders dated 1st April, 1999 are thus upheld. 14. The A.C. Grade I may go ahead now and make a detailed on the spot enquiry after giving due and sufficient notice to all the parties concerned. Due notice for appearance should also be given to Darbara Singh through prominent notices in the English/Vernacular Press, with his photo, if possible. His orders dated 1st April, 1999 are thus upheld. 14. The A.C. Grade I may go ahead now and make a detailed on the spot enquiry after giving due and sufficient notice to all the parties concerned. Due notice for appearance should also be given to Darbara Singh through prominent notices in the English/Vernacular Press, with his photo, if possible. The A.C. Grade I should ensure that the provisions of Para 7.25 of the Punjab Land Records Manual which deals with Treatment of rights of absentees as read with Sections 107/108 of the Indian Evidence Act are kept in mind. Announced. Petition dismissed.