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2005 DIGILAW 103 (PNJ)

Balbir Singh and other v. Major Umrao Singh

2005-01-19

A.K.DUBEY

body2005
ORDER A.K. Dubey, FC. - This is a Revision Petition filed under section 16 of Punjab Land Revenue Act, 1887 against the order dated 11.8.2004 passed by Commissioner, Jalandhar Division, Jalandhar quashing the order dated 28.8.2003 of the Collector, Nawanshahr and upholding the order dated 7.5.2003 of Assistant Commissioner Ist Grade, Nawanshahr. 2. Both the parties were heard through their counsels. The brief facts of the case are that two mutations bearing No. 7232 of Village Kamam-I and No. 533 of village Kamam-II, Tehsil and District Nawanshahr were entered by Patwari concerned on the basis of natural succession in favour of Lt. Col. Parshotam Singh, Major Umrao Singh and Balbir Singh (sons) and Smt. Harbahajan Kaur (daughter) in equal share. This mutation related to the inheritance of deceased Bikram Singh s/o Dalip Singh. Revision Petitioners have claimed succession in the estate of the deceased on the basis of registered Will dated 10.11.1998. Being a contested mutation, it was sent to the A.C. Ist Grade, Nawanshahr for decision who sanctioned the mutation in favour of Balbir Singh and others on the basis of registered Will vide order dated 15.4.2002. On appeal, the case was remanded by Collector, Nawanshahr for holding inquiry as to whether property in dispute was ancestral or self-acquired, vide order dated 8.11.2002. Feeling aggrieved by the order of Collector, Shri Balbir Singh filed an appeal before the Commissioner, Jalandhar Division, Jalandhar who dismissed the same vide his order dated 19.2.2003. 3. Thereafter, the A.C. Ist Grade, Nawanshahr proceeded with the mutation and concluded that the property in dispute was ancestral/coparcenary and, accordingly, ignored the Will and sanctioned mutation on the basis of natural succession in favour of the present respondents in equal share vide his order dated 7.5.2003. Sh. Balbir Singh filed an appeal against the aforesaid order of A.C. Ist Grade, Nawanshahr before Collector, Nawanshahr who accepted the appeal and set aside the order of A.C. Ist Grade, Nawanshahr vide his order dated 28.8.2003. Thereafter, the present respondents filed two appeals before Commissioner, Jalandhar Division, Jalandhar who set aside the order of Collector, Nawanshahr and upheld the order of A.C. Ist Grade, Nawanshahr vide his order dated 11.8.2004. 4. Learned counsel for revision petitioner argued that petitioner No. 1, Balbir Singh is son of one Bikram Singh who had three other children namely, Umrao Singh, Purshotam Singh and Harbhajan Kaur. 4. Learned counsel for revision petitioner argued that petitioner No. 1, Balbir Singh is son of one Bikram Singh who had three other children namely, Umrao Singh, Purshotam Singh and Harbhajan Kaur. Parshotam Singh is since deceased and his widow Kamaljit Kaur and daughters Rachandeep Kaur and Ashandeep Kaur are respondent Nos. 3, 4 & 5 respectively. Major Umrao Singh is respondent No. 1. Smt. Harbhajan Kaur d/o Bikram Singh is respondent No. 2. Dalip Singh, father of Bikram Singh executed a Will in favour of Bikram Singh and his brothers. Learned cousnel for revision Petitioner argued that since Bikram Singh has received the property by way of Will and same is considered as non-ancestral personal property and, therefore, father of petitioner Bikram Singh was well within his rights to execute a Will in favour of the petitioner excluding the other natural successors. He also argued that before executing the Will, Bikram Singh had already got published a notice disowning Purshotam Singh. He also stated that legal notice was given to Umrao Singh and, therefore, the suspicion about the registered Will is not valid. The learned counsel for revision petitioner contended that the Commissioner has wrongly put a question mark on the validity of Will and, further, no adverse inference should be drawn on mere registration of FIR. Further, the fact that Bikram Singh also bequeathed property to the sons of respondent No. 1, Umrao Singh namely Suraj Bahadur Singh and Wayee Singh, goes in favour of the petitioners. Learned counsel for the revision petitioner contended that that the mutation has been rightly sanctioned on the basis of registered Will and should stay as such till the civil Court orders it otherwise. 5. On the other hand, learned counsel for the Respondents vehemently stated that the present revision petitioners have filed case No. 633/03 on 15.5.2003 before the Addl. Civil Judge (Senior Division), Nawanshahr for declaration to the effect that the plaintiffs (revision petitioners No. 1, 2 and 3) are owners in possession of the property on the basis of registered Will dated 10.12.1998 and mutation No. 7232 and 533 sanctioned by A.C. Ist Grade, Nawanshahr on 7.5.2003 was illegal and void and, thus, liable to be set aside. Civil Judge (Senior Division), Nawanshahr for declaration to the effect that the plaintiffs (revision petitioners No. 1, 2 and 3) are owners in possession of the property on the basis of registered Will dated 10.12.1998 and mutation No. 7232 and 533 sanctioned by A.C. Ist Grade, Nawanshahr on 7.5.2003 was illegal and void and, thus, liable to be set aside. The revision petitioners who are plaintiffs in the above mentioned civil suit have also sought permanent injunction restraining defendant No. 1 and 2 (respondent No. 1 and 2) Major Umrao Singh and Harbhajan Kaur and defendant No. 5, (respondent No. 4) Ashandeep Kaur and defendant No. 7 (respondent No. 3) Kamaljit Kaur from interfering in the possession of the plaintiffs. The learned counsel contended that since the matter is already before the civil Court, therefore, it is better to await the final decision of the civil Court which shall be binding on both the parties. 6. It is relevant to mention that the Collector, Nawanshahr, while remanding the mutation vide order dated 8.11.2002 had observed "that the Assistant Collector, Ist Grade will examine this aspect (to find out the correct nature of the property, whether it is ancestral/coparcenary or self-acquired of the deceased) making a sport enquiry in Jalsa-e-aam from the Lambardar/Panches/prominent residents of the village and go through the Revenue record concerned at the time of visiting village Kamkam, after due notice to the parties/village Panchayat. He shall provide full opportunity to the parties to lead additional evidence, if any, in support of their claims/assertions and to decide the mutations afresh. 7. From perusal of the record, it is noted that the A.C. Ist Grade, Nawanshahr passed order dated 5.7.2003 stating that "....... The Collector has given findings in his order dated 8.11.2002 that if it is established that the property standing in the name of Bikram Singh deceased was ancestral/coparcenary, then the Will executed by him shall not be binding on his other legal heirs. This is because the Collector gave directions that the nature of the property left behind by Bikram Singh be inquired into in a big gathering in the village itself. In view of the directions given by the Collector, which were upheld by the learned Commissioner, this Court at the spot inquiry when all the people, who came present, disclosed that the property standing in the name of Bikram Singh is ancestral/coparcenary...... In view of the directions given by the Collector, which were upheld by the learned Commissioner, this Court at the spot inquiry when all the people, who came present, disclosed that the property standing in the name of Bikram Singh is ancestral/coparcenary...... Complying with the directions of the Collector, the nature of the said property was inquired into and concluded to be as ancestral/coparcenary. In the circumstances, I am of the considered view that Bikram Singh deceased was not legally competent to execute the Will Dated 10.11.1998 alienating his ancestral/coparcenary property. Consequently, the Will dated 10.11.1998 is ignored and the mutations are sanctioned in natural course of succession." 8. It is also relevant to refer to the grounds of appeal before the Commissioner wherein it was stated that the A.C. Ist Grade, Nawanshahr had visited the spot and the Panchayat on 7.4.2003 and recorded the statements of Shri Joginder Pal, Sarpanch of village Kamam, Shri Mohinder Singh real younger brother of Bikram Singh, Balbir Singh s/o Bikram Singh, Harbhajan Kaur d/o Bikram Singh, Harjinder Kaur, Member, Block Samiti, Kamaljit Kaur wd/o Parshotam Singh and Major Umrao Singh s/o Bikram Singh. It was further stated in the grounds of appeal before the Commissioner that "they disclosed that during partition of the country Dalip Singh the father of Bikram Singh alongwith his family migrated from Pakistan to village Kamam and that in lieu of the property abandoned by Dalip Singh in Pakistan, he was allotted land in village Kamam vide allotment order issued on 8.9.1955 by the Managing Officer, Ministry of Rehabilitation, Govt. of India. The property standing in the name of Sh. Bikram Singh, deceased was inherited by him from his father Dalip Singh and he did not acquire any agricultural land of his own. 9. The learned Commissioner has recorded in his order dated 11.8.20004 that "He (the counsel for Appellants) stated that from the statements of Sh. Joginder Pal Sarpanch of Village Kamam, Shri Mohinder Singh real brother of deceased Bikram Singh, Shri Balbir Singh, Smt. Harbhajan Kaur, Harjinder Kaur Member Block Samiti, Kamaljit Kaur and Major Amrao Singh, it is proved that the property was allotted to Dalip Singh in lieu of property left in Pakistan on 8.9.1955 and later the same was inherited by deceased Bikram Singh from Shri Dalip Singh. He argued that even otherwise, the registered Will is suspicious, that the same was attested by Jasvir Singh Lambardar whereas it is proved on record that Jasvir Singh was neither appointed Lambardar of Village Kamam nor he was even appointed as Sarbrah Lambardar, that Dr. Inderjit Singh, Handwriting and Finger Print Expert, Patiala, who was examined, had clearly opined that the alleged signatures of Bikram Singh on the said Will dated 10.11.1998, do not tally with the standard signatures of Bikram Singh. He contended that an FIR under Sections 419 & 420 IPC has already been lodged on 13.10.2003 against the respondent/Balbir Singh, respondent/Gurvinder Singh, respondent/Jagroop Singh and Karam Singh, Balwant Rai, Deed writer and Sub- Registrar, Nawanshahr etc. at No. 265 in PS Nawanshahr, for fabricating and forging said Will dated 10.11.1998." 10. Before the learned Commissioner, while it was argued by the appellants that the property held by the deceased was ancestral/conparcenary and it was not self-acquired property, therefore, it could not be transferred through Will, on the other hand, the respondents had contended that the property held by the deceased Bikram Singh is not ancestral property and was inherited by him from his father Dalip Singh vide Registered Will and, therefore, it is self-acquired property. The learned Commissioner concluded : "Therefore, the matter as to whether the property in dispute, is an ancestral property or self-acquired property or that the deceased Bikram Singh had acquired the same from Shri Dalip Singh though any Will, is a complicated matter and requires adjudication in the civil Court of appropriate jurisdiction." He further recorded : "The answering respondents have failed to make categorical pleading that the property in the hands of late Bikram Singh was his self-acquired property. They tend to plead that after inheriting the same from his father late Shri Dalip Singh, it is to be treated as self-acquired property of late Bikram Singh...... In summary procedure, it is satisfactorily proved that the property in the hands of late Bikram Singh was not a self-acquired property but was ancestral/coparcenary property and as such late Bikram Singh was not competent to Will away the same through registered Will dated 10.11.1998. However, the parties are already before the Civil Court and the final verdict of the civil Court when becomes available on record, shall have overriding effect and binding on the Revenue Officers." 11. However, the parties are already before the Civil Court and the final verdict of the civil Court when becomes available on record, shall have overriding effect and binding on the Revenue Officers." 11. Regarding registered Will dated 10.11.1998, the learned Commissioner recorded "Although in view of the above conclusions, there is no need to examine the effect of the registered Will dated 10.11.1998 propounded by the answering respondents, still I feel the answering respondents have failed to prove the same beyond the shadow of doubts." Regarding Jasvir Singh Numberdar the Commissioner recorded that "he was neither an appointed Lambardar of the village nor was ever appointed as "Sarbrah" by the District Collector. This fact has neither been controverted by the answering respondent nor denied by said Jasvir Singh in his statement. The conduct of said Jasvir Singh is under cloud and an FIR stands registered against him and others at PS Nawanshahr, over the matter of forging and fabricating said Will dated 10.11.1998." 12. After due consideration of arguments of both the counsels and the record, it is concluded that the order of the Commissioner, Jalandhar Division is well reasoned and correct and merits no interference. Accordingly, the revision petition is dismissed in limine and the order dated 11.8.2004 of the learned Commissioner, Jalandhar Division, Jalandhar is upheld. Since the order was reserved on 3.1.2005, the parties be informed accordingly. Revision dismissed.