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2012 DIGILAW 1638 (PNJ)

Charan Singh v. Commissioner, Patiala

2012-11-21

RANJIT SINGH

body2012
JUDGMENT Mr. Ranjit Singh, J.: - Father of the petitioners, namely, Jethu Singh, was owning 354 bighas and 14 biswas equal to 43.24 standard acres land as per jambandi for the year 1953-54. On 6.3.1955, the Pepsu Tenancy and Agriculture Land Act was enacted. Jethu Singh had made a gift of 157 bighas 2 biswas of land in favour of wife, Nimo and his four sons, namely, Ajit Singh, Gurnam Singh, Prem Singh and Karam Singh. The mutation was also accordingly sanctioned. 2. The Collector, Agrarian, assessed the surplus area of Jethu Singh on 3.6.1960, considering the entire area of 354 bighas and 14 biswas as his holdings. The Collector ignored the gift of 157 bighas 2 biswas and accordingly held that 13.24 standard acres equivalent to 132.9 biswas was declared surplus with the land owner. This order was upheld by the Financial Commissioner on 2.5.1963. 3. The petitioners would aver that if any land is being separately cultivated for two years prior to commencement of the Pepsu Tenancy Act, then under Section 2(h) of Utilisation of Surplus Area Scheme by a person who is father or grand father, whose area has been declared surplus and such cultivation is recorded in Khasra Girdawari, then he is defined as agriculture worker. As per the petitioners, under Section 9 of the said Scheme, such a worker is entitled to allotment of the land of his father and grand father whose land has been declared surplus under law. 4. No doubt, Section 9 entitles any worker or Bisbedar, extenant, who is desirous of getting land out of surplus area by making an application to the prescribed authority but this application is required to be made within a period of two months from the date of publication of the Scheme in the official gazette. The Prescribed Authority, after making summery enquiry, can allot such land. The land was declared surplus in the year 1960 and apparently no application was filed till 13.6.1963, when the parchi allotment was made. In fact, a perusal of Annexure P-5 would show that rapat in this regard is recorded on 1.10.1963 and this parchi allotment was done by Patwari. The Prescribed Authority otherwise, as per Section 2(e) is Assistant Collector of either grade within the area of his jurisdiction. These aspects can also not escape notice. 5. In fact, a perusal of Annexure P-5 would show that rapat in this regard is recorded on 1.10.1963 and this parchi allotment was done by Patwari. The Prescribed Authority otherwise, as per Section 2(e) is Assistant Collector of either grade within the area of his jurisdiction. These aspects can also not escape notice. 5. On 27.5.1963, the Collector, Agrarian, passed an order, allotting the surplus area to the three sons of Jethu Singh i.e. Ajit Singh, Gurnam Singh and Prem Singh as they were found in separate cultivating possession of the surplus area even prior to 1952-53. Parchi allotment was issued on 13.6.1963. Vide this 4.68 standard acres equal to 48 bighas 14 biswas was allotted to Ajit Singh and separate parchi allotment of 4.28 standard acres equivalent to 41 bighas and 2 biswas was allotted to Gurnam Singh and 4.28 standard acres equivalent to 42 bighas 13 biswas was allotted to Prem Singh. Rapat in this regard was entered into the revenue record, showing the allotment in the names of Ajit Singh Gurnam Singh and Prem Singh. Six instalments of the money were also deposited. Jethu Singh, father of these allottees suffered a statement that he did not wish to receive the amount of compensation as the allotment was in favour of his sons. The amount was, thus, waived. 6. The entry of this allotment was made in the remarks column of jamabandi for the year 1961-62 but the entry of the gift in the name of Smt.Nimo, wife of Jethu Singh, and in the name of his three sons, which was required to be removed, was not removed from the revenue record. Said entry has continued in all the jamabandies till 1972-73. This is stated to be a mistake due to mistake on the part of the revenue staff. No action, however, was taken to get this entry corrected. 7. On the basis of this entry, Karam Singh, who is the fourth son of Jethu Singh, has allegedly managed collusive decree of the share of his mother by playing fraud on her. Said decree is challenged by the mother during her life time and this suit is pending. The petitioners claim to be in possession of this land. 7. On the basis of this entry, Karam Singh, who is the fourth son of Jethu Singh, has allegedly managed collusive decree of the share of his mother by playing fraud on her. Said decree is challenged by the mother during her life time and this suit is pending. The petitioners claim to be in possession of this land. While Karam Singh was allegedly hobnobbing to sell this land in the year 2003, which was in possession of the petitioners, the petitioners searched for the record of allotment and filed a correction of the abovesaid wrong entry of gift, which had carried on in the jamabandies. The petitioners accordingly prayed for Fard badar under Para 7.29 of the Punjab Land Record Manual by pleading that it was a clerical mistake and the same can be so corrected by Fard badar. The petitioners accordingly approached the Assistant Collector Ist Grade for carrying out this correction by Fard badar on 27.4.2005. Despite this entry having been effected in the year 1994 and the petitioners having learnt about the same in 2003, still did not take any action to get the entries corrected till they approached the Assistant Collector Ist Grade till 2005. Assistant Collector Ist Grade rejected the prayer of the petitioners and has observed that the Civil Court has a right to correct the entries of these jamabandies. What has weighed with the Assistant Collector is that the gift deed entry is continuing inspite the area having been declared surplus in the jamabandi but no note of, it is still available in the column of cultivation. He also found that some share holders have sold their share from this area and have executed lease deed as well. The application for correction of entries for the years 1966-67, 1996-97 are prayed for on the ground that this is only a clerical mistake. As per the Assistant Collector, it is not a clerical mistake as since 1966-67, so many jamabandies have been prepared and during this period, share holders have sold their shares as well. Accordingly, it is the Civil Court, which can now correct the entries. 8. The petitioners filed an appeal against the same, which was rejected by the Collector on 27.11.2007, who expressed his agreement with the view taken by the Assistant Collector Ist Grade. Accordingly, it is the Civil Court, which can now correct the entries. 8. The petitioners filed an appeal against the same, which was rejected by the Collector on 27.11.2007, who expressed his agreement with the view taken by the Assistant Collector Ist Grade. In addition, the Collector has observed that Smt.Nimo received the land through gift deed, has transferred her share in the name of Karam Singh through Civil Court decree against which the appeal is pending. The Collector also found that these entries can not be correct by Fard badar. The petitioners then approached the Commissioner, who has upheld the orders passed by the Assistant collector Ist Grade and Collector. The observations of the Commissioner are as under:- “I am of the opinion that the surplus land allotted to three sons as well as mutation in the name of all the legal heirs has created the complicate situation and the intricate question of law needs to be settled whether the three sons seeking Fard Badar are entitled or allotment of surplus land from his father or not. Secondly why the mutation was not sanctioned of Surplus land in the name of the petitioners if at all the allotment was genuine and right as per the provisions of law. In view of the above observations, the revision filed in this case is hereby disposed off and the case is ordered to be kept in abeyance and the parties are advised to seek remedy from the civil Court.” 9. I am of the considered view that the Assistant Collector, Collector and Commissioner have taken a just and reasonable view while holding that the jurisdiction will be that of a Civil Court to correct such entry at this belated stage. Otherwise, it is well understood that mutation entries when incorporated in the jamabandi, then only Civil Court is competent to decide the matter. Fard badar is only to correct the clerical mistake and amendment in all jamabandies by simple fard badar is generally not permissible when there is either no order from the Civil Court or a clerical mistake is not made out. As per Para 7.3 of the Punjab Land Records Manual, entries in the jamabandies should be got changed through Civil Court. 10. Otherwise also, I find that the prayer made by the petitioners apparently is not just and reasonable. As per Para 7.3 of the Punjab Land Records Manual, entries in the jamabandies should be got changed through Civil Court. 10. Otherwise also, I find that the prayer made by the petitioners apparently is not just and reasonable. The petitioners first got this land transferred on their names by way of gift deed. That gift deed, as per the law, was required to be ignored while determining the surplus case of their father and accordingly 13.24 acres land was declared surplus. If the petitioners were unsuccessful in getting this land on their names by way of gift deed, which has been ignored and the land declared surplus, they certainly can not, in fairness or otherwise achieve the same purpose by seeking allotment of same land on the ground that they were in cultivating possession of this land and so would be entitled to allotment. A purpose, which they earlier could not achieve by way of gift, can not be permitted to be achieved in this manner. I am, however, not commenting on this issue and it would be appropriate for the petitioners to invoke their remedy by approaching the Civil Court, as has already been allowed to them. The writ petition is dismissed.