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2013 DIGILAW 1060 (HP)

Kamal Singh v. Ram Dayal

2013-12-28

NARINDER CHAUHAN

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ORDER : Narinder Chauhan, Financial Commissioner This revision petition under Section 17 of the H.P. Land Revenue Act, is directed against an order dated 6.3.2006, passed by the Commissioner, Mandi Division, in case No. 190/2004, vide which order the Id. Commissioner has accepted the appeal filed by Sh. Ran Dayal, present respondent No. 1, and set-aside the order dated 21.07.2004, passed by the Collector, Sub Division, Sundernagar. 2. Briefly stated, the facts of the case are that the concerned Halqa Patwari made a report to the LRO Sundernagar (Tehsildar) to the effect that during the harvest inspection Sh. Ram Dayal, had been found to be in possession on a part of khasra No. 4457/2239, measuring 2291 sq, mtrs., and that he has constructed a residential house and raised an orchard over the land comprised in khasra No. 4457/2239/2, measuring 1143 sq. mts., situated in moha and Tehsil Simdernagar, District Mandi. The Assistant Collector 1st Grade, Land Reforms Officer, Sundernagar, after proceeding in the matter, passed an order on 22.03.2000, that Sh. Ram Dayal be recorded as a non-occupancy tenant over the said land against an annual payment of lagan of Rs. 600/-. 3. The present petitioners challenged the orders of Land Reforms Officer, vide an appeal filed before the Collector, Sub Division, Sundernagar, who vide his interim order dated 21.07.2004, over-ruled the question of jurisdiction raised by the present respondent No. 1. The contention of the respondent was that orders of Land Reforms Officer, were only appealable before the District Collector, Mandi and not the Sub Division Collector. The Sub Divisional Collector, held that Land Reform Officers were appointed vide notification No. 1-8/68-Rev.I, dated 29th March, 1975 and No. 1-0/50-Rev.I, dated 27/29.09.1975, for carrying out the purposes of chapter 9 and 10, of the H.P. Tenancy and Land Reforms Act, 1972, which provisions deal with acquisition of proprietary right by occupancy and non-occupancy tenancy and not with the establishment of such tenancy as in the instant case. Ld. Sub Divisions Collector, also relied on rule 29 of the H.P. Tenancy and land Reform Rules, 1975. Rule 29: - "Determination of disputes under sub-section (4) of Section 104. Ld. Sub Divisions Collector, also relied on rule 29 of the H.P. Tenancy and land Reform Rules, 1975. Rule 29: - "Determination of disputes under sub-section (4) of Section 104. - If there is a dispute regarding the entries of the, land records the Land Reforms Officer, in his capacity as an Assistant Collector of the First Grade, shall decide the dispute under sub-section (4) of Section 104 in accordance with the relevant provisions of the Punjab Land revenue Act, 1887, or the Himachal Pradesh Land Revenue Act, 1954, as the case may be. The disputes of such cases will be determined on a summary inquiry on the files. (17 of 1087 and 6 of 1954). Where a tenancy is in a part of a field number, tatima shajras of that part will be prepared." Similarly, Ld. Collector, also took support from provisions of Section 57 of the H.P. Tenancy and Land Reforms Act 1972, which mentions classes of Revenue Officers under the Act, suthorizing them to exercise jurisdiction in accordance with the H.P. Land Revenue Act, 1954. Section 57 (2) also lists out powers of Collector and Assistant Collectors vis-a-vis certain proceedings. Section-58 (4) (b) authorizes the A.C. 1st Grade, to hear certain category of disputes and section 58 (3) (c), authorizes revenue Courts to take cognizance of following disputes: - Second Group (c) "Suits by a tenant to establish a claim to a right of occupancy, or by land owner to prove that a tenant has not such a right; (d) Suits for ejectment of tenants; 4. Collector, Sundernagar has also held that such like disputes are also liable to be determined in accordance with, Section 37 of the H.P. Land Revenue Act, 1954, by Revenue; Officers empowered under Section 7 of the H.P. Land Revenue Act, 1954: - Section 37: Determination of disputes. - "If during the making, revision or preparation of any record or in the course of any enquiry under this Chapter a dispute arises as to any matter of which an entry is to be made in a record or in a register of mutations, a Revenue Officer may of his own motion or on the application of any party interested, but subject to the provisions of Section-38 of this Act and after proper enquiry, determine the entry to be made as to that matter." Therefore, the Ld. Sub Divisional Collector, accepted the appeal by holding that Sub Divisional Collector enjoys jurisdiction to hear the appeal as orders were passed by A.C. 1st Grade. 5. Feeling aggrieved with the orders of Collector Sundenagar, dated 21.07.2004, the present respondent filed an appeal before the Divisional Commissioner, Mandi, who in case No. 190/2004, vide his order dated 06.03.2006, held that appeal against the orders of Land Reforms Officer, can be heard and disposed off only by the District Collector, and as there is a dispute regarding establishment of a tenancy and an issue of owner and tenant relationship, the right forum to appeal was the District Collector. He accordingly, set-aside the order dated 21.07.2004, of Sub Divisional Collector Sundernagar, and directed the parties to approach the Court of competent jurisdiction. 6. Being aggrieved, the petitioner filed a revision petition before this Court (i.e. F.C. (Appeals), wherein it was alleged that the orders of Land Reforms Officer, Sundernagar dated 22.03.2000, whereby respondent Sh. Ram Dayal, was recorded as a tenant over the said land are wrong, as Sh. Ram Dayal, respondent in his statement before the A.C. 1st Grade, has claimed that he has purchased the land in dispute for a consideration of Rs. 10,000/- and he therefore, could not have been entered as a tenant' of the land and moreover the alleged Sh. Shanti Kumar Singh, who has allegedly sold the land to Sh. Ram Dayal, was mentally infirm and of unsound mind and cannot look after his own affairs. Furthermore, it was argued that revenue record indicate that other co-sharers who are recorded as owner in possession of the land, have not consented to such sale or creation of a tenancy, and in any case no such sale or tenancy can be made by a single co-sharers without consent of others or to the detriment of other co-sharers interest. 7. The Ld. Financial Commissioner, vide order dated 16.10.2006, in revision No. 135/2006, was of the opinion that the respondent being a retired Tehsildar, may have exercised his influence over the revenue authorities in ensuring such a transaction. It was further observed that when proprietary rights are virtually automatically conferred on any tenant, it is unconceivable that any person knowingly would create a tenancy on his own land. Ld. It was further observed that when proprietary rights are virtually automatically conferred on any tenant, it is unconceivable that any person knowingly would create a tenancy on his own land. Ld. Financial Commissioner, held that whether the transaction in question pertains to a sale or a creation of tenancy requires further investigation and considering that Sh. Shanti Kumar Singh, is menially of infirm state and his interests need to be watched, the Ld. Financial Commissioner, directed the District Collector Mandi to hold an inquiry regarding the mental state of Sh. Shanti Kumar Singh. 8. The D.C. Mandi, vide letter No. Mandi-Peshi-II-2778, dated 16.01.2012, has reported that while the ADM Mandi, report has held that Sh. Shanti Kumar Singh, is not a mentally fit person, however the medical certificate produced are of a local doctor, and D.C. Mandi has disagreed with the report of ADM Mandi, that Sh. Shanti Kumar Singh is of unsound mind. The important fact weighing on D.C. Mandi, is that Sh. Shanti Kumar Singh, has not produced a medical certificate from any specialised authority, and he has not given credence to the medical certificate issued by the local doctors. Further that Sh. Ram Dayal, respondent had produced a slip of a bank account of Centra Bank of India, Sundernagar, to prove that Sh. Shanti Kumar Singh, is capable of operating his bank account, and thus is of sound mind. In sharp contrast the report of ADM Mandi, categorically states that Sh. Shanti Kumar Singh, is of unsound mind and has further substantiated his findings by relying on the medical certificate, statement of several witnesses, and order of the District Judge, Mandi dated 27.11.2004. The ADM Mandi, has also concluded that on 10.11.2009, the non-participation and behaviour of Sh. Shanti Kumar Singh, in the proceedings is clear proof of the fact that he is suffering from some mental infirmity. 9. A decision in this case would not hinge only on the issue whether Sh. Shanti Kumar Singh, is mentally unsound or not. It is clear that the case also needs to be examined with respect to various other legal issues such as, jurisdiction of revenue Courts, mental slate of petitioner, nature of transaction between the petitioner and the respondent, creation of tenancy, rights of other co-sharers, possession of other co-sharers etc. 10. Shanti Kumar Singh, is mentally unsound or not. It is clear that the case also needs to be examined with respect to various other legal issues such as, jurisdiction of revenue Courts, mental slate of petitioner, nature of transaction between the petitioner and the respondent, creation of tenancy, rights of other co-sharers, possession of other co-sharers etc. 10. On a careful consideration of the arguments put forth by both sides, I am in agreement with the findings of the Sub Collector, Sundernagar, that the jurisdiction to entertain the appeal against orders of A.C. 1st Grade, vest with Sub Collector under Section 37 of H.P. Land Revenue Act, 1954, and even under the provisions of Section 58 of the H.P. Tenancy and Land Reforms Act, 1972. 11. From the case file, pleadings and statement of respondent it is equally clear that the respondent has taken conflicting and self-contradictory stand, while on the one hand it is alleged that the transaction entered into with Sh. Shanti Kumar Singh, was essentially a purchase of land for a consideration of Rs. 10,000/-, it is equally clear that no registration has been done as per the Indian Registration Act. Similarly, the plea of creation of a tenancy by Sh. Shanti Kumar Singh, cannot be readily accepted, as the jamabandi clearly indicates ownership of all co-sharers and no such agreement has been recorded or registered. The tenancy has simply been created on the basis of a field report by the Patwari. Moreover, it is settled law that Sh. Shanti Kumar Singh, could not have created a tenancy or sold land, which legitimately belongs to other co-sharers also. Even otherwise, the whole transaction gives an impression of undue influence having been exercised by the respondent, and if a sale is not registered as per law, not much credence can be given, to the statement of respondent that transaction be concluded as either a 'sale' or a 'creation of tenancy'. 12. It is clear that the transaction cannot have both characteristics simultaneously, i.e. creation of tenancy on khasra No. 4457/2249/2 measuring 1143 sq. mis. in Mohal Sundernagar, for a rent of Rs. 600/- and simultaneously a sale for a consideration of Rs. 10,000. No deed having been registered, such a transaction with a person bearing an unsound mind declared as such, as per order of District Judge Mandi, dated 27.11.2004, has to be viewed with suspicion. Sh. mis. in Mohal Sundernagar, for a rent of Rs. 600/- and simultaneously a sale for a consideration of Rs. 10,000. No deed having been registered, such a transaction with a person bearing an unsound mind declared as such, as per order of District Judge Mandi, dated 27.11.2004, has to be viewed with suspicion. Sh. Shanti Kumar Singh, cannot dispose property in a way detrimental to the interest of other co-sharers who have challenged the orders of Revenue Courts. From the revenue record it is clear hat all co-sharers were in possession of the disputed land. 13. The case file also reveals an order of D.C. Mandi, in case file No. 1 of 2010, dated 13.04.2011. The orders have been passed on a appeal preferred by appellants against the orders of Divisional Commissioner dated 06.03.2006, whereby Ld. Divisional Commissioner had remanded the case to competent Court of jurisdiction. The appeal of the appellant has been accepted on the grounds that Sh. Shanti Kumar Singh, remained in an asylum seven to eight times since his childhood and the mutation No. 2075 dated 24.04.2006, wherein tenancy was created in favour of respondent Sh. Ram Dayal, and mutation No. 2091 dated 16.05.2006, conferring ownership rights have been set aside. Therefore, the D.C. Mandi, has set aside the mutation No. 2091 and 2076. 14. In view of the above said facts, the revision petition is accepted. Considering that the D.C. Mandi, has already set aside the conferment of proprietary right on the respondent, the issues pending before Sub Collector Sundernagar, are automatically answered. Revenue record be restored in favour of petitioners. 15. Announced in open Court on 28.12.2013. The record of/he Courts below be returned and the file of this Court be consigned to the record room after due completion.