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2013 DIGILAW 2061 (RAJ)

Pema Ram v. Divisional Commissioner, Bikaner

2013-11-21

SANGEET LODHA

body2013
JUDGMENT 1. - On 19.11.2013, when the matter was called out, nobody was present on behalf of the respondents and therefore, the matter was passed over. Today, nobody is present on behalf of the respondents even in second round. 2. Heard learned Counsel for the petitioner and perused the record. 3. This writ petition is directed against order dated 27.2.1997 passed by the Divisional Commissioner, Bikaner, whereby a petition preferred by the respondent No. 5 herein-Haru @ Hari Ram tinder Section 33 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (for short "the Act") against the order dated 5.9.1994 passed by the District Collector cum Authorised Chief Settlement Commissioner, Sri Ganganagar, has been allowed. 4. The relevant facts in nutshell are that Shri Bhikha Ram who migrated from Pakistan was allotted 22 bighas command land in Murabba No. 58 of Chak 13 BNW. As per the land allotment certificate, issued in favour of Bhikha Ram by the Senior Settlement Officer, Ministry of Rehabilitation, Government of India, Sri Ganganagar at the relevant time, Smt. Tulsi (wife), Haru (son) and Pemi (mother) were other family members. Shri Bhikha Ram entered into two marriages, the respondent No. 5-Haru was the son born out of the first marriage. Out of the second marriage, three sons namely; Pema Ram, Shiv Lal, Kishan Lal and one daughter Kesar Bai were born. After the death of Bhikha Ram, on 16.2.1988, the land was mutated in the name of Smt. Tulsi, widow of Bhikha Ram, Hari Ram, Pema Ram, Shiv Lal, Kishan Lal, sons of Bhikha Ram and Kesar Bai, daughter of Shri Bhikha Ram and they were allotted equal share. 5. In the year 1988, Haru @ Hari Ram made an application before the District Rehabilitation Officer claiming share in the property as legal heir of Bhikha Ram. It was contended on behalf of Haru that Shri Bhikha Ram had two wives therefore, the half of the land comes in the share of his deceased mother and remaining half share goes to his step mother, the second wife of Bhikha Ram and therefore, he was entitled to half share in the land in question. The application was allowed by the Rehabilitation Officer vide order dated 19.8.1993. Aggrieved thereby, the petitioners herein preferred an appeal under Section 22 of the Act before the Settlement Commissioner cum Additional Collector (Administration), Sri Ganganagar. The application was allowed by the Rehabilitation Officer vide order dated 19.8.1993. Aggrieved thereby, the petitioners herein preferred an appeal under Section 22 of the Act before the Settlement Commissioner cum Additional Collector (Administration), Sri Ganganagar. The appeal was allowed by the Settlement Commissioner, Sri Ganganagar vide order dated 7.6.1994. The Settlement Commissioner observed that the first wife of Bhikha Ram had expired before the death of Bhikha Ram and therefore, the existing legal heirs of Shri Bhikha Ram were entitled for equal share in accordance with the Hindu law. 6. Aggrieved by the order dated 7.6.1994 of the Settlement Commissioner, the respondent No. 5-Haru preferred an appeal before Chief Settlement Commissioner cum District Collector, Sri Ganganagar, which stood dismissed vide order dated 5.9.1994. Aggrieved thereby, the respondent No. 5-Haru preferred a petition before the Divisional Commissioner, Jodhpur under Section 33 of the Act, which stands allowed by the order impugned and accordingly, while setting aside the order passed by the Chief Settlement Commissioner, Sri Ganganagar, the order passed by the Rehabilitation Officer dated 19.8.1993, stands restored. Hence, this petition. 7. Learned Counsel for the petitioners submitted that it was not in dispute that the first wife of Bhikha Ram who was mother of the respondent No. 5-Haru expired before the partition and the land was allotted in favour of Bhikha Ram in the year 1954. Learned Counsel submitted that the succession was opened in the year 1988 and therefore, the Class I legal heir being entitled for the equal share, their names were mutated in the revenue record. Learned Counsel submitted that as per the provisions of Section 8 of the Hindu Succession Act, 1956, all the Class 1 heirs were entitled for equal share in the land and therefore, the order impugned passed by the Divisional Commissioner setting aside the order passed by the Chief Settlement Commissioner is apparently erroneous. Learned Counsel submitted that the Divisional Commissioner has passed the order impugned without appreciating the law applicable for determining the shares of the existing heirs in the hand in question. 8. I have considered the submissions of the learned Counsel and perused the material on record. 9. Indisputably, the first wife of Bhikha Ram, Chunni, the mother of Haru, had expired even before the partition of the country. 8. I have considered the submissions of the learned Counsel and perused the material on record. 9. Indisputably, the first wife of Bhikha Ram, Chunni, the mother of Haru, had expired even before the partition of the country. It is not in dispute that Bhikha Ram entered into second marriage with Tulsi and the petitioners herein are sons and daughter of Shri Bhikha Ram. It is also not in dispute that Bhikha Ram expired in the year 1988 and therefore, the petitioners, the wife of Bhikha Ram, Smt. Tulsi and the respondent herein Haru @ Hari Ram all being the Class I heirs, were entitled to equal share in the land in question in terms of the provisions of Section 8 of the Hindu Succession Act, 1956. In this view of the matter, the order passed by the Settlement Officer, affirmed by the appellate authority, the Chief Settlement Commissioner, Sri Ganganagar was absolutely in accordance with law and thus, the order impugned passed by the Divisional Commissioner setting aside the order passed by the Chief Settlement Commissioner dated 5.9.1994 is not sustainable in the eyes of law. 10. In the result, the writ petition succeeds, it is hereby allowed. The order impugned dated 27.2.1997 passed by the Divisional Commissioner, Bikaner in Petition No. 21/1995, is set aside. The order passed by the Chief Settlement Commissioner dated 5.9.1994, affirming the order passed by the Settlement Commissioner dated 7.6.1994 is restored. No order as to costs.Petition allowed. *******