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2015 DIGILAW 1537 (RAJ)

Pema Ram v. Divisional Commissioner

2015-08-18

ARUN BHANSALI

body2015
JUDGMENT : Arun Bhansali, J. This writ petition has been filed by the petitioner aggrieved against the order dated 27.2.1997 passed by the Divisional Commissioner, Bikaner, whereby the petition filed by respondent-Haru @ Hari Ram under Section 33 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 ('the Act') has been accepted and the order dated 5.9.1994 passed by the Chief Settlement Commissioner, Sriganganagar has been set-aside. 2. The dispute pertains to the land allotted under the provisions of the Act to one Bhikha Ram as non-claimant. The land in question ad measuring 22 Bigha stood in the name of said Bhikha Ram in the revenue records as is evident from Annexure-2. After death of Bhikha Ram on 16.2.1988, respondent-Hari Ram moved an application before the District Rehabilitation Officer seeking recording of his name qua his share for the property as legal heir of Bhikha Ram. The District Rehabilitation Officer, Sriganganagar by his order dated 19.8.1993, came to the conclusion that as deceased Bhikha Ram had two wifes both named Tulsi, on death of Bhikha Ram, the property would devolve on legal heirs of two wives in equal shares i.e. on petitioners on one part and on Hari Ram on other part in equal share. 3. Feeling aggrieved, the petitioners filed appeal before the Additional District Collector (Admn.) and Settlement Commissioner, Sriganganagar. The Settlement Commissioner by order dated 7.6.1994, set aside the order passed by the Rehabilitation Officer and held that as the land stood in the name of Bhikha Ram, under Section 8 of the Hindu Succession Act, 1956 ('the H.S. Act'), all his legal representatives i.e. wife, sons and daughter would have equal share and ordered accordingly. 4. The order dated 7.6.1994 was challenged by the respondent - Hari Ram before the Chief Settlement Commissioner, Sriganganagar, who by his order dated 5.9.1994 rejected the revision filed by the respondent. 5. Against the rejection of revision petition, the respondent filed petition under Section 33 of the Act before the Divisional Commissioner. The Divisional Commissioner by his order dated 27.2.1997, set-aside the order passed by the Chief Settlement Commissioner on coming to the conclusion that though the reasons recorded by the Chief Settlement Commissioner regarding the nature of allotment appears to be logical, however, relying on the judgment in DBCWP No.2581/1988, be set-aside the order. The Divisional Commissioner by his order dated 27.2.1997, set-aside the order passed by the Chief Settlement Commissioner on coming to the conclusion that though the reasons recorded by the Chief Settlement Commissioner regarding the nature of allotment appears to be logical, however, relying on the judgment in DBCWP No.2581/1988, be set-aside the order. Though the Divisional Commissioner has only set aside the order dated 5.9.1994, the order dated 7.6.1994 passed by the Settlement Commissioner was also required to be set-aside and as the intention appears to restore the order passed by the Rehabilitation Officer. 6. It is submitted by learned counsel for the petitioners that the Divisional Commissioner fell in error in setting aside the order passed by the Chief Settlement Commissioner, inasmuch as, it is well settled that the allotment is made to the person in his individual capacity and as the same was made vide Annexure-1 in favour of Bhikha Ram, on his death in the year 1988 intestate, the petitioners along with Smt. Tulsi and Hari Ram succeeded to the property of Bhikha Ram in equal shares and therefore, the order impugned cannot be sustained. 7. In the alternative, it was submitted that even if it is taken that the land as allotted to Bhikha Ram was a joint family property still in view of provisions of Section 6 of the H.S. Act, the succession would take place on account of presence of woman in the family by survivorship only and therefore, the order passed by the Divisional Commissioner cannot be sustained. 8. Reliance was placed on Satnam Singh & Anr. v. Jagar Singh & Ors., 1974 WLN (UC) 12. 9. Opposing the submissions, learned counsel for the respondents supported the order passed by the Divisional Commissioner. 10. It was submitted that the allotment Annex.-1 was made to Bhikha Ram as head of the family and as name of the respondent appears in the allotment letter, he was having share along with his father Bhikha Ram and in view of the fact that along with Bhikha Ram, the names of Bhika Ram's mother and wife appear in the allotment letter, the respondent otherwise also becomes entitled to half share in the property and therefore, the order passed by the Divisional Commissioner deserves to be sustained. 11. 11. Reliance was placed on judgment of this Court in Bakhu Ram v. Collector-cum-Authorised Chief Settlement Commissioner, Ganganagar & Ors., D.B. Civil Writ Petition No.2581/1988 decided on 20.9.1988. 12. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 13. A perusal of the document pertaining to allotment Annexure-1 reveals that the same has been titled as land allotment certificate for displaced persons settled on land in Ganganagar district; the same bears the name of Bhikha Ram and under the heading other members of family besides name of Bhikha Ram with relationship as self names of Tulsi, Haru and Pemi with relationship as wife, son and mother respectively have been indicated; in the certificate itself there is an affidavit by the head of the family inter-alia indicating that the members stated in the certificate were his dependants and none of them was allotted land elsewhere and all of them including head were genuine displaced persons. 14. This Court while dealing with a similar nature certificate under the provisions of the Act, in the case of Satnam Singh (supra) held and observed as under:- "4. In my opinion, none of the contentions has any force. It is quite clear from the allotment certificate Ex.A/2 that the lands in dispute were allotted solely in the name of Pathanasingh. No doubt, Ex.A/2 contains the names of the other members of the family of the allottee but that does not mean that the lands were allotted to all of them. A careful reading of the allotment certificate shows that the names of the other members of the family were mentioned therein in order to show that none of the them was allotted any land else where. This is clearly borne out from the affidavit attached below the allotment certificate in which Pathanasingh had declared that the above stated members or dependents had not been allotted lands else where and further that all of them including Pathanasingh were genuine displaced persons. Similarly, in the Basic Register Ex.A/1, Pathanasingh has been mentioned as the person to whom the land has been allotted. There is no other evidence on the record which goes to show that Pathanasingh was not the allottee but the land was allotted to all the members of his family. Similarly, in the Basic Register Ex.A/1, Pathanasingh has been mentioned as the person to whom the land has been allotted. There is no other evidence on the record which goes to show that Pathanasingh was not the allottee but the land was allotted to all the members of his family. Moreover, Pathanasingh in the agreement clearly described himself to be the owner of the land. There is thus no force in the argument that Pathanasingh was not the sole allottee and the lands sold were allotted to all the members of his family." 15. From the above, it is apparent that it has been categorically laid down that merely because names of other members of the family of the allottee has been indicated in the certificate, does not make them allottees and the land belongs to the person in his individual capacity. 16. So far as judgment in the case of Bakhu Ram (supra) is concerned, a perusal of the judgment indicates that the dispute in the said writ petition did not pertain to the original allottee as the original allottee was Lakhu S/o Dariya and the dispute arose after death of Lakhu S/o Dariya and his mother Mst. Keshri Wd/o Dariya amongst brothers of Lakhu S/o Dariya and therefore, the judgment in the case of Bakhu Ram (supra) has no application to the facts of the present case. 17. In view of the law laid down by this Court in the case of Satnam Singh (supra), it will be deemed that under allotment certificate (Annex.1), it was Bhikha Ram, who was the sole owner of the land allotted under the provisions of the Act and on his death on 16.2.1988, the succession would be governed by provisions of Section 8 of the H.S. Act, under which the wife, sons and daughters are entitled as first class heirs to equal share and therefore, in those circumstances, the order passed by the Divisional Commissioner dated 27.2.1997 cannot be sustained and the same, therefore, deserves to be set-aside. 18. In view of the above discussion, the writ petition filed by the petitioner is allowed. The order dated 27.2.1997 passed by the Divisional Commissioner (Annex.6) is set-aside and the orders passed by the Settlement Commissioner (Annex.4) and the Chief Settlement Commissioner (Annex.5) are restored. No order as to costs.