Darbara Singh vs Jagtar Singh

S.R. Bunger, F.C.

The present case has been reported by the Commissioner (Appeals), Ferozepur and Patiala Divisions, Patiala, under Section 16 of the Punjab Land Revenue Act, 1887, against the order dated 21.8.89, passed by the Collector, Malerkotla, with his recommendation, that, the order dated 23.2.1989, passed by the Assistant Collector, 2nd Grade, Ahmedgarh, Tehsil Malerkotla, District Sangrur, as well as, the order dated 21.8.89, passed by the Collector, Malerkotla, passed in the case of Mutation No. 3396 of Village KupKalan, be set aside, as per his reference dated 14.11.1994.

The brief facts of the case, are, that, Mohinder Kaur d/o Harnam Kaur d/o Sunder Singh, had sold land measuring 80, with specific Khasra numbers to Jagtar Singh and Avtar Singh sons of Charan Singh, as per the registered sale deed, dated 21.2.1989, from out of the jointkhata, with the petitioners Darbara Singh etc. on the plea, that the said area was in her exclusive possession. Mutation No. 3396 of Village KupKalan was sanctioned by the Assistant Collector, 2nd Grade, Ahmedgarh, on 23.2.1989, regarding the change of ownership of land, in favour of vendees Jagtar Singh and Avtar Singh. Against this order, Darbara Singh and Gurmeet Singh, had filed an appeal before the Collector, Malerkotla, who, had rejected the same, as per his order dated 21.8.1989, on the ground, that it was barred by time. Against this order of the Collector, Darbara Singh etc. had filed the revision petition before the Commissioner (Appeals), Ferozepur and Patiala Divisions, as a result of which, the present case has been reported, recommending the setting aside of the impugned orders in this case. The operative part of the learned Commissioner (Appeals)''s order reads as follows :

"From the perusal of the record, it is clearly established that respondents did not have exclusive possession of the Khasra Nos. which have been sold by them."

It is relevant to point out, that, the learned Commissioner (Appeals), has confused the facts in this case; as, he has stated in his order, that, the petitioners and the respondent No. 3 Mohinder Kaur, are the vendors in this case; whereas, the true fact is, that Smt. Mohinder Kaur is the only vendor in this case and the petitioners Darbara Singh and Gurmeet Singh are the co sharers in the jointkhata, from out of which Mohinder Kaur has sold land with specific khasra numbers.

None, from either side, came present to argue this case. As this is a reference case, and an opportunity of being heard has been provided to both the sides, it has been thought appropriate to decide this case on merit, on the basis of the facts available on the record.

After careful consideration of the facts and circumstances of the case, I am of the view, that, the present revision petition, as recommended by the learned Commissioner (Appeals), Ferozepur and Patiala Divisions, has a merit and the same deserves to be accepted and the order passed by the Assistant Collector, 2nd Grade, Ahmedgarh, as well as, the order of the Collector, Malerkotla, deserve to be set aside and the case needs to be decided afresh.

Mohinder Kaur had sold the land in this case claiming herself to be in exclusive possession of the Khasras sold in this case, which are a part of the jointkhata with the petitioners; but at the time of sanctioning the mutation, regarding the change of ownership, no evidence was brought on the record before the Assistant Collector, 2nd Grade, Ahmedgarh, to show, that Smt. Mohinder Kaur, was in exclusive possession of khasra Nos. sold in this case. The petitioners Darbara Singh etc. had contested the order passed in Mutation No. 3396, claiming, that, these Khasra Nos., sold by Mohinder Kaur, were not in exclusive possession, but were a part of the jointkhata, which has not been partitioned; and as such, she could only sell her share in the jointkhata, and not the specific khasra Nos. The Collector, Malerkotla, had rejected the appeal filed by the petitioners on a technical ground, that the appeal was barred by time. In the present reference, the learned Commissioner (Appeals), has recorded a categorical findings, that, "as per record", the vendor Mohinder Kaur, was not in exclusive possession of the Khasra Nos. sold by her. While, I generally agree with the above findings of the learned Commissioner (Appeals), but at the same time. I have not been able to lay my hand on the record, on the basis of which, the learned Commissioner (Appeals) has based his findings. As such, I am of the considered view, that the question regarding the exclusive possession of the disputed khasra Nos. with the vendorMohinder Kaur or otherwise, needs to be looked into afresh, and the fate of this Mutation, needs to be decided, based on that.

In view of the above, I accept the present revision petition; set aside the order dated 21.8.1989, passed by the Collector, Malerkotla, as well as, the order dated 23.2.1989, passed by the A.C. 2nd Grade, Ahmedgarh and remand the case to the S.D.O. (Civil)cumA.C. Ist Grade, Malerkotla, with the direction that he should summon the parties to adduce evidence regarding possession of these khasra Nos. If, on the basis of the evidence brought on the record by the parties, it is established that Mohinder Kaur, at the time of sale of the said khasra Nos. was in exclusive possession, then the order passed by the A.C. 2nd Grade, Ahmedgarh dated 23.2.1989 will remain intact; however, in case, it is proved, that, she was not in exclusive possession of these khasra Nos. then a fresh Mutation should be entered, indicating the sale of shares only, by the vendorMohinder Kaur and their purchase by Jagtar Singh and Avtar Singh, as vendees.

It would be prudent and advisable, for the Revenue Officers, sanctioning the Mutation, in those cases, where a cosharer in a jointkhata, alienates land within one''s share, but claims exclusive possession of the khasra Nos. to give notice of the Mutation proceedings, to all the other co sharers in the jointkhata, so that, the issue of exclusive possession or otherwise, may be established. In response to the notice, if any cosharer comes forward and challenges the sanctioning of the Mutation, he should be afforded an opportunity of being heard, and his/her viewpoint, as well as the evidence adduced, if any, should be taken into consideration, before deciding the fate of the Mutation.

In this case, the petitioners were not given any notice of the Mutation proceedings and as such, they were not heard. The Sub Divisional Officer (Civil)cumA.C. Ist Grade, Malerkotla, will hear this case afresh, as directed, by associating the petitioners, and by allowing them the opportunity to lead the evidence.

The parties are directed to appear before the S.D.O.-cumA.C. Ist Grade, Malerkotla, on 15.5.1997. They be informed also, separately.

Announced.