Mansa vs The Financial Commissioner and Others

G.R. Majithia, J.—This order disposes of Civil Writ Petition No. 3928 of 1980, Regular Second Appeal No. 2914 of 1980 and Regular Second Appeal No. 2915 of 1980.

In Civil Writ Petition No. 3928 of 1980, Mansa son of Bhollar has challenged the order of the Financial Commissioner, Haryana, passed in R.O.R.No. 38 of 1976-77 and R.O.R. No. 40 of 1976-77 decided on September 25, 1979. In Regular Second Appeal No. 2914 of 1980, Ram Chander son of Bhollar (Original land-lord) has challenged the appellate order passed by the Additional District Judge, Jind affirming on appeal the order of the trial Judge decreeing the suit of the plaintiffs respondents for possession of the disputed land. Similarly, in Regular Second Appeal No. 2915 of 1980 Mansa son of Bhollar (original land lord) has challenged the appellate order passed by the Additional District Judge, Jind affirming on appeal those of the trial Judge, where the suit of the plaintiffs for possession was decreed.

Mansa and Phulla sons of Shadi filed an application u/s 18 of the Punjab Security of Land Tenures Act (for short, the Act) for purchase of land comprised in Rectangle No. 80, Khasra Nos. 9,10 to 17, situated in village Dhatrath, Tehsil Jind. The application was allowed by the Assistant Collector 1st Grade, Jind vide order, dated May 15, 1974. Bhollar unsuccessfully challenged the order in appeal before the Collector. The appeal was dismissed vide order, dated September 25, 1974. The appellate order was challenged in second appeal before the Commissioner by Bhollar and his sons. It was stated therein that the original land owner had transferred the disputed land to his sons under a civil court decree, dated December 19, 1969. The decree was given effect to in the record of rights. Mutation No. 2309 was entered and sanctioned on the basis of the civil court decree in favour of the sons of the land owner. The mutation was reflected in the record of rights, but the tenants did not implead the transferees as party respondents in the application for purchase. Learned Financial Commissioner dealt with this point observing that the copy of the judgment and decree of the civil court decree and the mutation sanctioned on the basis thereof was not produced before him. He further proceeded to hold that the transfer effected in favour of the transferees was hit by Section 19-E of the Act.

It is unfortunate that the learned Financial Commissioner negatived the claim of the petitioner on wholly unsustainable point. It was not disputed before him that the original land owner had transferred the disputed land to his sons under a civil court decree and the civil court decree has been given effect to in the record of rights, but he adopted a method to overcome this difficulty by observing that the copy of the civil court decree was not produced. If a fact is not controverted, it is not the requirement of law that that fact must be proved. The petitioner had become owner of the disputed land under a civil court decree and the decree has been given due effect in the record of rights. They were necessary parties to the application for purchase. No order prejudicial to their interest could be passed without hearing them. The order of purchase is, thus, non est.

Apart from this, the learned counsel for the petitioner submitted that order, dated November 14,1960 vide which land measuring 68 Bighas 11 Biswas was declared surplus with Bhollar is a void order. He submitted that Bhollar, the original land owner, was not served with any notice by the Collector, Agrarian while determining his surplus area.

I directed the Deputy Advocate General, Haryana, appearing for the State to produce the original record declaring the surplus area with Bhollar. A perusal of the records reveals that no notice was given to Shri Bhollar and the observation in the order that notice was given to him and he refused to accept the notice is patently false. Since no notice was issued to him, the question of refusal to accept service of the notice did not arise. The order of declaration of surplus area, dated November 14, 1960, a copy of which has been produced as Annexure F-6 to the writ petition, cannot be sustained as it was passed without hearing the land owner. Since the order declaring surplus area has been declared to be a void order, the order of purchase passed in favour of the private respondents cannot be sustained for twin reasons: (i) the order declaring surplus area has been declared to be void and the order of purchase proceeded on the basis that the disputed land, which was sought to be purchased u/s 18 of the Act has been declared surplus. If the order of declaration of surplus area is non est, the order of purchase cannot be sustained on this ground alone and (ii) proper parties were not made as party respondents to the petition for purchase u/s 18 of the Act. The order of purchase was passed in the absence of the vitally affected parties.

In the Regular Second Appeal Nos. 2914 and 2915 of 1980, the defendants have challenged the judgment and decree of the Civil Court decreeing the suit of the purchasers for possession of the suit, land, which was alleged to have been purchased by them u/s 18 of the Act and from which they were dispossessed forcibly by the land owners. Since I have held that the order of purchase is a void order, the basis for their claim in the civil suit has ceased to exist and they had no locus standi to claim back possession even if they were unauthorisedly evicted. They do not have a good title to the suit land. Their claim could not be decreed.

For the reasons stated above, Civil Writ Petition No. 3928 of 1980 is allowed and orders of declaration of surplus area, dated November 14, 1960 (Annexure P-6), of Assistant Collector 1st Grade, dated May 15, 1974, of the District Collector, dated September 25, 1974, Commissioner, dated August 3, 1976 and the revisional order of the Financial Commissioner, dated September 25, 1979 are quashed. Regular Second Appeal Nos. 2914 of 1980 and 2915 of 1980 are allowed. The judgment and decree of the Courts below are set aside and the suit of the plaintiffs for possession of the disputed land is dismissed. However, the parties are left to bear their own costs.