Raj Kumar vs Financial Commissioner

I.S. Tiwana, J. (Oral)

The petitioner''s application filed under section 9 of the Punjab Security of Land Tenures Act, 1953 (for short, the Act) for ejectment of the respondenttenant Hira Lal though was allowed by the subordinate officers upto the level of the Commissioner yet has been dismissed by the Financial Commissioner vide his order dated November 18, 1977 Annexure P.6. The ground pleaded for ejectment was that he was a small landowner [section 9(1)(i)] and the respondenttenant was in possession of more than 5 standard acres of other land (section 9A). The petitioner impugnes this order, i.e. Annexure P.6.

The reason for declining the prayer of the petitioner as recorded in this order is that Raj Kumar i.e. the petitioner "is only a limited mortgagee on the land in dispute and he appears to have been used by Har Gurdial Singh landowner as an instrument for ejecting Hira Laltenant. There is also nothing on the record to show that Hira Lal tenant was brought on the land by mortgagee Raj Kumar". As is well indicated by this order, Har Gurdial Singh was the original landowner and he mortgaged it in favour of one Savitri Devi on November 26, 1968. Later, on May 11, 1973, another usufructary mortgage was created in favour of the petitioner for a sum of Rs. 6,000/ out of which Rs. 4,000/ were left with the petitioner to redeem the earlier mortgage. Thus the settled or admitted facts are that the petitioner became the mortgagee of this land w.e.f. May 11, 1973 and Hira Lal respondent was a tenant on that land much earlier to that date.

The primary submission of the learned counsel for the petitioner now is that the abovenoted conclusion of the Financial Commissioner that mortgage in question had been created only with a view to eject Hira Lal respondent is not based on any material on record and he was also under a wrong impression that in order to eject the respondent the petitioner was under an obligation to establish the status of Har Gurdial Singh as a small landowner. While I find merit in the first contention of the learned counsel I find none in the later one. Even the learned counsel for the respondent is not in a position to refer to any material circumstance on record to justify the conclusion of the Financial Commissioner that mortgage in question had been created only with a view to eject the respondent. Rather the earlier mortgage in favour of Savitri Devi completely negatives any such inference. In the light of this, the said conclusion of the financial Commissioner has obviously to be set aside and I order accordingly.

So far as the second contention of the learned counsel for the petitioner as referred to above is concerned, he does not dispute that the mortgage in favour of the petitioner was a transfer in terms of section 58 of the Transfer of Property Act and it has to be ignored in the light of section 6 of the Act. In other words, the mortgage did not effect the right of the respondent to hold this land as a tenant under the Act. If this mortgage has to be ignored as it has to be in view of the abovenoted admitted legal position, then the petitioner had to establish that his entire land did not exceed the permissible area as defined in the Act. As per Section 2(2), a small landowner means a landowner whose entire land in the State of Punjab does not exceed the permissible area. Permissible area is defined in the very next subsection i.e. subsection (3) which reads permissible area in relation to a landowner or a tenant, means thirty standard acres and where such thirty standard acres on being converted into ordinary acres exceed sixty acres, such sixty acres.

It is conceded before me that the permissible area of a landowner has to be seen on the date of the Act came into force i.e. April 15, 1953. Learned counsel for the petitioner, however, seeks to contend that there is enough evidence on record to show that even Har Gurdial Singh who was admittedly the landowner qua the area in question on April 15, 1953 was a small landowner or in other words his total holdings did not exceed his permissible area. The learned counsel for the respondent tenant urges with some amount of vehemence that neither any such plea was taken by the petitioner in his application for ejectment nor was he i.e. the tenant afforded any opportunity to rebut this stand of the petitioner. According to him, his client was able to produce some material by way of additional evidence before the Commissioner which goes to show that on the relevant date i.e. April 15, 1953, Har Gurdial Singh was a big landowner. Be that as it may, it appears that there was no serious controversy between the parties about this aspect of the matter at any stage of the proceedings before the subordinate officers. Thus in the facts and circumstances of this case, it looks appropriate to send the case back to the Assistant Collector First Grade, Hoshiarpur to reexamine the matter afresh in accordance with law and the observations made above. It may be observed that the parties would not only be allowed to lead any fresh evidence they may like but would also be permitted to amend their pleadings if they so choose to do.

For the reasons recorded above, this petition is allowed. The impugned order of the Financial Commissioner Annexure P.6 as well as the orders of the subordinate authorities are set aside. The parties through their counsel are directed to appear before the Assistant Collector 1st Grade on September 16, 1985.