Teja Singh vs Union of India and Others

R.S. Narula, J.—In this Letters Patent Appeal against the judgment of a learned Single Judge of this Court, dated November 6, 1968, dismissing Civil Writ 1881 of 1966, without any offer as to cots, it is unnecessary to go into the previous history of the case relating to the original allotment of land made to the appellant - who is admittedly a displaced person from West Pakistan - on the basis of oral verification, subsequent cancellation of that allotment and resumption of the allotted land on the finding that the land said to have been left behind by the appellant in Pakistan was not shown to be in his name in the jamabandi received from that country, and into the subsequent proceedings initiated by the appellant for reallotment of area in lieu of the land said to have been left behind in Pakistan, prior to the stage of the final order of the Chief Settlement Commissioner, dated September 7, 1965. In that order (Annexure ''G''), which was impugned by the appellant in his petition under Arts. 226 and 227 of the Constitution in this Court, the learned Chief Settlement Commissioner held:-

(i) " A deviation from jamabandi may be accepted if a transfer of land has taken place by means of registered deed between individuals which had not yet been recorded in the jamabandi or in the form of a sanctioned mutation."

(ii) "In the absence of an entry in the jambandi record, claim of ownership of land may be accepted if there was an oral transaction regarding purchase and the same was followed by a sanctioned mutation or if there was a transaction by means of a registered deed and it was followed by a mutation entry not yet sanctioned."

(iii) "Documentary evidence in the shape of sale-deeds produced by Teja Singh (appellant) does not establish his title for allotment of land. These sale-deeds only indicate that Teja Singh had purchased land in West Pakistan in the years 1944 and 1945. The partition of the country took place on August 15, 1947. Thus there was a long interval of two or three years and the possibility cannot be ruled out that during this interval Teja Singh might have parted with the land."

(iv) "The counsel for Teja Sing (appellant) has argued that there was no evidence on the record against the respondent. This, as far as goes it correct. The absence of adverse evidence, however, does not constitute positive proof in favour of the respondent. It is true that the department has no evidence in its possession to show that Teja Singh had definitely parted with the land in Pakistan. But the possibility of his having done so is there and obviously no allotment in his favour can be made until and unless his claim is established on a cent per cent basis without the least possibility of doubt."

The learnt Chief Settlement Commissioner did not doubt the genuineness of the registered sale-deeds. In fact he recorded an implied finding of the appellant having really purchased the land in dispute under those registered sale-deeds. He also conceded in his impugned order that the entries in a jamabandi are not conclusive for determining a claim of this type, and that in the case of jamabandi being silent, other evidence to prove title to property left behind in Pakistan was admissible. Still he negatived the claim of the appellant on only two grounds, viz. :-

(i) that though there was no indication, complaint or evidence about the appellant having ever parted with any interest in the land (admittedly purchased by him) between 1944-45 and 1947, the possibility of his having done so could not be excluded; and

(ii) that though there were registered sale deeds, no effect could be given to them, unless there at least existed mutation entry relating to the transfer even though the mutation might not have been sanctioned.

The Chief Settlement Commissioner upheld the observations of the Managing Officer to the effect that if and when the appellant is able to prove his title, allotment would be made to him.

The learned Single Judge, in his judgment under appeal, observed that the finding of the Chief Settlement Commissioner about the title of the appellant to the land said to have left behind by him in Pakistan involved a pure question of fact, and since the finding had been arrived at by a competent authority within its jurisdiction, it is not open to this Court to interfere with the same even if the finding is erroneous, as this Court cannot sit in appeal over decisions on questions of fact in exercise of its writ jurisdiction. At the same time, the learned Single Judge made it abundantly clear that it would be open to the appellant to prefer a claim in respect of land which is stated to be mentioned in the copy of the jamabandi which the appellant has since obtained from the office of the Rehabilitation Department, i.e., on the basis of Annexure ''H'' to the writ petition. In this connection it has been held in the judgment under appeal that :-

"The Chief Settlement Commissioner has made an observation in his impugned order that if and when the petitioner Teja Singh is able to prove his title to any land in Pakistan, an allotment will be made to him. In view of these observations it is open to the petitioner to go to the department and present his claim for allotment of land in lieu of the one left in Pakistan as it appears from the jamabandi (Annxure''H'') if he has really any case."

The contention of the appellant regarding his other land having been repelled in the circumstances mentioned above, his writ petition was dismissed by the order of the learned Single Judge, dated November 6, 1968.

In this appeal against that order, Mr. Harnam Singh Wasu, the learned senior counsel for the appellant, as submitted that the finding of the Chief Settlement Commissioner on the question of fact as to whether the appellant had or had not retained title to the land admittedly purchased by him under the sale-deeds till August 15, 1947, was based on no evidence, and was, on the contrary, based on mere surmises and conjectures. Counsel submitted that a finding of fact which is based on no evidence, but is based on mere surmises and conjectures is not such a finding which cannot be interfered with by this court in certiorari proceedings. In fact it has been recently held by their Lordships of the Supreme Court in Smt. Gunwant Kaur and Others Vs. Municipal Committee, Bhatinda and Others, as follows :-

"The High Court is not deprived of its jurisdiction to entertain a petition under Art. 226 merely because in considering the petitioner''s right to relief questions of fact may fall to be determined. In a petition under Art. 226 the High Court has jurisdiction to try issue both of fact and law. Exercise of the jurisdiction is,it is true, discretionary, but the discretion must be exercised on sound judicial principles. When the petition raises questions of fact of complex nature, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute may not appropriately be tried in a writ petition, the High Court may decline to try a petition."

A short note of that judgment is reported in ( Smt. Gunwant Kaur and Others Vs. Municipal Committee, Bhatinda and Others, ). In any event, the Chief Settlement Commissioner has really recorded no finding of fact in this case against the appellant. having admitted the registered sale-deeds, and not disputed the factum of purchase of the property in question by the appellant in Pakistan, the claim of the appellant has been negatived on a conjecture of the weakest type for which no justification is available on the record. The manner in which the learned Chief Settlement Commissioner put the appellant to strict proof of a negative proposition appears to be disproved merely on account of the possibility of something having subsequently happened, for which there is neither any indication, nor any evidence. Even in the second ground on which the appellant''s claim was negatived, we find an error of law apparent on the face of the record. Mutation is mere evidence of title. Great significance is attached to a mutation entry in a case of oral transfer. If and when a transfer is effected by a registered sale-deed, the genuineness of which is not in doubt and the execution and effect of which is not being disputed by a party to the sale-deed, no Tribunal is entitled, in the absence of a legal requirement to that effect, to refuse to give effect to the sale-deed merely on the ground that it into supported by a subsequent mutation entry in respect thereof. both the reasons on which the claim of the appellant was negatived by the Chief Settlement Commissioner in his order are found to be no reasons in the eye of law. The claim of the appellant in respect of the land for which entry has been found in the jamabandi from the record of the respondents themselves has to be gone into by the departmental authorities in view of the direction already given by the Managing Officer, and upheld by the Chief Settlement Commissioner and the learned Single Judge. In the circumstances of the case, we find no justification for withholding from the appellant his right to have his claim for the land covered by the other two sale-deeds also being adjudicated upon by the Chief Settlement Commissioner afresh in accordance with law.

For the foregoing reasons this appeal is allowed, the judgment and order of he learned Single Judge are reversed and the writ petition is granted. Consequently, the impugned order of the Chief Settlement Commissioner is quashed under Art. 226 of the Constitution. We further direct under Art. 227 of the Constitution that the proceedings will stand remitted to the Chief Settlement Commissioner for redeciding the claim of the appellant after giving him adequate opportunity to substantiate the same in accordance with law. In the circumstances of the case, we make no order as to costs incurred by the parties in this Court.

Mehar Singh, C.J.

I agree.

Order accordingly.