Punjab-Haryana High Court
Jasbir Singh vs Financial Commissioner (Revenue) on 22 February, 2012
Author: Paramjeet Singh
Bench: Paramjeet Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP No. 7268 of 2010
Date of Decision : February 22, 2012
Jasbir Singh ...... Petitioner
Versus
Financial Commissioner (Revenue), Punjab, Chandigarh and others
..... Respondents
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH.
Present:- Mr. Arun Jain, Senior Advocate, with,
Mr. Amit Jain, Advocate, for the petitioner.
Mr. N.S. Virk, Addl. A.G. Punjab.
Mr. Arun Palli, Senior Advocate, with,
Mr. Kanwal Goyal, Advocate, for respondent No. 5.
PARAMJEET SINGH, J.
The present writ petition has been filed under Articles 226/227 of the Constitution of India for quashing the order dated 23.10.2009 (Annexure-P-13) passed by the Financial Commissioner under Section 24(4) read with Section 33 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (hereinafter referred to as 'the Act').
Brief facts of the case are that Bhagat Singh son of Attar Singh, who had left his property in Pakistan, was allotted land in village Sanaur, Tehsil and District Patiala in lieu of property left in Pakistan. After the death of Bhagat Singh, petitioner being son of Bhagat Singh, was allotted land measuring 215 kanals and 7 marlas ignoring other legal heirs and was also given possession thereof. On account of death of Bhagat Singh, Sanad allotment was issued in the name of petitioner on 16.1.1957. Consolidation CWP No. 7268 of 2010 -2- took place in the village in 1960. Since 1961, the property had continued to be in the name of the petitioner. The petitioner being owner of the land mortgaged 113 kanals and 2 marlas of land out of the aforesaid land to Gopi Chand and Bhagwan Dass. Narinder Kaur/respondent No. 5 (sister of petitioner) purchased mortgagee right, vide registered deed dated 23.5.1969 (Annexure-P-1), in respect of 113 kanals 2 marlas of land. Thus, Narinder Kaur/respondent No. 5 became mortgagee of the petitioner. Thereafter, Narinder Kaur/respondent No. 5 filed a civil suit for permanent injunction on 25.4.1990 claiming that she has become the owner of the entire property including the mortgaged property by way of adverse possession. The petitioner in the civil suit took stand that he will take possession of the mortgaged land as well as of other land from Narinder Kaur in due course. Narinder Kaur did not question the Sanad dated 16.1.1957 issued in favour of the petitioner. The petitioner thereafter filed a redemption petition, which was allowed by the Collector, vide order dated 11.6.1998 (Annexure-P-3). The possession of the mortgaged land was not delivered, rather a civil suit under Section 12 of the Punjab Redemption of Mortgages Act was filed by respondent No. 5. Even in the civil suit, Sanad of allotment dated 16.1.1957 has not been challenged. Application for interim injunction under Order 39 Rules 1 and 2 CPC filed with the suit was dismissed. Respondent No. 5 took the matter of interim injunction upto this Court, but failed throughout. Thereafter, petitioner filed an execution application for possession and warrant of possession was issued with regard to 113 kanals 2 marlas of land. However, in order to defeat the right of the petitioner, Narinder Kaur preferred an appeal before the Commissioner, Patiala Division, Patiala and succeeded in obtaining an ex-parte interim order, however, the same was vacated, vide CWP No. 7268 of 2010 -3- order dated 12.11.2001. Thereafter, Narinder Kaur/respondent No. 5 filed a revision and that has been dismissed. Thereafter, possession was delivered after a long legal battle. Thereafter, Narinder Kaur/respondent No. 5 filed third civil suit on 14.1.2002 for declaration that she is a co-sharer in the mortgaged land and other land and also challenged the Sanad allotment dated 16.1.1957. The plaint of the same is Annexure-P-9 and in the third civil suit, there was ex-parte injunction order which, however, was vacated on 10.11.2003 (Annexure-P-10). Thereafter appeal filed by respondent No. 5 against order (Annexure-P-10) was dismissed and further revision was also dismissed whereafter the matter reached upto the Apex Court and SLP has also been dismissed, vide order of the Hon'ble Supreme Court dated 29.3.2004 (Annexure-P-11). Narinder Kaur thereafter filed a petition under Section 24 of the Act challenging Sanad allotment dated 16.1.1957 which was dismissed by the Chief Settlement Commissioner, Patiala. She then filed a revision petition before the Financial Commissioner against the order of the Chief Settlement Commissioner, which has been disposed of by the impugned order which is under challenge in the present writ petition.
On notice of the writ petition, respondent No. 5 filed written statement stating that petitioner has not come to the Court with clean hands. The evacuee land, measuring 16 standard acres, 3 ½ standard units=126 Bighas 6 Biswas = 208 kanals 19 marlas as fully detailed in quasi permanent Sanad Taksim Arazi Matruka allotment No. PEI/71/189 situated in village Sanaur, Tehsil and District Patiala, was allotted to late Sh. Bhagat Singh s/o late Rai Sahib Attar Singh on 8.3.1956 in lieu of the land left by him in Pakistan. Bhagat Singh was untraceable. There is no certainty about his death. However, his death will be treated as a civil death under Section 107 CWP No. 7268 of 2010 -4- of the Indian Evidence Act. It is further submitted that Hindu Succession Act came into force on 17.6.1956, before the disappearance of Bhagat Singh and deemed date of death of Bhagat Singh would be seven years after disappearance from the end of the year 1956. It is submitted in the written reply that Bhagat Singh left behind Smt. Amrik Kaur (widow) Narinder Kaur/respondent (daughter) and Jasbir Singh (son). After the death of Bhagat Singh, i.e., in the year 1963 (deemed year of death), the rehabilitation authorities including Managing Officer were required to make inquiry for bringing on record the successor-in-interest of Bhagat Singh under Section 9 of the Act read with Rules 83 to 86 framed under the Act. It is further submitted by respondent No. 3 in reply that Managing Officer, Gharam, Patiala did not make any inquiry with regard to the death of Bhagat Singh and his heirs. No notice was given to the heirs of Bhagat Singh and the Sanad was issued in the name of petitioner alone. Respondent No. 5 filed an application for getting the copy of the Sanad, but the same was not supplied. As per the provisions of law, Managing Officer could not have issued Sanad in favour of petitioner in the absence of death certificate or the declaration of civil death under Section 107 of the Indian Evidence Act. The case of the respondent is that petitioner obtained Sanad dated 16.1.1957 by means of fraud, mis- representation and concealing the material facts with regard to survival of widow of Bhagat Singh, i.e., Amrik Kaur, mother of the petitioner and respondent No. 5, i.e., sister of the petitioner. It means that on the date of death, three heirs were surviving, i.e., Amrik Kaur (widow), Jasbir Singh (son) and Narinder Kaur (daughter)/respondent No. 5. The rehabilitation authorities fraudulently passed order under Section 9 of the Act in the name of petitioner and the Financial Commissioner has rightly recorded a finding vide impugned CWP No. 7268 of 2010 -5- order (Annexure-P-13) that the Sanad was obtained by fraud and this is nullity, and delay in such a case is of no consequence. The Financial Commissioner has left open to the parties to seek remedy in the civil court for claiming the share of Bhagat Singh allotted under the Act.
I have heard learned counsel for the parties and perused the documents on record.
Admittedly, Bhagat Singh migrated from Pakistan and he was allotted land in question, vide certificate of land allotment No PTI/71/189 dated 8.3.1956. Thereafter, the property was transferred in pursuance to Sanad dated 16.1.1957 in the name of Jasbir Singh, wherein it has been mentioned that he was the sole legal heir of deceased Bhagat Singh. The date of death of Bhagat Singh is a matter of controversy as no death certificate of Bhagat Singh is available with the parties. It is the case of both the parties that Bhagat Singh had left village to an undisclosed place and never returned back. The intimation regarding the non traceability of Bhagat Singh was made in the year 1956. In the Sanad issued on 16.1.1957, the date of death of Bhagat Singh has been mentioned as 15.9.1956 and this Sanad has been signed by Jasbir Singh/petitioner. It is not in dispute that Bhagat Singh left behind Amrik Kaur (widow), Jasbir Singh/petitioner (son) and Narinder Kaur/respondent No. 5 (daughter). This is also an admitted fact on record that there is no testament in the shape of Will or any other document meaning thereby that the property of deceased Bhagat Singh was to devolve as a natural succession in the absence of any testament. Admittedly, parties are already before the Civil Court. As per Section 107 of the Indian Evidence Act, if a person is not traceable, then his death can be deemed only after seven years of CWP No. 7268 of 2010 -6- the intimation of disappearance of a person, i.e., after passing of the statutory period of seven years it will be treated as civil death.
The revision petition was filed before the Financial Commissioner after a long delay. Prior to that, parties have been litigating before the Civil Courts as well as before the revenue Courts in redemption proceedings. The Sanad Taksim has already been challenged in Civil Court in a civil suit. The civil suit dated 14.1.2002 (Annexure-P-9) is still pending. The Financial Commissioner has passed the order under the provisions of the Act. It is not in dispute that when the property is allotted under the Displaced Persons (Compensation and Rehabilitation) Act, 1954, then the remedy of appeal/revision is available under the provisions of that Act. Narinder Kaur/respondent No. 5 has invoked the jurisdiction of rehabilitation authorities exercising the powers under the Act. The power has been exercised by the Financial Commissioner under Section 24(4) read with Section 33 of the Act. There is no perversity or illegality in the findings recorded by the Financial Commissioner in the order. The Financial Commissioner has come to a conclusion that Bhagat Singh was untraceable and unheard in December 1956/January 1957. His civil death will be treated after seven years of his disappearance. Bhagat Singh left behind three heirs, i.e., widow, daughter and son. There was no occasion for the Managing Officer to transfer the property in the name of Jasbir Singh alone. Although, the revision petition has been filed after a considerable delay, the allegations are with regard to practice of fraud and mis-representation. Admittedly, there is no evidence on record that the heirs of Bhagat Singh, i.e., Amrik Singh (widow) and Narinder Kaur/respondent No. 5 (daughter) were served with any notice before issuing Sanad in the name of Jasbir Singh (petitioner). CWP No. 7268 of 2010 -7- Otherwise also, there is no limitation provided under Section 24 of the Act. When the case is based on the allegation that the Sanad has been obtained fraudulently and by concealing of material facts then delay in seeking remedy cannot prove fatal under the Act. In such circumstances, the order of the Financial Commissioner setting aside the order dated 22.9.2004 (Annexure-P-
12) passed by the Chief Settlement Commissioner and order dated 16.1.1997 passed by the Managing Officer is legal and valid. The Financial Commissioner has rightly left the issue of inheritance to be resolved by the Civil Court. In these circumstances, the property will be deemed to remain in the name of Bhagat Singh and the parties will get their rights decided from the Civil Court, already pending.
In view of the above, the present writ petition is dismissed. However, till the decision of the Civil Court, parties shall maintain status quo with regard to alienation and creating third party rights.
No order as to costs.
(PARAMJEET SINGH) JUDGE February 22, 2012 sjks