Jaswant Singh and Others vs State of Punjab and Others

Mehar Singh, J.—In the area of village Dholbaha, in Hoshiarpur District, the 45 appellants, residents of the neighbouring village Janauri, have their holdings. In consolidation of holdings in the village, according to the provisions of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (East Punjab Act 50 of 1948), hereinafter to be referred as ''the Act'', a question cropped up in regard to the partition of common or joint land in which the appellants have a share. Section 16-A(1) (a) of the Act says that the consolidation authorities are to proceed to partition, in such circumstances, on the basis of shares of the right-holders recorded under Chapter IV of the Punjab Land Revenue Act, 1887 (Punjab Act, 17 of 1887). In those revenue records the shares are stated as ''Hasab Rasad Khewat'', which expression has been read by the consolidation officers as ''according to the area of the holdings''. The appellants claim that this expression ''Hasab Rasad Khewat'' should be read the same as the expression Hasab Zar Khewat'' which means ''according to the revenue assessed on the holdings''. In the case of partition on the basis of ''Hasab Zar Khewat'' the correct expression probably is ''Hasab Rasad Zar Khewat'' -, it is carried out according to the revenue assessed on the holdings. The consolidation authorities have not accepted this. The learned Single Judge has dismissed the petition of the appellants under Article 226 of the Constitution on the ground that, although according to AIR 1935 446 (Lahore) the expression ''Hasab Rasad Khewat'' when used in revenue records in reference to partition of a Shamilat area always means ''according to the revenue assessed on the holdings'' and not ''according to their areas'' except in very extraordinary circumstances, in the present case it has been shown that such an exception exists in the case of village Dholbaha even according to the statement in the return of the respondent-State.

In this appeal under clause 10 of the Letters Patent from the judgment of the learned Single Judge, the learned counsel for the appellants first refers to the Judgment of Skimp J. in Gurdial Singh v. Kanshi Ram R.S.A. No. 1581 of 1938, Regular Second Appeal No. 1538, decided on February 8, 1939, copy Annexure A, for the purpose of shoeing that in village Janauri of the appellants it has already been held, following Sunder''s case, that the partition of the common land is to be according to the revenue assessed on the holdings, and the learned counsel urges that as there was no further appeal from the judgment in Gurdial Singh''s case, that has become, final. But that decision has no bearing so far as the present case is concerned, because it relates to the village of the appellants and not to village Dholbaha. Sunder''s case also relates to a different village in the same district.

It is next urged by the learned counsel for the appellants that in view of the decision in Sunder''s case even if in the revenue records the expression used is ''Hasab Rasad Khewat'', its practical effect is partition according to the expression AIR 1925 127 (Lahore) the learned Judges say that ''the word Khewat is a derivative of khet (field)''. The literal sense of the expression ''Hasab Rasad Khewat'' would thus be ''according to the area of the holdings''. In the case of villages, where there is no fluctuation in the assessment of land revenue, in other words, where the land revenue is constant and static, in Sahib Khan v. Mussammat Ladhiani 69 P.R. 1909 a Division Bench of the Chief Court held that in ordinary villages the meaning of the words ''Hasab Rasad Khewat'' in respect to partition of Shamilat land is ''according to the revenue assessed on the holdings'', but the learned Judges pointed out exceptions to that manner of reading the expression. One exception given by the learned fudges is in the case of a riverain village in which revenue assessment fluctuates, another exception pointed out by the learned Judges is where in a village administration papers, for special reasons, use the expression ''Hasab Rasad Khewat'' to mean a division in proportion of area, and a third exception is added where this type of entry has been made by a mistake or it is found at the time of partition to be so unfair and unsuited to the existing facts that equity requires it to be disregarded. So the ratio of Sahib Khan''s case is that in a village where the assessment is not fluctuating, the expression ''Hasab Rasad Khewat'' means ''according to the revenue assessed on the holdings but where the revenue assessment fluctuates or where the village administration papers, as such wajib-ul-araz and misal-haqiat, say to the contrary, or where giving of such meaning to this expression would be manifestly unfair and inequitable, its meaning is to be taken as ''according to the area of the holdings''. That is the reason why in Daya''s case the learned Judges, with reference to Sahib Khan''s case, say this- "There can be be no doubt that the term khewat in the phrase ''hasab rasad khewat'' admits of two interpretations as explained in Sahib Khan v. Ladhiani, and may mean ''proprietary ''land'' or the land revenue assessed on that land." In Daya''s case actually it was found that the light of partition was based on measure of possessions and in the light of such a finding the learned Judges held that the expression ''Hasab Rasad Khewat'' must be taken to mean ''partition according to the area of the holdings.'' A somewhat similar approach following Sahib Khan''s case has been made in Dulla v. Lakhu AIR 1927 Lah 807. In AIR 1938 318 (Lahore) the same Bench which decided Sunder''s case reiterated what it held in that case in this manner.-"It was held that the phrase ''hasah rasad khewat'' when used in revenue records in reference to partition of a Shamilat area always meant ''according to the revenue assessed on the holding and not according to the area of the khewat holding'' but that this rule was subject to an exception in favour of villages of a peculiar type, where it would be unfair and inequitable to interpret it differently, as for example in riverain villages where the land revenue was fluctuating and the area held by the various proprietors might or might not be under the river". In Sahib Khan''s case the learned Judges have also referred to other exceptions that have been pointed out above. It comes to this that in a village in which there is no fluctuation of revenue assessment, the expression ''Hasab Rasad Khewat'' means ''according to the revenue assessed on the holdings'', but in other villages in which either the revenue fluctuates for some reason or the village administration papers say so, or the reading of that expression in the manner above stated would be unfair and iniquitous, in all those cases the expression is to be read meaning ''according to the area of the holdings'' or ''a division in proportion of area''. So in this case, for this argument of the learned counsel to prevail, it has to be seen whether the revenue assessment of the particular village is or is not fluctuating, or whether in the village administration papers any particular meaning to the expression has been given which may help the appellants, or which derogates from the meaning given to the expression by the consolidation authorities. There is no material for this on the record.

It is not denied by the learned counsel for the appellants that this question, which is now said to be a question of title, was never raised before the consolidation authorities under the provisions of East Punjab Act 50 of 1948. So those authorities had no occasion to look into the nature of the revenue assessment of the village or the village administration papers such as the Wajab ul-araz and the misal-haqiat. Not only was this question never raised before the consolidation authorities up to the stage of appeal, but the appellants never made an approach by way of an application u/s 42 of the Act to the Government to seek redress in this respect. Village administration papers such as the wajab-ul-araz and the statement in the misal-haqiat throw considerable light in regard to the use of such expression in the revenue records of a particular village. The question raised by the learned counsel cannot be decided at this stage without the assistance of such village administration papers and the evidence in regard to the nature of the revenue assessment, whether fluctuating or not, and no such assistance is available on the record. The learned counsel for the appellants explains that soon after the decision of the appellate authority against the appellants in the consolidation proceedings, they came to this Court by way of a writ petition under Article 226, and it is in these circumstances that this question was not raised before the consolidation authorities. It is a question which was not raised even before such of the consolidation authorities before whom the appellants urged their case. It is apparent now that the appellants were not properly advised not to raise that question before those authorities under the statute and they were farther not properly advised to approach this Court before haying recourse to their remedy u/s 42 of the Act, when that question could have been raised by them and the facts connected with it may have come to light before the authority exercising jurisdiction under that provision. They cannot be allowed to raise this question for the first time in a petition out of which this appeal has arisen, particularly as it can not be decided without some further evidence.

There is another aspect of the matter on account of which the appellants cannot be heard on this claim by them in a petition under Article 226. It is not shown in the petition, nor was it ever shown before the learned Single Judge that if partition takes place on the basis of ''Hasab Rasad Zar Khewat'', how the appellants are gainers, or, as it has taken place on the basis of ''Hasab Rasad Khewat'', as that expression has been interpreted by the consolidation authorities, how the appellants have suffered any Injury. In other words, the difference that might arise in partition following one or the other basts has not been shown, nor has it been shown that the result is detrimental to the interests of the appellants. So the appellants have not shown any injury to their interests which entitles them to invoke the jurisdiction under Article 226.

In the circumstances, there is no substance in this appeal of the appellants which is dismissed, but the parties are left to their own costs.

Falshaw, C.J.

I agree.