Pukhu vs Sales Officer & others

Land measuring 15 kanals 18 marlas comprising khasra Nos. 203/65, 205/66, 208/88 and 212/69 situated at village Chak Lai Din. tehsil

Jammu, was transferred in ownership to private respondent No.3 under the big landed Estates Abolition act, 1950. He mortgaged this along with

some other land vide mortgage deed dt. 27.12.68 to take loan of Rs. 20,000/ from respondent No. 2. Later, he fell in red and the land in question

was ordered to be auctioned for sale vide impugned auction notice.

Petitioner's case is that since private respondent No.3 had let out this land to him of which he was in possession since 1955, he lost his title over

the land, which escheated to the State by operation of sec.24of Big Landed Estates Abolition Act. As such, private respondent No.3 could not

create any encumbrance on this land and mortgage it to the bank and borrow the loan. Nor could the bank enforce such mortgage in respect of

this land.

In the counter filled on behalf of respondents 1 and 2, it is submitted that private respondent No.3 had entered into a valid mortgage by

depositing the title deeds which on verification established the land belonging to him at the relevant time and if he had allegedly lost his title later, it

could not come in the way of bank to enforce mortgage against him and to recover the loan from the land in question. It is also pointed out that the

execution registration of the mortgage deed was notified to the Revenue agency also, which should not have embarked upon correction of khasra

Girdawari in favors of the petitioner.

Petitioner's counsel, Mrsharma contended that since the petitioner was in possession of the land since 1955 and as khasra girdawari entry was

corrected in his favour from this date, coupled with the fact that the land had escheated to the state by operation of Sec. 24 of Big Landed Estates

Abolition Act. Therefore, the land in question could not have formed the subject matter of the mortgage. In the circumstances, respondents No.1

and 2 were incompetent to realise any loan outstanding against private respondent No.3,though they were free to do it from his any other property.

Learned counsel for respondents 1 and 2. Mr Wazir on the other hand, questioned the very maintainability of the writ petition on the plea that

respondent No.1 was the Sales officer of respondent No.2, a cooperative society which was not amenable to the writ jurisdiction of this court. He

relied upon a Full bench judgment of this court reported in 1978 KLJ 31 in this regard. He also pointed out that private respondent No.3 was

within his rights to transfer the interest in this land to the land Development Bank in terms of Sec.20 of the Big Landed Estates Abolition Act. He

lastly questioned the locus of the petitioner in the matter and submitted that even if it was accepted that the land had escheated to the state, it was

for the state to save this land from and encumbrance created by respondent no.3

The State counsel, Mr Rehman, appearing for respondents No.4 and 5 submitted that the writ petition was not maintainable in its present form

as the petitioner had failed to challenge the basic order leading dot the passing of the impugned auction notice. He also wanted the outstanding loan

to be recovered from this land proceeding on the premise that the land had escheated to the state.

In this background, all that remains to be seen is whether the Bank could enforce the mortgage against private respect of the mortgaged land?

There is no quarrel on facts and the undisputed position is that private respondent No.3 had not lost his title as such when he mortgaged the land

with the bank in 1968 because that time around no mutation was attested either to correct khasra Girdawari entries in favour of petitioner or to

escheat the land to the State. These came about years after the mortgage deed was executed by private respondent No.3 on 27.12.68. Therefore,

he could not be said to be divested of his title over the land on the crucial date of the mortgage. Nor could he loose the title by fictional operation

of Sec.24 of Big Landed Estates Abolition Act, which provides for the extinguishment of the interest of the owner in the land if he amongst other

things sublets it (except for reasons beyond his control) for two successive harvests. The relevant part of the provision reads thus:

Extinction of the interest of a proprietor or tiller If a proprietor, or a tiller, to whom land has been transferred under the provisions of Section 5

(a) dies intestate leaving no heir entitled to inherit, or

(b) transfers his land or part there of or any interest there in contravention of the provisions of this Act, or

(c) being a tiller sublets (except for reasons beyond his control) for two successive harvests the land so transferred to him,

his right of ownership in the land held by him or part thereof shall be extinguished and such land or part thereof shall escheat to Government.

A plain reading of this provision would show that even where the tiller sublets the land transferred to him under the Big Landed Estates Abolition

Act, it does not automatically escheat to the State. On the contrary, it envisages examination and inquiry to ascertain the satisfaction of the laid

down requirement and passing of appropriate orders to extinguish the interest of the owner or the tiller in the land and to escheat it to the state.

After all a person can't be divested of his ownership possession or cultivating interests in the land fictionally and in a huff. In other words, such

person's interest in the land remains intact tm it is extinguished by an appropriate order which was done in the present case in 1973. In the

circumstances, the land in question would escheat to the State only when mutation under Sec.24 was attested in 1973, much after the controversial

mortgage.

Even assuming that it vested in the state earlier, how could the petitioner take upon himself the role of the State to defeat the mortgage. It was

for the state to do so but once it conceded the stand of the Bank, it is the end of the matter.

Additionally it requires to be noticed that even when the Big Landed Estates Abolition Act prohibits transfer or alienation of land transferred

under it, it saves the transfer of interest in favour of certain institution including the Land Development Bank in terms of Sec.20. Therefore, private

respondent No.3 was within his rights to transfer mortgage the land with the Land Development Bank and borrow the loan.

All things considered, I find no merit in this petition, which is dismissed.