Sulakhan Singh vs State of Punjab

B.B. Mahajan, F.C.

These are two revision petitions under Section 18 of the Punjab Land Reforms Act, 1972, filed by Sulakhan Singh and Smt. Kishan Kaur of village Nidhana, tehsil and district Ferozepur, against the order of the Commissioner, Ferozepur Division, Ferozepur dated the 17th November, 1982 vide which he rejected the appeals of the petitioners. Since facts of both the cases are same and are filed against the same impugned order, it would be expedient to dispose them of with the single order a copy of which should be placed on each file.

The brief facts of these cases, are that Sulakhan Singh and Smt. Kishan Kaur were served with a notice under Section 9(1) of the Punjab Land Reforms Act, 1972, directing them to deliver the possession of land comprised in Rect. No. 27, Killa No. 13 (80) and Rect No. 27, Killa No. 12/2 (40) respectively, situated in the area of village Nidhana, to the Circle Revenue Officer, within 10 days as the land was declared surplus with Amin Chand, big landowner. Sulakhan Singh and Smt. Kishan Kaur filed objections mainly on the ground that the land in dispute has been purchased by them from one Kundan Lal s/o Tulsi Ram for valuable consideration through registered sale deed, dated the 30th June, 1976. After hearing the parties, the Collector, Agrarian, Ferozepur vide his order dated the 22nd April, 1982 rejected the objection petitions, holding that the land in dispute was purchased after the 1st February, 1967. Aggrieved, Sulakhan Singh and Smt. Kishan Kaur preferred appeals before the Commissioner, Ferozepur Division, who heard the parties, perused the record and vide his order dated the 17th November, 1982 rejected the appeals, which order has now been impugned before me.

I have heard the counsel for the parties. The counsel for the petitioners has filed an application on 20th December, 1983 for allowing production of copy of the mutation No. 457 pertaining to the land in dispute sanctioned on the 12th February, 1964 by which the land was redeemed by Kundan Lal mortgagor from Amin Chand mortgagee. He also brought out in this application the additional ground that at the time when the land of Amin Chand was declared surplus he was no more the mortgagee of the suit land an it could not, therefore be declared surplus in his hand. The counsel for the State has objected to the additional ground being taken and the copy of mutation sheet being placed on the record at this stage as the petitioner has not shown why this record was not produced before the lower authorities and the additional ground could not be taken before them. The counsel for the petitioner has referred to the judgment of the Hon''ble Supreme Court reported in AIR 1969 Supreme Court p. 1267 where it was held that a party cannot be refused just remedy merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Supreme Court has observed that "The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. However negligent or careless may have been the first omission and however late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side.'''' Since in this case it cannot be held that the petitioner was acting mala fide, or that the omission to produce the copy of the mutation and take the additional ground had caused injury to the opposite party, viz., the State, the application has to be allowed in accordance with the above judgment.

The counsel for the petitioner has argued that land in dispute was owned by one Kundan Lal s/o Tulsi Ram who had mortgaged it with Amin Chand s/o Basakha Mal. As is clear from the impugned order dated the 22nd April, 1982 of the Collector Agrarian, Ferozepur, the land had been declared surplus in the case of Amin Chand. The land had, however, been got redeemed by Kundan Lal on the 20th November, 1963 the mutation No. 457 in respect of which had been entered by the Patwari on 24th November, 1963 and sanctioned by the Assistant Collector IInd Grade on the 12th February, 1964. Under proviso to Section 8 of the Punjab Land Reforms Act, 1972 only the mortgagee''s rights were to vest in the State Govt. Since the mortgage had been redeemed before the surplus area case of Amin Chand was determined, it could not be included in the ownership of Amin Chand. In fact, the copy of the Jamabandi, available at page 17 of the Collector''s file shows the land in dispute to be in the ownership of Kundal Lal and not Amin Chand. He has also referred to the judgment of Hon''ble Punjab and Haryana High Court reported in 1983 PLJ p. 148 in which it was held that where land mortgaged with possession is redeemed before declaration of surplus area of the mortgagee, the mortgaged land should be treated as land of mortgagor.

There is no evidence on the file about the date on which the surplus area of Amin Chand landowner was determined. It cannot, therefore, be said on the basis of the record whether mortgage had been redeemed before the surplus area was declared or thereafter. However, the counsel for the petitioner has referred to another judgment of the Hon''ble Punjab and Haryana High Court reported in 1971 PLJ p. 296 in which it was held that if the land is mortgaged prior to its vesting in the Government nothing could vest in the Government and the Government, therefore, have no right to take possession of the land declared surplus but which was redeemed before possession was taken by the Government. Thus even if the surplus area of Amin Chand landowner had been declared before the mortgage was redeemed, Government would not be able to take possession of the land since it had already been redeemed.

Although both the judgments of the Punjab and Haryana High Court referred to above are in relation to the provisions of the Pepsu Tenancy and Agricultural Lands Act, 1955, the relevant provision in this Act viz., proviso to Section 32 E is identical with the proviso to Section 8 of the Punjab Land Reforms Act, 1972, and the ratio, would, apply equally to the case of possession to be taken under Punjab Land Reforms Act.

The counsel for the State has not been able to rebut these arguments or to show any authority to the contrary. I accordingly accept the petition and set aside the impugned orders. The land in dispute which had been redeemed has to be included in the ownership of Kundan Lal landowner and in case Kundan Lal had surplus land including this land in dispute, the proceedings for determination of the surplus area and its redetermination as the case may be and thereafter securing its possession may be taken separately.

Announced.