SAME KAUR Vs. JIT RAM

JUDGEMENT

(1.) This is a petition under Article 226 of the Constitution of India seeking quashing of the order of the Financial Commissioner dated February 23, 1978, whereby Jil Ram and Sukh Ram, respondents 1 and 2, have been held entitled to bhumidari rights in equal shares, i.e., 1/2 share each in respect of land in question. The facts giving rise to this petition are as follows:

(2.) The land in question measuring 77 bighas 6 biswas comprised in Khasra Nos. 66, 133/1, 133/2 and 518 situate in Village Bharthal, Delhi, was in the ownership of three brothers, namely, Ram Mehar, Jit Ram and Sukh Ram who were sons of Shadi Ram. Ram Mehar died in the year 1944. Upon his death 1/3 share of Rum Mehar in the land was mutated in the name of the petitioner Same Kaur. She continued in possession of her share and on coming into force of the Delhi Land Reforms Act, 1954, the petitioner was declared bhumidar of 1/3 share of that land. This declaration was made on April 26, 1958. On December 8, 1964, respondent No.l Jit Ram instituted a civil suit for declaration in which it was inter alia pleaded that Same Kaur had remarried Sukh Ram and, therefore, she had lost her right in the land and could not be declared a bhumidar. Sukh Ram in that suit was arrayed as respondent No.2. It is significant to note that the suit was filed by .lit Ram several years after Same Kaur was declared bhumidar of 1/3 share of the land. On May 5, 1965 the suit was dismissed by the learned Sub Judge holding, inter alia, that the petitioner did not remarry Sukh Ram and was rightly declared as bhumidar of 1/3 share in the suit land. The first respondent feeling aggrieved by the order of the Sub Judge preferred an appeal which was dismissed by the Aditional Senior Sub Judge on February 23, 1966. Thereafter, Jit Ram filed a second appeal against the judgment of the Additional Senior Sub Judge before the High Court. This Court while relying on the decision of the Supreme Court in Hatti v. Sunder Singh, AIR 1971 S.C. 2320, held that the suit was not maintainable in the civil court and the lis was within the competence of the Revenue Assistant. Thereupon, Jit Ram filed an application under section 11 of the Delhi Land Reforms Act on February 28, 1973 for declaration of bhumidari rights in respect of 1/2 share of land in question claiming that Smt. Same Kaur, the petitioner, had remarried Sukh Ram thereby losing her 1/3 share in the land which she inherited on the demise of her previous husband Ram Mehar. In the application Sukh Ram was also included as a respondent along with Same Kaur. It is noteworthy that in the application Sukh Ram supported the stand taken by Jit Ram and claimed to have married his sister-in-law Same Kaur after demise of his brother Ram Mehar. In the application filed by Jit Ram the following issues were framed by the Revenue Assistant :-

(3.) In so far as Issue Nos. 1 to 4 are concerned, the same were decided in favour of the first respondent. However, Issue No.5 was decided infavour of the petitioner and it was held that Smt. Same Kaur never remarried Sukh Ram. The effect of this finding was that the petitioner was held entitled to 1/3 share in the suit land as bhumidar being heir of Ram Mehar deceased. In so far as issue No. 6 is concerned, the Revenue Assistant was of the opinion that the issue was not of any significance as the petitioner was a female and could not cultivate the land herself. It was also observed that possession of a co-sharer was normally for and on behalf of all co-sharers, and the first respondent had failed to adduce evidence of hostile title.