JOWAND SINGH Vs. ASSISTANT CUSTODIAN GENERAL

JUDGEMENT

(1.) On 29.6.1967, land measuring 18 Kanals 4 Marlas, bearing Khasra Nos. 18/3/2 and 4/11/23 and 24, situate in village Akalgarh, Tehsil Sunam District Sangrur was put to auction and Jarnail Singh respondent, offered the highest bid of Rs. 3,000/-. Karam Singh, writ-petitioner and others, filed objections against the said auction alleging that the land had been wrongly entered in the revenue record as evacuee property and in fact it was village common land. The Assistant Settlement Commissioner exercising the powers of the Settlement Commissioner under the Displaced Persons (Compensation & Rehabilitation) Act, 1954, vide order dated 19th March, 1971 (Annexure 'B') found that land bearing Khasra Nos. 18/3/2 and 18/3/4 measuring 9 Kanals 19 Marlas belonged to the Custodian and the remaining land bearing Khasra Nos. 14/23 and 24, measuring 8 Kanals 5 Marlas, though owned by the Custodian, was shown in the revenue record in the cultivation column to be reserved for the common purposes. It was held that since the land belonged to the Custodian, it had been rightly auctioned and the objections filed by Karam Singh and others were dismissed. Karam Singh and others then filed a petition under Section 27 of the Administration of Evacuee Property Act, which was dismissed by the Assistant Custodian General on February 4, 1972 (Annexure'A'). Karam Singh, Jowand Singh and forty-nine other persons, who were the residents of village Akalagarh filed writ petition in this Court challenging orders Annexure 'A' and 'B'. The writ petition was dismissed on 31.3.1982. Dissatisfied with the judgment of the learned Single Judge, the writ petitioners have come up in the present Letters Patent Appeal.

(2.) The learned Single Judge held that the Assistant Settlement Commissioner had found vide order Annexure 'B' that the land in dispute was shown as owned by the Custodian in the revenue record though a part of it (8 Kanals 5 Marlas) was shown to be reserved for common purposes of the Panchayat. According to the learned Single Judge the auction was rightly held by the Custodian and it could be set aside under Rule 92 of the Displaced Persons (Compensation & Rehabilitation) Rules, 1955, only on the grounds of material irregularity or fraud. Since none was pointed out the sale could not be set aside. It was further held that in view of the fact that the property in dispute was owned by the Muslims before partition, the petitioners could not claim it to be declared as non-evacuee property under Section 27 of the Administration of Evacuee Property Act.

(3.) The learned counsel for the appellants submitted that the finding of the Authorities below that land measuring 9 Kanals 9 Marlas comprised in Khasra Nos. 18/3/2 and 4 was only in the ownership of the Custodian, but also in possession of the Custodian was wrong. In fact, according to the learned counsel, this land was pond or Gora-deh, and, therefore, should be taken to have been reserved for the common purpose of the Gram Panchayat and would fall in the definition of Shamilat Deh and therefore could not be auctioned. For the proposition that the land which vested in the Custodian but was Shamilat Deh could not be sold by the Custodian reliance was placed on the Supreme Court judgment in Gram Panchayat of village Jamalpur v. Malwinder Singh and others, 1985 RRR 249. The Authorities below on the basis of Jamabandi for the years 1961-62 had come to the conclusion that the above said land not only was in the ownership of the Custodian but also was in his possession. Apart from the fact that there is presumption of truth attached to the Jamabandi, this is a pure question of fact. Moreover, Annexure 'D', which is a letter from the Tehsildar Sales to the Deputy Secretary to Rehabilitation Department, no Khasra number have been mentioned and in Annexure 'E' proclamation, we find that the same is based on the Jamabandi for the year 1953-54 and specific Khasra Nos. 18/3/2 and 4 are not mentioned. That being so, that finding of the Authorities below that land measuring 9 Kanals 19 Marlas comprised in Khasra Nos. 18/3/2 and 4 was owned and possessed by the Custodian, cannot be assailed. Therefore, no fault can be found in the Custodian's right to put that land to auction.