RAM BHAJ Vs. COMMISSIONER

JUDGEMENT

(1.) This is a petition under Articles 226 and 227 of the Constitution. Respondent No. 2 is the Gram Panchayat, Village Sutana, Tehsil Panipat, District Karnal. It filed an application under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter called the Act), against the petitioner and five other persons seeking their ejectment from the land in their respective possessions on the ground that they were holding it in an unauthorised manner. This application was tried by the Assistant Collector, First Grade, Panipat, who vide his order dated April 6, 1970, came to the conclusion that the petitioner could not be ejected. In coming to this conclusion, the Assistant Collector was persuaded by the fact that the copies of Khasra Girdawaris from 1940 onwards and copies of Jamabandis for the years 1940-41 and 1952-53 indicated the possession of the petitioner and his father. Towards the conclusion of the proceedings before the Assistant Collector, First Grade, the petitioner made a prayer that he should be allowed to file a Khatauni Ishtemal showing that the same land was being held by him from 1970 onwards which had been recently allotted to him after consolidation proceedings. This application was rejected. On appeal by the Gram Panchayat, respondent No. 2, the Collector, Karnal, affirmed the order passed by the Assistant Collector First Grade, Panipat. The Collector, vide his order dated July 13, 1971, also came to the conclusion that the petitioner had been able to establish that the land in dispute was either in his own possession or in possession of his father from 1940 onwards. Respondent No. 2 filed a revision petition before the Commissioner, Ambala Division, Ambala, which was allowed on December 16, 1971. The learned Commissioner observed as follows :-

(2.) A reading of this order shows that the learned Commissioner also came to the conclusion that the petitioner was, in fact, in possession of the same land for more than 12 years. He was non-suited merely on the ground that he was not able to establish that the present land was allotted to him during the consolidation proceedings in lieu of the land which was in his possession since 1940-41. The learned Commissioner emphasised the fact that the petitioner did not produce any evidence before either of the authorities below to show that he had got the land in dispute in lieu of the other land during consolidation proceedings. The learned Commissioner failed to take notice of the fact that before the Assistant Collector, 1st Grade, the petitioner made a prayer that he should be allowed to file the copies of Khatauni Ishtemal to establish his contention. The fact remains that in spite of the non-production of the Khatauni Ishtemal the Assistant Collector, First Grade dismissed the application filed against him and upheld his possession. If the learned Commissioner wanted to upset this finding of fact, then he should have given proper opportunity to the petitioner to produce the Khatauni Ishtemal. In my considered opinion, the learned Commissioner exercising revisional jurisdiction has decided this case without adverting to the principles of law on the basis of which Order 41, rule 27, Code of Civil Procedure, has been promulgated. A Court of revision is primarily concerned with doing justice between the parties. If the Courts below had given a finding in favour of the petitioner, then this finding could be reversed only if the petitioner had also been given a proper opportunity of establishing his case.

(3.) It is not disputed that under Section 4(3)(ii) of the Act a person who is in cultivating possession of Shamlat Deh land for more than 12 years without payment of rent etc. cannot be ejected in a summary manner under Section 7 of the Act. The learned counsel for the respondents submitted that in the year 1940-41, the father of the petitioner, who is still alive, was shown to be in possession of the disputed land. According to him, unless and until the father died no rights could devolve on the petitioner. I am afraid, there is no merit in this contention. If the father of the petitioner due to old age and other circumstances allowed the son to cultivate the land, it cannot be said that the rights which accrued to the father could not be availed of by the son. In the instant case, it was open to the petitioner to prove that he and his father jointly remained in possession of this land for more than 12 years. Since the question of actual possession has not been decided on the basis of the entire evidence and the petitioner has not been allowed to adduce the evidence of Khatauni Ishtemal, it appears proper that this case should be remanded to the Assistant Collector, First Grade, Panipat, with a direction that he should redecide this case after affording the parties an opportunity of leading evidence.