BHAGWANTI Vs. FINANCIAL COMMISSIONER, REVENUE, PUNJAB

JUDGEMENT

(1.) This judgment will dispose of Civil Writ Petition No. 2713 of 1980, Regular Second Appeal No. 128 of 1979 and C.O.C.P. No. 751 of 1989. As decision of CWP No. 2713 would have great bearing upon the decision of Regular Second Appeal and the Contempt Petition, the facts of the case have been extracted from the writ petition.

(2.) For a small piece of land, the parties to this dispute are in litigation for more than two decades. The case of petitioner Bhagwanti is that according to the entries in the revenue record, she was in possession of Urban Evacuee land measuring 19 marlas equivalent to 419 square yards comprised in khasra Nos. 5740 and 5740/1 situated at Jalandhar for several years. On the basis of her possession only, the aforesaid area was transferred in her favour by the Settlement Officer (Urban) vide his order dated 24.5.1969 at the rate of Rs. 150/- per marla. Thus, she became the absolute owner of the property in question. Respondent Swarn Singh preferred an appeal under Section 22 of the Displaced Persons (Compensation & Rehabilitation) Act, 1954 (hereinafter referred to as the Act of 1954) against the transfer made in favour of the petitioner by mainly contending that the land in dispute had been owned by one Mahant Hari Ram Chela Mahant Jawahar Dass from whom he acquired its ownership rights, on the basis of will executed in his favour on 10.8.1949 and that the land in dispute was not an evacuee property and that he was in actual possession of part of land transferred in favour of the petitioner. Whereas on one hand, he challenged the order of transfer in favour of the petitioner on the other, he separately moved an application for the transfer of land as he claimed that he was in its possession. By way of an alternative plea he pleaded that even if the same was evacuee property, he was entitled to its transfer on the basis of his possession. The authorised Settlement Commissioner, Jalandhar vide his order dated 27.5.1973 cancelled the transfer in favour of the petitioner. Aggrieved, the petitioner filed a revision petition under Section 24 of the Act of 1954 before the Chief Settlement Commissioner which was accepted on 16.12.1974 and the transfer made in her favour was restored. The case of petitioner is that during the proceedings before the Rehabilitation Authorities, respondent Swarn Singh encroached over a portion of the plot. This action of the respondent was challenged by her by filing a civil suit on 6.8.1975 seeking possession which was decreed by Sub- Judge III Class Jalandhar holding that on the basis of documentary evidence it was the petitioner who was the rightful owner of the disputed land. The will was held to be a suspicious document as also that Mahant Hari Dass had no right to transfer the land to Swarn Singh as he himself was not the owner of the property in dispute. Swarn Singh agitated this matter before the first Appellate Court by way of an appeal which was dismissed by the District Judge on 15.1.1979. It is against that order that Regular Second Appeal has been filed which is being disposed of today. However, respondent Swarn Singh did not accept the order of Chief Settlement Commissioner dated 16.12.1974 and, thus, filed a petition under Section 33 of the Act of 1954 before the Financial Commissioner Revenue who also exercised the powers of Central Government. The operative part of the order passed under Section 33 of the Act of 1954 runs thus :-

(3.) With a view to set aside the orders aforesaid, it has been mainly pleaded and so canvassed by Shri Suresh Amba, learned counsel appearing for the petitioner that after remand, the Assistant Settlement Officer illegally and erroneously measured the area in possession of the parties at the time of inspection at the spot. In fact, the possession of the parties had to be seen at the relevant time i.e. when the petitioner was allotted the plot i.e. 24.5.1969 or earlier thereto. At the time when the case was remanded, it is pleaded that the petitioner herself had admitted respondent No. 5 to be in possession as by that time, he had already dispossessed her by force, thus, leading her to file a civil suit for possession, reference of which has been given above. The fact that respondent No. 5 had illegally encroached upon the land which was earlier in possession of the petitioner has been authenticated by the judgment of the civil Court, contends the learned counsel. It has also been argued that once the very basis of title and possession of respondent No. 5 was knocked out, he could not be held entitled to the transfer of the land and with a view to strengthen the aforesaid argument, it is stated that his plea that he had come in possession of the land in dispute on the basis of will executed by Mahant Hari Dass was proved to be incorrect. The findings relied upon by the learned counsel and various other factors mentioned above, prima facie looked attractive but when the entire record is examined it would appear that there is no substance in this petition and the same thus deserved to be dismissed. After remand when the matter came up for decision before the Assistant Settlement Officer (S)-cum-Managing Officer, it came to his notice that as per sketch map dated May 22, 1968, on which basis the petitioner was allotted 419 sq. yards, in the first instance, the site plan was prepared in respect of the area measuring 18 marlas and 14 sq. feet but subsequently Annexure IV with sketch map dated May 22, 1968 was remanded on December 30, 1968 and it was observed that in reality, the petitioner had in her possession an area measuring 280 sq. yards. However, while transferring the area, the area and the site plan prepared subsequently was ignored and the land was allotted to her as shown in her possession vide sketch dated May 23, 1968. The sketch dated May 22, 1968 clearly depicts that some area which was actually in occupation of one Swarn Singh was shown in occupation of the petitioner. The Managing Officer also visited the spot on March 17, 1979 in the presence of the parties concerned. Sketch map showing the possession of each occupant was prepared by the Kanungo and Patwari of the area in accordance with Shajra maintained by the latter. The property in occupation of the petitioner was in khasra Nos. 5740 and 5740/1 between 'A, B, C and D' measuring 20'-3" plus 54', total area being 329 sq. yards. The sketch prepared after visiting the spot was found to be tallying with the sketch prepared by the authorities of the Central Government on December 30, 1968, reference of which has been given above. The findings of Assistant Settlement Officer are based upon a record that was in existence and incidentaly available when the petitioner was initially allowed land measuring 419 sq. yards. These findings have thus been recorded after verifying minutely all the details and depict correct position with regard to possession of the petitioner even at the time when she was initially allotted the land. It, therefore, cannot be said that the authorities erred while seeing the possession that was obtainable when the matter was remanded to be determined afresh by the Assistant Settlement Officer. It is true that by the time the order dated July 9, 1979 of the Assistant Settlement Officer came into being the petitioner was already agitating that she has been illegally dispossessed but that appears to be an incorrect plea taken simply with a view to protect allotment of the entire area given to her initially, i.e. 419 sq. yards. The petitioner could not bring on record any evidence that may point towards her possession on the entire area i.e. 419 sq. yards when land was initially allotted to her and her possession and extent thereof being a pure question of fact having arrived at by the authorities after properly appreciating the evidence, requires no interference by this Court. The writ petition filed by the petitioner, therefore, is dismissed.