SHAMSHER SINGH Vs. SWARAN SINGH

JUDGEMENT

(1.) The case of the petitioners in this petition under Articles 226/227 of the Constitution of India, is that they and respondent No. 2 purchased some land including the land in dispute from Natha Singh, a big landowner, vide registered sale deed dated March 30, 1970 and that they are in possession of the land as owners. The surplus area case of respondent No. 3 was finalised by the Collector Agrarian by his order dated 4.9.1976. Appeal against the order of the Collector was filed by Natha Singh, the big landowner. Another appeal was filed by respondent No. 2 challenging the order dated 4.9.1976 of the Collector Agrarian. The appeals were admitted and status quo as to possession was granted till further orders. Petitioners and respondents 2 and 3 continued to be in possession of the land in question. Several dates were fixed by the Commissioner for hearing, the last being 22.5.1978, but no hearing took place on any of these dates and thereafter no date was given. Respondent No.1 thereafter seems to have moved an application, wherein he represented that he was the allottee of the land, which had been declared surplus in the hands of Natha Singh and he has not been able to obtain possession, and that the appeal of Natha Singh had been dismissed. The Commissioner passed an order on April 26, 1983 on the said application, copy Annexure P-1, wherein he observed that the record of surplus area case was not readily available, but the Ahlmad has revealed that the case has been dismissed in default on 22.5.1978 and that according to Swaran Singh, the appeal before the High Court was not accepted. Sub Divisional Officer (Civil) was consequently directed to look into the matter and find out the specific area, which had been allotted to Swaran Singh and ensure the delivery of possession to him after ascertaining the factual position from the relevant record. The further case of the petitioners is that though a report regarding delivery of possession had been recorded, yet they continued to be in actual physical possession of the land. On coming to know of the purported order of delivery of possession, they filed a revision petition before the Financial Commissioner, which was dismissed by him vide order dated 24.6.1983. However, the learned Financial Commissioner, while dismissing the revision petition observed that the Commissioner would personally satisfy himself that the appeal has been dismissed. The direction was given, after noticing that the counsel has filed an affidavit that the appeal had not been decided and that the relevant record of the case is not available. Petitioners have filed this petition with the allegation that they continued to be in physical possession of the land bearing Khasra Nos. 3986 and 3987 and have challenged orders Annexures P1 and P-6, being illegal, ultra vires and null and void.

(2.) In the reply filed on behalf of respondents 4, 5 and 6, it has been stated that the case was fixed for 22.5.1978 and was dismissed in default on 3.7.1978 by the Commissioner, Patiala Division, Patiala. Respondent No. 1 in his written statement stated that the appeal was dismissed on 22.5.1978, a copy of the order has, however, not been placed on the record.

(3.) Learned counsel for the petitioners submitted that the State has taken a contradictory stand in order Annexure P-1. It is stated that the appeal was dismissed in default by the learned Commissioner on 22.5.1978 and in the written statement filed on behalf of respondents 4 to 6, it has been stated that the appeal was dismissed in default on 3.7.1978. Respondent No. 1 though asserted in the written statement that the appeal was dismissed in default on 22.5.1978, but he has not placed a copy of the order on the record. Learned counsel further submitted that having regard to the order of the learned Financial Commissioner, Annexure P-6, passed on the revision petition of the petitioners, it was incumbent on the learned Commissioner to have personally satisfied himself that the appeal had been dismissed or not and since the Commissioner had not been satisfied about the dismissal of the appeal either on 22.5.1978 or on 3.7.1978, petitioners could not be dispossessed till such time, the matter is considered and examined by the Commissioner or the appeal preferred by respondent No. 2 is finally disposed of on the merits of the controversy raised therein, in case the appeal had not been dismissed on any of the two dates as noticed above.