Prem Singh and anr. Vs. the Joint Director of Panchayats and ors. - Court Judgment

Excerpt:
- hindu law -- custom: [vijender jain, c.j., m.m. kumar, jasbir singh, rajive bhalla & rajesh bindal, jj] alienation of ancestral property - punjab and haryana - held, in respect of state of punjab by virtue of punjab amendment act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. in punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by hindu law except to the extent it is regulated by sections 6 and 30 of the hindu succession act. in haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. parties can fall back upon hindu law in case they fail to establish that rule of decision is custom. therefore, in haryana both under hindu law and the customary law, the alienation would be open to challenge. custom was given precedent over uncodified hindu law presumably for reason that custom has been consistently replacing the hindu law. however, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst jats of punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. it was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. accordingly, the punjab custom (power to contest) act, 1920 (act no.2 of 1920) was enacted. the hindu succession act was extended to the state of punjab. act 2 of punjab act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. a further provision was made by section 3 that hindu succession act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. whereas section 4 declared that hindu succession act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the succession act was to come into force. in other words, act, no.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. it also preserved the rights of any alienation or appointment of an heir made by a family. after section 7 was inserted in act of 1920 by the punjab amendment act of 1973 right of contest being contrary to custom had been totally effaced and taken away. therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after january 23, 1973. in haryana, the situation as enunciated by act no.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to punjab as brought by amendment act of 1973, had been enacted although right to pre-emption has been substantially abolished in haryana also. no steps even have been taken in that regard. therefore, situation in haryana have to be regarded as it existed under act no. 2 of 1920. hindu succession act,1956[c.a.no.30/1956] -- sections 6 & 30: [vijender jain, c.j., m.m.kumar, jasbir singh, rajive bhalla & rajesh bindal, jj] alienation of coparcenary property - law laid down by full bench in joginder singh kundha singh v kehar singh dasaundha singh [air 1965 punjab 407] and pritam singh v assistant controller of estate duty, patiala [1976 punj lr 342] -whether there is any conflict? - held, the basic controversy in the full bench decision of joginder singhs case was regarding constitutional validity of section 14 of hindu succession act and as to whether it infringes article 14 of constitution. it was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. the full bench held that section 14 of hindu succession act postulates that estate held by a hindu female before enforcement of succession act either by inheritance or otherwise, was enlarged and on date of enforcement of succession act, she became a full owner. likewise, if she has inherited any estate after the commencement of the act, she was to be regarded as absolute owner rather than a limited owner. consequently, the limitations on power of alienation automatically vanished. this was the necessary result of the provisions made in section 14 of the act. the full bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. however, it noticed section 30 and observed that it only deals with power of his share in coparcenary property by will, which prior to enforcement of the act, he had no right to do. the only provision made in respect of male proprietor regarding alienation of property was his power of alienation by will. in so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the act. likewise, other restriction on alienation other than disposal by will also continued. the full bench, thus, recognized the superior right of hindu females by virtue of section 14 and upheld the provision as intra vires. the argument that reversioners have ceased to exist after enactment of provisions of section 14 of succession act, was rejected as there was no provision pointed out to that effect. the proposition laid down by the full bench in pritam singhs case was that the hindu succession act has not abolished joint hindu family with respect to rights of those who were members of mitakshara coparcenary, except in the manner and to the extent mentioned in sections 6 and 30 of the act, this statement should also imply, though it does not say so expressly, the succession act to this extent does not affect the rights of the members governed by dayabhaga coparcenary. the full bench in pritam singh;s case expressly noticed the judgment of earlier full bench in joginder singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by customary law and constitutional validity of section 14 of hindu succession act. thus there is no real conflict between the two full bench judgments. both the full bench judgments have been delivered on the assumption that joginder singhs case dealt with question of alienation whereas pritam singhs case had decided the question concerning succession. even on fact in joginder singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in pritam singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. in pritam singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. therefore, there was no question of alienation in pritam singhs case. - 5 and 6 of the impugned order in which it was categorically held that the petitioners were in illegal possession of the land in dispute since 1980-81. this land in dispute has been shown as gair mumkin johar which is used for the benefit of the community of the village and falls within the definition of shamilat deh as defined under section 2(g) of the punjab village common lands (regulation) act, 1961. these findings are based on the jamabandi for the year 1980-81. the petitioners had failed to establish their possession over the land in question prior to january 26, 1950. prem singh, petitioner admitted in his statement on 3.6.1982, before the collector that he had not constructed any house over the land in question.r.l. anand, j.1. sarveshri prem singh and ajmer singh petitioners have filed the present writ petition under articles 226/227 of the constitution of india against the joint director of panchayats, punjab, chandigarh exercising the powers of commissioner, respondent no. 1, gram panchayat village lalru, respondent no. 2 and the district development and panchayat officer-cum-collector, patiala, respondent no. 3 praying for the issuance of a writ in the nature of certiorari for quashing and setting aside the impugned order dated 4.9.1987, annexure p. 1 passed by shri narinder sarup, joint director panchayats punjab, exercising the powers of commissioner, in appeal no. 309 of 1983 under section 11 of the punjab village common lands (regulation) act, 1961 and for the restoration and upholding of the orders dated 23.11.1982, annexure p.2 passed by shri joginder singh thind, collector, (district development and panchayat officer) patiala.2. the case set up by the petitioners is that they filed an application on 19.11.1980 in the court of shri joginder singh thind, collector (district development and panchayat officer), patiala under section 11 of the punjab village common i ands (regulation) act, 1961 for declaring the petitioners as owners of the land in question, on the grounds that they are in continuous possession of the land in question from the time of their fore-fathers and for the last more than 60 years. the land in question is situated in the abadi i.e. within the lal lakir and the land in question was never used for the benefit of village community and for common purposes. the notice dated 10.10.1980 served by the panchayat upon the petitioners was wrong and illegal and the panchayat had no concern with the land in question. this application was resisted by the gram panchayat which took the stand that the land in question vested in the gram panchayat and it was being used by the people of the village for their own use.3. vide order dated 23.11.1982, annexure p.2 the collector gave the findings that the present petitioners are in continuous possession from the time of their ancestors and the land in dispute is situated within the lal lakir. the gram panchayat did not produce any evidence that it was being used for the benefit of the village community and for common use. resultantly, the collector came to the conclusion that the land in question did not fall within the scope of section 2(g) of the punjab village common land (regulation) act, 1961. the application of the petitioners was allowed. aggrieved by the order of the collector, the gram panchayat filed an appeal before the joint director panchayats (punjab) exercising the powers of commissioner, who accepted the appeal. so much so, the commissioner allowed the time barred appeal vide annexure p.1 which is being attacked in this writ petition on the ground that it is illegal, unjust and against the principles of natural justice because the commissioner entertained a time barred appeal which needed a fresh resolution from the concerned gram panchayat for its filing and prosecution. the appellate authority completely ignored cogent unrebutted and convinced oral evidence led by the petitioners. the witnesses of the petitioners categorically deposed about the long standing possession of the petitioners. there could not be any documentary evidence regarding the possession over the land in question as it was situated within the lal lakir. earlier the collector had gave a categorical finding in favour of the petitioners that they were in possession of the land. the appellate authority wrongly came to the conclusion that the land in question was being used for the benefit and common use of the people. with the above main averments, the petitioners have prayed for the quashment of the orders of the appellate authority, annexure p.1.4. notice of the writ petition was given to the respondents. respondent no. 2 filed written statement and it was pleaded that the present writ petition was liable to be dismissed in view of the findings given by the lower appellate court in para no. 5 and 6 of the impugned order in which it was categorically held that the petitioners were in illegal possession of the land in dispute since 1980-81. this land in dispute has been shown as gair mumkin johar which is used for the benefit of the community of the village and falls within the definition of shamilat deh as defined under section 2(g) of the punjab village common lands (regulation) act, 1961. these findings are based on the jamabandi for the year 1980-81. the petitioners had failed to establish their possession over the land in question prior to january 26, 1950. prem singh, petitioner admitted in his statement on 3.6.1982, before the collector that he had not constructed any house over the land in question. his house was separate and the door of his house opened towards the road. he had no paper regarding this land to establish that he had set up a gohara or khurili. he admitted that the land in question was a part of toba. he did not produce any evidence to show that the land in his possession was prior to january, 1950. since the answering respondent was the owner of the land in dispute being shamilat deh so it had started legal proceedings against the petitioners for their dispossession. finally, it was prayed for the dismissal of the writ petition.5. i have heard shri i.p. atre, advocate, appearing on behalf of the petitioners and shri p.s. chhina, sr. d.a.g., (punjab) who gave appearance on behalf of the respondents and with their assistance have gone through the records of this case.6. the case set up by the petitioners was that the land in question is situated with the lal lakir and they are in possession of the same since the time of their forefathers. on the contrary, the case of respondent no. 2 is that it is a shamilat deh as defined under section 2(g) of the punjab village common lands (regulation) act, 1961 and the revenue documents i.e. jamabandi for the year 1980-81 supports to that effect and in this situation the approach of the collector was erroneous. a perusal of annexure p.1 would show that it was contended before the appellate authority by the gram panchayat that the land in question was a part of khasra no. 848 measuring 1 bigha 16 biswas, which was a gair mumkin johar. as against this, the stand of the writ petitioners was that they were in possession of the land in dispute prior to january 26, 1950 and the gram panchayat was not the owner. the appellate authority placed reliance upon the jamabandi for the year 1980-81 in which gram panchayat has been shown as owner of the land in dispute and it has been shown as gair mumkin johar. there is a presumption of correctness to the jamabandi under the punjab land revenue act and it was for the writ petitioners to establish before the appellate authority that they were the owners of the land in question or that their possession over the land in question was prior to 26.1.1950. also no evidence was led in the proceedings by the writ petitioners to prove their possession even prior to 1980-81. the oral testimony relied upon by the learned counsel for the petitioners cannot supersede or over-ride the jamabandi for the year 1980 which carries a presumption of correctness. in this regard it may be useful for me to refer to the statement of prem singh petitioner who admitted in his statement dated 3.6.1982 that he had not constructed any house over the site in dispute. rather his house is separate and doors of his house open towards the road. he also admitted that there was a path between his house and the land in question. he had no paper regarding this land with him and the land was a part of thoba. prem singh wanted to exercise his possession over the land in question by proving the existence of the trees, gohara and khurli which in my opinion, are not established evidence of possession. the land as per revenue document has been shown as gair mumkin johar and even if the writ petitioners had been tethering their catties that would not show their exclusive possession over the site. in this regard their is a categorical finding in para no. 6 of the impugned order annexure p.1. section 2(g) of the punjab village common lands (regulation) act lays down that 'shamilat deh' includes:-(1) land described in the revenue records as shamilat deh excluding abadi deh;(2) shamilat tikkas;(3) land described in the revenue records as shamilat. tarafs, pattis, pannas and tholas and used according to revenue records for the benefit of the village community or a part thereof or for common purposes of village;(4) lands used or reserved for the benefit of the village, community including, streets, lanes, playgrounds, school, drinking wells, or ponds within abadi deh or gora deh;(5) lands in any village described as banjar qadim and used for common purposes of the village, according to revenue records.7. the present petitioners have not been able to bring their case in any of the exceptions as mentioned in section 2(g) of the said act.8. in this view of the matter, this court is not in a position to come to the conclusion that the findings recorded by the commissioner vide order dated 4.9.1987 annexure p.1 are patently illegal which requires interference in the present writ petition. the next attack to the impugned orders annexure p.1 is that the commissioner entertained a time barred appeal or that the appeal before it was not competent which was filed by the gram panchayat. again this argument is devoid of any merit. if the commissioner has entertained the appeal prima facie barred by time for any sufficient reason, that finding cannot be set aside in the present writ petition unless it is without jurisdiction. the learned counsel for the writ petitioner has not been able to show that the delay in filing the appeal could not be condoned by the commissioner with the aid of section 5 of the limitation act.9. resultantly, i am of the opinion that the present writ petition has no force being devoid of any merit and the same is hereby dismissed leaving the parties to bear their own costs.