Misc No. 39 of 1996-97
M.R. No. 20 OF 1998-89
1.Gian Singh son of Budh Singh resident of village Tikhowal (Mukerian) Tehsil Dasuya District Hoshiarpur.
4.Makhan Singh Sons of Harnam Singh (died)
5.Puran Devi, widow of Harnam Singh (deceased)
7.Sardar Singh sons of Santokh Singh (deceased)
8.Payar Kaur, widow of Santokh Singh (deceased)
all residents of village Tikhowal (Mukerian) Tehsil Dasuya District Hoshiarpur.
1.Deputy Commissioner-cum-Chief Settlement Commissioner, Hoshiarpur.
2.Settlement Commissioner, Rehabilitation Department, Punjab, Chandigarh
3.Tehsildar, Mahal-cum-Sales, Hoshiarpur.
6.Surat Singh sons of Manak Singh
7.Harbhajan Singh (deceased) son of Manak Singh now represented by his legal representatives :-
i)Sarabjit Kaur wd/o Harbhajan Singh
iii)Inderjit Singh minor sons of Harbhajan Singh;
iv)Sandeep Kaur minor daughter of Harbhajan Singh;
through mother & guardian Sarabjit Kaur widow of Harbhajan Singh;
8.Narvinder Singh s/o Gurcharan Singh
10.Narinder Kumar s/o Muni Lal
11.Raj Rani w/o Muni Lal
12.Mohinder Singh (deceased) s/o Ganda Singh
now represented by his legal representatives :-
i)Surjit Kaur wd/o Mohinder Singh
ii)Prem Singh s/o Mohinder Singh
iii)Piara Singh s/o of Ganda Singh
13.Kulwant Singh s/o Chain Singh
14.Babu Ram Mangal s/o Diwan Chand
15.H.C. Grover s/o Ram Ditta Mal
16.K.K. Grover s/o Ram Ditta Mal
17.Santosh Grover s/o H.C. Grover
18.Usha Rani w/o K.K. Grover
19.Ashwani Kumar s/o Kuala Krishan
20.Krishan Chand Verma s/o Hans Raj
21.Krishna Wanti w/o Krishan Chand
22.Ishar Dass (deceased) s/o Diwan Chand
now represented by his legal representatives :-
i)Uma Wati sd/o Ishar Dass
ii)Vipin Kumar s/o Ishar Dass
iii)Subhash Chander s/o Ishar Dass
iv)Parveen Kumari d/o Ishar Dass
All residents of village Mukerian, Tehsil Dasuya, District - Hoshiarpur.
During argument on 25.5.99
Sh. G.S. Nagra, Advocate, counsel for the petitioner.
Sh. S.S. Katnoria, Advocate, counsel for the respondents.
Sh. O.K. Puri, Senior State Counsel for the State
Sh. R.K. Joshi, Adv. Counsel for the petitioners.
The facts of this case are that land measuring 44 kanals 5 marlas contained in khasra number 175 of village Tikhowal , Hadbast No .262 Tehsil Dasuya was owned by Moharnmad Hussain son of Abdulla 1/4th share, Noor Moharnmad son of Alahi Baksh 1/4th share and Mohammad Hussain son of Krim Bakhsh 1/2 share . Diwan Chand and Labh Ram sons of sons of Ganga Ram, in equal share, 5 shares and Bhagat Ram, Jagat Ram sons of Charan Dass 10 shares were shown as Malguzars of this land as per entries in jamabandi 1950-51.(vide Fard Badar the 10 shares were corrected to 1 share!). Out of this area, Gian Singh present petitioner claimed rights over 24 kanals 5 marlas of this land as sub-lessee of one Sardar Singh (9K-15m) and Bhagwan Dass(15K-0M). After protracted litigation his claim was upheld by the Chief Settlement Commissioner vide his order dated 7.12.81. The remaining land of khasra No .175 measuring 19 kanals 10 marlas was put to auction by the Managing Officer on 22.7.1982. Gian Singh, present petitioner aggrieved by this sale raised objections under rule 92 of the Displaced Persons (Compensation & Rehabilitation) Rules, 1955 before the Settlement Commissioner, Punjab, Mohali that were rejected by him on 28.11.83 and the sale confirmed. Thereafter Gian Singh filed a revision petition u/s 24 of the Displaced Persons (Compensation & Rehabilitation)Act,1954 before the Chief Settlement Commissioner-cum-Deputy Commissioner, Hoshiarpur who also dismissed the same on 3.11.88. Not satisfied Gian Singh filed a petition u/s 33 of the said Act against the Chief Settlement Commissioner's order dated 3-11-88 before the Financial Commissioner Revenue. This was also dismissed on 31-1-95. Aggrieved by the order of the Financial Commissioner Revenue, the petitioner filed CWP No. 3345 of 1995 and the case was remanded by the Hon'ble High Court with the direction that the matter be decided afresh after taking into consideration Annexure P-1 & P-5 attached to the writ petition.
2. The copy of jamabandi for 1950-51 Annexure P-I attached to the writ petition shows that the land was owned by Moharnmad Hussain son of Abdulla 1/4th share, Noor Mohammad son of Alahi Baksh 1/4th share and Mohammad Hussain son of Karim Bakhsh 1/2 share, Diwan Chand, Labhu Ram sons of Ganga Ram in equal share 5 shares; Bhagat Ram, Jagat Ram sons of Charan Dass in equal share 10 shares, have been shown ‘Malguzaran’. As per Farad Badar the share of Bhagat Ram, Jagat Ram has been corrected to one share instead of 10 shares. In the Column of cultivation Khuda Hussain son of Umrao Alishah 1/2 share; Bashir Hussain, Saghir Hussain, Nazar Hussain sons of Dilawar Hussain in equal shares 1/2 share, have been shown as ‘Marusis', the status of Gian Singh son of Budh Singh is shown only as ‘Ghair-Maurusi’.
The contention of the petitioners is that they had purchased the land in question from malguzars and owners thereof. In support of this contention a registered sale deed dated 3.12.1958 was produced by the petitioner as Annexure P-5 before the High Court. A careful perusal of this document shows that the petitioner had purchased total area of only 7 kanals 5 ½ marlas situated in village Tikhowal for a consideration of Rs.1500/- from Labhu Ram. This represented 1/12th share of Labhu Ram in various khewats totalling 87 kanals 7 marlas, including 19 kanals 0 marlas comprised in khasra No.175, Khewat No.24 (Proportionately 1/12th share in 19 kanals 0 marla works out to 1K-12M and the petitioners’ half share works out to 0K-16M only).
The sale deed is very loosely worded. It states that "the land is self-ownership, malguzari and occupancy rights and is in possession of Gian Singh etc. mortgagees alongwith my self as shown in revenue record”. It goes on to say that “now they will be treated as owners, malguzars and marusis like me". "whatever rights I had in the land those rights have gone to the vendee". Gian Singh, however, admits to having purchased malguzari rights.
4. The next question is as to what is the effect of the purchase of these "rights "on the merits of the case. Under the provisions of Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952, the rights of owners were extinguished and those who were entered as occupancy tenants became owners of the land. In this case both the owners and the occupancy tenants, were Muslims who left the country on account of partition. Therefore, the disputed land had vested in the Custodian as per legal provisions applicable to such properties. The counsel for the respondents has stated that even in the revenue record the necessary entry was made much before this land was put to auction and the petitioner has deliberately concealed this fact. The belated plea of the petitioner that it was not Custodian property is therefore not tenable.
Coming to the rights of Malguzars, the counsel for the petitioner has not been able to establish that the Malguzaras had a status equivalent to that of owners, or that the Hindu malguzars became owners on the migration of Muslim owners of the land. As per Glossary of Vernacular words appended to Douise's Settlement Manual 'malguzar' is a person responsible for payment of land-revenue only. A detailed reading of Chapters III and VIII of the Settlement Manual brings out the following facts:-
The prime concern of the English in the early part of their rule in Punjab was collection of land revenue. The early Settlements were very rough and ready proceedings. There were no field survey maps, no reliable returns of the cultivated area or of crops grown and no trustworthy records from which the profits of the land-owner could be deduced. The assessment of land revenue was ex-orbitant and the means to collect it very equally harsh. Very often, the land-owners "Tent in arrears. At the same time the land revenue was invariably extracted by the owners from the marusis and the Ghair marusis and this itself was an onerous task. This gave rise to the system of 'malguzars' where the owners resorted to finding out some persons who could collect it from marusis and ghair marusis on their behalf and get some share out of the produce for the services rendered. In Punjab, Muslims were by and large the land owners and the Hindus(Vaish) were persons engaged in business profession and were rich.
These Muslim owners assigned the task of collection to malguzars who were Hindus and were by and large non-proprietors. Since revenue collection was of prime importance the name of malguzar was found fit to be shown in that capacity in the revenue record in addition to the name of the land-owner the tenant and the sub-tenant. The system continued even after the revenue assessments were evolved on more scientific lines.
To summarise, the standing practice in Doaba area was that the land owners seldom Paid land revenue to the Government out of their own pocket, the recovery was mostly done from the tenants. In fact, the big land owners who were absentees very often assigned the task of collection of land revenue from the tenants(for its onward payment to the Government), to the malguzars, who were paid a commission for the services rendered. Beyond this commission malguzar enjoyed no other rights. Rather, the Wajib-ul-Arz which forms part of the Misal Haqiat of this village for the year 1911-12 confirms that there was no legal status attached to the malguzars; Clause 3 clearly lays down that in case of any acquisition by the government, compensation for the land. which is under an occupancy tenant shall be distributed between the landlord and the tenant in equal shares. It has also been laid down that in case there is damage to any crop the compensation would go to the tenant. Thus, there is no legal recognition of the status of malguzars even in the Settlement Papers. If the status of malguzar were equivalent to that of a landowner or an occupancy tenant then it would have found an appropriate place in Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952 or formal legal sanction through other enactments relating to land laws. Therefore, the purchase of malguzari rights by Gian Singh from Labhu Ram in 1958 does not qualify him for treatment either as an owner or as occupancy tenant. Since the malguzars owned their status to the landowners, with the migration of Muslim owners to Pakistan, these malguzars became persons non-grata. Since in this case the Occupancy tenants also similarly migrated to Pakistan the land vested in the Custodian.
6. As already pointed out vide the aforementioned Sale Deed Labhu Ram alienated total of 7 kanals only of his share in various khewats. Proportionately alienation of 1/12th of his portion of khewat No. 175 measuring 19 kanals comes to 1 kanal 12 marlas. The share of Gian Singh works out to 16 marlas, while the share of the rest of the petitioners and their predecessors-in-interest works out to another 16 marlas. Thus the effect of Sale Deed of 1958 is that it alienated only 1 kana116 marlas out of an area of 19 kanals 0 marla and that too in the form of malguzar rights because these were the only rights entered in column No. 4 of the jamabandi.
7. It may not be out of context to point out here that it is only Gian Singh who had raised objections to the auction of 1982. Even in the High Court the case was remanded only at the instance of Gian Singh. The other petitioners were not on the scene in any of the proceedings either before the High Court or in the lower courts. Yet they have staked their claim belatedly before me on the sole ground that Sale Deed of 1958 showed them as vendees alongwith Gian Singh for half of the 1/12th share alienated by Labhu Ram. They have admitted in their application that Gian Singh being elder member of the family had been pursuing all the litigation on their behalf and had been telling them that their rights would be safe-guarded. This shows that they were aware of the pending litigation throughout but deliberately stayed away so that this alternative plea could be taken, if necessary. However the above discussion will dispose of the claims of the remaining petitioners also.
8. A point which has been raised in the petition by Gian Singh is that this is not Custodian property, and, therefore it cannot be put to auction. It is established now that the property was shown as Evacuee Property in Revenue record much prior to the time auction took place. Allotment as sub-lessee was procured by Gian Singh in 1981 and auction of remaining portion took place in 1982. Therefore he cannot deny that the land was evacuee property and, therefore, liable to auction. It is well known fact immediately after Partition because of the preoccupation of the entire administration with relief and resettlement operations the revenue records could not be updated in line with the relevant enactments immediately after the exodus of the Muslim owners/tenants, and their ownership/tenancy continued to be reflected in the record for quite some time after Partition. It was only after the initial trauma was over that the State could attend to this aspect of the matter. It is now established that the correction of record showing ownership of the Central Govt. was made well before the auction took place. Gian Singh has tried to use the revenue record selectively to suit his own convenience and interests. Further it has already been mentioned that 24 Kanals 15 marlas out of khasra No.175 measures 44 kanals 5 marlas were allotted in favour of Gian Singh as a sub-lessee. This benefit he availed of under provisions of Chapter-V-A of the Displaced Persons (Compensation & Rehabilitation) Rules, 1955. Having admitted to a part of the property being urban evacuee agricultural land he cannot deny the remaining part of the same khasra number also being urban evacuee agricultural land. Thus this plea is defeated by his own conduct. The record and the Rules do not support his contention either.
In view of the above discussion, there is no merit in the averments of the petitioners and this petition is accordingly dismissed.
Chandigarh, dated (SHYAMA MANN)
The 6th July, 1999 Financial Commissioner Revenue,