Din Dayal etc. Vs Khalifa Sayad Ahemad

Before Shri S.S.Khara, Additional Director, Consolidation of Holdings Punjab, Chandigarh Exercising powers of Managing Officer under the Displaced Persons (Compensation & Rehabilitation) Act, 1954.

M.O/HQ/OR-1014

Din Dayal, Ved Parkash, Om Parkash and Viran Bai widow and Janaki Devi Switri Devi daughters of Banwari Lal s/o Santu Ram through Shri Hari Chand s/O Ghanu Ram, General Attorney, Resident Aneja Medical Hall, 196, Aneja Complex, Rajpura Town, Patiala.

                                                                                                Respondent No.1

Lashar Singh son of Jagir Singh r/o H.No.4/2, Adarsh Colony, Rajpura Town.

                                                            (Added as petitioner vide order 29.11.99)

                                                                                                ….Petitioner No.2

                                                            Versus

1. Khalifa Sayad Ahemad heir of Khalifa Anish Ahmed Roza Sharif Sirhind,
2. Tehsildar (Sales)-cum-M.O., Sirhind (Fatehgarh Sahib).

…Respondents.

Application for setting aside the ex-parte order dated 6.12.1988 of Tehsildar Sales-cum-Managing Officer Fatehgarh Sahib, District Patiala regarding Khasra Number 32 measuring 15 Kanal 10 Marlas situated at Village Harnam Nagar, Tehsil Sirhind.

Present:            Sh. R.L.Sharma, Advocate for petitioners No.1 and 2.

                        Sh. Sanjiv Chopra, Advocate for Respondent No.1’s successor.

                                                                                        ORDER

            This application was filed on 15.2.89 by the petitioners through Sh. Hari Chand son of Ghannu Ram Power of attorney for setting aside order dated 6.12.1988 of Tehsildar Sales-cum-M.O. Fatehgarh Sahib on the ground of being ex-parte.  In this application it has been alleged that Tehsildar Sales-cum-Managing Officer vide order dated 18.7.1977 had allotted Custodian land comprising Khasra No.32 (15 Kanal 10 Marla) (0-15½ Std. Acre Unit) to Shri Banwari Lal s/o Sh. Santu Ram in village Harnam Nagar Tehsil Fatehgarh Sahib.  On the spot the possession was taken vide Rapat Roznamacha Waqiati No.59 dated 6.10.80 through Patwari/Kanungo.  The permanent rights in respect of said land were given by Tehsildar Sales-cum-Managing Officer, Patiala on 12.2.1981and an agreement to sell has been made with Hardev Singh son of Ishar Singh & Dalip Singh son of Basta Singh and would be purchasers are in possession of this land.  So it is clear that after conferment of permanent rights Tehsildar Sales-cum-M.O. has no rights to cancel allotment and any such order passed in illegal & is liable to be set aside.

            It has been further contended that Sh. Banwari Lal son of Sh. Santu Ram has died on 19.4.1981 and the petitioners are the legal heirs of the said Banwari Lal but no one from them or the purchasers were called.  Khalifa Anees Ahmed had filed an appeal No.55/P/PTA/81 against the allotment order dated 18.7.77 before Settlement Commissioner, Rehabilitation Department, Jalandhar and the appeal was decided against Annees Ahmed.  No appeal was filed against said order of Settlement Commissioner and any case filed after 8 or 9 years against allotment was clearly time barred and illegal in the eyes of law.  So it is clear that order dated 6.12.1988 of Tehsildar Sales-cum-M.O. is ex-parte order & without any basis.  No record/facts were summoned from M.O.(H.Q) and this allotment was prior to the power conferred on Tehsildar sales-cum-M.O., Sirhind so he had no jurisdiction to hear the case.  Decision of Custodian General dated 8.11.1956, 30.9.1957 has no relevance with custodian land Khasra No.32 village Harnam Nagar and allotment was perfectly made as per instructions of Rehabilitation Department.

            In the end of application request has been made to set aside the ex-parte order dated 6.12.1988 of Tehsildar Sales-cum-M.O. Sirhind and allotment be kept intact.

            In reply respondent No.1’s successor Khalifa Syed Mohammad Yatya has stated that this Court has no jurisdiction and the application is against facts & law and the same is not maintainable in its present form.  Order passed by the Court below is according to the law and facts.  The Civil Court in its judgement dated 18.4.1983 has already held the possession of Roza Sharif and Banwari Lal or Hardev Singh or Dalip Singh has no concern or connection with the suit property.  Banwari Lal had filed a civil appeal against order dated 18.4.1983 in the court of Sh. M.S.Luna, Addl. District Judge Patiala & that was dismissed.

            During the pendency of this case Sh. Lashkar Singh s/o Jagir Singh R/o Rajpura filed an application dated 11.11.1999 and requested for impleading him as party in place of petitioners.  On the ground that he has purchased the disputed property vide Sale deed No.1895 dated 12.8.1998 from the petitioners through their attorney Sh. Satish Kumar s/o Late Sh. Hari Chand.  He was allowed to join as petitioner vide order dated 29.11.1999 alongwith existing petitioners.  Existing petitioners have been represented by Sh. Satish Kumar s/o Late Sh. Hari Chand as Shri Hari Chand their earlier attorney had died during the pendency of this application. 

The Learned Counsel for both the contesting parties are present.  Counsel for respondent No.1 has argued that the matter decided by Tehsildar Sales-cum-M.O. Sarhind vide order dated 6.12.1988 can’t be altered or interfered by M.O. Headquarter on the ground of being ex-parte order.  It is a settled law that any order on the ground of    ex-parte can be either challenged before the same court which has passed the order or an appeal was to be filed under section 22 of Displaced Persons (Compensation & Rehabilitation) Act 1954 before Settlement Commissioner.  The petitioners instead of exercising the above lawful options have chosen the strange way of filing an application in this court against the order dated 6.12.1988.  Learned Counsel for the petitioners is not in a position to rebut the above arguments with any convincing reasoning. 

After going through the facts and circumstances of this application I am tending to agree with the arguments of Counsel for respondent.  The petitioners have wrongly chosen to file an application before me against the order dated 6.12.1988 of Tehsildar Sales-cum-M.O.Sirhind for the reasons best known to them.  In my opinion only legal course which was available to them was to either approach the same Court of Tehsildar Sales-cum-M.O. Sirhind on the basis of alleged ex-parte aspect or appeal had to be filed before Settlement Commissioner under section 22 of Displaced Persons (Compensation & Rehabilitation) Act, 1954.

In view of the above position the instant application filed before me is without any jurisdiction and the same is, therefore, dismissed.

Announced in open Court.

                                                                                                            (S.S.KHARA)

Dated: 20.12.1999                                                                   Managing Officer (H.Q)

Chandigarh.