C.M. No.1845 of 1991 and -1- LPA No.425 of 1998 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.M. No.1845 of 1991 and LPA No.425 of 1998 Date of decision: 02.02.2010 State of Punjab and others ............Appellants Versus Kanwar Kamaljit Singh and another ..........Respondents CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE ALOK SINGH -.- Present: Ms. Ritu Bahri, Sr. DAG, Haryana. Mr. Arun Palli, Sr. Advocate with Mr. Vishal Goel, Advocate for the respondents. ALOK SINGH, J. C.M. No.1845 of 1991 For the reasons mentioned in the application, delay of 4 days in filing the appeal is condoned. LPA No.425 of 1998 1. The present appeal has been filed challenging the order dated 29.5.1991 passed by learned Single Judge, allowed the writ petition and quashed the orders Annexures P-I, P-2 and C.M. No.1845 of 1991 and -2- LPA No.425 of 1998 P-4 on the ground that no opportunity of being heard was granted before effecting the mutation in the revenue record. 2. The brief facts of the present case are that prior to 1947, Kanwar Sarbjit Singh, father of the petitioners/respondents, was the owner of 264 kanals 15 marlas of agricultural land and till 1969 his name was recorded in the revenue record as the owner of the said land. When petitioners who are the legal and natural heirs of Kanwar Sarbjit Singh sought to execute the decree which was passed in a civil suit then they noticed that Tehsildar-Sale-cum- Managing Officer, Kapurthala vide order dated 15.10.1969 had directed the revenue authorities to correct the record of rights by sanctioning the mutations in favour of the alleged vendees from the predecessor in interest, father of the petitioners through his (father's) power of attorney. The case of the petitioners is that order passed by the learned Tehsildar and revenue authorities effecting the mutation on the basis of the alleged alienation is ex-parte and without notice. 3. We have heard learned Counsel for the parties and perused the record. 4. Learned Counsel appearing for the appellants has argued that in fact Kanwar Sarbjit Singh has sold his land through his power of attorney to certain Muslims before the partition of the country vide 14 registered sale deeds and the said vendees migrated to Pakistan. Having come to know about the alienation through registered sale deeds, Tehsildar was well C.M. No.1845 of 1991 and -3- LPA No.425 of 1998 within his jurisdiction to direct the revenue authorities to correct the revenue record as per the sale deeds executed by Kanwar Sarbjit Singh. 5. Learned Counsel for the respondents argued that factum of sale deeds by the alleged power of attorney of Kanwar Sarbjit Singh is not admitted to the respondents. Had notice been issued by the learned Tehsildar prior to passing of the impugned order dated 15.10.1969, appellants would have placed their cases before him saying no sale deed was ever executed by the predecessor in interest of the appellants and alleged sale deeds are not genuine. Appellants would have also argued before the Tehsildar that property cannot be declared as evacuee property after 07.05.1954. The failure to grant opportunity was thus violative of principle of natural justice. Hence, Learned Single Judge was well within his jurisdiction while passing the impugned order. 6. We are of the view that learned Single Judge was absolutely within his jurisdiction to quash the mutation orders passed by Tehsildar being ex-parte without affording an opportunity of being heard to the writ petitioners. However, learned Single Judge should have been remanded the matter to the Tehsildar to hear the writ petitioner on merit. Quashing of the order without remanding the matter afresh would not be justified. 7. Without expressing any opinion on the merit of the case, we are of the considered view that orders Annexures P-1, C.M. No.1845 of 1991 and -4- LPA No.425 of 1998 P-2 and P-4 were rightly quashed/set aside by the learned Single Judge, however, the matter needs to be remanded to the learned Tehsildar with the direction to pass fresh order after affording opportunity to both the parties in accordance with law. 8. Parties are directed to appear before the learned Tehsildar on 26.4.2010 and shall file their pleadings, and thereafter learned Tehsildar shall decide the case afresh after hearing both the sides in accordance with law. Both the parties shall be at liberty to place entire evidence and material before the learned Tehsildar. (ALOK SINGH) JUDGE (ADARSH KUMAR GOEL) 02.02.2010 JUDGE ashish