Letters Patent Appeal No.682 of 2009 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Letters Patent Appeal No.682 of 2009 Date of decision: 13.11.2009 *** Sham Singh ...Appellant Versus Financial Commissioner, Appeal-II,Punjab and another ...Respondents CORAM: HON'BLE MR. JUSTICE J.S.KHEHAR. HON'BLE MR. JUSTICE S.D.ANAND. Present: Mr.Vibhu Raj Jhanji, Advocate for the appellant. S.D.ANAND, J. This Letters Patent Appeal calls into question the validity of the order 15.1.2009 vide which a learned Single Judge of this Court dismissed the Civil Writ Petition No.9038 of 2006. In the course of the impugned order, the learned Single observed that the petitioner had been making repeated attempts to thwart the process of law and to illegally obtain the title of the land under reference by resort to the proceedings which he initiated at different points of time before the revenue authorities, the Civil Court and also by filing a Civil Writ Petition before this Court. For that finding, the learned Single Judge drew sustenance from the fact that the petitioner herein had obtained the land aforementioned (in the name of his wife) from the Punjab Waqf Board (hereinafter referred to as “the Board”) on a temporary yearly lease of Rs.850- per month. Letters Patent Appeal No.682 of 2009 -2- **** The petitioner had also, in order to effectuate the obtaining of that lease, also executed the relevant documentation which included a Qabuliyatnama as well. It was thereafter that the names of certain associates of the petitioner were got entered in the Khasra girdawari on the basis of a collusive decree. Those persons including the petitioner, then, applied for transfer of title of that land on the basis of their possession. The plea was declined on the premise that the land belonged to the Board and not the Central Government. An appeal against that order was filed by the petitioner without impleading the Board as a party. The Board filed a plea for its impleadment as a party and the appeal came to be ultimately dismissed. It was also noticed that the petitioner herein filed Civil Writ Petition No.9520 of 1993, and was able to obtain an order in his favour on 28.9.1993, without his having impleaded the Board as a party. The Board applied for impleadment and also a review of the order dated 28.9.1993. This Court granted the plea for review and it not only recalled the earlier order but also ordered the dismissal of the writ petition with costs of Rs.5000/- each against the petitioners therein and also the issuance of a contempt notice to the petitioners for having obtained the reviewed order by a false representation and concealment of facts. In that contempt plea, the petitioners therein (which included the petitioner herein as well) could get away only with an unconditional apology. On the basis of all these facts, the learned Single Judge recorded a finding that the petitioner had been making repeated attempts to obtain the title of the property upon Letters Patent Appeal No.682 of 2009 -3- **** which he was a tenant under the Board. The learned Counsel, appearing on behalf of the petitioner, vehemently argued that gross injustice had been done to the petitioner inasmuch as his entitlement to obtain the proprietary title of the land aforementioned on the basis of possession of required duration had been unjustly denied. It was also argued that the revenue authorities and also the other authorities( which dealt with the matter at different points of time) attached undeserved importance to the plea raised by the Board and that the view obtained by the revenue authorities is oblivious of the plea raised by the petitioner that he and his wife had executed a Qabuliyatnama in favour of the Board under an erroneous impression that it was the latter which was the owner of that property. Infact, the argument proceeded, it had transpired at a subsequent point of time that the land aforementioned vested in the Central Government and it was then only that the petitioner etc. applied for the transfer of the title of that land on an averment that they had been in possession thereof for the required duration. We have given our careful consideration to the pleas raised by the learned counsel for the petitioner and examined the same in their relate-ability to the material obtaining on the file, with particular reference to the criticism levelled at the view obtained by the learned Single Judge. We have not been able to persuade ourselves to find any merit in the plea on behalf of the petitioner. Our following fact-based Letters Patent Appeal No.682 of 2009 -4- **** observations shall buttress the finding:- The petitioner has not been able to controvert the fact that the land aforementioned had been obtained (in the name of his wife) from the Board on a temporary yearly lease at the rate of Rs.850/- per month. It is also beyond the pale of controversy that the petitioner did execute the relevant documentation which included a Qabuliyatnama in favour of the Board. Even in the civil suit under reference, the petitioner had conceded being in possession of that land on the basis of tenancy under the Board. (This fact stands noticed by the learned Single Judge as well). There can, obviously, be no escape from the conclusion that the petitioner conceded the title of the Board qua that land before the revenue authorities and also the Civil Court. The wife of the petitioner got the names of certain associates entered in the Khasra girdawari on the basis of a collusive decree. That civil suit had been filed by Sarv/Shri Dayal Singh, Harinder Singh and Harbhajan Kaur. The petitioner herein and his wife Kuldip Kaur were impleaded as the parties opposite. The plaintiffs therein applied for the correction of Khasra girdawari enteres (in their favour) in respect of the disputed land with effect from Rabi, 1972. Sham Singh petitioner and his wife Kuldip Kaur conceded the claim raised by the plaintiffs therein. The Board had not been impleaded as a party to that suit. These facts are noticed in the course of the order dated 10.12.1991 (Annexure R-2/2) passed the Sales Commissioner while disposing of four appeals (filed Letters Patent Appeal No.682 of 2009 -5- **** against the order dated 3.12.1990 of the Tehsildar, Sales, who had declined to accept the claim of the petitioner etc. for the transfer of tile of land under reference. We extract hereunder the relevant observations made by the Sales Commissioner in the context:- “The other three applicants namely Dayal Singh, Harinder Singh and Harbhajan Singh filed a Civil suit against Sham Singh and Kuldip Kaur for correction of Khasra Girdawari in respect of disputed land from Rabi 1972. Sham Singh and Kuldip Kaur admitted the claim of Dayal Singh, Harminder Singh & Harbhajan Kaur. The wakf board was not made a party and a collusive decree was obtained. The change in Khasra girdawari was obtained to circumvent the judicial admissions by Sham Singh and Kuldip Kaur. A collusive decree is like a consent decree and is nothing but a contract superannuated by the sea of the court. xxx xxxx xxxx The arguments of the Wakf Board had knocked out the bottom of the arguments of the appellants. While Sham Singh and Kuldip Kaur had made judicial admissions regarding the title of disputed land that Wakf Board is owner of the land, Dayal Singh, Harminder Singh & Harbhajan Kaur obtained a collusive decree from Sham Singh and Kuldip Kaur regarding the same land. Hence, one appellant out of the four has already admitted the title of the wakf board regarding disputed property, while the other three obtained a collusive decree from this applicant, hence, they have indirectly admitted the title of the wakf board. Hence, the appellants cannot deny the title of the Wakf Board. Even otherwise the disputed land has been shown as Wakf property in a Gazette notification of Letters Patent Appeal No.682 of 2009 -6- **** Government of India.” (Underlined is by us for purposes of relevance-related emphasis). It would be apparent from the following facts, noticed by the Sales Commissioner in that very order, that the plea filed by the petitioner and his associates to obtain title of that land on the basis of their possession was incompetent:- “The Tehsildar (Sales) in his arguments has said that even if the allegations of the appellant is accepted that they had given an application earlier on 4.10.1974 was the last date for receipt of applicants as per rule for transfer of land on the basis of possession from Rabi, 1972. The appellants had earlier applied for transfer of the disputed land on the basis of possession from Rabi 1984 but the applications were dismissed on the grounds that the appellants have got the khasra girdawaries changed through civil court, which cannot be accepted after 23.11.77 and that the disputed land is the Wakf Board property. According to the attestation of Panchayat, the appellants do not live in village Birmi and they do not p ay chullha tax or chowkidara. Except the voter list of 1.2.90, the earlier voter lists of the village do not contain the name of the appellants. The appellants got the khasra girdawaries in respect of disputed land changed on 15.12.85 through civil court. Lastly the Tehsildar (Sales) asserted that as the appellants were found unfit for transfer of dispute land on the basis of possession from rabi 1984 then how can the same land be transferred to them on the basis of the possession from Rabi 1972.” The petitioner and his associates having failed in their attempt to achieve their illegal designs through the revenue and Letters Patent Appeal No.682 of 2009 -7- **** rehabilitation authorities, opted to file Civil Writ Petition No.9520 of 1993 before this Court and were able to obtain order dated 28.9.1993 from this Court. By that order, this Court directed the competent rehabilitation authorities “to examine the claim of the petitioners for transfer of surplus rural evacuee agricultural land in terms of Press Note (I), dated September 4, 1974 and the subsequent Pres Notes issued by the State Government in this behalf within three months from the date of receipt of copy of this order”. This Court further ordered restraint on the dispossession of the petitioners therein, “Till their claim for transfer of surplus evacuee agricultural land is disposed of.” The Board had not been impleaded as a party therein. On coming to know of the proceedings, the Board filed a plea for review which was allowed by this Court on 8.2.1994 (Annexure R-2/3). The allowance of the review plea was ordered with costs quantified at Rs.5000/- in each case. This Court also made the following observations on the conduct of the petitioner therein; his wife and also Harbhajan Kaur, Dayal Singh and Harinder Singh.(“The petitioners obtained favourable orders in the writ petitions by concealing the material facts and making false representation. This court was influenced by the supressio veri, and suggestion false. The conduct of the petitioners prima facie amounts to gross contempt of the Court.”) In the contempt proceedings, the contemners therein Letters Patent Appeal No.682 of 2009 -8- **** tendered an unconditional apology . The learned Single Judge accepted their unconditional apology by noticing that two out of the contemners were females and other two were laymen. The Rule was discharged vide order dated 9.9.1994(Annexure R-2/4). It would be pertinent to notice here that the petitioner herein had initially been able to hoodwink the revenue authorities as well but that attempt of his proved abortive when the order dated 14.1.2004 (Annexure P-1) passed by the Divisional Commissioner, Patiala Division, Patiala, (vide order dated 20.4.2004-Annexure P-4) was reviewed by the officer with the following observations of absolutely relevant character insofar as the present controversy is concerned:- “From the perusal of the revenue record, revealed that Sham Singh others took the property measuring 130 kanals each on yearly lease from Punjab Wakf Board. It is settled principle of law that tenant has no right to deny the title of his landlord. I also find that the Hon’ble High Court of Punjab and Haryana also held that the property is owned by the Punjab Wakf Board. The above noted facts were never brought to the notice of this court. Accordingly the present application for review of order dated 14.1.2004 is allowed. The order dated 14.1.2004 passed by the Divisional Commissioner, Patiala Division, Patiala is withdrawn. The revenue appeal No. 103 of 2002 filed by the Punjab Wakf Board against Sham Singh and others is accepted and the impugned order dated 1.3.2002 passed by the District Collector, Ludhiana is set aside. I uphold the order dated 19.10.2000 passed by the Assistant Collector, 1st Grade, Ludhiana in respect of Letters Patent Appeal No.682 of 2009 -9- **** mutation No. 1726 of Village Birmi Tehsil and District Ludhiana. .” The petitioner made a vain and apparently malicious attempt to malign the authority which granted the order dated 20.4.2004 by raising a plea before the learned Single Judge that the order aforementioned had been passed without at all affording an opportunity of a hearing to him and his associates and that their presence and that of their counsel had been incorrectly noticed therein. In support of that averment, the petitioner placed on record the affidavits of all four of them (including the petitioner) and also that of their learned counsel, whom they had engaged in the proceedings pending before the Divisional Commissioner, Patiala Division, Patiala. In the course of those affidavits, an averment was made that they were not present at the time of hearing and their presence had been wrongly noticed in the impugned order. They also raised a plea before this Court that the review order had been granted by the Divisional Commissioner under the influence of a named member of the State Cabinet. The latter plea was declined by the learned Single Judge by making the following appropriate observations:- “Such a plea as raised may sound impressive, but deeper analysis of the situation would show that the petitioner has not made the present approach in a fair manner. Except for baldly asserting that the Commissioner expressed himself to be under the influence of the then Minister, no proof in this regard has been furnished. It will be dangerous precedent to accept such assertion only made in the petition because it is so easy to make Letters Patent Appeal No.682 of 2009 -10- **** such accusations in order to seek relief.” In support of the argued view that there was nothing inherently illegal on the part of the petitioner in having first executed a Qabuliyatnama in respect of the land under reference in favour of the Board and, thereafter, having applied to the rehabilitation authorities for allotment of that land on a plea of his having been in possession thereof for the required duration, the learned counsel for the petitioner placed implicit reliance upon a number of judicial pronouncements having commonality of view. We propose to deal with some of those pronouncements. We find, on consideration of the matter in appropriate perspective, that none of those judicial pronouncements has any applicability to the case before this Court. All that the Apex Court held in Jai Narain Parasrampuria (Dead) and others Vs. Pushpa Devi Saraf and others 2007(1) Civil Court Cases 121 (SC) was that mere admission (on the part of a party) does not create a title but “while determining such a question that intention of the parties as to in whom the title of the property shall vest, the conduct of the parties assumes significance.” In that case, a representation had been made to the appellant company involved therein was owner of the property. The representation aforementioned was not only in terms of a decree but also on account of the execution of certain documentation including a mortgage deed which was followed up by a discharge deed in favour of a named banking institution. There is nothing further in that judicial pronouncement towards which our attention could be invited Letters Patent Appeal No.682 of 2009 -11- **** by the learned counsel for the petitioner to advance the plea. In short, the Apex Court had only reiterated the established proposition of law on point of estoppel. In D.Satyanarayana Vs. Jagdish AIR 1987 Supreme Court 2192, the Apex Court held that though estoppel would bind the tenant during the continuance of the tenancy and until he surrenders his possession, “it is open to the tenant even without surrendering possession to show that since the date of the tenancy, the title of the landlord came to an end or that even though there was no actual eviction or dispossession from the property, under a threat of eviction he had attorned to the paramount title holder.” That authority is surely declaratory of correct proposition of law but has no application to the facts and circumstances of the present case. Raghvendra Singh and others Vs. Marhu and another AIR 1971 Madhya Pradesh 142 was a Division Bench ruling wherein it was held by that High Court that a tenant cannot deny the title of the landlord unless there is proof of fraud, coercion or misrepresentation on the part of the landlord in the context. In the present case, there is nothing on the file to indicate that the Punjab Waqf Board had played a fraud upon the petitioner or that that petitioner had been coerced into the execution of a Qabuliyatnama or that the Board had made any misrepresentation to him for obtaining the documentation aforementioned. In this case, the land had been notified to vest in the Punjab Waqf Board. That ruling does not, thus, apply to this case. Our these observations apply with Letters Patent Appeal No.682 of 2009 -12- **** equal force to John Nadjarian Vs. E.F. Trist AIR (32) 1945 Bombay 399 wherein all that the High Court had held was that it was competent for the tenant to prove that the land lord had no title on the date the tenant attorned tenancy to him. Even at the cost of repetition, it may be indicated that the Punjab Waqf Board is proved to have been notified to be the title holder of the land under reference. Likewise, the Division Bench ruling reported as U Po Shin and another Vs. Edward and others AIR 1934 Rangoon 139 also does not advance the petitioner's case for want of commonality in the inter-se factual scenario. In that case, there was a finding of fact that the lease deed had been signed under pressure and ignorance of facts related to the title of landlord. The executants of the lease deed were otherwise already in possession of the land long before they executed the lease deed therein. No such facts are available in the case before this Court. The following facts can, thus, be safely culled out from the above discussion:- a) The plaintiff had initially obtained the land under reference (in the name of his wife), on a temporary yearly lease at the rate of Rs.850/- per month, from the Board. The documentation executed in that context including a Qabuliyatnama as well. b) In a Civil Suit filed by the petitioner herein, he had conceded the fact that the possession on that land Letters Patent Appeal No.682 of 2009 -13- **** was as a tenant and under the Board. c) The petitioner and his wife had conceded the decretal of a civil suit filed by Harbhajan Kaur Harinder Singh and Dayal Singh for declaration that they were in cultivating possession fo the land under reference, along with defendants therein. d) The Khasra girdawari entries were corrected by the revenue authorities on the basis of a civil court decree which was, by all canons of interpretation, collusive in character. The Board had not been impleaded as a party therein. e) The petitioner had filed Civil Writ Petition qua the land under reference and had obtained the order dated 28.8.1993 by concealment of facts. That order was reviewed by this Court on the presentation of the correct facts before it. f) In a contempt plea, initiated by this Court against the petitioners in the aforementioned Civil Writ Petition, the petitioner herein and his associates could get away only by tendering an unconditional apology. It is on the basis of unconditional apology only that they were let off on the charge of having obtained order dated 28.8.1993 misrepresentation of facts and also by concealment. g) The petitioner obtained order dated 14.1.2004 from Letters Patent Appeal No.682 of 2009 -14- **** the Divisional Commissioner, Patiala, which was reviewed by the officer when correct facts were brought to his notice. In that review order, the Divisional Commissioner had also recorded a finding that title of the property under reference is with the Board. h) The Sales Commissioner had recorded scathing criticism of the manner in which the petitioner herein and his wife Kuldip Kaur had tried to circumvent the law by conceding a Civil Court decree. The officer also made fact-based observation to hold that title of the land under reference being vested in the Board, the petitioner and his associates were not eligible for the transfer of the title of that land on the basis of their possession. In that context, the Sales Commissioner had noticed that there was an attestation issued by the Panchayat that those persons were not living in the village and they were not paying Chulha Tax or chowkidari tax either. It further noticed that voter list pertaining to the pre 1.2.1990 period did not contain the names of the appellants therein. In the totality of the circumstances of the case, we find that the present appeal is only a continuation of the uncharitable endeavours being made by the petitioner from time to time to obtain Letters Patent Appeal No.682 of 2009 -15- **** the title of the land under reference. That endeavour had been aborted by the learned Single Judge vide the order under challenge which we find to be self-contained and appropriately analytical. We find no justification whatsoever to differ with the finding recorded by the learned Judge and also the reasoning recorded by the learned Judge in support thereof. The petition being denuded of merit shall stand dismissed. (S.D.ANAND) JUDGE November 13, 2009 (J.S.KHEHAR) Pka JUDGE Letters Patent Appeal No.682 of 2009 -16- ****