KRISHNA KUMAR! AND ANR.

STATE OF HARYANA AND ANR.

NOVEMBER 27, 1998

[M.K. MUKHERJEE AND S. SAGHIR AHMAD, JJ.] B

~ - Punjab Security of Land Tenures Act, 1953/Punjab Security of Land Tenures Rules, 1953; ss.9(1) (i) and 10-A(b)/Rules 20-A, 20-B, 20-C and 20- D-Surplus area-Utilisation of-Held, since tenant was in possession of the land throughout, his title could be traced to allotment of land followed by C delivery of possession after completion of all formalities including execution of 'Kabuliyat'-Delivery of possession being official act of Revenue Circle Officer, a presumption has to be raised that all antecedent formalities were duly complied with-Non-availability of Form-K-6 or Kabuliyat on record

is of no consequence.

Certain land belonging to appellants' father, the tenure-holder, was declared surplus under the Punjab Security of Land Tenures Act, 1953.

After the death of the tenure-holder, the appellants moved an application under s.10-A(b) of the Act that since each of the heirs got land less than 30 standard acres of land and the surplus land had not been utilised, the same E should be taken out of the surplus pool. It was reported by the Patwari and the Naib Tehsildar that on the said surplus land no tenant was re-settled. The S.D.Q. (Civil) exempted the land from the surplus pool on 30.11.1972. Later, the appellants filed an application before the Collector for cancellation of allotment order dated 13.7.1976 made in favour of 'M', father of respondent No.3. The application was allowed and the allotment made in favour of 'M' F the tenant, was cancelled holding that the land had not been utilised and had been exempted from surplus pool. However, the order was challenged by the tenant and ultimately the Collector found that an area of 40 Kanals 16 Marlas had already been allotted to the tenant on 21.2.1964 and possession thereof had also been delivered to him on 17.3.1964. It was found that the G surplus land had already been utilised before the death of the tenure-holder.

The application for releasing the land from the surplus pool was ultimately rejected. The appellants having lost before the Financial Commissioner and the High Court, filed the present appeal.

It was contended for the appellants that issuance of certificate in Form H 133

, A K-6 as provided under Rule 20(A) of the Punjab Security of Land Tenures Rules, 1953, delivery of possession of surplus area as indicated in Rule 12- B and execution of Kabuliyat by tenant in favour of landlord as laid down in Rule 12-C were mandatory requirements and since these steps were not completed, the surplus land could not be treated to have been utilised. It was B submitted that process of utilisation did not move beyond the stage of allotment order in favour of the tenant and neither the possession was taken over by him nor did he execute any kabuliyat in favour of tenure-holder till the time of latter's death on 12.1.1971 on which date the land came to be inherited by the appellants and their mother.

C Dismissing the appeal, this Court.

HELD : I.I. Since the tenant was in possession throughout, he shall be treated to have had a valid title to remain in possession which can be traced to the allotment of land followed by delivery of possession after completion of all other formalities including execution of "Kabuliyat" or D Patta. (150-E)

1.2. Whether all the steps indicated in the Punjab Security of Land Tenures Rules, 1953 for utilisation of land were observed and followed or not, is a question which has been considered by all the authorities before whom the matter was agitated and they have concurrently held against the E appellants and have recorded the finding that possession of the land allotted to the tenant was delivered to him. (142-F-G]

2. The land in question was, admittedly, allotted to the tenant in 1964.

Form K-6 was issued as far back as in 1964. Since it has ben mentioned in the report for delivery of possession and is also mentioned in the index, F its non-availability on the file would be of no consequence and it would be treated to have been issued at the relevant time in terms of the requirement contained in the Rules. [142--D-E]

3.1. Undoubtedly, all the requirements indicated in Rule 20-C of the G Punjab Security of Land Tenures Rules, 1953 are mandatory in character and, therefore, clause (c) of Rule 20-C will also be mandatory for the reason that the first part of this clause contains in imperative terms that the tenant shall execute a "Kabuliyat" or "Patta" in favour of the land-owner and the second part which is equally imperative says that it shall be done before possession is delivered to the tenant. It is obvious that if the second mandatory H step was taken and the possession over the land was delivered by the Revenue

KRISHNAKUMAR!v. STATE 135

Circle Officer himself as required by Rule 20-B, there is no reason to A believe that the first mandatory step, immediately preceding the second step, was not taken, particularly as possession would not have been delivered to the tenant without execution of"Kabuliyat". In fact, delivery of possession being the official act of the Revenue Circle Officer as indicated in Rule 20- B, a presumption has to be raised that all antecedent formalities were duly B complied with. (149-D-E-F]

Financial Commissioner, Haryana State and Ors., v. Smt. Kela Devi and Ors., [1980] 1 SCC 77 =AIR (1980) SC 309 = (1980] 1 SCR 1120;

Ujjagar Sing (dead) by L.Rs. v. The Collector Bhatinda and Anr., (1996] 5 SCC 14 =AIR (1996) SC 2623 = JT (1996) 6 S.C. 713 and Ranjit Ram v. C The Financial Commissioner, Revenue, Punjab and Ors., (1981) 83 P.L.R. 492, cited.

3.2. Besides, it is indicated in Section 9(1) (vii) of the Punjab Security of Land Tenures Act, 1953 that ifthe tenant does not execute the "Kabuliyat" in favour of the land-owner, he would be liable to be ejected. Had the tenant D not executed the Kabuliyat or Patta in favour of land-owner, he would have been, by now, evicted from the land in question in view of the provisions contained in Section 9(1) (vii) of the Act. He would not have been allowed to continue in possession from 1964 till this date or at least till the death of the land-owner in 1971 without any proceedings being initiated for his eviction. (150-D-E] E

3.3. Merely because the "Kabuliyat" is not on record, it cannot be said that the Kabuliyat or Patta was not executed by the tenant. There is no requirement under the Act or the Rules that a copy of "Kabuliyat" shall also be placed on record. [150-G-H]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5956 of 1998.

From the Judgment and Order dated 14.8.97 of the Punjab & Haryana High Court in C.W.P. No. 11422of1997.

Rajinder Sachhar and Manoj Swarup for the Appellants.

N.K. Kapoor, Mahabir Singh, (B.S. Chahar) for Prem Malhotra for the Respondents.

The Judgment of the Court was delivered by

A S. SAGHIR AHMAD, J. Section JOA of the Punjab Security of Land Tenures Act, 1953 provides that the State Govt. or any officer authorised by it may utilise any surplus area for the resettlement of tenants ejected or to be ejected under clause (i) of sub-section (1) of Section 9. The further implication of this Section is that if the surplus area, in the meantime, is B acquired by the State Govt. under any law for the time being in force, or it passes to an heir by inheritance, the surplus area so acquired or inherited would not be available for utilisation. It was this statutory provision which was sought to be invoked by the appellants who contended that the surplus area, on the death of the original owner, namely Banarsi Das, was inherited by them and, therefore, it could not be utilised in any way, not even by C allotment of this area in favour of Mangat Ram, which was liable to be cancelled, but they lost before all the authorities and have ultimately landed in this Court.

Leave granted.

D Banarasi Das, father of the appellants, was the owner of considerable

land in Village Kanthal Kalan, Dera Kalan, Dera Khurd, District Kurukshetra, Haryana. An area of 13 7 Kana ls 8 Marl as of land was declared as surplus under the Punjab Security of Land Tenures Act, 1953 (hereinafter referred to as the "Punjab Act"), which was later replaced by the Haryana Ceiling on Land Holdings Act, 1972 (hereinafter referred to as the "Haryana Act").

Banarsi Das died on 12th January, 1971 leaving behind Smt. Dropadi Devi (wife) and the present appellants (daughters), as his heirs, who inherited the property left by him. Since each of them got land which was Jess than 30 standard acres and since the land in question had not been utilised, they F gave an application under Section I OA(b) of the Punjab Act, that their land may be taken out of the surplus pool. This application, which was filed before the Collector (Agrarian), Kamal, on 4.7.1972 was registered as Case No. 2441/ Agr., which came ultimately to the court of S.D.O. (Civil), Kamal for decision, During the course of the proceedings, report of the Patwari, Teja Singh, dated 21.9.1972 and that of the Naib Tehsildar, TarifSingh, of the same date, were G placed on record which were to the effect that on the surplus lands of Banarsi Das, no tenant had been re-settled. Consequently, S.D.0. (Civil), by his order dated 30.11.1972, exempted the land held by the appellants and Smt. Dropadi Devi, who has since died, from the surplus pool.

On 16.12.1977, the appellants gave an application to the Collector for H cancellation of the allotment order made in favour of Mangat Ram on 13.7.1976,

KRISHNA KUMAR! v. STATE [S. SAGHIR AHMAD, J.] 137

which was registered as Case No. 54/Agr. Mangat Ram, it may be stated, is A the father of respondent No.3. This case was decided on 13.6.1978 by the Collector (Agrarian), Kamal, and the allotment made in favour of Mangat Ram was cancelled on the ground that the land had not been utilised and had already been exempted from the surplus pool as indicated by the S.D.O. in his order dated 30.11.1972. Mangat Ram challenged the order in appeal before B the Collector, Kamal, who, by his order dated 8.8.1983 allowed the appeal and remanded the case to Collector (Agrarian) for a fresh decision. Aggrieved by this order, the present appellants filed an appeal before the Commissioner, Ambala Division, who, by his order dated 26.9.1984 dismissed the appeal. The appellants then filed a Revision before the Financial Commissioner, but the Revision was dismissed on 28.2.1990.

The proceedings remanded to Collector, Kamal were ultimately decided by him on 17.8.1992. The application of the present appellants for releasing the land from the surplus pool was rejected and the allotment order passed in favour of Mangat Ram was upheld. It was found by the Collector that an area of 40 Kanals 16 Marlas had already been allotted to Mangat Ram on D 21.2.1964 and possession over the allotted land was also delivered to him on 17.3.1964. It was found that since the surplus land had already been utilised before the death of Bansarsi Das, there was no occasion to cancei the allotment made in favour of Mangat Ram in 1964. This judgment was challenged by the appellants in an appeal filed before the Commissioner, Ambala Division E but the appeal was dismissed on 20.1.1993. The Revision filed, thereafter, before the Financial Commissioner, Haryana was dismissed on 21.1.1997. The appellants then agitated the matter in a Writ Petition before the Punjab & Haryana High Court which, by the impugned judgment, dismissed the Writ Petition on 14.8.1997.

Shri Rajinder Sachar, Senior Counsel, appearing for the appellants, has contended that there was no utilisation of surplus land under the Punjab Act till the death ofBanarsi Das on 12.1.1971 and, therefore, the land, in question, was inherited by the appellants along with their mother Smt. Dropadi Devi

who being the small farmers were entitled to an exemption of their land from G the surplus pool. It is also contended that since the provisions contained in the Punjab Act and the Rules framed thereunder with regard to the utilisation of surplus area were not complied with, the land in question shall not be deemed to have been utilised. The land, after the death of Bansarsi Das, was inherited by the appellants and since inheritance is saved under SP.ct ion I 0- A(b) of the Punjab Act, the area which constituted the land of the appellants H

A was liable to be excluded from surplus area or there has to be re-determination of surplus area under the Haryana Act as succession had opened on 12 .1.1971 on the death ofBanarsi Das, that is, ten days before 24.1.1971, which is the relevant date under that Act and the land devolved upon them by inheritance.

Learned counsel for the respondents, on the contrary, has contended B that after the land was declared surplus, it was fully utilised by an allotment made in favour of Mangat Ram to whom possession was also delivered in

1964. Mangat Ram remained in possession over the area in question throughout his life by personally cultivating the land and after his death, respondents No.3 has been in possession as has also been found by all the authorities C below. It is contended that the findings recorded by the Collector, Kamal as also by the Commissioner, Ambala Division and the Financial Commissioner, to the effect that the land was allotted to Mangat Ram in 1964 and possession was also delivered to him on 17.3.1964, are findings of fact which cannot be questioned in these proceedings particularly as the High Couit had summarily dismissed the Writ Petition on this very ground, namely, that the findings, D which were questioned before it, were findings of fact.

Sections l 0-A and l 0-B of the Punjab Act provide as under:-

"10-A. (a) The State Government or any officer empowered by it in this behalf, shall be competent to utilize any surplus area for the resettlement of tenants ejected or to be ejected, under clause (i) of sub-section (I) of Section 9.

(b) Notwithstanding anything contained in any other law for the time being in force and save in the case of land acquired by the State Government under any law for the time being in force or by an heir by inheritance no transfer or other disposition of land which is comprised in surplus area at the commencement of this Act, shall affect the utilization thereof in clause (a).

Explanation - Such utilization of any surplus area will not affect G the right of the land-owner to receive rent from the tenant so settled.

( c) For the purposes of determining the surplus area of any person under this section, any judgment, decree or order of a court or other authority, obtained after the commencement of this Act and ha.'ing the effect of diminishing the area of such person which could have

. H been declared as his surplus area shall be ignored.

KRISHNA KUMAR! v. STATE [S. SAGHIRAHMAD, J.] 139

10-B. Saving by inheritance not to apply after utilization of surplus A area. - Where succession has opened after the surplus area or any part thereof has been utilized under clause (a) of Section 10-A, the saving specified in favour of an heir by inheritance under clause (b) of that section shall not apply in respect of the area so utilised.

While Sub-clause (a) of Section 10-A authorises the State Government B or any officer empowered by it in that behalf to utilise any surplus area for the resettlement of tenants ejected, or to be ejected, under Section 9( 1 )(i) of the Act, Clause (b) creates an exemption in favour of land which, in the meantime, is inherited by the heirs on the death of the land owner. The land so inherited cannot be utilised. But if the land has already been utilised, then C the exemption will not be available to the heirs as provided by Section

10-B.

Part N of the Rules made under the Punjab Act deals with the resettlement of tenants ejected or liable to ejectment. Rule 13 indicates the procedure for dispossession of tenants liable to ejectment under Section 9(l)(i). Rule 14 D provides for resettlement of tenant on the application of the landowner. Rule 15 provides for resettlement on the application of the tenants. Suo motu proceeding for resettlement of tenant can be initiated by the Circle Revenue Officer under Rule 16. Rule 17 indicates the procedure which is to be followed by the Circle Revenue Officer while Rule 18 provides for the procedure for E allotment of land. Rules 20-A, 20-B, 20-C and 20-D, which are relevant for purposes of the present case, provide as under:-

"20-A. Issue of certificates. - Every tenant shall be given a certificate in Form K-6 describing clearly the land allotted to him. A copy each of the certificate shall be sent to the Patwari concerned as well as the p landowner on whose land the tenant is to be resettled, and another copy shall be retained on the file for record.

20-B. Delivery of possession. - (1) After orders of allotment of any surplus area have ben passed, the Circle Revenue Officer, shall move the Collector for passing necessary orders directing the landowner or G the tenant, as the case may be to deliver possession of the land in his surplus area to the Circle Revenue Officer, who shall be deemed to be an officer empowered by the Government, under Section 19-C, for the purpose of delivery of possession.

(2) Every tenant resettled on the surplus area shall be bound to take H

possession of the land allotted to him within a period of two months of the date on which demarcation of the land is made at site in his presence or within such extended period, as may, for reasons to be recorded in writing, be allowed by the Circle Revenue Officer. The possession of the land shall be delivered to the tenant by the Circle Revenue Officer himself.

(3) The possession of the land on which a tenant is resettled shall ordinarily be given after the crops are cut. If, however, the Circle Revenue Officer deems it necessary to deliver possession of the land to any tenant before the crops are cut, a statement showing the crop and the area under the same shall be prepared by the Patwari before the possession is taken by the tenant. A copy of the statement shall be furnished to the landowner as well as to the tenant.

20-C. Conditions of resettlement. - The tenant who is resettled under this part-

(a) shall be tenant of the landowner in 'whose name the land in question stands in the revenue records;

(b) shall be liable to pay the same amount of rent as is customary in that estate for such land subject to the maximum fixed under section 12 of the Act; and

( c) shall in respect of the land upon which he is resettled, execute a Qabuliyatt or a Patta as given in Annexure 'C' appended to the Punjab Security of Land Tenures Rules, 1953, in favour of the landowner before he is put in possession of the land.

20-D. Consequences of not taking possession. - In case, a tenant does not take possession of surplus area allotted to him, for resettlement within the period specified in sub-rule (I) of Rule 20-B, the allotment shall be liable to be cancelled and the area allotted to such tenant may be utilized for resettlement of another tenant."

The statutory provisions quoted above indicate that the surplus land has to be allotted to a tenant already ejected or likely to be ejected for resettlement. After allotment of the surplus area to a tenant, a Certificate in Form K-6, describing clearly the land allotted to him, is issued, copies whereof are sent to the Patwari concerned as also the landowner on whose land the H tenant is to be resettled. Thereafter, possession ofthe allotted area is delivered

KRISHNAKUMARlv. STATE[S.SAGHIRAHMAD, J.] 141

to the tenant who is bound to take possession within a period of two months A of the date on which demarcation of the land is made at the site in his presence or within such extended period as may be allowed by the Circle Revenue Officer. Once a tenant has been resettled, he becomes the tenant of the landowner and becomes liable to pay rent to that owner, Rule 20-C(c)

further requires that the tenant so resettled, shall execute a Kabuliyat or a B Patta on the Profonna given in Annexure 'C' appended to the Rules in favour of the landowner. But the execution of Kabuliyat or Patta has to be done before the tenant is put in possession of the land. Resettlement has to take place in the manner indicated in the above provisions. Once the process is completed, the surplus land shall be treated to have been utilised within the meaning of Section 10-A(a) of the Punjab Act.

In Financial Commissioner, Haryana State and Ors. v. Smt. Kela Devi and Anr., [1980] 1 SCC 77 =AIR 1980 SC 309 = [1980] 1SCR1120, it was indicated by this court as under:-

" ........ Rule 20-C provides, inter alia, for the execution of a "kabuliyat" D or "patta" by a resettled tenant. It would thus appear that while allotment of land is an initial stage in the process of utilisation of the "surplus area", it does not complete that process as it is necessary for the allottee to obtain a certificate of allotment, take possession of the land within the period specified for the purpose, and to execute a "kabuliyat" or "patta" in respect thereof. The process of utilisation E contemplated by Section 10-A of the Act is therefore complete, in respect of any "surplus area" , only when possession thereof has been taken by the allottee or the allottees and the other fonnalities have been completed, and there is no force in the argument that a mere order of allotment has the effect of completing that process." F

The Court further observed as under:-

" ........ Rule 20-D of the Rules ..... provides that in case a tenant does not take possession of the "surplus area" allotted to him for resettlement within the period specified therefore, the allotment shall be liable to be cancelled and the area allotted to him may be utilised G for the resettlement of another tenant. It cannot therefore be doubted that a completed title does not pass to the allottee on a mere order of allotment, and that order is defeasible if the other conditions prescribed by law are not fulfilled."

This decision was considered by a Constitution Bench in Ujjagar Singh H

A (dead) by L.Rs. v. The Collector, Bhatinda & Anr., [1996] 5 SCC 14 =AIR

(1996) SC 2623 = JT (1996) 6 SC 713, and was approved. The Constitution Bench also considered a Full Bench decision of the Punjab and Haryana High Court in Ranjit Ram v. The Financial Commissioner, Revenue, Punjab & Ors., ( 1981) 83 P.L.R. 492, and observed as under:-

"According to us, the majority judgment of the Full Bench, has correctly appreciated the scope of the three enactments referred to above. Once the lands declared as surplus under the Pepsu Act did not vest in the State Government, as possession thereof had not been taken, there has to be a fresh detennination in respect of the area which the appellant is entitled to hold in the light of the Punjab Act."

Relying upon the above statutory provisions specially the decision of this court in Financial Commissioner, Haryana State and Ors. v. Smt. Kela Devi and Anr., (supra) and the Constitution Bench decision in Ujjagar Singh

(dead) by L.Rs. v. The Collector, Bhatinda & Anr., (supra) which approved D the earlier decision in Financial Commissioner, Haryano State and Ors. v.

Smt. Kela Devi, (supra), it is contended by Mr. Rajinder Sachar that in the instant case, the process of utilisation did not move beyond the .tage of allotment in favour of Mangat Ram and, therefore, the land shall not be treated to have been utilised as neither possession was taken over by him nor did he execute any Kabuliyat in favour of Banarsi Das till the time of E latter's death on 12.1.1971. On that date, succession to Banarsi Das opened and the land came to be inherited by the appellants as also their mother who has since died. It is also contended that the Haryana Act, under which the relevant date is 24th of January, 1971, would not affect the rights of the appellants as they had already inherited the surplus land before the relevant F date and consequently, their application for cancellation of the allotment, made in favour of Mangat Ram, was liable to be allowed .

. Whether all the steps indicated in the Rules, referred to above for utilisation of land, were observed and followed or not, is a question which has been considered by all the authorities before whom the matter was G agitated and they have concurrently held against the appellants and have recorded the finding that possession of the land allotted to Mangat Ram was delivered to him. We would normally have not entered, in the present proceedings under Article 136 of the Constitution, into those questions of fact, but Mr. Sachar has vehemently contended that all the steps for utilisation of surplus land were not taken, specially possession thereof was not delivered H to Mangat Ram and, therefore, the mandatory requirements indicated in the

KRISHNA KUMAR! v. STATE (S. SAGHIR AHMAD, J.] 143

Act and the rules were violated which has impelled us to scrutinise the A findings in the light of the arguments raised before us as also the material brought on record through various affidavits by the parties in this case.

Collector, Agrarian, Thanesar, Distt. Kurukshetra, in his judgment dated 17.8.1992 has reco; ded the following findings:-

"Allotment made in favour of Mangat Ram has been admitted by the petitioners themselves in their application dated 16.12.77 and in this application they have made a request to the Collector, Agrarian, Kamal

that the allotment may be cancelled and possession may be delivered back to them. When the petitioner themselves admit the possession C of Mangat Ram so this land cannot be said to be unutilised. I am in agreement with the contention of the counsel for the respondent Ram Dia, legal heir ofMaJlgat Ram. Land was allotted to Mangat Ram on 21.2.64 and the possession had been delivered vide report rozmancha no. 219 dated 17.3.64 which has been admitted by the petitioners themselves in their application and all the Courts have admitted this D as such. Therefore, the land stood utilised at the time of death of big land owner and for the reason this case does not fall within the ambit of Section 10 A(b) of Punjab Security of Tenures Act. So far as the question of report of Teja Singh Patwari and that of Naib Tehsildar Agrarian dated 21st September, 1972 is concerned, in which they have said that the land was not utilised, it is found from the record that on E the basis of the facts aforequoted, the lands stand utilised. The report has no basis nor this report is on the basis of record.

The counsel for the petitioners contend that the report rozmancha no. 219 dated 17.3.64 has been fabricated because two kinds of papers are F used in it and page no.29 is not pasted on its serial. Roznamcha has been fabricated afterwards.

In this respect the counsel for the respondents while arguing has submitted that the report roznamcha has been properly prepared.

Reference of this report has been made by Collector, Agrarian, Kamal G in his order dated 13th June, 1978, Collector Agrarian, Kamal in his order dated 27th October, 1982, Collector Kamal in his order dated 8th August, 1983 and by the Financial Commissioner, Haryana in his order dated 28.2.1990, but the petitioners never expressed any doubt as to this report roznamcha nor raised any objection ever although this document is important one in this case. Now describing this report H

roznamcha as wrong is not justified. In addition to this the Expert who has been produced with regard to this report roznamcha, he does not know how to write and read Urdu. Then how can he express his opinion about this document? The Collector, Kamal has also written in his order dated 8th August, 1983 to the effect "that it is an admitted fact that Mangat Ram son of Kalu Ram was allotted 40 Kanals 16 marlas ofland on 21.2.1964 as 'B' category tenant possession whereof was given vide report no 219 dated 17.3.1964. Appellants were issued form US-3 on 9th September, 1976. The petitioners also have admitted the possession of Mangat Ram in their application dated 16.12.1977 from where it is proved that possession was delivered to Mangat Ram vide report roznamcha No. 219 dated 17.3.1964."

Regarding Form K-6, the finding is to the following effect:-

"Counsel for the petitioners has also raised an objection that there is no Form K-6 on the file whereas one copy of Form K-6 is given to the land owner as per Section 20 of the Punjab Security of Land Tenures Act and one copy is given to the allottee and one copy, is retained on the file but Form K-6 has never been issued.

Counsel for the respondents has drawn my attention to index form of file No. 332/ Anti Agr. In this form reference to Form K-6 is made.

He submitted that the petitioners have deliberately got removed this form because by showing this missing they want to talce benefit. I am in agreement with the contention for the counsel for the respondents.

In the .index form in file No. 332/Anti Ar., Form K-6 has been referred to which is prepared in Urdu and this file was consigned to the record room vide Goshwara No. 1388. If Form K-6 was not there at the time of consigning this file in the record room, then it was not possible to assign Goshwara on this file. In addition to this report no. 219 dated 17.3.64 makes a reference to Form K-6. Therefore, this argument is not acceptable though in this case Form K-6 has not been issued or that other formalities having been completed, rather the land had been allotted as per the rules. Possession was given to the allottee on 21.3.1964, Form K-6 was issued, vide form US-3 the proprietory rights were conferred on the allottee. So far as writing of Kabuliatnama is concerned, in this respect also the arguments of counsel for respondents is justifiable that it is the duty of the big land owner to get executed the Kabuliatnama but the big land owner had made on efforts in this respect.

KRISHNA KUMARI v. STATE [S. SAGHIR AHMAD, J.] 145

Therefore, from all the facts above noted, it is clear that 40 Kanals A 16 mar las area of big land owner Banarsi Das was allotted on 21.2.1964 to Sh. Mangat Ram son of Kalu Ram, possession whereof had bP.en given to Mangat Ram and until today this area is under cultivation of Ram Dia, legal heir of Mangat Ram, whose name appears injamabandi and Girdawari. The petitioners themselves admitted possession of B Mangat Ram at the spot in their application dated 16.12.1977 and had made a prayer before the Collector that allotment may be cancelled and possession may be delivered back to them. Instalments of surplus land have also been deposited. After the possession was delivered to Mangat Ram, big land owner Banarsi Das died on 12.1.1971 i.e. the land stood utilised before the death of big land owner. Form US-3 has C been issued to the allottee and proprietary rights has been conferred on him."

The Commissioner, Ambala Division, in his judgment dated 20.1.1993, has recorded the following findings:-

"As regards the allotment factum, it is proved from the allotment file No. 332 that this land was allotted to the respondent's father Mangat Ram. This fact was also admitted by the appellants in 1972

and 1977 when they requested the Collector, Agrarian to cancel the allotment. The respondent's counsel, however, did not have any convincing reply to the insertion of page in the Roznamcha bearing E the Rapat No. 219. The appellant's counsel has tried to prove this forgery with the help of handwriting expert as well. Nevertheless, it cannot be assumed that any forgery or fabrication was done by the respondent side. It was an old record of 1964 and only the revenue officials of that time could best prove the fact of genuineness or F forgery in this regard. The respondent being a tenant and illiterate person cannot be exempted of doing any forgery or fabrication of records. The appellants never raised these pleas earlier at the time of seeking exemption and cancellation of the allotment. It, therefore, appears that it is an after-thought story to take benefit of some technical ommissions in the procedures. In my opinion the allotment G is well established in favour of the respondent.

As regards the factum of utilisation the Id. counsel for the . appellants relied on the provisions contained in rules 20-A to 20-C

and the judgments cited in his arguments. The basic point on which he relied was that the requirement of rules 20-A to 20-C were not , H

fulfilled and therefore, there was no utilisation in the eye of law and if the land was not utilised during the life time of the big land owner, then his legal heirs were entitled to the benefit of section I 0-A (b) of the Act. The Id. counsel basically relied on the judgment of the Hon 'ble Supreme Court of India reported in 1980 PLJ page 121 in case F .C. Haryana versus Smt. Kela Devi and others. On going through the details of this case, it is revealed that this verdict related to that piece of land of which possession was not admittedly given to the tenants/ allottee. In this case the Commissioner and the F.C. had taken a view that the order of allotment of the surplus area itself amounted to utilisation of that land u/s l OA(a). In this case an area of 8 Kanals in village Ghelab was not allotted to any tenant though it was in the surplus pool and the possession of this land was also not given to any-one. This verdict basically pertains to this piece of land. The Hon 'ble Court had observed in their judgment itself, that the controversy before them does not relate to those pieces of land which had been allotted to various tenants and possession was given to them. In the instant case the factum of allotment and possession was earlier admitted by the appellants and therefore, this ruling is not applicable in this case. The case law referred to in PLJ 1989 page 95, PLJ 1991page180, 1982 PLJ 171, 1992 PLJ pages 71and160 and 1981 PLJ 21 are relevant in cases where the possession was not delivered to the allottees. In the instant case the possession of the respondent is proved from the revenue record since 1965. As regards the issuance of certificate in form K-6, the same does not exist on the file as the pages from 33 to 38 of the allotment file are missing which might have contained the form K-6. It would be, therefore, improper to assume that Form K-6 was never issued to the tenants."

The Financial Commissioner, in his Judgment dated 21st of January, 1997 recorded the following findings:-

"IO. The case of the petitioners is that even though the surplus area case of their father was decided in April, 1961 and some land was declared surplus, yet the same had not been utilized till the time of the death of their father in 1971. Therefore, under Section I O(A)(b) of the Punjab Security of Land Tenures Act, 1953, they were entitled to get exemption from the land being declared surplus as the successors of the big land owner were small land-owners. The present petitioners have quite laboriously harped on this issue that the allotment of the

KRISHNA KUMAR! v. STATE [S. SAGHIRAHMAD, J.] 147

surplus land in favour of Sh. Mangat Ram was fake and forgery was A done in various documents to show that possession of the land had been given to Sh. Mangat Ram.

11. Even though he succeeded in creating some doubts about the genuineness of certain documents about the delivery of possession, yet his arguments lose force because:- B

(i) According to his own statement contained in application dated 16.12.1977 made before the Collector (Agrarian), Kamal, 42 Kanai 14 maria of land out of surplus pool of Banarsi Dass, was allotted to Sh. Mangat Ram father of respondent No.2 in 1964 and US-3 Form of the land was issued on 9.9.76 while by that c time land stood exempted from the surplus pool, vide Collector order dated 13.11.72. The prayer was that allotment be cancelled and possession given to them. This shows that the present petitioners were aware in 1972 when they applied on the death of their father for exemption of land from the surplus pool that D the land declared surplus had already been allotted to some persons. If this fact had been disclosed, the Collector (Agrarian) Kamal would not have exempted the land from surplus pool without giving notice to the allottees of the land.

(ii) In their application dated 16.12.77 the present petitioners were E requesting the Collector (Agrarian) Kamal to cancel the said allotment made in 1964 and restore the possession to them. This shows that the present petitioners were admitting the fact that the possession of land had already been given to the respondents. Their contention is that if possession had actually been given to tht: respondents on 17.3.64 as mentioned in Rapt F Roznamcha No. 219, the same should have been reflected in Girdawari of Rabi 1964 or Kharif 1964. Revenue record has been produced to show that the respondents were in possession of the land since 1965. Absence of Girdwari in favour of the respondents for Rabi 1964 or Kharif 1964 cannot be taken to mean that the delivery of possession was fake.

(iii) The plea that entire allotment proceedings of surplus land in favour of Sh. Mangat Ram was fake, was never raised by the present petitioners at an earlier stage particularly when they went to Collector (Agrarian) Kamal in December, 1977 for cancellation of allotment of surplus land in favour of Sh. Mangat H

Ram and restoration of possession back from him.

12. After going through the arguments of the counsel and perusing the record of the case it becomes apparent that the !and of Shri Banarsi Dass, declared surplus in April, 1961, had been allotted and possession given to the allottees. It is possible that in the process of allotment and utilisation of surplus land some of the technicalities like execution of Kabuliat Nama or delivery of possession within 2 months of the date of allotment may not have been fully complied with. But these are mere technicalities and a poor tenant cannot be deprived of his right to allotment of surplus land merely b.€'.cause some of these technicalities about delivery of possession and utilization of land had not been complied with. In this connection the rulings quoted by the counsel for the respondents namely: 1990 PLJ-485 and 1991 PLJ-714, are quite relevant."

From the aforesaid findings, it would be seen that the land in question D was, admittedly, allotted to Mangat Ram in 1964. Possession was also delivered to him over that land. Form K-6 is indicated to have been issued in the report relating to delivery of possession. Form K-6 is also indicated in the index of the relevant file. The index is prepared in the course of official business and every document which is placed on the record is first indexed. If the document is not on the record, it would not mean that it was never filed. Form K-6 was E issued as far_ back-as in 1964. Since it has been mentioned in the report for delivery of possession and is also mentioned in the index, its non-availability on the file would be of no consequence and it would be treated to have been issued at the relevant time in terms of the requirement contained in the Rules.

Mr. Sachar drew our attention to the following findings recorded by the F Commissioner, Ambala Division in his Judgment dated 20th of January, 1993:-

"Regarding the execution of Kabuliatnama under Rule 20-C, the respondent counsel has relied upon 1990 PLJ 485 and 1991 PLJ 714 which lay down that after delivery of possession, execution of Kabuliatnama or Patta Nama is mere technicality and the utilisation cannot be assailed on this ground when the other conditions are complete. I find these two rulings quite relevant to the instant case."

as also the following observations made by the Financial Commissioner, Haryana, in his judgment dated 21.1.1997:-

H "It is possible that in the process of allotment and utilisation of

KRISHNA KUMAR! v. STATE [S. SAGHIR AHMAD, J.] 149

surplus land some of the technicalities like execution of Kabuliat A Nama or delivery of possession within 2 months of the date of allotment may not have been fully complied with. But these are mere technicalities and a poor tenant cannot be deprived of his right to allotment of surplus land merely because some of these technicalities about delivery of possession and utilization of land had not been complied with."

and contended that these findings are wholly contrary to law laid down by this Court in Financial Commissioner's case (supra) and, therefore, cannot be sustained in law. He contended that if "Kabuliyat" was not executed by Mangat Ram in favour of Banarasi Das at the time of delivery of possession,

one of the steps for utilisation of surplus land, indicated in Rule 20-C was not C followed and, therefore, the land could not be treated to have been utilised prior to the death of Banarsi Das in 1971. It is contended that the requirements indicated in Rule 20-C are mandatory in nature and, therefore, they had to be followed. If "Kabuliyat" was not executed, the land, it is contended, cannot be treated to have been utilised. We are not prepared to accept this contention.

D Undoubtedly, all the requirements indicated in Rule 20-C are mandatory in character and, therefore, clause (c) of Rule 20-C will also be mandatory for the reason that the first part of this clause contains in imperative terms that the tenant shall execute a "Kabuliyat" or "Patta" in favour of the land-owner and the second part which is equally imperative says that it shall be don!' before possession is delivered to the tenant. It is obvious that if the second E mandatory step was taken and the possession over the land was delivered by the Revenue Circle Officer himself as required by Rule 20-B, there is no reason to believe that the first mandatory step, immediately preceding the second step, was not taken particularly as possession would not have been delivered to Mangat Ram without execution of "Kabuliyat". In fact, delivery F of possession being the official act of the Revenue Circle Officer as indicated in Rule 20-B, a presumption has to be raised that all antecedent formalities were duly complied with.

There is another reason for not accepting this argument of the learned counsel for the appellants. It is indicated in Section 9(1 )(vii) that if the tenant G does not execute the "Kabuliyat" in favour of the land-owner, he would be liable to be ejected. Form of"Kabuliyat" is specified in Annexure 'C' appended to the Punjab Security of Land Tenures Rules, 1953. It is in the form of a statement made by the tenant that he has taken the land belonging to "X" for cultivation to whom he would pay the rent per agriculture year regularly in time. The tenant also gives the undertaking that he would not : H

(i) fail, without sufficient cause, to cultivate the land comprised in my tenancy, in the manner or to the extent customary in the locality in which the land is situate;

(ii) use the land comprised in my tenancy in a manner which may render it unfit for the purpose for which I hold it; and

(iii) sublet the tenancy or a part thereof.

Note given at the foot of the Form of Kabuliyat reads as under:-

"Note:- This Kabuliyat or patta should be executed by the tenants in C duplicate, who will give, one copy to the land-owner concerned and retain the other:-

"Kabuliyat" is a document which is executed in favour of land-owner and on being executed, is given to the landowner. The landowner, therefore, has to have it in his possession. Surprisingly, there is no averment in the Writ D Petition or anywhere else that "Kabuliyat" was not executed in favour of Banarsi Das. Moreover, had Mangat Ram not executed the Kabuliyat or Patta in favour of Banarsi Das, he would have been, by now, evicted from the land in question in view of the provisions contained in Section 9(l)(vii) of the Punjab Act. He would not have been allowed to continue in possession from 1964 till this date or at least till the death of Banarsi Das in 1971 without any E proceedings being initiated for his eviction. Since Mangat Ram was in possession throughout, he shall be treated to have had a valid title to remain in possession which can be traced to the allotment of land followed by delivery of possession after completion of all other formalities including execution of "Kabuliyat" or Patta.

F It was next contended on behalf of the appellants that "Kabuliyat" is not on record and, therefore, it must be held that it was not executed by Mangat Ram when the land was allotted _to him. This argument cannot be accepted in view of the findings recorded by the authorities below who had also considered the effect of the so-called forged document, that possession G of the land was delivered to Mangat Ram in 1964 and that he has been in continuous possession since then. We cannot, merely because the "Kabuliyat" is not on record, hold that the Kabuliyat or Patta was not executed by Mangat Ram. Moreover, "Kabuliyat" is executed in duplicate. The original is handed over to the land-owner while the copy is retained by the tenant. There is no requirement under the Act or the Rules that a copy of "Kabuliyat" shall also H be placed on record.

KRISHNA KUMAR!v. ST'ATE (S. SAGHIRAHMAD, J.) 151

Learned counsel for the appellants also assailed the findings of the A Commissioner, Ambala Division and those recorded by the Financial Commissioner that there was an admission of the appellants in their application for cancellation of allotment made in favour of Mangat Ram that possession over surplus land was delivered to him. It was pointed out that the application contains a recital that if possession is found to have been delivered to B Mangat Ram, the same may be restored to the appellants. This, it is contended, is not "admission" but a prayer in the alternative which can be legally made.

The averment contained in the application may n:>t, in the strict sense, be treated as "admission" of the appellants, but their pleadings do exhibit a hesitant mind in as much as Mangat Ram, to their knowledge, was in C possession over the land since 1964 and continued to remain in possession uninterruptedly as a tenant, but they circumventively, as artificers, say in their application that IF possession was found with Mangat Ram, the same may be restored to them. The use of the word "IF" is a deliberate contrivance so as to make the admission conditional. Even if this is excluded from consideration, the findings on the question of possession can still be sustained on the basis D of other evidence on record.

No other plea was raised before us. For the reasons stated above, we find no merits in the appeal which is dismissed but without any order as to costs.

R.P.

Appeal dismissed.