2017(3) Law Herald (P&H) 2106 : 2017 LawHerald.org 1184
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before Hon’ble Mr. Justice Amit Rawal
CWPNo.3194of2012
Sajjan Singh @ Sajjana @ Sampat son of Sh. Sheo Dutt
v.
Financial Commissioner, Haryana & Ors.
Decided on 02/03/2017
For the Petitioners:         Mr. Mani Ram Verma, Advocate
For the Respondent:        Mr. L.N. Verma, Advocate
Mr. Sandeep Singh Mann, Sr. DAG, Haryana.
  • Punjab Land Revenue Act, 1887Correction of Khasra girdawari-Suit for
    declaration as to dispute between owner and tenantDuring pendency of suit
    another tenant who was in possession of separate piece of land relinquished his
    right in favour of landlord-Landlord filed application for correction of Khasra
    girdawari and 1 st tenant rightly got himself impleaded and then sought dismissal of
    application before assistant collector. (Para 12)
  • Punjab Land Revenue Act, 1887-Correction of Khasra girdawari–in present
    petition tenant seeks direction for dismissal of application before assistant
    collector-Held; Moving of application seeking dismissal of the same tantamount to
    prevent the right of apply of the parties, much less, a scuttling act
    The Assistant
    Collector has all the trappings of the Civil Court to deal with the question of Khasra
    girdawari as girdawari is only regarding entry for possession de hors of the fact of
    landlord or tenant
    Regarding the title and tenancy right, separate remedy under
    the relevant provisions of statutory enactment is available
JUDGMENT
Mr. Amit Rawal J.:- Mr. Mani Ram Verma, learned counsel appearing for the petitioner submits that the orders dated 18.10.2011 (Annexure P-4), 13.01.2009 (Annexure P-3) and 06.03.2007 (Annexure P-2) passed by respondent Nos.1,2 and 3 respectively, are liable to be set aside on the premise that the petitioner-Sajjan Singh @ Sajjana @ Sampat had filed the suit for declaration against Rameshwar, Dharma and Phuliya son of Sheo Dutt & Dhup Dass chela Kishan Dass that he along with defendant Nos.1 to 3 in the civil suit are tenants of Dhup Dass on 1/3rd batai in equal share and therefore, entitled to get the name incorporated in the column of possession to the extent of 1 /4th share in the jamabandi for the year 1963-64 and consequential relief of injunction. The said suit was decreed by the trial Court vide judgment and decree dated 29.10.2005. However, Dhup Dass assailed the aforementioned judgment by filing the appeal which was dismissed on 04.03.2006 by holding that Sheo Dutt was a tenant under the owner. After his death the right of tenancy devolved on the lineal male descendant.
  1. However during the pendency of the suit on 01.12.2004, the application on behalf of Rambirand Rajbir Chela Dhup Dass, respondent Nos.4 and 5 in the present writ petition filed an application before the Assistant Collector lind Grade for correction of khasra girdawari of land measuring 24 kanals comprised in khasra No.353/11 (8-0), 12(8-0), 354/15 (8-0) situated in village Baiasmand, Tehsil and District Hisar against Dharma, Rameshwar and Phuliya sons of Sheo Dutt.
  2. The petitioner moved an application for impleadment in the aforementioned proceedings.
    However, the same was objected to by respondent Nos.4 and 5 but yet the application was
  3. On having been impleaded as party, the petitioner moved an application on 10.01.2007
    seeking dismissal of the application for correction of khasra girdawari on the premise that the
    civil suit of the petitioner which had been contested by their predecessor Dhup Dass has been
    decreed and they have not even succeeded in appeal. The aforementioned application was
    contested by filing reply dated 29.10.2005 but the same has erroneously been rejected vide
    order dated 06.03.2007 (Annexure P-2).
  4. The aforementioned order was assailed by filing appeal before the Commissioner which was
    dismissed and the revision petition filed against the same also resulted into dismissal. Hence
    the present writ petition.
  5. He further submitted that the Financial Commissioner has seriously erred in law while
    observing that the issue of tenancy and correction of khasra girdawari are-different from each
    other and should not be mixed up whereas the position is otherwise. The orders, thus, lacked
    the application of mind as change in khasra girdawari can only be made when there is some
    base for the change. In fact, the khasra girdawari in favour of Dharma was wrong as he was
    working assiri of 1/4th share and girdawari in his name was wrongly entered. The plea of siri
    taken in the suit had also been decided against the respondents.
  6. He further submitted that there was no legal right or base for change of khasra girdawari. In
    fact, in the present case, the land owner claimed the land from one of the brothers, son of Sheo
    Out i.e. Dharma but Dharma could not have relinquished his tenancy rights. The orders of the
    authorities are non-speaking. The Commissioner, erroneously observed that the Assistant
    Collector will determine 1 /4th share as per the Civil Court judgment. In fact, the application for
    correction of khasra girdawari could not have been entertained in view of the judgment and
    decree referred to above and therefore, the said application is liable to be dismissed.
  7. Per contra, Mr. L.N. Verma, learned counsel appearing on behalf of respondent Nos.4 and 5
    submitted that the petitioner and his brothers, Dharma and Rameshwar and Phulia were in
    possession of 68 kanals 12 marlas as tenants under respondent Nos.4 and 5 whereas Dharma
    relinquished his tenancy of 24 kanals in favour of respondent-landowner and delivered the
    Resultantly, for the aforementioned area i.e. 24 kanals, an application dated
    01.12.2004 for correction of the cultivation entry/khasra girdawari was moved before the
    Assistant Collector but the petitioners did not want to continue with the aforementioned
    proceedings and sought for the dismissal of the same which has been rejected.
  8. In fact, the brother of the petitioner accepted the order (Annexure P-2) in the absence of any
    challenge thereof. While disposing of the appeal, the Commissioner had directed the Assistant
    Collector to verify whether Dharma had relinquished the tenancy of 1/4th share or not. The
    aforementioned order of the Commissioner was assailed by the answering respondents
    before the Financial Commissioner, who while allowing the revision held that the matter
    regarding correction of the khasra girdawari can be decided on merits and the finding of the
    Commissioner to the aforementioned extent stood modified. The present writ petition is gross
    misuse of the process of the Court as the petitioner had the liberty to contest the khasra
    girdawari by placing on record material for maintainability of the application.
  9. As regards the civil suit, he submitted that the litigation was only with regard to tenant under the
    land owner, whose name was not recorded at any earlier point of time. There is no estoppel tothe tenant to surrender the area of tenancy under his actual possession to the original land owner, thus, the Commissioner could not have directed the Assistant Collector to ensure that Dharma did not relinquish tenancy of more than area of his share in the total area. The component of tenancy could have also been seen but not in the manner and mode of dismissal of the application which tantamount to invoke the provisions of Order 7 Rule 11 CPC. In fact, Dharma was a separate tenant in cultivable possession of separate piece of land and therefore he could relinquish the area. Annexures R4/1/Tto R-4/10/T have been placed on record to show the factum of independent and separate tenancy. The provisions of Section 35 and 36 of the Punjab Tenancy Act are sacrosanct, thus, urges this Court for dismissal of the writ petition.
11.1 have heard learned counsel for the parties, appraised the paper book and of the view that there is no force and merit in the submissions of Mr. Mani Ram Verma, for, nothing prevented the petitioner to raise all the pleas taken in the present writ petition in the application moved by the private respondents seeking correction of the khasra girdawari, owing to the alleged relinquishment of tenancy rights by Dharma in favour of private respondents, clients of Mr. L.N. Verma.
  1. Moving of application seeking dismissal of the same tantamounts to prevent the right of apply of the parties, much less, a scuttling act. The Assistant Collector has all the trappings of the Civil Court to deal with the question of khasra girdwari as girdawari is only regarding entry for possession de hors of the fact of landlord or tenant. Regarding the title and tenancy right, separate remedy under the relevant provisions of statutory enactment is available.
13. I would be restraining to determine whether the tenancy was joint or separate as it would have have far reaching effect and consequence on the right of the parties to the lis, particularly, when the Assistant Collector seized of the matter for deciding the correction in the entry of cultivable possession/girdawari.
  1. For the reasons aforementioned, I do not find any reason for setting aside the orders under challenge, much less, exercising the powers of judicial review. No ground for interference is made out. The writ petition is dismissed.