Savtri & Anr. v. State of Haryana & Ors.

Coram:- Hon'ble Mr. Justice Adarsh Kumar Goel Hon'ble Mr. Justice Alok Singh

1.Whether reporters of local news papers may be allowed to see judgement ? 2. To be referred to reporters or not ? 3. Whether the judgement should be reported in the Digest ? Present: Mr. R.C. Setia, Sr. Advocate with Mr. Pradip Bhandari, Advocate for the appellants. Ms. Ritu Bahri, Addl. A.G., Haryana Mr. P.K. Ganga, Advocate for respondent No.5. Mr. L.N. Verma, Advocate for respondents No.6 to 16. ... Alok Singh, J.

1. Present appeal has been filed challenging order dated

17.12.1996 passed by learned Single Judge, dismissing the writ petition with costs, which were assessed at Rs.5,000/-.

2. Brief facts of the case are that father of the petitioner and LPA No. 251 of 1997 2 husband of respondent No.5 i.e. Dayal was owner of half share in Khewat No.8 Khatauni No.12 to 21, measuring 1494 kanals 2 marlas of land situated in Village Banni, Tehsil and District Sirsa. Dayal died on

23.6.1956, leaving behind the petitioner and respondent No.5 as his legal heirs in equal shares. Surplus land had never been declared nor utilised during the life time of Dayal and he remained in possession of the entire holding throughout his life. By virtue of the exception provided under Section 10-A(b) of the Punjab Security of Land Tenures Act, 1953 (hereinafter referred to as the Act) in favour of the heirs acquiring land by inheritance, each of the three heirs i.e. the petitioners and respondent No.5 succeeded to 249 kanals each and they became small landowners within the meanings of the Act and no part of the land in their hands became surplus. The revenue staff while verifying the annual record on 20.10.1956, mutated the entire land left by Dayal in the name of respondent No.5 following the customary law of succession in ignorance of the provisions of the Hindu Succession Act, 1956 (hereinafter referred to as the 1956 Act), which were fully applicable as Dayal died after the enforcement of the 1956 Act.

3. Despite wrong mutation in favour of respondent No.5, petitioners and respondent No.5 remained in possession as owners in equal shares. Respondent No.5 i.e. widow, neither inherited nor could have inherited entire share of her husband, hence she was not a big landowner. It was alleged that respondent No.5 did not furnish any declaration to the Collector as required under Section 194-B of the Act. It was further alleged that the petitioners could realise mistake of wrong entry in the year 1972 and got the wrong mutation corrected. Petitioner – Bhagwanti filed suit for declaration that she is the owner of the property to the extent of 1/3rd LPA No. 251 of 1997 3 share left by her father. Her suit was decreed on 14.4.1972. Prescribed authority without issuing any notice to the petitioners, passed order dated

12.10.1978 and declared 740 kanals 4 marlas C-category land as surplus. Smt. Parmeshwari Devi filed appeal before the Collector and the same was dismissed as time barred. The Collector failed to notice that the petitioners were also owners of 1/3rd share in the estate of Dayal. By way of writ petition, the petitioners challenged the order passed by the prescribed authority and the Collector on the ground that Dayal died on 23.6.1956 after the enforcement of the 1956 Act, hence the petitioners also inherited share to the extent of 1/3rd in the estate of Dayal.

4. In reply to the writ petition, it was contended that since the petitioners had not availed the remedy provided under Section 18 of the Haryana Land Ceiling Act, 1972, hence writ petition is not maintainable. It was further contended that shares which were owned by Dayal, were verified from the documents. Date of death of Dayal was in dispute. As per the respondents, Dayal died before the enforcement of the 1956 Act and according to the law prevalent at the time of death of Dayal, respondent No.5 i.e. his widow was entitled to succeed entire estate of her husband. It was averred that Parmeshwari Devi did not file declaration form under the 1972 Act. She could retain 480 kanals of land as per permissible area. It was further contended that the alleged decrees dated 14.4.1972 and

14.12.1973 were collusive and were obtained in order to overcome the provisions of the 1972 Act. The alleged decrees have already been ignored under Section 12(4) of the 1972 Act. In the first round, learned Single Judge vide order dated

2.2.1989 quashed the order passed by the prescribed authority and the LPA No. 251 of 1997 4 Collector, by holding that the petitioners are the legal heirs of Dayal and on his death, all of them alongwith respondent No.5 inherited his property and on the death of Dayal fresh surplus area has to be made and it has not been done. However, on LPA being filed against judgement dated 2.2.1989 passed by learned Single Judge, a Division Bench of this Court vide judgement dated 17.11.1995 set aside the order of learned Single Judge and remanded back the writ petition to learned Single Judge with the direction that learned Single Judge would take note of the evidence produced by the parties during the pendency of LPA. Learned Single Judge in the impugned judgement has recorded a finding that Dayal died on 3.6.1956 and not on 23.6.1956. Alleged annexure P-4 produced by the petitioners is forged death certificate, which has been tampered with by the petitioners in order to show wrong date of death to allege that Dayal died after the enforcement of the 1956 Act. Learned Single Judge has also observed that decrees passed by the civil Courts are collusive and are obtained to overcome the provisions of the 1972 Act. On being asked, learned counsel for the appellants could not point out any perversity or illegality in the judgement passed by learned Single Judge. In view of finding of fact recorded by learned Single Judge that the petitioners tampered with the copy of the death certificate by changing the date of death of Dayal from 3.6.1956 to 23.6.1956 with malafide intention to allege that Dayal died after the enforcement of 1956 Act. While in fact, he had died on 3.6.1956 before the enforcement of the 1956 Act. We are not inclined to interfere with the view taken by learned LPA No. 251 of 1997 5 Single Judge. Appeal is devoid of merit and hence is dismissed. ( Alok Singh ) Judge ( Adarsh Kumar Goel ) Judge

02.03.2010 sk.