V.K.BALI, J. - (1.) ORIGINATING in the year 1961, this case has rather a chequered history showing a perennial dispute between the landlord and tenants. The fate of the parties in this marathon litigation has been fluctuating, luck smiling ultimately on the land owners when writ petition filed by them against the orders passed by the authorities constituted under the Punjab Security of Land Tenures Act, 1953, was allowed by learned Single Judge of this Court on November 24, 1989. It is against this order of learned Single Judge that the present appeal under Clause X of the Letters Patent has been filed by the tenants. Backdrop of events, culminating into filing the same, need a necessary mention.
(2.) BRIJ Raj Saran, resident of Jagadhri, District Ambala, in terms of the provisions of Punjab Security of Land Tenures Act, 1953 (hereinafter referred to as the 'Act') was a big landowner. His case for determination of surplus area was taken for decision by the Collector Agrarian on January 31, 1961 and it was held that out of total holding of 133 standard acres 2 units, 126 standard acres 17 units were under the cultivation of old tenants and, therefore, there was no area with him that may be declared surplus. It appears that the consolidation proceedings were in progress at a time when the orders aforesaid came to be passed by the Collector Agrarian and further that proceedings of consolidation in respect of the area of landowner, resulted in some decrease of his land. The reduction in land holding of Brij Raj Saran motivated him to move an application before the Collector Agrarian praying therein that since consolidation had taken place in their village, resulting into reduction of his total holding, he may be permitted to make fresh selection of his permissible area. This prayer of the landowner was allowed by the Collector Agrarian on January 29, 1968. Aggrieved, tenants challenged the said order in appeal before the Commissioner, Ambala which was accepted vide orders dated February 10, 1970 and the case was remanded to the Collector Agrarian for fresh decision. The Collector Agrarian, after remand decided the case afresh and as per order dated December 13, 1970 imposed a penalty of ten standard acres on landowner under Section 5(c) of the Act. This order was challenged by the landowner before the Commissioner in an appeal which was accepted and the cse was once again remanded vide order dated April 6, 1971 for fresh decision. In tune with the order of remand, Collector Agrarian once against decided the case vide order dated September 14, 1971 and reduced the penalty of ten standard acres to five standard acres. Against this order of the Collector, two appeals, one by the landowner and the other by tenants were filed before the Commissioner. The appeals were accepted and vide order dated July 14, 1972, once again case was remanded to the Collector for deciding the matter keeping in view the following points :- "(a) The entire record be seen carefully and the landowner be given due allowance for any decrease in his holding due to consolidation. (b) The land situated in villages Devdhar and Tejh be taken into account; (c) any land sold by Brij Sharan landowner after 15.4.1953 be included in his permissible area; (d) the permissible area of the landowner be worked out in accordance with Section 5 of the Act; (e) The observation made by the Commissioner (in the impugned order) be kept in view while imposing penalty under Section 5(c) of the Act." This order of remand was challenged unsuccessfully before the Financial Commissioner as the revision that was preferred against the orders aforesaid came to be dismissed on May 5, 1980. It is quite apparent that a number of years rolled by when the matter remained pending before the Financial Commissioner in a revision that was preferred by the landowner against order dated July 14, 1972 and meanwhile, Brij Sharan died on March 9, 1981. Concededly, before the matter could be disposed of by the Collector, pursuant to directions given by the Commissioner, as referred to above, the landowner had died. This event resulted into complete change of complexion of the case. The contesting parties and, in particular, heirs of the landowner then totally concentrated on the fact of demise of their predecessor-in-interest and the consequences thereof. It was strenuously pleaded by them that death of Brij Sharan would result in succession of his estate to four heirs, namely, his widow and three sons of Brij Sharan, none of them could be declared a big landowner under the provisions of the Act. Once, the land had since not been declared surplus even in the hands of Brij Sharan, initial declaration of Collector that, available with the landowner was tenant's permissible area and, therefore, his land could not be declared surplus, would not make the least difference, particularly when even the said order was set aside on an application of Brij Sharan landowner when he was permitted to make selection of his permissible area de-novo. This change in stand of heirs of Brij Sharan, arising from his demise, was strongly objected to by the tenants. The Collector, after hearing the parties, after remand, held that Brij Sharan owned land measuring 136 standard acres and eight and half units on April 15, 1953 and on account of consolidation, his holding was reduced by 8 standard acres and five and half units and in this way he was left with 128 standard acres. Brij Sharan had died and before decision of his case, his wife had also died, leaving only three heirs, who were entitled to retain 30 standard acres each and in this manner, the permissible area in the hands of Brij Sharan would be 90 standard acres. Since the land owner had concealed his area and was imposed a penalty of ten standard acres under Section 5(c), the Collector considered that it was quite proper. In this way, three owners were entitled to keep 80 standard acres as their permissible area, leaving balance of 48 standard acres. Out of this 48 Standard Acres, 7 standard acres 13 units was purchased by the old tenants under Section 18 of the Act and, therefore, there was no need to pass any orders with regard to this parcel of land. Out of the area of landowner, 40 standard acres 3 units were declared as tenants' permissible area, list whereof was prepared by the Collector. Being not satisfied with this order of the Collector, heirs of Brij Sharan filed an application for review of order of Collector dated December 8, 1983. After hearing the parties, the Collector permitted proceedings for review vide order dated March 12, 1984. It was held by the Collector that an opportunity to select the permissible area had to be given to the landowner, which had since not been given earlier. For reviewing order dated December 8, 1983, it was canvassed before the Collector that the area, which had been sold during the life time of Brij Sharan, should not be declared as surplus and that penalty of ten standard acres, as imposed, deserves to be withdrawn and further that Smt. Ganga Devi, widow of Brij Sharan Saran, died a day after his death and further that she had made a registered will in favour of her grand-sons, by which she bequeathed her movable and immovable properties in their favour and that this benefit should also be given. After hearing the parties, the Collector, vide order dated February 7, 1985, came to the conclusion that out of 128 standard acres, 56 standard acres had since already been sold by Brij Raj Saran, leaving a balance of 72 standard acres. This area was inherited by four heirs of Brij Sharan and each one of them could retain 18 standard acres as permissible area. Smt. Ganga Devi, widow of Brij Sharan, died a day after the death of her husband and she had executed a registered will in favour of her grand- sons, in pursuance of which 18 standard acres had to be entered in favour of each of the grand-sons. He further held that even if the will was to be ignored from consideration, then too, after adding the share of the mother to her children, they became owners to the extent of 24 standard acres each, whereas they could retain upto 30 standard acres. In view of what has been said above, the Collector declared that heirs of Brij Sharan and Smt. Ganga Devi were small landowners. Since the order in review passed by the Collector on February 7, 1985, adversely affected the tenants, it was their turn now to agitate it by way of appeal before the Commissioner, Ambala Division, Ambala. Vide order dated February 25, 1985, order of Collector dated February 7, 1985, was set aside. Aggrieved, this time, heirs of Brij Sharan and Smt. Ganga Devi carried the matter before the Financial Commissioner by way of revision which was dismissed on June 20, 1988. In a writ petition, that then came to be filed by the landowners, learned Single Judge reversed the orders passed by the Commissioner, Ambala Division, Ambala and Financial Commissioner, dated February 25, 1986 and June 20, 1988 respectively and it is this order which is subject-matter of appeal before us.
(3.) HAVING examined the facts of the case, resulting into frequent change of fortunes of the parties, time is now ripe to evaluate the contentions, that have been raised by learned Counsel for the parties for and against the view taken by learned Single Judge in the impugned judgment but, before we may take this exercise in hand, we would like to mention that on an earlier occasion, after hearing arguments of learned Counsel for the parties, we had reserved judgment. While dictating the judgment, however, it came to our notice that even though some observations in some of the orders with regard to Brij Sharan having selected his permissible area, were made and even for that matter, the landowner himself had pleaded in some of the proceedings that he had selected his permissible area, it appeared to us that there was nothing available on records that may straightaway manifest that Brij Sharan was given any opportunity to select his permissible area nor same had been determined or selected for him by the authorities constituted under the Act. In view of conflicting pleadings and findings of various authorities from time to time on the fact aforesaid, which has great bearing on the fate of his face, we ordered this matter to be listed for re-hearing and summoned the entire records of Brij Sharan from the concerned authorities. Records were received and learned Counsel for the parties were permitted to have inspection of the same in the office of the Advocate General, Haryana. They confirm that they have inspected the records. Learned counsel for the parties further confirm that there is nothing on record that may reveal selection of permissible area by the landowner or any other that might have been passed on that behalf. True, the landowner did fill in the requisite form meant for giving particulars of land held by him as landowner in which he could select his permissible area which is dated June 9, 1958. The contents of aforesaid form reveal that in the column dealing with the total land in Column No. 5(b), (d), (f), (h), (k), there is mention of eleven and half acres of land whereas in the last column pertaining to total land of column No. 1, mention in only of 7-3/16 standard acres of land. This was not the holding of landowner as per admitted position on records of the case. As mentioned above, there are divergent and contrary pleadings and observations made by the concerned authorities from time to time with regard to Brij Sharan having selected his permissible area. Immediately after the Collector Agrarian on January 31, 1961 held that there was no surplus area with the landowner as out of his total holding of 133 standard acres and 2 units, 126 standard acres 17 units were under the cultivation of old tenants, the landowner made an application for permission to select his permissible area and in the application aforesaid, he did state that he had selected his permissible area in the year 1958. While pleading the matter before the Collector on remand, the heirs of Brij Sharan, however, pleaded that the land in the hands of Brij Sharan had not been declared surplus and that in any case Brij Sharan was permitted to make selection of the permissible area de-novo when the matter was remanded by the Collector on an application made by him to do so when because of consolidation his total holding had been reduced by eight standard acres and five and half units. The Collector, after hearing the parties after remand, vide his order dated March 12, 1984, held that opportunity to select the permissible area had to be given to the landowner which had since not been given earlier. Further, it is while deciding the case on remand vide order dated December 8, 1983, that the Collector, it appears, for the first time, made a list of the land which would be permissible area of the surviving landowners. From the records of the case, this Court is left with undeniable impression that Brij Sharan might have made pleadings with regard to his having selected permissible area before 1961 but the same is not a fact and ultimate finding recorded by the Collector, referred to above, is also to the same effect.;