Continuity of the possession is to be presumed unless some evidence is produced to the contrary

FINANCIAL COMMISSIONER PUNJAB

Before :- Mrs. Shyama Mann, F.C.
R.O.R. No. 496 of 1995-96. D/d. 13.1.1998.


Mukand Singh - Petitioner
Versus
Gurmail Singh alias Gela Singh - Respondent

For the Petitioner :- Mr. A.S. Brar, Advocate.
For the Respondent :- Mr. Vinod Kataria, Advocate.

ORDER

Shyama Mann, FC. - This is a reference dated 19.6.1996 from the Commissioner, Faridkot Division, Faridkot vide which he has recommended acceptance of the revision petition and for recording khasra girdawari of land comprised in Khasra No. 6M/16/1(7-16) measuring 7 kanals 1 marla situated in village Baho Sivian, Tehsil and District Bathinda in favour of the petitioner.
2. The facts of the case are that on 7.3.1994 Gurmail Singh, respondent filed an application before the Assistant Collector Grade-II, Bathinda for correction of khasra girdawari of the disputed land in his favour. At that time the khasra girdawari was being entered in the name of Mukand Singh, petitioner. Assistant Collector Grade-II summoned Mukand Singh, but the registered notice as well as the summons were received back. Thereafter, the Assistant Collector inspected the spot on 26.4.1994 and ordered the correction of khasra girdawari from 'hari' 1994 onwards in favour of the respondent. Aggrieved by this order, the petitioner filed an appeal before the Collector, Bathinda who dismissed the same on 5.8.1994. Hence the petitioner filed a revision petition before the Commissioner for onward recommendation to this Court.
3. The Commissioner has observed that from record it is found that no notice was served on the petitioner personally by Assistant Collector nor the petitioner ever received the service of the summons. Moreover, the registered notice sent to the petitioner was received back undelivered due to lack of proper address. Thus, the ex-parte order of Assistant Collector Grade-II dated 26.4.1994 was not according to law. The petitioner had not been afforded any opportunity before passing an adverse order against him. It was also observed from the revenue record that Mukand Singh, petitioner has been shown in exclusive possession of the land comprised in Khasra No. 6M/16/1 (7 kanals 1 marla) as co-sharer. Since it is settled law that continuity of possession is to be presumed unless some evidence is produced to the contrary and the respondent had failed to prove how they came into possession over the disputed land, there was no occasion for change in khasra girdawari in his favour. The registered sale deed date 30.7.1993 on which the petitioner was basing his claim showed that the respondent had purchased only 1/18th share out of 127 kanals 1 marla (7 kanals 1 marla) from Tara Singh, Smt. Maro, co-sharers and as such the khasra girdawari of specific Khasra numbers comprised in the disputed land could not be corrected in the name of the respondent. The Commissioner also observed that the copy of the judgment dated 19.10.1995 passed by the Senior Sub Judge, Bathinda was not binding upon the petitioner as the petitioner was not a party in the said suit.
4. I have heard the arguments of the counsel for the parties and also gone through the record. From the record, it is quite evident that the petitioner was not served at all. It is noticed that the registered envelope which was sent to the petitioner in Rajasthan and was received back undelivered was written in Punjabi. The Tehsildar not only did not ensure proper service but he completed the entire exercise for correction of khasra girdawari in record time. Gurmail Singh had purchased 1/18th share from Tara Singh etc. on 30.7.1994. He took seven months to apply for correction of khasra girdawari but the Tehsildar took seven weeks to decide the case in his favour. Assistant Collector Grade-II has shown unholy haste in deciding this matter. His order also reflects non-application of mind. He did not try to find out how the respondent came into possession of these particular Khasra numbers when the possession of Mukand Singh on them was continuous over a number of years. The order mentions that Dharma Singh applied for change in khasra girdawari whereas the fact is that Dharam Singh Wala is the name of the 'Patti' in which the disputed land is situated in village Baho Savian.
5. Since the law does not recognise unauthorised possession, spot inspection cannot be a substitute for documentary evidence or a valid instrument of transfer. A change in khasra girdawari was ordered on the basis of so called verbal inquiry conducted on the spot. Even the vendee Tara Singh and Maro were not called. Tara Singh etc. merely sold a share in the joint holding and not particular Khasra number. Moreover, they were not in possession of the disputed land. Therefore, they were not even in a position to transfer this property to Gurmail Singh.
6. The decree of the civil Court dated 19.10.1994 is not binding on Mukand Singh as he was not made a party. It has been argued by the counsel for Gurmail Singh that Mukand Singh had sold his land on 18.11.1993 in favour of Jasdev Singh and therefore he cannot claim to be in possession on the relevant date. The sale from Mukand Singh to Jasdev Singh is not relevant for the purpose of this case. As already indicated it is established that Tara Singh only sold his 1/18th share (equivalent for 7 kanals 1 marla in the holding) and not specific Khasra numbers. It was further established that he was not in possession of the disputed Khasra numbers, and was, therefore not in a position to transfer the same. There is also no evidence to suggest that Mukand Singh co-sharer voluntarily surrendered these Khasra numbers either to Tara Singh or to Gurmail Singh. Therefore, the khasra girdawari cannot be changed in favour of Gurmail Singh as he has no locus standi vis-a-vis Mukand Singh. The connivance of Assistant Collector Grade-II and the petitioner, Gurmail Singh is self-evident and Assistant Collector Grade-II needs to be proceeded against.
The reference of Commissioner, Faridkot Division, Faridkot is therefore accepted and the orders of Collector dated 5.8.1994 and Assistant Collector Grade-II dated 26.4.1994 are set aside.
Announced.

Petition accepted.
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