Entries in the General Land Register cannot be relied upon

Isha Sawant | Government Law college | 29th September 2020

Estate Officer, Excise Area v. Smt. Somwanti Aggarwal

Facts:

The appellant-defendant Excise Officer and others filed an appeal before the Punjab and Haryana High Court against the judgement dated 15-01-2010 passed by the lower court decreeing the suit in the respondent no.1-plaintiff Smt. Somwanti, affirmed by the judgement of the First Appellate Court dated 17-11-2011. The appellant issued a notice dated 23-12-1999 to Respondent no.1 regarding Bunglow no.126-B situated at Staff Road, Ambala Sadar, whereby they claimed that the suit property under General Land Register (GLR) survey no.267, Ambala Cantonment was held on ‘Old Grant’ terms contained in Governor General’s Orders (GGO) no.179 dated 12-09-1836. The appellant’s contended that respondent no.1 violated the terms and conditions of the grant by unauthorized constructing and by increasing the plinth area, thus the Government was entitled to resume the suit property.

On receiving this notice, the respondent filed a civil suit to seek relief by declaration and injunction while claiming respondent no.1 to be the absolute owner of the suit property and that it was never held on any terms and conditions nor was an ‘Old Grant’ as claimed by the appellant. Respondent no.1 stated that she had purchased the suit property from R.B. Vishan Bhagwan for a valuable consideration by a registered sale deed dated 12-09-1969, free from all encumbrances, the respondent had applied for mutation of property in her name which was granted to her, after purchasing the property she had constructed 63 shops and 08 halls and the Municipal counsel charged house tax over the same. It was submitted by the respondents that the Excise Officer did not have the right to resume the suit property as it was not an ‘old grant’.

In the alleged GLR, the Union of India was shown as the landlord, so the Government of Haryana had no right, title or interest in the suit property and that in was never held under GGO no.179, which is not applicable to the Ambala Cantonment as it was never a station of Bengal Army. It was alleged that the GLR was made on the basis of assumptions after 103 years of establishment of the Ambala Cantonment and that the Cantonment Magistrate/ Military Estate Officer (M.E.O) had illegally obtained admission deeds in their favour from the owners under coercion and pressure, they stated that the alleged GLR was not a complete legal document and was prepared against the knowledge of the owners. They submitted that without the approval of the Defence Minister of Central government resumption could not be made, similarly no defence or public purpose was mentioned in the notice.

The Haryana Municipal Act was only applicable on the Ambala Sardar area, which had no provision for resumption. The notice did not mention the alleged unauthorized construction. The respondent also submitted that as per the GGO dated 12-09-1836, the power of resumption under clause (6) is only applicable to properties for which grants have been made and registered under clause (5). The appellant stated that respondent no.1 was denied the absolute and full ownership of the suit property based on merits, they also denied it being free from encumbrances. They stated that as respondent no.1 had only occupancy rights as per the GLR. They submitted that as per the GLR the property was vested in the Government of India was transferred to the State of Haryana, by excise agreement dated 05-02-1977. They also stated that respondent no.1 had given admission deed in the office of MEO. The notice was issued on the directions of the competent authority and that the Excise officer was designated for initiating proceedings for resumption, thus the notice was and in accordance with the law.

They submitted that respondent no,1 had no title or ownership over the property and had violated the purpose of use of grant by unauthorized construction. They stated that no complaint or FIR had been filed regarding the forcefully and illegal taking of admission deed, and that the MEO had resumed a number of bunglows in Ambala Cantonment on the basis of the GLR. They also stated that GGO no.179 should be applicable as the Government of India had adopted the same land policy for all cantonments in India by a letter dated 15-11-1976. They stated that as per the excision agreement which was not disputed by the respondent no.1, she had occupancy rights and the title of ownership was vested in the State of Haryana. The lower court after considering all the facts and evidence on record, issued the decree in the respondent’s favour, the First Appellate Court upheld the decision of the lower court, aggrieved by this the appellant approached the Punjab and Haryana High Court. 

Issues:

• Whether the State of Haryana has any right over the suit property and if the Excise Officer has the right to resume property.
• Whether the reason given for a delay of 518 days in filing a second appeal is sufficiently proved by the appellant.

Legal Provisions:

• Evidence Act, 1872 Section 110- Burden of Proof.
• Cantonments Act, 1924 Section 289- Admissibility of document or entry as evidence.
• Limitation Act, 1963 Section 5- Condonation of Delay.

Appellant’s Contention:

The appellant contended that the court did not appreciate the facts and evidence brought on record. They stated that it was a fact that respondent no.1 had filed the admission deed and had failed to prove her ownership by the sale deed dated 24-09-1969 as claimed also failed to prove it to be private property, and the notice of excise agreement dated 05-02-1977 established that respondent no.1 was not the owner of the suit property. They stated that the courts did not appreciate the copy of GLR admissible under sec-28 of the Cantonment Act. The appellant submitted an application for condonation of delay of 518 days in filing a second appeal, stating that the competent authority by an order dated 12-12-2011 allowed to engage an attorney and a file was handed over to clear named Jai Bhagwan who retired on 31-12-2011, due to which the further proceedings in the matter entrusted on to him were not completed, this fact came to be known only when Surinder Singh (lease clerk) joined in March 2013, the appellant submitted that they had initiated departmental proceedings against Jai Bhagwan, thus the delay was not intentional, so the court should condone the delay.

Respondent’s Contention:

The respondent’s contended that the courts had issued the decree in their favour after considering all the facts and evidence in the case, all the arguments were dealt with in detail and so the findings of the court should not be interfered with. They submitted that the present appeal is barred by the period of limitation as the appellant did not provide sufficient reason for a delay of 518 days in filing a second appeal. They submitted that there was no document on record to show that the order to file a second appeal and engage a counsel was issued on 12-12-2011, also the date on which the case was handed over to the dealing clerk was not mentioned in the application. They called the appellant’s story seeking condonation of delay to be fabricated and false. 

Observations of the Court:

The case was heard before the Punjab and Haryana High Court Bench of Ms. Jaishree Thakur, J. The court held that as per provisions of sec-110 of the Indian Evidence Act 1972, in the present case, since the appellant claims that respondent no.1 is not the owner of the suit property and denies that the property is free from all encumbrances, the burden of proving these claims lies with the appellant. The appellant did not produce the original GLR on the record, the court referring to the judgement in the case of Phiroze Temulji Aklesaria v. H.C. Vashistha and others (1980) held that GLR entries cannot be relied upon. The court noticed that the appellant did not produce on record any ‘Old Grant’ or any terms and conditions or anything to support the notice issued for unauthorized construction.

The cross-examination of Jai Bhagwan, supported the respondent’s case, he admitted that no admission deed was given in their office, he did not know the year or date on which the deed was given, also that there was no deed for grant or terms and conditions of Old Grant with them, and the letter dated 05-02-1977 no power of resumption was given, that all construction were made by the respondent in accordance with the site plans, there was also no survey report. The appellants had failed to establish that the suit property was an Old Grant or that they were owners of the same. The court noted that the arguments of the appellant not being justifiable their appeal is liable to be dismissed. The court on the application of condonation of delay noted that the same is at the court’s discretion. The court observed that there was no record of the notice by competent authority to engage a counsel, no document to show that the case was handed over to Jai Bhagwan, no record to shown when Surinder Singh joined in place of Jai Bhagwan in March 2013, also there was no evidence of departmental proceeding initiated against Jai Bhagwan. The court noted the lack of sufficient cause given to condone the delay by the appellant in filing a second appeal.

Judgement:

The court did not find any illegality in the judgements and findings of the lower court and First Appellate Court. It found no merit in the appellant’s appeal and so dismissed it. The court also did not find sufficient cause to condone the delay of 518 days and so dismissed the application for the same.