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PETITIONER: SARDHA RAM (DEAD) BY L.RS.

       Vs.

RESPONDENT: NAKLI SINGH AND ORS.

DATE OF JUDGMENT26/10/1989

BENCH: RANGNATHAN, S. BENCH: RANGNATHAN, S. KANIA, M.H. KULDIP SINGH (J)

CITATION:  1990 AIR   67            1989 SCR  Supl. (1) 769  1989 SCC  (2) 620        JT 1989  Supl.    305  1989 SCALE  (2)923

ACT:     East   Punjab   Utilisation   of   Lands   Act,    1949: Landholder--Notice to bring uncultivated land under cultiva- tion--Sale  of a portion of land-Sale  proceeds--Utilisation for  reclamation  of  the remaining  land-Whether  sale  for necessity.     Code   of   Civil  Procedure  1908:  Sec.   100   Second appeal--Concurrent  findings  of fact by courts  below  High Court--Whether to interfere with.

HEADNOTE:     The respondent’s predecessor-in-interest received notice under  the  East Punjab Utilisation of Lands Act,  1949  for bringing his uncultivated land under cultivation. Thereafter he sold a portion of his land by executing two sale deeds in favour of two different vendees for the purpose of utilising the  sale  proceeds to reclaim the remaining land.  The  re- spondents fried suits for setting aside the sales,  contend- ing  that the alienation was made without  legal  necessity, which  were dismissed by the Trial Court. The first  appeals were dismissed by the Senior Subordinate Judge.     On  second  appeal a learned single judge  of  the  High Court  held that the sale in favour of the first vendee  was for  legal necessity only to the extent of Rs.1,O00 and  the sale  in  favour of the second vendee was  entirely  without necessity.     On  a  further appeal the Division  Bench  reversed  the decision  of  the single judge with regard to  first  vendee holding  that  the  sale was for necessity  but  upheld  the decision with regard to second vendee holding that the  sale in his favour was without legal necessity. Hence this appeal by the second vendee. Allowing the appeal, this Court,     HELD:  1. The sale in favour of the second vendee was  a valid sale and is not liable to be impugned by the represen- tatives or the successors-in-interest of the vendor. [774E] 770     2.  Under the provisions of the East Punjab  Utilisation of Lands Act, 1949 a notice could be given requiring a  land holder  to bring uncultivated land under  cultivation  after

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reclamation  within  a period of 30 days from  the  date  of issue  of  a notice in that regard. Failing this,  the  area could  be resumed by the Government and leased out  to  some other cultivators or society for cultivation for a period of at least 8 years. [773B]     2.1  A land owner receiving a notice under the said  Act has two options before him. He can either own his  helpless- ness  to reclaim the land and permit it to be leased out  by the  Government to other persons for cultivation for a  sub- stantial  period.  Or he may decide that he should  make  an attempt  to  make  atleast a part of the  lands  fertile  by selling  a portion of the land and reclaiming the rest  with the help of the sale proceeds. A bona fide decision taken by him  to exercise the latter option cannot be said not to  be an act of good management. [773G-H; 774A]     3. If the sale in favour of the first vendee in the same circumstances was a valid sale, it is very difficult to  say that  the sale in favour of the second vendee was  not.  The necessity  for both the sales was the situation arising  out of  the  receipt of the notice under the East  Punjab  Lands Utilisation Act. In fact the findings of the Trial Court and the  first  appellate court on this issue were  findings  of fact which did not call for interference by the High  Court. [774A-B]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No.  836  of 1974.     From  the  Judgment  and Order dated  23.8.1971  of  the Punjab & Haryana High Court in L.P.A. No. 487 of 1968. S.P. Goyal and D.D. Sharma for the Appellants. A. Minocha for the Respondents. The Judgment of the Court was delivered by     RANGANATHAN,  J. Nawal Singh sold 102 bighas of land  to Nathu Ram for Rs.8,000 by a sale dated 11th February,  1952. He also executed a sale-deed in respect of 90 bighas of land to  Sardha Ram for a sum of Rs.4,500 on 28th October,  1952. There  were  recitals in the two  sale-deeds  regarding  the necessity for the sale. The first sale-deed stated: 771               "(1)  The land is Banjar Qadim.  According  to               the  law in force, it is obligatory  to  break               and cultivate this land. Otherwise the Govern-               ment  would  give it out by  auction  to  some               other person.               (2) I need money to bring other land under the               plough,  to  sink  a new well  and  for  other               agricultural  works,  such  as  purchases   of               bullocks etc.".               The  recitals  in the second  sale-deed  dated               28-10-1952 ran as follows:               "I  have absolutely sold the aforesaid  banjar               qadim  land .....  for meeting my  own  needs,               repairing the well, installing a persian wheel               purchasing camel, and reclaiming the aforesaid               banjar qadim jungle land."     Nawal  Singh’s heirs filed suits for setting  aside  the sales on the ground that they were governed by Punjab  Agri- cultural customs in matters of alienation, that the land was ancestral  and  that the alienation had  been  made  without legal  necessity  and,  therefore, would  not  affect  their reversionary  rights on the death of the vendor. Both  suits were  consolidated and tried together. The suits  were  dis-

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missed by the sub-judge and the first appeals were dismissed by  the senior subordinate judge. Second appeals  were  pre- ferred  which  came up for hearing before a  learned  Single Judge  of  the High Court. The learned Judge held  that  the sale  in  favour of Nathu Ram was  without  legal  necessity except to the extent of a sum of Rs. 1,000 which was actual- ly utilised by the vendor for the sinking of a new well  ’in his remaining lands’, and that the sale in favour of  Sardha Ram was entirely without necessity.     There  were  appeals against the order  of  the  learned Single Judge to a Division Bench of the same High Court. The Division  Bench held that, so far as the sale in  favour  of Nathu Ram was concerned, the learned Single Judge had fallen into  an error in upsetting the concurrent findings of  fact of the Courts below. The Court proceeded to observe:               "The  Courts below found and on evidence  that               bulk  of Nawal Singh’s land was banjar  qadim.               It  has  been  further found  that  under  the               Punjab Utilisation of Lands Act, notices  were               issued to Nawal Singh that if the land was not               broken up it would be taken under that Act and               leased out               772               to  third  party.  There  were  no  irrigation               facilities available for the land and to  sink               a  well money was needed. There is ample  evi-               dence  on the record on which these  evidences               are  based. The vendor has come into the  wit-               ness box and stated that the money was  raised               for this purpose. The statement of the  vendee               was  accepted by the Courts of fact.  In  this               situation,  there  was  no  justification   to               displace the judgments of the Court below with               regard to the sale in favour of Nathu Ram (Ex.               D-3).  The  rule is firmly  settled  that  the               vendee  either  established the  existence  of               necessity in fact or a bona fide inquiry  that               there was necessity for the sale. If he satis-               fies  either one of the two  requirements  the               sale would be held for necessity or an act and               good  management, as the case may  be   ......               It cannot be denied that for an  agriculturist               to bring under his plough his land is a matter               of necessity and if some land is sold to bring               the  bulk  of the land under  cultivation,  it               would certainly be an act of necessity as well               as  an act of good management. We are,  there-               fore,  clearly  of the view that  the  learned               Single  Judge was not justified  in  upsetting               the sale in favour of Nathu Ram."     However, in respect of sale in favour of Sardha Ram, the Bench  observed that the real difficulty was that there  was no  evidence that the money was advanced for the purpose  of breaking  up  of the land but for the mere  recital  in  the sale-deed which was not sufficient for the purpose. Unfortu- nately,  neither the vendee nor the witness had stated  that the  land  was sold by Nawal Singh to break  up  his  banjar qadim land. The only fact proved was that Nawal Singh had  a lot of banjar land but that was of no consequence by itself. The  decision  of  the learned Single  Judge  was  therefore upheld  in respect of the sale in favour of Sardha Ram.  The vendor  has accepted the decision in regard to the  sale  in favour  of Nathu Ram. Sardha Ram has preferred  the  present appeal before us.     The  learned  counsel for the appellant  contended  that

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there  was really no difference in the factual  position  so far  as  the two sales are concerned and that  the  Division Bench  has erred in upsetting the sale in favour  of  Sardha Ram  while upholding it in the case of Nathu Ram.  The  High Court  overlooked that even assuming that there was no  evi- dence  to show that Sardha Ram had made enquiries as to  the necessity  for the sale, factual necessity for the sale  had been  established  by the evidence on the record  which  was common to both the sales. After 773 hearing  both sides, we are of opinion that this  contention has to be accepted. It is an admitted fact that the  alienor owned about 1,100 bighas of land. It was also an established fact  that,  of this, 973 bighas was banjar  qadim  and  the remaining  land was of inferior quality. The land  was  also under mortgage. It is also Common ground that the provisions of  the  East Punjab Utilisation of Lands Act  (Act  3.8  of 1949)  as amended by Ordinance 15 of 1950 were in  force  in the  area. Under the provisions of this Act, a notice  could be given requiring a land holder to bring uncultivated  land under  cultivation after reclamation within a period  of  30 days  from  the date of issue of a notice  in  that  regard. Failing  this, the area could be resumed by  the  Government and  leased  out to some other cultivators  or  society  for cultivation for a period of at least 8 years. The  appellant had  examined  the development clerk in the  office  of  the Deputy  Commissioner, Kamal (D .W. 1) to show that a  notice had  been issued to Nawal Singh under the provisions of  the said  Act  on 8th May, 1951 in respect of  his  banjar  land measuring 976 bighas.     The  learned Single Judge overlooked the notice  of  8th May, 1951 and, mistakenly referring to another notice issued on  15.10.1954 to Sardha Ram, thought that  the  compulsions under the Act arose only after the sales of 1952. The  Divi- sion Bench, however, has accepted the correct position while dealing with the sale in favour of Nawal Singh. Having  done this, we fail to see now the Bench could have held that  the sale  in favour of Sardha Ram was not actuated by  the  same grounds  of  necessity. The question  for  consideration  is whether if Nawal Singh, faced by the notice under the Punjab Utilisation Act that unless he brought the land under culti- vation they would be leased out to some other party, decided that it would be in the best interests of the holdings as  a whole  to sell a portion of the land so that  sale  proceeds may be utilised for the reclamation of the major part of the remaining  land, it could not be said that such a  sale  was justified by necessity. We think that the answer must be  in the affirmative. The learned Single Judge expressed the view that  non-compliance with the notice would result only in  a temporary  lease  of the land to outsiders and  this  conse- quence  was not sufficient to justify the sale of a  portion of  the  lands on grounds of necessity. We,  however,  agree with  the Division Bench on this. A land owner  receiving  a notice under the said Act has two options before him. He can either  own his helplessness to reclaim the land and  permit it  to be leased out by the Government to other persons  for cultivation for a substantial period. Or he may decide  that he  should  make an attempt to make at least a part  of  the lands fertile by selling a portion of the land and  reclaim- ing the rest 774 with  the  help of the sale proceeds. A bona  fide  decision taken  by him to exercise the latter option cannot  be  said not  to be an act of good management. We think that  if  the sale in favour of Nathu Ram in the same circumstances was  a

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valid  sale (and we agree with the Division Bench on  this), it  is  very  difficult to say that the sale  in  favour  of Sardha Ram was not. The necessity for both the sales was the situation arising out of the receipt of the notice under the Punjab Land Utilisation Act. Indeed we think that the  find- ings  of the trial court and first appellate court  on  this issue were findings of fact which did not call for interfer- ence by the High Court.     Learned counsel for the respondent drew our attention to the findings of the Learned Single Judge that, according  to D.W.  2,  the  vendor was a "drunkard  given  to  licentious habits".  The  trial court and first  appellate  court  have examined  the entire evidence and recorded a finding to  the contrary. That apart, all that D.W. 2 said was: "The charac- ter of Nawal Singh is bad. He drinks and is also a  womanis- er",  D.W. 2, however, also said that Nawal Singh  had  sold the land for managing the work of cultivation. It is, there- fore, difficult to draw from D.W.2’s testimony the inference that  the  sale  of the land had been  necessitated  by  the immoral activities of the vendor and that there was no  real necessity to sell the land. The Division Bench, rightly, has attached no importance to this aspect of the case.     For  the reasons mentioned above we are of opinion  that the sale in favour of Sardha Ram was a valid sale and is not liable to be impugned by the representatives or the  succes- sors-in-interest  of Nawal Singh. This appeal  is  therefore allowed  and  the judgment of the first appellate  court  is restored. In the circumstances, however, we make no order as to costs. T.N.A.                                                Appeal allowed. 775