SARDHA RAM (DEAD) BY L.RS.versusNAKLI SINGH AND ORS.

                  SARDHA RAM (DEAD) BY L.RS.
                                                                                 A
                               v.
                     NAKLI SINGH AND ORS.

                           OCTOBER 26, 1989

              lM.H. KANIA, S. RANGANATHAN AND                                    B
                      KuLDIP SINGH, JJ.]

       East Punjab Utilisation of Lands Act, 1949: Landholder-Notice
 to bring uncultivated land under cultivation-Sale of a_portion of land-
 Sale proceeds-Utilisation for reclamation of the remaining land-
 Whether sale for necessity.
                                                                                 c
        Code of Civil Procedure 1908: Sec. JOO Second appeal-Con-
 current findings of fact by courts below High Couri-Whether to
 interfere 'with.--

      The respondent's predecessor-in-interest received notice under             D
the East Punjab Utilisation of Lands Act, 1949 for bringing 'his
uncultivated land under cultivation. Thereafter be 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 respondents filed suits for setting aside the sales, contending that
the alienation was made without legill necessity, which were dismissed           E
by the Triill Court. The f'm;t appeals were disinissed by the Senior
Subordinate Judge.

       On second appeal a learil.ed single judge of the High Court held
 that the sale in favour of the first vendee was for legill necessity only to
-the extent of Rs.1,000 and the sille in favour of the second vend_ee was        F
 entirely without necessity.

      On a further appeill the Division Bench reversed the decision of
the single jlidge with regard to first vendee holding that ibe sale was_ for
necessity but upheld the decision with regard to second vendee boldfug
that the sale In bis favour was without legill neceS..ity. Hence this apjieill   G
by the second vendee.

       Allowing the appeal, this Court,

     HELD: 1. The sale in favo\Jr of the second vendee was a valid sille
and is not liable to lie Impugned by the representatives _or the                 H
successors-hi-lllteteSt of the vendor. [774El
                                    769
     770           SUPREME COURT REPORTS              (1989] Supp. 1 S.C.R.        .--·
A          2. Under the provisions of the East Punjab Utilisation of Lands
     Act, 1949 a notice could be given- requiring a Ianif 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
B    at least 8 years. f773B I

           2.1 A land owner receiving a notice under the said Act bas two
                                                                                    (
     options before him. He can either own bis 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 be may decide that be should
     make an attempt to make atleast a part of the lands fertile by selling a
c    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 optfon
     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 circum-
I) stances was a valid sale, it is very difficult to say that the sale in favour
   of the second vendee was not. !h_e necessity for both the s~_les "'as 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 lWPellate court on this issue were findings of fact which did .not call
   for interference by the High Court. [774A-BJ
E
           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 LP.A. ·No. 487 of 1968.
I'
           S.P. Goyal and D.D. Sharma for the Appellants.

           A. Minocha for the Respondents.

           The Judgment of the Court was delivered by
G
           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       :-
Ii   stated:
         SARDHA RAM v. NAKLI SINGH [RANGANATHAN, J.J                771

            "(1) The land is Banjar Qadim. According to the law in        A
            force, it is obligatory to break and cultivate this land.
            Otherwise the Government 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     B
            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, instal-
                                                                         C
            ling a persian wheel purchasing camel, and reclaiming the
            aforesaid ban jar qadim jungle land."

       Nawal Singh's heirs filed suits for setting aside the sales on the
ground that they were governed by Pun jab Agricultural customs in
matters . of afienation, tnat the land was ancestral and that the aliena- D
tion had been made without legal necessity and, theref0re, would not
affect their reversionary rights on the death of the vendor. Both suits
were consolidated and tried together. The suits were dismissed by the
sub-judge and the first appeals were dismissed by the senior sub-.
ordinate judge. Second appeals were preferred which came up for
hearing before a learned Single Judge of the High Court. The learned 1E
Judge held that the sale in favour of Nathu Ram was without legal
necessity except ·to fhe extent of a sum of Rs.1,000 which was actually
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.
                                                                          F
       There were appeals against the order of '.he 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 concur-
rent findings of fact of the Courts below. The Court proceeded to
observe:                                                                  G

           "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 upit would be taken under that Act and leased out H
    772          SUPREME COURT REPORTS               h989] Supp. 1 S.C.R.         ,,,_

A               to third party. There were no ·irrigation facilities available
                for the land and to sink a well money was needed. There is
                ample evidence on the record on which these evidences are
                based. The vendor has come into the witness box and
                stated that the money was raised for this ·purpose. The
                statement of the vendee was accepted by the Courts of fact.
B               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 satisfies either one of the two requirements the
                sale would be held for necessity or an act and good manage-
0
                ment, 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 ce,rtainly be an
                act of necessity as well as an act of good management. We
D               are, therefore, 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
E   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. Unfortunately, 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
F   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 there was
G   really no difference in the factual position so far as the two sales are
    co.ncerned 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
    evidence to show that Sardha Ram had made enquiries as to the neces-
    sity for the sale, factual necessity for the sale had been established by          .r
H   the evidence on the record which was common to both the sales. After
          SARDHA RAM v. NAKLI SINGH IRANGANATHAN, J.I                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
                                                                            A
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$ of 1949)
as amended by Ordinance 15 of 1950 were in force in the area. Under         B
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 develop-
ment clerk in the office of the Deputy Commissioner, Kamal (D.W. 1)         c
to show that a notice had been issued to Nawal Singh under the pro.vi-
sions of the said Act on 8th May, 1951 in respect of his ban jar land
measuring 976 bighas.

       The learned Single Judge overlooked the notice of 8th May, 1951      D
and, mistakenly referring to another notice issued on 15.10.1954 to
Sardha Ram, thought that the compulsions under the Act arose only
aft~r the sales of 1952. The Division 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               E
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 cultivation 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 pro-
ceeds may be utilised for the reclamation of the major part of the          F
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 consequence was not sufficient to justify the sale of a portion
of the lands on grounds of necessity. We, however, agree with the           G
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 l'ortion of the land and reclaiming the rest    H'
    774           SUPREME COURT REPORTS             [1989] Supp. 1 S.C.R.

A   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 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
B   arising out of the receipt of the notice under the Punjab Land Utilisa-
    tion Act. Indeed we think that the findings of the trial court and first
    appellate court on this issue were findings of fact which did not call for
                                                                                 (
    interference by the High Court.

           Learned counsel for the respondent drew our attention to the
c   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
    character of Nawal Singh is bad. He drinks and is also a womaniser",
    D.W. 2, however, also said that Nawal Singh had sold the land for
D   managing the work of cultivation. It is, therefore, 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.

E         For the reasons mentioned above we are of opinion that the sale
    in favour of Sardha Ram was a valid sale and is riot liable to be
    impugned by the representatives or the successors-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.
F
    T.N.A.                                                   Appeal allowed.