Ajit Mohinder Singh and Others vs Bhani and Another

Khema plaintiff brought a suit for joint possession of land measuring 8 Kanals 3 Marlas out of 409 Kanals 10 Marlas situated at Patti Bir Singh, as described in the plaint. He pleaded that he along with his brother Prem Singh owned 1/4th share each in the land measuring 19 Bighas 13 Biswas in Khewat No. 159 Khasra Nos. 3404, 3405 and 3406. The remaining half share of the land was owned by Ralla Singh. Prem 5ingh sold his 1/4th share in the land to Zorawar Singh, whose name was recorded in the jamabandi. He, however, alleged that he was in possession of the entire land before the sale was effected by his brother Prem Singh to Zorawar Singh and he continued to be in its possession even after the sale. Zorawar Singh brought a suit for joint possession and got a decree with respect to 1/4th share of the land. During execution of that decree, a compromise was arrived at between him and Zorawar Singh. The latter received the amount of consideration of the sale and gave up his rights in the land. A writting dt. 12-7-1959 was recorded and signed by Zorawar Singh. He also made a statement in the Court through his Mukhtiar on 13-7-1959. To support his title further Zorawar Singh executed a sale deed in respect of 1/4th share of the land on 30-5-1960 for a consideration of Rs. 99/-. He, therefore, got report No. 308 dt. 9-6-1960 recorded with the Patwari for entry of a mutation on the basis of the said sale. However, the mutation could not be sanctioned as consolidation proceedings had started in the village. Later, due to mistake, the Conso1idation authorities wrongly included 1/4th share of the land measuring 19 Bighas 13 Biswas amounting to 4 Bighas 18 Biswas in the holding of Zorawar Singh who was left with no right in that part of the land. In Nov., 1962, the Consolidation Officer delivered possession of that land to Zorawar Singh and in the Jamabandi for the year 1967-68 the land was recorded as ownership of Ajit Mohinder Singh and others, defendants-appellants, who are the successors in-interest of Zorawar Singh. He contended that the defendants had no right to remain in possession of the land measuring 8 Kanals 3 Marlas and he was entitled to recover the possession. The defendants contested the suit. The sale by Prem Singh in favour of Zorawar Singh was admitted. The delivery of possession of the land to Zorawar Singh by the Consolidation authorities was also admitted in reply to para No. 5 of the plaint but it was claimed that the possession had been correctly delivered.

On the pleadings of the parties, the learned Sub-Judge lst Class, Barnala, framed the following issues:--

(1) Whether the suit is within limitation? OPP

(2) Whether the plaintiff is owner of the land in dispute? OPP

(3) Whether land measuring 8 Kanals and 3 Marlas was carved out in lieu of 1/4th share of the land 19 Bighas and 13 Biswas as mentioned in Para No. 1 of the plaint? OPP

(4) Relief.

Although issues Nos. (2) and (3) were decided in favour of the plaintiff, issue No. (1) was decided against him and it was held that the suit was barred by time. Consequently, the learned Sub-Judge 1st Class, Barnala, dismissed the plaintiffs suit vide judgment and decree dt. 31-5-1975.

Thereupon, the plaintiff filed an appeal, which was allowed by the learned Additional District Judge, Barnala, vide judgment and decree dt. 7-4-1977. It may be mentioned that during the pendency of the appeal, Khema plaintiff died and his legal representatives, who are the respondents herein, were brought on the record. Being dissatisfied with the judgment and the decree of the learned Additional District Judge, the present regular second appeal was filed by the defendants-appellants.

As is evident from the judgment of the learned Additional District Judge, the finding of the learned trial Court on issues Nos. (2) and (3) was not challenged before him. This means that the appellants submitted to the finding of the trial Court that Khema was the owner of the land in dispute and land measuring 8 Kanals 3 Marlas, which is the subject-matter of the suit, was carved out in lieu of 1/4th share of the land measuring 19 Bighas 13 Biswas as mentioned in para No. 1 of the plaint. The learned Additional District Judge, however, disagreed with the finding of the trial Court on issue No. (1) and after discussing the evidence on the record and taking into account the pleadings of the parties concluded that the suit for possession filed by Khema was within limitation. Besides challenging the finding of the learned Additional District Judge on issue No. (1), Mr. Rajiv Atma Ram, the learned counsel for the appellants, also aimed his attack on the finding returned by the trial Court on issues Nos. (2) and (3), which was affirmed by the learned Additional District Judge. Since, however, the finding on these two issues as returned by the trial Court was not challenged before the learned Additional District Judge, it is not open to the learned counsel for the appellants to assail the same before this Court.

Before coming to the.contention of the learned counsel that the suit filed by Khema was barred by limitation, I should also notice the contention raised by, him to the effect that the Civil Court had no jurisdiction to entertain the suit. He has strongly relied on S. 44 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter called ''the Act'') to contend that the plaintiff in fact sought to undo the proceedings of repartition of consolidation of holdings qua the land in dispute as ordered by the Consolidation Officer under the garb of the instant suit for joint possession of the land. He sought support for his contention from a Division Bench judgment of this Court in Ram Saran v. Mehar Singh 1977 Pun LJ 393. He submitted that even if the land in suit was wrongly allotted to the appellants, the remedy open to Khema plaintiff was to approach the hierarchy of the prescribed authorities under the Act. On the ratio of Ram Saran''s case, he asserted that the suit for possession of the land allotted by the Consolidation authorities to the appellants could not be maintained.

The learned counsel for the respondents, on the other hand, contended that the question of want of jurisdiction in the Civil court was not raised by the appellants before the Courts below. It was, therefore, not open to them to raise this plea for the first time before this Court. This contention of the learned counsel for the respondents is, however; not merited when viewed in the context of the settled law on the point. It would suffice to refer to the position of law stated in Chandrika Misir and Another Vs. Bhaiya Lal, , wherein it was held that the question whether the Civil Court had or did not have the jurisdiction can be raised even in the second appeal for the first time where the Court is inherently lacking the jurisdiction. Such a plea can even be raised in execution proceedings on the ground that the decree was a nullity. The learned counsel for the respondents then contended that as is clear from the pleadings of the parties as also the divergent stands taken by them, the question of title to the land in suit was involved and this question could be decided by the Civil Court and the suit was thus not barred by S. 44 of the Act. He relied on Malkiat Singh and Another Vs. Gram Panchayat Sekha Kalan, ; Bhaqta v. Daulat Singh 1977 Pun LJ 251, and Tara Chand v. Rattan 1977 Pun W 390. In all these judgments it has been consistently held that the Civil Courts are entitled to decide the question of title to the property and their jurisdiction for deciding such a question has not been taken away by S. 44 of the Act.

After considering the arguments of the learned counsel, I am of the view that there is no escape from the conclusion that the question of title to the suit land was very much involved in the lis between the parties which had been adjudicated upon by the Courts below. Khema plaintiff had asserted that after a decree for joint possession in respect of the suit land was passed in favour of Zorawar Singh and he took out execution for taking possession, he was paid the consideration and he got the execution proceedings consigned to the record. Reliance was placed on a writing dt. 12-7-1959 signed by Zorawar Singh and the statement dt. 13-7-1959 made by his Mukhtiar. The sale deed dt. 30-5-1960 Ex. P. 1 executed by Zorawar Singh, was also got proved through Babu Ram P.W. l, Des Raj P.W. 2, Jagan Nath P.W. 3 and the handwriting expert Karam Chand Jaidkn P.W. 4. All these documents were denied by the. appellants and their definite stand was that Zorawar Singh never divested himself of the suit land. In the context of all this, it cannot be gainsaid that the title to the suit land was very much agitated before the trial Court. No doubt the finding on issues Nos. (2) and (3) was affirmed by the learned Additional District Judge-there being no challenge to the same by the appellants-but the character of the litigation remains the same for which the foundation was laid by the pleadings of the parties before the trial Court. Once it is concluded that the question of title to the suit land was the subject-matter of litigation, which was adjudicated upon by the Courts below, S. 44 of the Act did not bar their jurisdiction. It was observed in Ram Saran''s case (1977 Pun LJ 393) (supra), reliance on which has been placed by the learned counsel for the appellants, as under:--

"We do not agree with Mr. Puri, learned counsel, that in the instant case a question of title was involved. The only grievance of the plaintiffs is that legally the land in dispute could not be allotted during the re-partition proceedings to defendants 1 to 3. There can be no gainsaying that this question could and should have been agitated before the consolidation authorities. S. 44 of the Act in such a situation bars the filing of the civil suit and in view of that mandatory provision, we find no escape from this conclusion."

The Division Bench in Ram Saran''s case (1977 Pun LJ 393) therefore, did not depart from the view taken in the Single Bench judgments relied upon by the learned counsel for the respondents that where a question of title to the property is involved the Civil Court has the jurisdiction and it is not barred by S. 44 of the Act.

It is now the contention of the learned counsel for the appellants that the suit was barred by time and that the finding of the learned Additional District Judge to the contrary is not sustainable, which requires to be dealt with. The learned counsel first invited my attention to the cross-examination of Khema plaintiff who appeared as P.W. 6. He no doubt stated that since the consolidation proceedings the land in suit was in possession of the appellants and that consolidation had taken place 12/13 years back. He also admitted that various litigations were pending between the parties. From this the learned counsel tried to draw an admission on the part of Khema that for more than l2 years he was not in possession of the suit land. No doubt, this part of the statement of Khema was made the basis of the finding of the trial Court to the effect that the suit was barred by limitation, but in my view, this vague statement does not conclude this question. When reference is made to the plaint, it becomes clear that a definite averment was made to the effect that the re-partition proceedings of consolidation of holdings took place in the village in Nov. 1%2. This assertion in the plaint has not been categorically denied nor any month or year of the re-partition proceedings other than Nov., 1962, has been mentioned in the written statement although it was admitted that right frorn the re-partition proceedings the appellants were in possession of the suit land. The instant suit was filed on 4-11-1972, i.e. about 10 years after the repartition proceedings.

The learned counsel for the appellants next contended that since the real challenge in the suit was to the re-partition proceedings, a suit for annulment of these proceedings could be filed within one year under Art. 100 of the Limitation Act, 1963, and since it had not been so done, the suit was barred by limitation. I do not agree with this submission. The suit was for possession of the disputed land on the basis of title and the period of limitation which governs it is provided by Art. 65 of the Limitation Act, 1963, which is 12 years.

I, therefore, find no merit in this appeal, which is dismissed. There shall, however, be no order as to costs.

Appeal dismissed.