Darshan Singh vs Mohinder Kaur (Deceased)

B.S. Yadav, J.

This suit was brought by Ujagar Singh (who died during its pendency in the trial Court and the present appellants were brought on the record as his legal representatives) for a declaration that he was owner in possession of 564/7377th share in the suit land, measuring 54 Kanals 18 Marlas. According to the allegations in the plaint, the plaintiff was a co sharer with defendants No. 1 to 3 and Munsha Singh husband of Mohinder Kaur, defendant No. 4. The plaintiff had 1/3rd share in the joint land while defendants No. 1 to 3 had 1/3rd share and Munsha Singh was the owner of the remaining 1/3rd share. Out of the joint land, Munsha Singh sold to him Khasra No. 273/1, measuring 7 Kanals 9 Marlas and No. 299, measuring 1 Kanal, vide Jamabandi for the year 19992000 BK, vide sale deed dated 14.2.2003 BK for Rs. 700/ and delivered the possession to him and since then, he was in possession of the suit land and other land, as cosharer, along with defendants No. 1 to 3 and the said Munsha Singh and his successorsininterest. Consolidation proceedings took place in the village (somewhere in 1960) and in lieu of pre consolidation joint land of the parties, the suit land was allotted jointly to them. About 4 months prior to the filing of the suit, he came to know that mutation with respect to Khasra No. 299 had been sanctioned in his favour after the sale in his favour, but, somehow the mutation with respect to Khasra No. 273/1 had not been sanctioned, and no land was allotted to him in lieu of the latter Khasra number. After calculating the value of the land which was put in the hotchpotch and of the land which was allotted after those proceedings the plaintiffs claim 564/7377th share in lieu of Khasra No. 273/1. It may be mentioned that defendants No. 5 and 6 were made parties, as part of the suit land had been sold by Mohinder Kaur defendant to them.

Defendants No. 1 to 3 pleaded ignorance about the sale effected by Munsha Singh in favour of Ujagar Singh.

Defendant No. 4 Mohinder Kaur also pleaded ignorance about the sale said to have been effected by her husband. She further pleaded that the suit was time barred and the Civil Court had no jurisdiction to entertain the suit. Both the set of the defendants also denied the fact that Ujagar Singh was in possession of the land.

Upon the allegation of the parties, the learned trial Court framed the following issues :

(1) Whether the plaintiff had purchased the land in lieu of which the suit land was allotted during the consolidation from defendant No. 1 ?

(2) Whether the suit land was wrongly allotted by Consolidation Authorities to the defendants No. 2 to 6 ?

(3) Whether the plaintiff was in possession of the suit land at the time of the institution of this suit and the suit as brought, is maintainable?

(4) Whether the suit is within time ?

(5) Whether this Court has no jurisdiction to try this suit? (Onus objected to).

Under issue No. 1 the Court held that Ujagar Singh had purchased land comprising in Khasra Nos. 273/1 and 299 from Munsha Singh and in lieu of the joint land, 54 Kanals 18 Marlas was allotted in the consolidation proceedings. Issues Nos. 2, 3 and 4 were taken together and it was held that the suit was within time, as the plaintiff was a cosharer in the joint Khata and there was no evidence of his ouster and that the land had been wrongly allotted in consolidation proceedings to the defendants. Under issue No. 5 it was held that as a question of title had arisen, therefore, the Civil Court had jurisdiction to decide the suit. As a result of the above findings, the plaintiffs'' suit was decreed. Feeling aggrieved, Mohinder Kaur filed an appeal which was heard by the learned District Judge, Kapurthala. He held under issue No. 1 that though Ujagar Singh (deceased) had purchased Khasra Nos. 273/1 and 299 from Munsha Singh, but there was no material on the record to show that the land claimed by the plaintiff in this suit had been allotted to him during the consolidation proceeding in lieu of Khasra No. 273/1. Under issue No. 3 he held that the suit for declaration was maintainable as the plaintiff was in joint possession of the joint Khata of the entire land of which a share was being claimed by him. Under issue No. 2 he held that the land had not been wrongly allotted by the Consolidation Authorities to defendants No. 2 to 6. Under issue No. 4 it was held that Ujagar Singh ought to have filed the suit within 3 years, when mistake occurred, for correction of the wrong entries in the Khata and as it has been filed beyond that period, it was time barred. Under issue No. 5 it was held that the Civil Court had no jurisdiction in view of the provisions contained in section 44 read with section 22 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (for short the Act). Accordingly, he accepted the appeal and set aside the judgment and decree of the trial Court and dismissed the suit. Feeling aggrieved, the plaintiffs have come to this Court in appeal.

In this appeal, only issues No. 2, 4 and 5 are relevant as only those issues have been decided against the appellants by the learned appellate Court.

First, I will take up issue No. 2. Both the learned Courts below have held that Ujagar Singh had purchased Khasra Nos. 273/1 and 299 from Munsha Singh who was husband of Mohinder Kaur defendant No. 4. Khasra No. 299 was sold by Munsha Singh out of Shamilat land while Khasra No. 273/1 was sold by him out of the joint Khata in which Ujagar Singh had 1/3rd share and the remaining 2/3rd share belonged to Munsha Singh and defendants No. 1 to 3. After consolidation proceedings, the parties or their predecessorsininterest were allotted land jointly and their share in the joint land were recorded as before. Thus, it is clear that Ujagar Singh plaintiff had not been allotted any land in consolidation proceedings in lieu of Khasra No. 273/1.

However, the plaintiff''s allegation that he is entitled to 564/7377th share over and above his 1/3rd share in the joint Khata, in lieu of Khasra No. 273/1 is not tenable. The plaintiff is entitled to only some share out of the share of Mohinder Kaur who is successorininterest of Munsha Singh vendor. Defendants No. 1 to 3 have been rightly allotted their 1/3rd share in consolidation proceedings in lieu of their share in the preconsolidation land. Hence, it is held that the Consolidation Authorities have wrongly allotted land to Mohinder Kaur in lieu of the preconsolidation Khasra No. 273/1. The issue is decided accordingly.

Now I take up issue No. 4. Both the learned Courts below have held that the plaintiff is in possession of the suit land. As noticed earlier, the learned trial court found that the suit was within limitation. However the learned lower appellate Court has held that the suit had been filed for correction of the wrong entries in the revenue papers beyond three years, from the date when the mistake occurred, therefore, it was time barred. That finding cannot be upheld. Ujagar Singh was admittedly a cosharer in the suit land and was in possession of his share. He was under no obligation to file a suit for declaration of his title of the property claimed by him. Wrong entries in the revenue papers, though gave a right to him to file a suit for their correction, but he could not ignore the same, as he was in possession. He was entitled to file a suit for declaration when his rights of ownership were jeopardised. Therefore the plaintiff could ignore the first occasion when he got the right to sue. In this respect, reference can be made to Hazari etc. v. Roop Narain, 1974 Cur.L.J. 33, where it was remarked :

"It is well settled law that if the plaintiff is in possession or enjoyment of the property in suit despite an adverse entry in the revenue papers, he is not obliged to sue for a declaration of title on the first or each succeeding denial of his title by the defendant. He may look upon each denial with complacency or at his option may institute a suit to falsify the assertions of the other side. There can be no ''right to sue'' until there is an accrual of the right asserted in the suit and its infringement, or at least a clear and unequivocal threat to infringe that right, by the defendant against whom the suit is instituted. Where there are successive invasions or denials of a right, the right to sue under Article 120 accrues when the defendant has clearly and unequivocally threatened to infringe the right asserted by the plaintiff in the suit. Every threat by a party to such a right, however, ineffective and innocuous it may be, cannot be considered to be a clear and unequivocal threat so as to compell him to file a suit. Whether a particular threat gives rise to a compulsory cause of action depends upon the question, whether that threat effectively invades or jeopardises the said right.''''

It will not be out of place to mention here that according to the plaintiff, he came to know about the wrong entries only about 4 months prior to the filing of the suit. That allegation may or may not be correct, but, as discussed above, the suit cannot be held to be time barred. Accordingly the finding of the learned lower appellate Court is set aside and it is held that the suit was within limitation.

Now I take up issue No. 5. In the present suit, the plaintiff''s case is that he has not been allotted any land in lieu of the preconsolidation Khasra No. 273/1. His further contention is that after taking into consideration the various valuations put by the consolidation authorities upon the pre consolidation land, he is entitled to 564/7377th share in the joint Khata over and above his share.

The learned counsel for the appellants argued that in the present suit, the plaintiff has raised the question of title and that can only be decided by a Civil Court. In support of his contention, he has cited Kundan & others v. Sardara & others, 1959 PLR 208, to show that the Consolidation Officer has no right to examine the question of title and only the Civil Court can determine it. In that case, the plaintiffs had prayed for a decree for declaration of their title in respect of certain preconsolidation land. In the above ruling it was remarked :

"The contention of the learned counsel is that according to rule 7 it is the duty of the Consolidation Officer to prepare a statement showing the class of land, tenure, area or assessment and encumbrances, if any, after getting the record of rights uptodate. He submits that this is a matter which an officer is by this Act empowered to determine, decide or dispose of and therefore, a Civil Court is debarred under section 44 of the Act from entertaining a suit for establishing title to the land involved in Consolidation proceedings. It is not possible for me to sustain this argument. He has not drawn my attention to any part of the Act where the Consolidation Officer is empowered to determine, decide or dispose of a question of title raised with respect to a piece of land which has been or is to be the subject matter of proceedings under this Act. I have been taken through the various provisions of this Act but no specific provision has been pointed out to me which lays down any procedure for an enquiry into a question to title''''.

In the present case, the plaintiffs do not claim any declaration in respect to Khasra No. 273/1. Their contention is that as they were owners of that Khasra number and as no separate land was allotted to them in lieu of it, therefore, they are entitled to a certain share, in lieu of it in the joint land allotted after Consolidation proceedings. I am of the opinion that such a declaration cannot be granted to the plaintiffs as will be discussed below.

The learned counsel for the appellants has also relied upon Pirthi Singh v. Raghbir Singh etc., 1973 Cur.LJ 392, wherein it was laid down that section 44 of the Act bare the jurisdiction of the Civil Courts only where the State Government or the officer concerned acts within the provisions of the Act and not where he acts illegally and in contravention of the mandatory provisions of the Act and if the authority acts in excess of its powers conferred on it then Civil Courts have jurisdiction to entertain the suit under section 9 of the Code of Civil Procedure. That case has also no application to the facts of the present case. In the present case, the consolidation authorities have not acted illegally or in contravention of the powers conferred upon them. Admittedly, in the revenue papers, there was no mention about the sale of Khasra No. 273/1 by Munsha Singh to Ujagar Singh. It is not the case of the plaintiffs that during the consolidation proceedings, any objection was raised before the Consolidation Officer in respect of the said Khasra number. Therefore, it is difficult to hold that the Consolidation Officer acted in contravention of the mandatory provisions of the Act while allotting the land to the parties in accordance with their recorded share in the preconsolidation land.

The relevant portions of sections 42 and 44 of the Act read as follows :

"42. The State Government may at any time for the purpose of satisfying itself as to the legality or propriety of any order passed, scheme prepared or confirmed or repartition made by any officer under this Act, call for and examine the record of any case pending before or disposed of by such officer and may pass such order in preference thereto as it thinks fit, ......''''.

43................

"44. No Civil Court shall entertain any suit instituted or application made, to obtain a decision or order in respect of any matter which the State Government or any officer is, by this Act empowered to determine, decide or dispose of''''.

A reading of the above provisions shows that the jurisdiction of the Civil Court to determine a matter is barred where the State Government or its delegate is empowered by the Act to determine it. I may quote here Mohla v. Maya Chand, 1968 CLJ 940, wherein it was remarked :

"In order to determine whether the suit is entertainable by the Civil Court or not, the Court has to see whether the suit related to a decision or order in respect of any matter which the different authorities under the Act have the power to determine and not whether any order passed under the Act is wrong or against the provisions of the Act. It is clear from the facts stated above that what the plaintiff sought to enforce by means of the suit was the order of the Additional Director, Consolidation of Holdings, dated 16th June, 1956, directing that rectangles Nos. 82 and 83 should be withdrawn from the block of the plaintiff. The order in subsequent proceedings was not adhered to and the Additional Director, Consolidation of Holdings, Shri Jaspal Singh, on 8th December, 1961, affirmed the order of the Assistant Director who had reallotted rectangles No. 82 and 83 to the plaintiff. The allotment of plots and blocks in consolidation proceedings is a matter which is determinable by various officers appointed under the Act and the orders or decision of the said authorities cannot be questioned by means of a suit in a Civil Court''''.

In the present case, the plaintiff''s contention is that in consolidation proceedings, he should have been allotted land in lieu of Khasra No. 273/1. According to him, after calculating the valuation put by the consolidation authorities upon the preconsolidation land and after taking into consideration the cut imposed on the valuation and also keeping in view the valuation of the land allotted after the consolidation proceedings, he is entitled to an additional share in the joint Khata and according to him, it comes to 564/7377th. Only the consolidation authorities can determine, what valuation was placed during the consolidation proceedings upon Khasra No. 273/1 and in lieu of it, how much land of same value has to be allotted. The learned counsel for the appellants has not been able to show that the matter in dispute cannot be determined by the consolidation authorities. He, however, argued that as Misal Hakiat has since been prepared, the consolidation authorities have become functus officio. His argument has no force. If a person finds that he has not been allotted land in consolidation proceedings in lieu of some land of which he was the owner, he can approach the authorities mentioned in section 42 of the Act for which there is no limitation. At least, the plaintiff should have gone to those authorities for the redress of his grievance before coming to this Court. Therefore, it is futile to argue that as Misal Hakiat has been prepared, the authorities mentioned in section 42 of the Act have no right to determine the matter in dispute.

For the foregoing reasons, I confirm the findings of the learned lower appellate court under issue No. 5. Consequently, the present appeal fails and the same is hereby dismissed, with no order as to costs.