Jit Singh and others vs Director Consolidation of Holdings, Punjab & Ors.

R.L. Anand, J. (Oral)

This is a review application moved by the petitioners for reviewing of our order dated 26th November, 2001. The order runs as follows :

"None for the petitioners.

Shri Ravinder Chopra, Advocate for respondents 3 to 33.

"We have heard learned counsel for the respondents and with his assistance, have gone through the record of the case.

Learned counsel for the respondents submits at the bar that the Gram Panchayat earlier approached Hon''ble High Court against the order dated 2.5.1996 passed by Director, Consolidation, Punjab, taking a plea that the land vests in the Gram Panchayat, but that plea was rejected. The Gram Panchayat approached the Hon''ble Supreme Court, which again affirmed the order of the High Court. The petitioners also approached the Director, Consolidation taking a plea that they could not be dispossessed on the ground that they are Pattedars. This plea of the petitioners was duly considered by the Director, Consolidation who rightly remarked that the petitioners could not produce any Pattanama regarding, the continuous possession of the land in question.

In view of the findings in the impugned order that the petitioners were not in possession of the land in question, the petition of the petitioners has been rightly dismissed by the Director. We do not see any illegality or impropriety in order dated 19.6.1997. Dismissed."

Some facts may be noticed in the following manner:

Petitioner Jit Singh and five others filed C.W.P. No. 14635 of 1997 praying that orders Annexures P.1 and P.2 passed by respondent No. 1 may be quashed and directions be issued to the said respondent to (i) partition the land between the petitioners and private respondent Nos. 3 to 28 and (ii) to modify the order Annexure P1.

Pishora Singh and six others filed a petition under Section 42 of the Consolidation of Holding Act against the Gram Panchayat of village Mandlan tehsil Bassi Pathana, District Fatehgarh Sahib and the learned Additional Director, Consolidation, Mohali passed the order dated 2nd May, 1996 to the following effect :

"I heard the arguments of both the parties and gone through the record of the file and as per jamabandi 195556, this land was recorded in the column of ownership as Shamlat Deh Hasab Rasad Malkiat. As per ruling of Hon''ble High Court 1992 PLJ 387 such land belongs to the khewatdars of the village. Gram Panchayat has no concern or connection with such land. As per ruling Punjab and Haryana High Court 1992(1) P.L.R. 616 mutation entered in the name of panchayat does not effect the rights of the rightholder and mutation entered on the instructions of Govt. by changing ownership in favour of other party cannot be transferred and according to Article 31A of the Constitution, without payment of any compensation, this land cannot be given to the Gram Panchayat. According to the ruling of Hon''ble High Court reported in 1991 PLJ 46 the consolidation department can partition such lands amongst Khewatdars after the expiry of 2530 years of the consolidation. During Istemal this land was kept common. According to the ruling of the Hon''ble High Court reported in 1984 R.R.R. 31 : 1984 PLJ 222 in case Jagtar Singh v. Addl. Director there is no limitation for filing petition against such partition/Istemal and Scheme Istemal. The objection of the respondent to the effect that this Court has no right to make order for correction under section 42 of the Consolidation Act has no weight. This land was kept joint during consolidation and was transferred in the scheme of Gram Panchayat and the same cane be corrected under section 42 of the Consolidation Act by this Court. The objection of the respondents that the petition is beyond limitation as per ruling of Hon''ble High Court, the question of limitation does not apply to such petition. In this way, the objection of the respondents carries no weight and is rejected. The prayer of the petitioners is genuine and is accepted. As per prayer of the petitioners, the land of Khewat No. 117 as per jamabandi of the year 199091 is hereby ordered to be partitioned to the following as under :

Kuldip Singh, Balwant Singh Kulwant Singh sons of Ajit Singh in equal shares.

23//1/1(40)

Amir Singh son of Karam Singh son of Nibahu Ram

16//2/2(14)

Swaran Singh, Ranjit Singh Mohinder Singh, Pishora Singh sons of Roop Singh in equal share.

13//19/2(40), 20/2, (40), 22(715), 22//5/2(41), 23//1(711), 2(74)

Shinder Kaur w/o Pishora Singh Son of Roopar Singh

9//23/1(718)

Kuldip Singh son of Kapoor Singh

13//21(80)

Gurinderpal Singh

10//18/2(46), 23//10

Mohinderpal Singh

(80), 16//1/3 (06)

Ravinder Singh sons of Kuldip Singh in equal share.

Gurmit Singh, Mehar Singh sons of Hakam Singh in equal share.

23//9(712)

Natha Singh, Pritam Singh, Tarlok Singh, Santokh Singh sons of Jagir Singh in equal share.

23//12/1(518)

Ajit Singh son of Bara Singh

23//1/1(24)

Nagar Panchayat Deh

The area allotted Sr. 1 to 9 be considered cancelled from Nagar Panchayat.

This petition is hereby accepted with the above said modification. Order pronounced."

This order was challenged by the Gram Panchayat before the High Court in C.W.P. No. 10269 of 1996 which was dismissed on 18th July, 1996. The Gram Panchayat filed S.L.P. No. 2031 of 1999 before the Hon''ble Supreme Court and it was also dismissed on the ground that it is barred by time vide order dated 29.4.1999.

The present petitioners filed an application under 42 of the said Act before the Director Consolidation, Punjab, inter alia, alleging that they are owners and in possession of the land at the time of the consolidation and their interest has not been looked into by the consolidation authorities. Secondly, they were Khewatdars of the village and, therefore, they are in possession of the land as per their shares in the land. On the contrary this application was hotly contested by the respondents and the learned Director, Consolidation, Punjab, Jalandhar vide order dated 19th June, 1997 dismissed the application by holding as follows :

"After hearing the arguments of both the parties and gone through the record, I find weight in the arguments of the counsel for the respondent Shri Rattan Singh Mahal and agree with the arguments tendered by Shri Rattan Singh Mahal because Inder Singh died in the year 1984, mutation of inheritance was sanctioned on 8.1.1995 so petitioner Nos. 2 to 4 are the heirs of Inder Singh who died in the year 1984 have filed the petition on the basis of possession and as per ruling 1990 P.L.J. 15 the possession of the deceased cannot be treated on the land. The petitioners 2 to 4 who are the legal heirs of Inder Singh, could not prove their own possession. Similarly Jit Singh petitioner could not produce any pattanama on receipt of Chakota etc. regarding continuous possession of the land, on the file nor the counsel for the petitioners could prove possession of any of the petitioners. Gram Panchayat has also challenged the order under section 42 dated 2.5.1996 in the Hon''ble High Court by filing CWP No. 10264 of 1996 which has been decided on 18.7.1996 so that order under Section 42 dated 2.5.1996 has been merged in the order of Hon''ble High Court. The ruling cited by the petitioners of Hon''ble Supreme Court 1994(2) RRR 232 does not applicable in this case because the petitioners could not prove their possession over the land in dispute. The order under section 42 dated 2.5.1996 challenged by the petitioners has been merged in the order of High Court dated 18.7.1996. So this Court does not feel it proper to interfere in the order passed under section 42 dated 2.5.1996, therefore, the petition is hereby dismissed."

Aggrieved by the order dated 19th June, 1997, the present writ petition in which it has been prayed that both the orders referred to above the be quashed and directions be given to the Director, Consolidation Punjab to repartition the land by treating the petitioners as Khewatdars and also that they were in possession of the land at the relevant time when the order was passed.

Notice of the review application was given to the respondents. Both the parties hotly contested the application.

We have heard the learned counsel for the parties and with their assistance, have gone through the record of this case.

The counsel for the applicants Mr. P.K. Gupta submitted before us that the applicants were in continuous possession of the land in question after the death of their father Shri Inder Singh. Refuting his argument, the learned counsel for the respondents submitted that the applicants have not been able to produce any documentary evidence with regard to their continuous possession on the land in question, as observed by the learned Director in the order dated 19th June, 1997. The counsel for the applicants further submitted that there is ample evidence with the petitioners to show that they were in possession of the land in question at the relevant time and, therefore, the order dated 19th June, 1997 is required to be set aside. The counsel also submitted that the learned Director did not take into consideration the plea of the petitioners with regard to the fact that they were the khewatdars of the village.

On the contrary, the learned counsel for the respondents submitted that before the learned Director the petitioners have not been able to produce any documentary evidence in order to show their possession as Khewatdars and, therefore, the order dated 19th June, 1997 is valid in law. Shri Ravinder Chopra also submitted that the order dated 2nd May, 1996 which was passed at the behest of his clients against the Gram Panchayat was challenged by the Gram Panchayat before the Hon''ble High Court and also before the Supreme Court and this order has attained finality. If the order dated 19th June 1997 is altered or set aside at the behest of the present petitioners, it would tantamount to the reversing of the order dated 2nd May, 1996 which has already attained finality when the said order was challenged by the Gram Panchayat. Counsel further submitted that with regard to the plea of the petitioners that they are pattadars, they filed a petition under Section 11 of the Punjab Village Common Land (Regulations) Act, 1963 before the competent, authority and that application was also dismissed. The appeal was also dismissed by the Commissioner. So much so, respondent Nos. 3 to 22 of the main writ petition also filed a civil suit claiming their possession and along with the suit an application under Order, 39, Rules 1 and 2 CPC was also filed. That application was accepted by Civil Court vide order dated 5.6.1997 and the appeal against that order filed by the present petitioners was dismissed. The counsel Shri Ravinder Chopra wanted to convey to us that both the pleas now raised by Mr. Gupta have been disposed of by the competent Court of jurisdiction and, in these circumstances, the main writ petition has no force. Counsel also submitted that all these material facts were concealed by the petitioners in the present writ petition and, in these circumstances, the High Court will not come to the rescue of the persons who had concealed the material facts.

Meeting the arguments of his adversary, counsel for the applicants submitted that the order dated 2nd May, 1996 has been obtained by the respondents at the back of the petitioners. They were not a party to the application under Section 42 of the Act filed by Pishora Singh and others. Therefore, the order dated 2nd May, 1996 will not bind the interest of the petitioners. Also it was submitted by Mr. Gupta that the order of the Commissioner passed in his presence under section 11 of the Act is subject matter of separate Writ Petition No. 13844 of 2001 Jeet Singh v. Joint Development Commissioner. Counsel also submitted that the order dated 2nd May, 1996 was fraudulent order which has been procured by Shri Pishora Singh and others against the Gram Panchayat at the back of the present petitioners and in these circumstances, the order dated 2nd May, 1996 may be treated as a nullity. Counsel also submitted that the order passed by the Hon''ble Supreme Court was not based on merit, rather the SLP of the Gram Panchayat was dismissed mainly on the ground that it was barred by limitation.

We have considered the rival contentions of the parties and are of the opinion that this review application deserves to be dismissed irrespective of the fact that when the order under review was passed, the presence of the learned counsel for the petitioners was not recorded by this Court. We have already reproduced above the material portion of the order dated 19th June, 1997. A reading of the same would show that the learned Director Consolidation in the said order has categorically stated that Shri inder Singh died in the year 1984 and the mutation of inheritance was sanctioned on 8th June, 1995. The applicants filed the application on the basis of the possession as per the ratio of the judgment laid down in 1990 P.L.J. 15 on the plea that their possession should be treated on the land in question after the death of Inder Singh but the petitioners had failed to establish their possession. Similarly, they could not produce any pattanama etc. regarding their continuous possession. So much so, even respondent Nos. 3 to 22 filed a civil suit and claimed their possession. Their application under Section 39 Rules 1 and 2 CPC too has been accepted by the competent court of jurisdiction and appeal of the petitioners was rejected by the appellate authority. Therefore, in view of the finding given by the learned civil court, it will not be appropriate for the High Court while exercising powers under Article 226 of the Constitution to disturb the findings given by the Director Consolidation dated 19th June, 1997 and also the order passed by the civil court accepting the application filed under Order 39 rules 1 and 2 CPC by respondent Nos. 3 to 22.

With regard to the plea of the petitioners that they are also the Khewatdars of the village, the petitioners had already tried their luck in separate proceedings under Section 11 of the Act which has been dismissed. Their appeal also stands dismissed. Of course, they have filed a civil writ petition before the Hon''ble High Court. If the Hon''ble High Court feels that the plea taken by the petitioners that they are the Khewatdars, still survives, the revenue authorities shall act accordingly, as per the directions, if any, to be passed by the Hon''ble High Court in CWP No. 13844 of 2001. So far as the present writ petition is concerned, we are not inclined to interfere with the order Annexure P2 dated 19th June, 1997.

Faced with this difficulty, the learned counsel for the petitioners submitted that the petitioners are in possession of the documentary evidence which were supplied to them by the Gram Panchayat would indicate that they were in possession at the relevant time. We are not convinced with the submissions raised by the learned counsel for the petitioners. These documents were never shown before the Director Consolidation. At this juncture, it is not open for us to reopen the entire case when the petitioners themselves were responsible for not producing the documentary evidence before the learned Director and the Civil Court.

In the finality, this application for review of the order dated 26th November, 2001, is hereby dismissed.