Joban Singh vs Thakar Singh and others

Gokal Chand Mital, J.—The Consolidation Officer, on the direction of the Additional Director, by order dated 23.6.1971, allotted 1 kanal, 5 Marlas of land out of khasra No. 15/22/4 to Joban Singh. Earlier to this, the aforesaid khasra number as a whole measuring 2 kanals, 4 Marlas, had been allotted to Thakar Singh which allotment was changed by the aforesaid order. All this happened during consolidation proceedings. On 20.10.1971, Thakar Singh filed a suit for declaration to the effect that he was owner of the land measuring 2 kanals 4 Marlas comprised in khasra No. 15/22/4 and that Joban Singh defendant had no right or interest in the same as he had been allotted the khasra number in repartition made during consolidation proceedings which took place in the year 1960 and the order passed by the Consolidation Officer after a lapse of ten years was illegal and without jurisdiction. The suit was contested and it was pleaded that the order of the Consolidation Officer was perfectly within jurisdiction and could not be challenged in a Civil Court in view of section 44 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter referred to as the Act.) The trial Court decreed the suit after recording finding that prior to the passing of the impugned order of the Consolidation Officer, the plaintiff was in possession of the entire khasra number, the order of the Consolidation Officer was illegal and without jurisdiction inasmuch as the consolidation proceedings in the Tillage had been completed and the record of rights was prepared in the year 1961 and, therefore, the Consolidation Department became functus officio and after a lapse of ten years could not order dispossession of the plaintiff by passing the impugned order, and under the circumstances of the case, it was held that section 44 of the Act could not bar the jurisdiction of the Civil Court. The aforesaid decree of the trial Court was upheld by the lower Appellate Court. The lower Appellate Court relied on a Full Bench judgment of this Court in Ajit Singh v. Smt. Subhagan 1969 Cur. L.L. 471, in coming to the conclusion that on a question of title, Civil Court has the jurisdiction to entertain the suit. This is defendant''s appeal against the aforesaid judgment and decree.

After hearing the learned counsel for the parties and on consideration of the entire case, I am of the view that the Courts below exceeded their jurisdiction in entertaining the suit. A reading of the order of the Consolidation Officer dated 23.6. 1971, a copy of which has been produced as Exhibit P. 8 on the record, shows that earlier thereto, the parties had gone up to the Additional Director u/s 42 of the Act and the matter was remanded to the Consolidation Officer to pass a fresh order keeping in view the directions made by the Additional Director. The order of the Additional Director was not challenged in the suit nor a copy thereof was produced on the record. Therefore, the matter before the Civil Court was limited to find out whether the order of the Consolidation Officer was within jurisdiction or not. A reading of that order shows that in pursuance of the remand order of the Additional Director, the rights of the parties were determined afresh and the deficiency in the area of Joban Singh defendant was made good to the extent of 1 kanal 5 Marias out of the excess allotment made to Thakar Singh plaintiff. No point of jurisdiction arises out of the order of Consolidation Officer.

The sole basis on which the Courts below have proceeded is that whole of the khasra number in dispute was earlier allotted to the plaintiff. This is correct, but Joban Singh was not satisfied with that allotment and took the matter before the Additional Director u/s 42 of the Act when his claim was allowed and the matter was remanded to the Consolidation Officer to make fresh allotment subject to the observations made in the order of the Additional Director and thereafter order dated 23.6.1971 was passed. If the order was erroneous on merits or was contrary to the order of the Additional Director, the proper remedy for the plaintiff was only to go up in appeal before the Settlement Officer u/s 21(3) of the Act and if he was still aggrieved from the order of the Settlement Officer, then to go up in further appeal before the Assistant Director u/s 21(4) of the Act and if still he was not satisfied with the said order, then to go to the Director/Additional Director u/s 42 of the Act. But the plaintiff did not choose this course which was available to him under the Act. Instead, he filed the present suit. As already noticed, it has not been shown at all as how the order of the Consolidation Officer was without jurisdiction. As held by a Division Bench in Haqiqat v. The Additional Director, Consolidation of Holdings, Punjab (1981) 83 P.L.R. 472, there is no time limit for the Additional Director to pass appropriate orders in the interest of justice. What the Consolidation Officer has done in this case is, to pass orders keeping in view the remand order of the Additional Director. The remand order of the Additional Director not having been challenged, no question of jurisdiction would survive to challenge the order of the Consolidation Officer.

The lower Appellate Court was in error in coming to the conclusion that the Civil suit is competent on the facts of the present case in view of the Full Bench judgment in Ajit Singh''s case (supra). The facts of Ajit Singh''s case (supra) are wholly distinguishable from the facts of the present case. Therein, it was held that if there is some dispute between the co-sharers on a question of title, that could be gone into by the Civil Court and the operation of section 16-A(2) of the Act would be subject to the decision of the Civil Court and the Consolidation Authorities will have to pass fresh orders in view of the decision of question of title by the Civil Court. In the present case, even the pure question of title was not agitated upon by the plaintiff. All that he had asserted was that whole of khasra number in dispute was allotted to him in 1960 and the change made after ten years, was without jurisdiction. If there had been a dispute between the plaintiff and the defendant as to the share in the joint land held by them and if the plaintiff was claiming certain share and the Consolidation Officer had allowed him less than that share, then certainly he could come to the Civil Court to establish his title and had the Civil Court upheld his contention on the question of his share, then on the basis of declaration granted by the Civil Court, the Consolidation Authorities would have been duty bound to make fresh partition to make good the share of the plaintiff. As already noticed, those are not the facts in the present case and therefore, the Full Bench decision is wholly inapplicable.

For the reasons recorded above, the decision of the Courts below on all the issues is set aside, and it is held that the order of the Consolidation Officer is neither illegal, nor without jurisdiction and, therefore, the Civil Court has no jurisdiction to entertain the suit. Consequently, the appeal is allowed, the judgments and decrees'' of the two Courts below are set aside and the suit is dismissed, but without any order as to costs.