Koora Ram (deceased) rep. by L.Rs. vs Prabhu

J.V. Gupta, J.

This is defendant''s Second Appeal against whom suit for declaration and possession was partly decreed by the trial Court but, in appeal, it stands decreed in toto.

The facts pleaded are that land comprised in Khewat No. 90, Khatauni No. 339, Khasra No. 184 measuring 9 Biswas, and Khewat No. 93, Khatauni No. 259, Khasra No. 185, measuring 9 Biswas, belonged to the plaintiffs and defendants No. 2 to 7, prior to the consolidation proceedings held in the village in the year 1960. The case of the plaintiffs is that defendant No. 1 had got no right, title or interest in the land comprising Khasra Nos. 184 and 185 prior to the consolidation but he got allotted in his name the land comprising Rectangle No. 12, Killa No. 26, in connivance with the consolidation authorities in lieu of the abovementioned land. The plaintiffs claimed that they had shares in the well known as Panghatwala, situate in the land comprising Rectangle No. 12, Killa No. 26. They further claimed that they were in possession of the suit land but the name of defendant No. 1 had been wrongly entered as suit land but the name of defendant No. 1 had been wrongly entered as suit land but the same of defendant No. 1 had been wrongly entered as owner of this land in the revenue record. On these allegations, they filed a suit for declaration to the effect that they were the owners of the land comprising Rectangle No. 12, Killa No. 26. In the alternative, they claimed a decree for possession of the suit land in case it was found that they were out of possession. In the Written Statement, defendant No. 1 pleaded that he was rightly allotted the land in suit, comprised in Rectangle No. 12, Killa No. 26, in lieu of the land comprising Khasra Nos. 184 and 185 held by him prior to the consolidation. It was also pleaded that the Civil Court has no jurisdiction to try the suit as it was for the consolidation authorities to rectify the mistake, if any.

The trial Court found that the plaintiffs and defendants No. 2 to 7 were not the owners of Rectangle No. 12, Killa No. 26, but the plaintiffs alone were still the owners of 2 Biswas of land, covered by land out of old Khasra No. 185, which area had been allotted to defendant No. 1 and was included in the present Khasra No. 12/26. It was further held that the order of the consolidation authorities transferring these 2 Biswas of area to defendant No. 1 was illegal and without jurisdiction. In view of that finding, the suit was decreed only to the extent of 2 Biswas, the remaining suit having been dismissed. Dissatisfied with the same, the plaintiffs filed an appeal whereas the defendants filed their crossobjections. The learned Senior Sub Judge with enhanced Appellate Powers came to the conclusion that the suit land comprised by Rectangle No. 12, Killa No. 26, was allotted in consolidation proceedings in lieu of the land comprised by Khasra Nos. 181 min., 184 min., 185 min., and 186 min. It was further found that defendant No. 1 had nothing to do with the land comprising Khasra No. 185 in which the well in dispute was situate prior to the consolidation proceedings. In view of these findings, the suit was decreed in favour of the plaintiffs as under :

"As a result of the above discussion, the appeal is accepted and the judgment and decree of the trial Court are modified to the extent that the appellants and respondents No. 2 to 7 are granted decree for possession of the land comprised of Rectangle No. 12, Killa No. 26, measuring 6 Kanals in which the well known as Panghatwala is situate. The respondent No. 1 shall be entitled to get the land in lieu of the land comprised of Rectangle No. 12, Killa No. 26, from the appellants and respondents 2 to 7 subject to his entitlement from the consolidation authorities. Taking into consideration the overall circumstances of the case, the parties to the appeal shall pay and bear their own costs''''.

Dissatisfied with the same, the defendants have filed this appeal.

At the time of motion hearing it was contended that according to the averments in the plaint, the plaintiffs had claimed Khasra No. 184 (Khewat No. 90, Khatauni No. 339) and Khasra No. 185 (Khewat No. 93 Khatauni No. 359) but the lower Appellate Court had granted a decree to the plaintiff for a larger area.

Learned counsel for the appellant contended that the Civil Court had no jurisdiction to go into the matter as it was for the consolidation authorities to rectify the mistake, if any, in repartition. According to the learned counsel, the only ground urged for the challenging the orders of the consolidation authorities is that the same was not in accordance with the scheme. Even if it be so, the jurisdiction of the Civil Court was barred as held in Ram Saran v. Mehar Singh, 1977 PLJ 393. It was further contended that in any case the suit could not be decreed for more than 2 Biswas as found by the trial Court.

After hearing the learned counsel for the appellant, I find force in the contentions raised. The order of the consolidation authorities is being impeached primarily on the ground that the same was not in accordance with the scheme. Even if it be so, for argument sake, the jurisdiction of the Civil Court, was barred under section 44 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act (Act No. 50 of 1948). The matter was considered in the abovesaid judgment and it was held :

"If the repartition was against the Scheme, then the proper and the appropriate remedy for the plaintiffs was to have approached the authorities under the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948. 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 repartition proceedings to defendants No. 1 to 3. There can be no gainsaying that this question could and should have been agitated before the consolidation authorities. Section 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 same being the position in the present case, the jurisdiction of the Civil Court was barred under section 44 of the said Act. The proper remedy for the plaintiffs, therefore, would be to approach the consolidation authorities to rectify their mistake, if any. Even the Court below while passing the decree have made the observations that the defendants shall be entitled to get the land in lieu of the land comprising Rectangle No. 12, Killa No. 26, from plaintiffs, subject to his entitlement from the consolidation authorities. In these circumstances, the proper remedy would have been to advise the plaintiffs to approach the consolidation authorities in this behalf. Even now, the plaintiffs would be well advised to approach the consolidation authorities in accordance with law. Consequently, the appeal succeeds the judgments and decrees of the Courts below are set aside and the suit is dismissed with no order as to costs.