Lt. Col Raghbir Singh (Retd.) and Others vs Kulbir Singh Brar and Others

V.K. Jhanji, J.—Gaja Nand, Ram Dyal, Puran Chand, Sheela Devi and Shanti Devi were owners of land measuring 46 K. 16 M. situated in village Kotkapura. Land measuring 20 K. 14 M. was comprised in Khasra No. 13599, 15 K. 8 M. in Khasra No. 13600 whereas 10 K 13 M. in Khasra No. 13601. Vide Sale deed dated 11.4.1959, the aforesaid persons sold land measuring 34 K. to the petitioner Remaining land i.e. 12 K. 15 M. was sold to the respondents. There is some confusion with regard to land measuring 2 Marlas. However, parties to the litigation are not raising any dispute with regard to land measuring 2 Marlars Mutations regarding both these sales were sanctioned. Mutation No. 108 was sanctioned in favour of the petitioners whereas mutation No. 115 was sanctioned in favour of the respondents, in the years 1962-63 consolidation took place in the village and new area was carved out and new numbers were given. After consolidation, land measuring 28 K. 4 M. fell to the share of the petitioners whereas land measuring 10 K. 9 M. came to the share of the respondents. Respondents, on 30.4.1981, made an application u/s 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation Act, 1948 (hereinafter referred to as the Act) to the Additional Director, Consolidation of Holdings, Punjab. This was followed by second application dated 8.9.1981 In these applications, a grievance was made by the respondents that major portion of the area was within the municipal limits and, the before, was reserved area and the possession of the parties was not to be disturbed. The other grievances were that the entire frontage had been allotted to the petitioners; no passage to the land of the petitioners has been provided, the tak of the petitioners was in haphazard manner and not fit for any use. Notice of the application was given to the petitioners who contested the same on various grounds including the ground of limitation. In the application u/s 42 of the Act, respondents had also given an explanation for making the same belatedly. The explanation given was that Gurbachan Singh, predecessor in interest of the present respondent was in the Army and while he was on active duty, possession was taken by the petitioners which was not according to the Scheme. On return from the Army, he moved an application for restoration of the possession. The Additional Director, Consolidation, after hearing both the parties, condoned the delay in filing application u/s 42 of the Act and necessary relief as prayed for was given. The respondents were given 25 Karams from Kotkapura on the northern side and the petitioners were given 67 Karams on the southern side. Similarly, taks of the respondents in the reserved area were carved out on the northern side and that of the petitioners on the southern side. Both the taks of the petitioners were to fall on the southern side of the land. It was also held that the land which had been sold by the petitioners to third person would remain within the tak of the petitioners as was prayed for by them. After passing of this order, the petitioners instead of challenging the same in the writ petition, filed civil suit for declaration and injunction to the effect that they were owners-in-possession of the land measuring 28 K. 4 M. comprised in certain khasra numbers, details of which find mention in the plaint. In the said civil suit, injunction was also sought for restraining the respondents from taking possession of the land which was given to them under the order of the Additional Director, Consolidation. The order of the Additional Director was also challenged that the same was without jurisdiction inasmuch as the Additional Director was not entitled to decide the question of title as the order was against the Scheme and if the Scheme was to be amended, the same had to be brought to the notice of the public which was not done while passing the order. An objection was also taken that the Additional Director was not competent to condone the delay in making application u/s 42 of the Act.

Suit was also contested by the respondents on merits, who also raised preliminary objection with regard to jurisdiction of the civil Court to entertain the suit. The precise objection was that the Civil Court had no jurisdiction to go into the question of validity of the order passed by the Additional Director as the jurisdiction of the Civil Court is barred u/s 44 of the Act.

On the pleadings of the parties, the trial Court framed many issues including the issue with regard to jurisdiction which was treated as a preliminary issue Parties were given opportunity to lead documentary evidence as the parties were agreeable that the issue can be decided on documentary evidence. The trial Court, on the basis of the documents brought on the record, decided the issue in favour of the respondents and accordingly it was held that the civil Court has no jurisdiction to entertain the suit as the same is barred u/s 44 of the Act. This order was affirmed in appeal. These orders are now being challenged here through this civil revision.

After hearing the learned counsel for the parties at length and on perusal of the documents referred to by counsel for the parties, I find no merit in this civil revision. Perusal of the Sale Deed in favour of the petitioners shows that what was sold was not a specific or particular piece of land but was a share in the entire holding. Petitioners were entitled to land on the road according to their share but on consolidation, they got the entire land allotted to them on the road side whereas land allotted to the respondent was on the back side. The order of the Additional Director, Consolidation also reveals that no provision was made forgoing to the land of the respondent which was on the back side. The taks of the petitioners were also in a zig zag and haphazard manner. The Additional Director, Consolidation corrected this, error which he was competent to so go in exercise of his powers u/s 42 of the Act. The petitioners cannot now make a grievance that the order of the Additional Director, Consolidation is bad in law. It is not the case of the petitioners that the Additional Director, Consolidation did not afford them proper opportunity of hearing. In this view of the matter, I am of the view that jurisdiction of the Civil Court was rightly held to be barred u/s 44 of the Act.

I also find no merit in the contention that application u/s 42 of the Act was barred by time Rule 18 of the Rifles, reference to which was made by counsel for the petitioners, has no application to the facts of the present case. Before the Additional Director, Consolidation, no specific order passed by any of the Authorities under the Act was challenged. The challenge was that the allotment of land made during consolidation was not in accordance with the Scheme. Rule 18 of the Rules provides a limitation of six months for making an application u/s 42 of the Act from the date of order passed against which it is filed. Rule 18 was interpreted by Full Bench of this Court in Jagtar Singh Vs. Additional Director, Consolidation of Holdings Jullundur and Another, . The Full Bench approved the decision in Haqiqat Singh v. Additional Director (1981)83 P.L.R. 472 (F.B.), wherein it was held that the bar of limitation would not operate when a petition is filed impugning only the Scheme prepared or confirmed or repartition made by any Officer and not any specific order of any of the Authorities passed under the Act. The word "order" as used in Rule 18 was interpreted and it was held that the preparation or confirmation of a scheme and the repartition carried out would not fall within the scope of the word "order." The Supreme Court in Gram Panchayat v. Director, Consolidation of Holdings J.T 1989 (4). 357. approved the Full Bench decision in Jagtar Singh''s case (supra)

In view of these authoritative pronouncements, under any circumstances, it cannot be held that the petition was barred by time. Consequently, this civil revision is dismissed with no order as to costs.