Partap Singh and Others vs Ranjit Singh and Others

B.S. Yadav, J.—This is Plaintiffs'' appeal arising out of a suit filed by them for a declaration that they were owners of the suit land measuring 44 Kanals 3 Marias, situated in village Bari. According to the allegations in the plaint, the Plaintiffs had purchased the suit land along with some other land from Defendant No. 7 Salig Ram by means of a registered sale deed dated 28th September, 1965 and since then they were in possession of it. Mutation No. 449 was also sanctioned in their favour on 27th December, 1966. The suit land had been allotted to Salig Ram in consolidation proceedings. On a time barred application of one Rama Nand, the Assistant Director (Consolidation), on 23rd June, 1967 passed an order remanding the case to the Consolidation Officer. Narnaul, for reviewing the whole allotment made during the consolidation proceedings. The Consolidation officer, vide order dated 20th July, 1967, ordered withdrawal of the suit land from the ownership of Salig Ram after holding that more land than was due to him (i. e. Salig Ram) had been allotted to him. In appeal the said order was confirmed by the Settlement Officer (Consolidation) on 27th December. 1967.

It was further averred that the Consolidation Authorities had become functus officio lord before the sale of the suit land by Salig Ram in favour of the Plaintiffs as consolidation proceedings had been completed and the possession of the allotted land had been transferred to the respective owners. Thus the Consolidation Authorities had no authority to withdraw the suit land from the ownership of Salig Ram Defendant and, therefore the above order was not binding upon them. Moreover, the order of the Consolidation Officer (Consolidation) dated 20th July, 1967 was passed at the back of the Plaintiffs. Under the orders of the Consolidation Authorities, Defendants No. 1 to 3 were trying to eject the Plaintiffs from the suit land and hence the suit.

Defendants Nos. 1 to 6 contested the suit and pleaded that Salig Ram, Defendant No. 7 had been wrongly allotted the suit land and the Consolidation Authorities rightly withdrew it from his ownership. The Plaintiffs were given full opportunity to present their case by the Consolidation Authorities before the impugned orders were passed. Salig Ram had sold his share in the joint Khewant before the consoldation proceedings. They (i. e. Defendants) were owners and in possession of the suit land.

The contesting Defendants also took up certain other pleas as will be clear from the following issues framed by the learned Sub Judge 1st Class, Chakhi Dadri, who tried the case:

Whether the Plaintiffs are in possession of the suit land ? If not, its effect on the maintainability of the suit in present form ?

Whether the Plaintiffs are owners of the suit property ?

Whether this Court has no jurisdiction to entertain the suit ?

Whether the Plaintiffs are estopped from filing the suit, as alleged in para 5 of the additional pleas in the written statement ?

Whether the Plaintiffs have waived their right to file suit, as alleged ?

Whether the Defendants are entitled to recover special costs u/s 35-A, C. P. C. ?

Whether the suit is properly valued for purposes of court fee and jurisdiction ?

Whether the orders of the the Consolidation Officer dated 20-7-1967, and the order of the Settlement Officer dated 27.12.1967 and that of the Assistant Director Consolidation dated 23.6.67 are illegal, null and void, and without jurisdiction, as alleged ?

Whether the suit is within limitation ?

Whether the vendee-Defendants 1 to 6 are bona fide purchasers of the suit land for consideration, and if so, its effect ?

Whether the suit is bad for non-joinder of necessary parties as alleged in para 7 of the additional plea of written statement ?

Whether the suit is liable to be stayed as alleged ?

Whether the suit has abated as alleged.

Whether issue No. 13 can be raised in view of the order of the Court dated 18.6 1971 on the application of Plaintiffs ?

Relief.

Under issue No. 1 it was held that the Plaintiffs were in possession of the suit land, issues No. 2 and 8 were discussed together and it was held that as one of the Plaintiffs was present when, the Assistant Director (Consolidation) passed the remand order, there was sufficient and effective representation on behalf of the Plaintiffs. For this finding reliance was placed upon Tej Pal v. The State of Punjab and Ors. 1970 P. L. J. 654. Under issue No. 3 it was held that the Plaintiffs had challenged the validity of the order before the authorities prescribed under the East Punjab Holdings (Consolidation and Fragmentation) Act. 1948 (for short the Act) and there was no inherent defect or lack of jurisdiction in the authorities who passed these orders. Therefore, in view of Section 44 of the said Act, the jurisdiction of the Civil Court was barred. Under issues No. 4 and 5 it was held that the suit filed by one Maru against the Plaintiffs and others including Salig Ram challenging the validity of the impugned orders in so far as those affected his rights, was contested by the Plaintiffs and ultimately it resulted in its dismissal, therefore, the Plaintiffs could not be allowed to approbate and reprobate on a particular matter and as they had defended the impugned orders in that suit, they could not be allowed to challenge their validity in the present suit and thus were estopped from filing the suit Issues No. 6, 7 and 10 to 14 were found against the Defendants. Under issue No. 9 it was held that the Plaintiffs were essentially challenging the order of remand dated 23rd June, 1967 passed by Assistant Director (Consoldiation) and as the Plaintiffs were party to that order, they could challenge it only within a period of one year in view of Article 100 of the Limitation Act and as the present suit was filed on 13th July, 1968 it was barred by time. As a result of the above findings the Plaintiffs'' suit was dismissed.

Feeling aggrieved, the Plaintiffs filed an appeal which was heard by learned Senior Subordinate Judge (with Enhanced Appellate Powers), Bhiwani before whom only the following points were raised on their behalf:

That the finding of the learned Subordinate Judge on issue No. 9 regarding the limitation was wrong,

That the learned Subordinate Judge failed to take note of the fact that the Plaintiffs were not parties to the proceedings before the Consolidation Authorities vide which the allotment of the suit land in favour of Salig Ram was cancelled.

That the Consolidation Authorities did not afford an opportunity of hearing to the Plaintiffs and no notice was given to them.

That the orders of the Consolidation Authorities setting aside the allotment in favour of Salig Ram was bad, as it was passed after the expiry of limitation.

The learned lower Appellate Court found the first point in favour of the Plaintiffs on the ground that at best the threat to their possesssion commenced on 23rd June, 1967 and as they had applied for copy of that order on 1st December, 1967 and it was prepared on 27th December, 1967, so the period of 27 days was also to be allowed to the Plaintiffs for computing the period of limitation and therefore, the present suit which was filed on 30th July, 1968 was within limitation as it was filed within one year from the date of the said order. (That finding obviously appears to be incorrect. Even if the period of 27 days which was spent by the Plaintiffs in obtaining copy of the order dated 23rd June, 1967 passed by the Director (Consolidations), was allowed to the Plaintiffs, one year had expired before the filing of the suit). It may be mentioned here that the learned lower Appellate Court further held that the case was governed by Article 58 of the Limitation Act and the limitation would run from the date when the land was finally allotted on 20th July, 1967, vide order Ex. D1, to the predecessors-in-interest of the contesting Defendants. Consequently, finding under issue No. 9 given by the learned trial Court was set aside and that issue was found in favour of the Plaintiffs. On points No. 2 and 3 it was held that the Plaintiffs were represented by Hoshiar Singh Plaintiff before the Consolidation Authorities and therefore, it could not be said that they were not party to the proceedings before those authorities. Thus, those points were decided against the Plaintiffs. Under point No. 4 it was held that the Plaintiffs did not raise the question of limitation before the concerned officers and therefore, they were estopped from challenging order dated 23rd June, 1967 on the ground that it was passed on a time-barred application. It was further held that as the dispute between the parties had basically arisen on account of the proceedings under the Act, so the jurisdiction of the Civil Court was barred u/s 44 of the Act. As a result of the above findings, the appeal of the Plaintiffs was dismissed. The Plaintiffs have now come to this Court in second appeal.

The learned Counsel for the Appellants argued that Salig Ram vendor of the Plaintiff had not sold his whole share before the consolidation proceedings were commenced in the village and, therefore, he conveyed valid title to the Plaintiffs when he sold the suit land to them vide sale deed dated 28th September, 1985. I am of the opinion that this argument cannot be raised at this stage. This point was not raised either before the trial Court or before the lower appellate Court. This argument mainly depends on the appreciation of the fact and, therefore, cannot be allowed to be raised at this stage. As noticed earlier, only four points were raised before the lower Appellate Court. Those points have already been reproduced above.

The learned Counsel for the Appellants argued that the Plaintiffs have in the the instant case sought a declaration about their title and the prayer that the orders dated 20th July, 1967 passed by the Consolidation Officer, dated 27th December, 1967 passed by the Settlement Officer and dated 23rd June, 1967 passed by the Assistant Director of consolidation of Holdings were wrong, ultra vires and without jurisdiction and the Civil Court has jurisdiction to entertain the suit and the learned lower appellate Court has wrongly held that the jurisdiction of the Civil Court was barred u/s 44 of the East Punjab Holdings (Consolidation and prevention of Fragmentation) Act, 1948 (for short the ''Act''). He has relied upon Tarn Chand v. Rattan 1977 P. L. J. 390, wherein it was held that the suits for the determination of the title of the parties were not barred u/s 44 of the said Act as the Civil Court alone had the jurisdiction to determine and not the consolidation authorities. However, as noticed earlier, it is not a simple suit for declaration of title. In the present case, the Plaintiffs virtually are seeking the setting aside of the orders passed by the consolidation authorities who have held that Salig Ram had already sold the land comprised in the joint Khewat in excess of his share and, therefore, he was wrongly allotted land during the consolidation proceedings. As noticed earlier, the sale was effected by Salig Ram in favour of the Plaintiffs after the said land had been allotted to him during those proceedings. Section 44 of the Act reads as follows:

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

The learned Counsel for the Appellants could not urge before me that the Consolidation Authorities had no jurisdiction to decide the question if Salig Ram had been wrongly allotted land during consolidation proceedings. As noticed earlier, Rama Nand filed an application u/s 42 of the Act which was heard by the Assistant Director (Consolidation), with powers u/s 42 of the Act. Vide order copy Exhibit P-6, the said officer accepted the application and remanded the case to the Consolidation Officer with the direction that the shortage in the area of Rama Nand should be removed. Thereafter the Consolidation Officer passed the order dated 20th July, 1967, copy Exhibit D.1. Feeling aggrieved against the order, the Plaintiffs filed an appeal before the Settlement Commissioner who vide order dated 27th December, 1967, copy Exhibit P.4, dismissed the same. This order shows that Salig Ram had purchased the land which he had sold to the Plaintiffs and others from Ramdev, Pehlad and Nanhar vendors who had a joint Khewat prior to consolidation. Though these persons had rightly sold their land according to the ordinary area which was due to their share but according to the valuation they were entitled to less area. The Plaintiffs being the last vendees, they had to surrender the excess area. The said Officer apprised the Plaintiffs to seek their remedy u/s 42 of the Act for getting joint khewat as they had suffered a lot due to the partition of this Khewat. He dismissed the appeal of the Plaintiffs. The Plaintiffs filed an application u/s 42 of the Act but that too was dismissed by the Additional Director Consolidation of Holdings vide order, copy Exhibit D.4, holding the Plaintiffs to be the last vendees.

The learned Counsel for the Appellants argued that the Additional Director had no authority to entertain the application filed by Rama Nand u/s 42 of the Act as it was filed a couple of years of the finalisation of the consolidation scheme. According to him, such an application could be filed within six months from the date of the impugned order. He placed reliance on Rule 18 of the Act. Reliance was also placed on Kesho Ram v. Additional Director, Consolidation of Holdings, Haryana 1979 P. L. J. 382 to show that the delay in the filing the application could be condoned only if there were good reasons for not moving the petition earlier. In the present case Rama Nand was not challenging any particular order of the Consolidation authorities. He was challeging the repartition. In Haqiqat Singh v. The Additional Director Consolidation of Holdings, Punjab, Chandigarh (1981) 83 P.L.R. 472, a Division of this Court remarked:

Thus a reading of Section 42 reproduced above itself as well as the scheme of the Act as analysed above and the two judgments of this Court referred to above unmistakably point out that the statutes make a clear-distinction between an order passed by an officer under the Act and the performance of duties by the authorities under the Act in the matter of preparation and confirmation of scheme of consolidation and the repartition made in pursuance thereof. So it cannot possibly be held, as is maintained by the learned Counsel for the Petitioner, that preparation or confirmation of a scheme and the repartition carried oat would fall within the scope of ''order as used in Rule 18 of the Rules. The rule as it stands at the moment does not come into play when a Petitioner challenges either the scheme of consoldation including its preparation or confirmation or the repartition made in pursuance thereof.

Therefore, in such circumstances it is futile to argue that Rama Nand''s application was barred by time. It is to be noted that Hoshiar Singh one of the Plaintiffs had appeared and he did not raise the question of limitation. I may also quote here Additional Director (1) Consolidation of Holdings, Punjab and Anr. v. Raghwant Singh 1970 Curr. L. J. 318, wherein it was remarked:

In any event we are bound by the earlier three Division Bench judgments referred to above, and following the same, we must hold that the question of limitation not having been raised before the Additional Director, it was not open to the writ Petitioners to raise the same for the first time in the writ petition. The impugned order u/s 42 of the Act was quashed by the learned Single Judge solely on the ground of limitation and as we have held that it is not open to this Court to allow the question of limitation being raised for the first time in certiorari proceeding, we have to accept this appeal and to set aside the order of the learned Single Judge.

Learned Counsel for the Appellants next argued that in the application fifed by Rama Nand u/s 42 of the Act, no notice was given to the Plaintiffs. As noticed earlier, Hoshiar Singh had appeared before the Additional Director, Consolidation of Holdings. After the case was reminded, the Plaintiffs took part in the proceedings and they also filed an appeal against the order of the Consolidation Officer. Thereafter they filed another application u/s 42 of the Act. Appearance of one of the co-sharers before the Consolidation authorities is sufficient representation on behalf of the persons who had joint interest with him. In this respect reference can be made to Biru v. Suraj Bhan (1983) 85 P.L.R. 586 (F.B.), wherein it was remarked:

As discussed at some length earlier, the Consolidation Act does not envisage any formal impleading of all the co-sharers under Sections 21 and 42 of the Act. Therefore, to read the requirement of a co-sharer being first necessarily impleaded before he can be effectively represented by another, would be untenable and contrary to the prescription of the statute itself. This apart, if once it is accepted as a sound principle that a hearing to one of the co-sharers would be effective representation to all the body of co-sharers, then it seems to be futile to make the further distinction, namely ; whether all the co-sharers must be impleaded as parties or not. The very idea and purpose of formally impleading the parties in a case to serve all of them and afford them an opportunity of hearing. If one of the co-sharers can effectively represent the whole body and an adequate hearing to him would bind the others, then the requirement of impleading each and every member of the body of co-sharers would obviously be an exercise in futility. In deed, any such concept of impleading all the co-sharers, first as parties to the proceedings, seems to run counter to the basic principle of effective representation by one co-sharer on behalf of the others.

Of course, Hoshiar Singh has stated that no notice of the proceedings u/s 42 of the Act was issued to him but he doss not appear to be a reliable person. He is an interested person. I am not going to believe that he did not appear before the Additional Director of Consolidations of Holdings. His presence is recorded in the order. It is also not the case of Hoshiar Singh, Plaintiff, that he had appeared before the said officer by chance. The onus was upon him to show that the said order was passed by the Additional Director without notice to any of the Plaintiffs. It would not be out of place to mention here that in the plaint there is no allegation to the effect that the Additional Director had passed the order without notice to the Plaintiffs. The main plea taken by them was that as the consolidation proceedings had come to an end, the Additional Director of Consolidation of Holdings had become functus officio.

For the foregoing reasons it is clear that there is no infirmity in the various orders passed by the consolidation authorities, referred to above. I may mention here that in the instant case, for reasons best known the Plaintiffs they had not challenged the order copy Exhibit D.4 dated 3rd October, 1968 passed by the Additional Director, Consolidation of Holdings, on the Plaintiffs'' application filed u/s 42 of the Act.

The Plaintiffs have also filed an application (being Civil Misc. 3152-C of 1983) under Order 41 Rule 27, CPC Code, for permission to produce Khatauni Chak Bandi. By this document the Plaintiffs want to prove that Salig Ram was rightly allotted the land in consolidation proceedings as in fact his other co-sharers had sold the land in excess of their shares in the joint Khewat. It has already been noticed earlier that the Plaintiffs had not raised the question in the courts below that Salig Ram had been rightly allotted suit land in consolidation proceedings and that it had been wrongly withdrawn. In the absence of the co-sharers in the Khewat, which was earlier joint, it cannot be determined that how much land in the joint Khewat. Salig Ram or his vendors were entitled to and how much land they had sold prior to the consolidation proceedings Hence, the Plaintiffs cannot be allowed to set up a new case in the garb of production of this document at this stage.

Moreover. Khatauni is not a document of title and no presumption of truth is attached to it. In case, the Plaintiffs are allowed to lead additional evidence, they will have to prove all the sales effected by the other co-sharers. Thus, no useful purpose will be served by admitting this evidence. Further, there is no explanation why this document could not be produced at the time of the trial of the suit. Hence the application for additional evidence is liable to be rejected and I order accordingly.

For the foregoing reasons I do not find any force in the present appeal and the same is hereby dismissed. In the circumstances of the case, the parties are directed to bear their own costs.