Roda and Another vs Bir Singh etc.

R.S. Pathak, C.J.—This is a Defendants'' second appeal arising out of a suit for possession and damages.

The Respondents filed a suit for possession of land measuring 14 biswas bearing khasra No. 126/1 situated in village Chhambla, Tehsil Nahan. It was alleged that the land had been allotted to them as tenants in consolidation proceedings, and that the Defendants, who were previous tenants of that land had been allotted in lieu of it another parcel of land measuring 19 biswas bearing khasra No. 124/1 and 127. It was pleaded that the Plaintiffs had been put in possession of the land allotted to them, but subsequently on July 29, 1965, the Defendants had illegally dispossessed them. Hence the suit for possession and damages.

The suit was resisted by the Defendants on the ground, inter alia, that the land had been in their possession continuously, and possession had never been delivered to the Plaintiffs.

The trial court found that the Plaintiffs had not been put into possession of the land during the consolidation proceedings and accordingly dismissed the suit.

On appeal by the Plaintiffs, the learned Additional District Judge confirmed the finding that the Plaintiffs had not established delivery of possession to them during the consolidation proceeding, but proceeding on the view that the Plaintiffs'' title had not been disputed in view of the order made by the Director, Consolidation of Holdings, he held that the Plaintiffs were entitled to possession on the basis of their title. An objection was raised by the Defendants to the maintainability of the suit by reference to Section 40 of the Himachal Pradesh Consolidation of Holdings Act, 1953, which provides against the institution of a suit in a civil court with respect to any matter arising out of the consolidation proceedings or with respect to any other matter in regard to which a suit could be filed under the provisions of the Himachal Pradesh Consolidation of Holdings Act. The learned Additional District Judge declined to entertain the objection on the ground that for the purpose of deciding it, it was necessary to determine the finding of fact whether the consolidation proceedings were over when the suit was instituted, and as the objection had not been raised before the trial court, no finding of fact had been rendered and it was not open to the Defendants to raise their objection for the first time in appeal. In the result, the learned Additional District Judge allowed the appeal, set aside the decree of the trial court and decreed the Plaintiffs'' suit for possession and damages with Rs. 40/- as mesne profits. The Plaintiffs now appeal.

Learned Counsel for the Appellants contends that the view taken by the learned Additional District Judge that the Respondents were entitled to possession on the basis of their title is erroneous. It is urged that in consolidation proceedings a tenure holder acquires title to the land allotted to him only when he enters into possession of the land. Reliance is placed on Bhagat Ram and Others Vs. State of Punjab and Others, . In that case, the Supreme Court was called upon to consider the question whether under the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, possession was a necessary condition before title in the land could vest in the allottee in consolidation operation. The Supreme Court, relying on the scheme embodied in Sections 23A and 24 of that Act, held that possession was necessary before title could be acquired. I have also been referred to Bhikhan Bobla and Ors. v. The Punjab State and Ors. AIR 1963 Pun. 255. Chahat Khan Bhadur Khan and Ors. v. The State of Punjab and Ors. AIR 1966 Pun. 111 and Mar Singh Mansoor Singh and Ors. v. State and Anr. AIR 1967 Pun. 111. In Bhikhan Bobla and Ors. (supra) a Full Bench of the Punjab High Court held that there was no authority to revoke the scheme of consolidation without notice to the parties interested who had already entered into possession in accordance with the scheme and after the preparation of the new record of rights. The Punjab High Court followed this decision subsequently in Chahat Khan Bhadur Khan (supra) where it was specifically observed that the consolidation scheme came into force with the delivery of possession to the allottees. Both the aforesaid cases were referred to in Mar Singh Mansoor Singh (supra).

Learned Counsel for the Respondents contends that although under the East Punjab Act the position may be that title to the allotted land docs not pass until the delivery of possession but the situation is different under the Himachal Pradesh Act. It is pointed out that while the relevant provisions under the Himachal Pradesh Act are Sections 19, 20 and 21. there is no provision corresponding to Section 23A of the East Punjab Act. Now, although the language is not identical, Section 21 of the Himachal Pradesh Act corresponds substantially with Section 23A of the East Punjab Act. Section 19 of the Himachal Pradesh Act confers the right to possession in the new holding, and Section 20 declares that as soon as the persons entitled to possession of the holdings have entered into possession thereof the scheme would be deemed to have come into force. Section 21 provides that with effect from the date from which a tenure holder enters into possession of the plots allotted to him, his right, title and interest in his original holdings will be extinguished and he will have the same right, title and interest specified in the final consolidation scheme in the plots allotted to him.

It is plain that the extinction of the rights of a tenure holder in the original plots must be simultaneous with the acquisition of rights in the new holdings. The law does not contemplate a hiatus between the extinction of rights in the original holdings and the acquisition of rights in the new holdings, nor does it contemplate that a tenure holder will enter into the enjoyment of his right, title and interest in the new holdings and also continue to enjoy his original holdings. The only reasonable way to look at it is that a tenure holder loses his right, title and interest in the original holdings and at the same time acquires right, title and interest in the new holdings.

Learned Counsel for the Respondents has referred me to the view taken by the Patna High Court in Tribeni Prasad Singh and Others Vs. Ramasray Prasad Chaudhari and Others, in support of the ... proposition that possession follows title, and for the acquisition of title it is not necessary to perfect it by obtaining possession. The Patna High Court was not concerned with a case under the Himachal Pradesh Consolidation of Holdings Act, where a scheme under which right, title and interest are acquired in the new holdings is different from the general law.

I am of the view that having regard to the scheme set out in the Himachal Pradesh Act a tenure holder acquires right, title and interest in the new holdings only upon his entering into possession of the plots allotted to him. Accordingly, I hold that inasmuch as the Respondents did not enter into possession during the consolidation proceedings, they did not acquire any right, title or interest in the plots allotted to them. It may be observed that in Kartar Singh v. Lal Singh etc. 1972 CL.J. 637 the Punjab High Court has taken the view that it is not necessary for a tenure holder to apply for delivery of possession as a result of re-partition proceedings under a scheme of consolidation, and it is the duty of the Consolidation Officer to deliver possession to him.

An attempt was made by learned Counsel for the Respondents to show that the Respondents were in possession and that the finding to the contrary of the learned Additional District Judge is erroneous. Having considered the material on the record, including the oral and documentary evidence, it seems to me abundantly clear that the Respondents have failed to establish that possession was delivered to them during the consolidation proceedings. I agree with the concurrent findings of fact rendered by the courts below in this regard.

In my judgment, the appeal must succeed.

The appeal is allowed, the judgment and decree of the learned Additional District Judge are set aside and the suit is dismissed with costs throughout.