Shyam Lal vs Sarabjit (Dead) reptd.by LRs.

R.L. Anand, J.—The appellants of the present appeal remained unsuccessful both in the trial Court as well as in the first appellate Court and have filed the present R.S.A. which has been directed against the judgment and decree dated 18.11.1991 passed by the Additional District Judge, Faridabad, who affirmed the judgment and decree dated 19.2.1987 passed by the Court of Sub Judge Ist Class, Palwal.

Brief facts of the case are that plaintiffs Sham Lal and others filed a suit praying that a decree for declaration be passed in their favour and against the defendants Sarabjit and others to the effect that the order dated 29.5.1980 passed by the Assistant Collector 2nd Grade and the order dated 9.4.1981 passed by the Collector and further the order of Additional Director, Consolidation of Holdings dated 29.9.1981 and the order dated 15.2.1983 of the Consolidation Officer are illegal, unconstitutional and without jurisdiction and that the plaintiffs are in possession of the land in dispute belonging to Sham Lal Patti Brahman, which was allotted to the plaintiffs during the consolidation on account of their possession over the old Khasra numbers and that a decree for permanent injunction be passed in favour of the plaintiffs and against the defendants restraining them from dispossessing the plaintiffs from the land in suit.

It is alleged by the plaintiffs that due to the change of course by river Yamuna certain land came to the share of Patti Brahman in the last 10 to 15 years before the institution of the suit which was instituted on 10.3.1983. There was a separate litigation between Patti Brahman and Patti Thakuran as to who should get that land which was added to village Bhagpur Khurd due to the change of course by the river and ultimately it was decided by the Civil Court that the land would go to Patti Brahman. Consolidation in village Bhagpur Khurd started in the year 1975 and a scheme was drawn according to which it was decided that whosoever was sitting in possession of the land in dispute falling to Patti Brahman would be allotted that land after the consolidation. The Khasra No. 1044 entry regarding 96 Bighas 6 Biswas of land was `Maqbuza Malkan'' in Rabi 1977. On 9.4.1978 entry regarding 20 Bighas was made in the name of Jag Ram plaintiff No. 8 as Ghair Marusi and regarding 76 Bighas 16 Biswas the entry continued as Maqbuza Malkan. According to Khasra Girdawari from the year 1974 to the year 1978 in Khasra No. 1028, 1029, 1035 and 1044 the names of the plaintiffs were shown in the column of `possession''. The names of the defendants did not figure in Khasra Nos. 1028, 1029 and 1035. However, in Khasra No. 1044 the defendants were shown to be the owners in possession of 8 Bighas Pukhta. On the basis of the possession, the Consolidation Department on 10.10.1978 prepared the Girdawari and allotted 8 Bighas of Pukhta land to the defendants in Khasra No. 1044 and regarding the other portion of land comprised in Khasra No. 1044 the names of the persons who were found to be in possession as owners, were put in possession and the same was allotted to them including the plaintiff. However, the defendants made an application on 9.1.1978 for the correction of Khasra Girdawari regarding Khasra Nos. 1026, 1028, 1035 and 1029 measuring 33 Bighas and 15 Biswas of Pukhta land claiming therein that they were in possession and the Khasra Girdawari should be changed accordingly, whereas there was no mention of Khasra No. 1044 in that petition. The Assistant Consolidation Officer exercising powers of Assistant Collector 2nd Grade vide order dated 29.5.1980 ordered that Khasra Girdawari be changed and thus the names of the defendants appeared in the Khasra Girdawari in terms of the aforesaid order. In the above petition for correction of Khasra Girdawari the required correction for 33 Bighas 15 Biswas as was the prayer of the defendants before the Assistant Collector 2nd Grade, whereas the learned Assistant Collector IInd Grade ordered for correction of 46 Bighas 16 Biswas of the land, out of Khasra Nos. 1026, 1028, 1029, 1035 and 1044. According to the plaintiffs, this correction was made by the Assistant Collector IInd Grade on the basis of some alleged spot inspection which was carried out by him in the absence of the plaintiffs, on the alleged date, i.e. on 4.4.1980. The plaintiffs alleged that the spot inspection dated 4.4.1980 was illegal, unconstitutional and without jurisdiction because the old Khasra numbers were not in existence on the said date as new numbers had taken place in lieu of the old Khasra numbers and thus the plaintiffs were allotted and were put in possession of the new Khasra numbers, which were carved out in lieu of the old Khasra numbers on 29.10.1979 and 2.11.1979. The plaintiffs filed an appeal against the order of the Assistant Collector IInd Grade before the Collector, Palwal, who vide order dated 9.4.1981 dismissed the appeal of the plaintiffs and affirmed the order of Assistant Collector IInd Grade. The defendants filed a petition under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmenting) Act, 1948 (for short `the Act'') before the Additional Director of Consolidation for allotment of the land on the basis of possession over Khasra Nos. 1028, 1029, 1035 and 1044 totalling 46 Bighas 16 Biswas. The plaintiffs further pleaded that the Additional Director of Consolidation vide order dated 29.2.1981 ordered the defendants be given possession of 38 Bighas 11 Biswas apart from 8 Bighas Pukhta which had already been allotted to the defendants and thus the total holdings of defendants would come to 46 Bighas and 16 Biswas. The plaintiffs alleged that the order of the Additional Director of Consolidation dated 29.9.1981, the order of the Collector dated 9.4.1981 and the order of the Assistant Collector IInd Grade 29.5.1980 as well as the order dated 15.2.1983 passed by the Consolidation Officer are illegal, unconstitutional and without jurisdiction and are against the provisions of the Act and the principles of natural justice.

According to the plaintiffs they were in possession of the disputed land right from 1974 to 1978 and in these circumstances they were entitled to the possession of the same after the consolidation. The allotment was made to the plaintiffs on the basis of the entries of the revenue record. The possession was delivered to them on 29.10.1979 and on 2.11.1979 and in these circumstances the spot inspection allegedly made on 4.4.1980 was meaningless. Moreover, it was made at the back of the plaintiffs. In short the case set up by the plaintiffs in the trial Court was that new Khasra Numbers had been carved out and on the basis of their old possession, the land in dispute was handed over to them. The consolidation had already taken place in the village and in these circumstances the orders passed by the Assistant Collector GradeII, Collector and Additional Director Consolidation were illegal, null and void and against the principles of natural justice.

The suit was contested by the defendants who took the preliminary objections in the written statement to the effect that the plaintiffs had no locus standi to file the suit; that the suit is bad on the principles of resjudicata because earlier the plaintiffs filed Civil Writ Petition No. 810 of 1982 in the High Court which was dismissed; that the suit is bad for nonjoinder of necessary parties; that the suit is not maintainable in the present from; that the suit is not properly valued for the purpose of Courtfee and jurisdiction; that the Civil Court has no jurisdiction to try the suit; and the suit is timebarred. On merits the stand of the defendants is that they were in cultivating possession of Khasra Nos. 1028, 1029, 1035 and 1044 and they were in cultivating possession of 35 Bighas Pukhta in Khasra No. 1035 and 29 Bighas and 16 Biswas from Khasra No. 1044 and 10 Bighas Pukhta from Khasra No. 1028. The revenue authoritis inspected the spot during consolidation proceedings and allotted the land to the persons including the defendants according to the actual possession over the properties after hearing the parties. The defendants were allotted the area of Khasra Nos. 1028, 1035 and 1044 according to the ratio proportion on the basis of possession of the defendants. The defendants made application for the correction of Khasra Girdawaries before the Assistant Collector GradeII. The spot was inspected in the presence of the parties and Additional Consolidation Officer exercising the powers of Assistant Collector GradeII decided the application in favour of the defendants on 29.4.1980. The order of the Assistant Collector GradeII was affirmed by the Collector and was also affirmed by the Additional Director, Consolidation vide different orders. The plaintiffs had no case. In short the defence of the defendants is that during the operation of the scheme of the consolidation in the village, the application for the correction of Khasra Girdwari was made. The actual spot was inspected by the Revenue Authorities and thereafter the authorities came to the conclusion that the defendants were in possession of the land in dispute and they were given possession and allotted the land on account of their previous possession. Under these circumstances the Civil Court has no jurisdiction to try the suit.

The plaintiffs filed replication to the written statement in which they reiterated their allegations made in the plaint by denying those of the written statement and from the above pleadings of the parties the learned trial Court framed the following issues :

Whether the plaintiffs are in possession of the suit land given in AnnexureB appended with the plaint as alleged ? OPD.

Whether the orders dated 29.5.1980, 9.4.1981 and 29.9.1981 and 15.2.1983 of A.C.II.G., Collector and Additional Director Consolidation of Holding and Consolidation Officer respectively are illegal, without jurisdiction and are liable to be set aside ? OPP.

Whether the Civil court has no jurisdiction to try the present suit ? OPD.

Whether the suit is barred by principles of res judicata ? OPD.

Whether the plaintiffs have no locus standi to file the present suit ? OPD.

Whether the suit is not maintainable in the present form ? OPD.

Whether the suit is barred by limitation ? OPD.

Whether the suit is bad for nonjoinder of necessary parties ? OPD.

Relief.

The parties led oral and documentary evidence in support of their case and on the conclusion of the trial, issues Nos. 1, 2 and 3 were decided against the plaintiffs. Issues Nos. 4 to 8 were decided against the defendants and finally the plaintiffs were nonsuited due to the findings which went against them under issues Nos. 1, 2 and 3.

The plaintiffs filed an appeal before the Court of Additional District Judge, Faridabad, who vide the impugned judgment dated 18.11.1991 affirmed the findings of the trial Court and dismissed the appeal before him.

Aggrieved by the judgments and decrees passed by the trial Court as well as the first appellate Court, the plaintiffs have filed the present appeal.

I have heard Shri Jagan Nath Kaushal, Senior Advocate, assisted by Shri A.K. Mittal, Advocate, on behalf of the appellants, and Shri K.G. Chaudhary, Advocate, on behalf of the respondents, and with their assistance have gone through the record of this case. Before me the appellants have challenged the findings on issues Nos. 1, 2 and 3 and I shall confine myself to these issues only.

Assailing the findings on issues Nos. 1, 2 and 3 of the Courts below it was vehemently urged by the learned counsel for the appellants that the Courts below fell in error in relying upon the impugned orders dated 29.5.1980 passed by the Assistant Collector IInd Grade, order dated 9.4.1981 passed by the Collector, Palwal, and the order dated 29.9.1981 passed by the Additional Director, Consolidation of Holdings, Chandigarh, exercising the powers of Director Consolidation under Section 42 of the Act. The learned counsel submitted that the alleged spot inspection dated 4.4.1980 by the Tehsildar has no meaning because earlier to that on 29.10.1979 and on 2.11.1979 new Khasra numbers had been carved out and the possession had been delivered to the plaintiffs. The Consolidation Scheme was over and the consolidation authorities had no jurisdiction to pass any order detrimental to the interests of the plaintiffs and in these circumstances there is no bar for the Civil Court to entertain the suit. In short the plaintiffs have challenged the legality of various orders referred to above on the basis of their alleged old possession and on the plea that prior to the alleged date of inspection of the spot by the revenue authorities, the possession had already been delivered to the plaintiffs after carving out new Khasra numbers.

I have considered the above submissions made by the learned counsel for the appellants carefully in the light of the evidence led by the parties and I am of the considered view that none of the contentions which were raised by the learned counsel for the appellants carries any force. Exhibit D 1 is the copy of the Roznamcha Wakiati dated 21.7.1980, which would show that the consolidation proceedings in village Bhagpur Khurd continued upto 21.7.1980 and never concluded in the year 1979 as alleged by the plaintiffs. In these circumstances it would be erroneous to say that when the defendants moved the revenue authorities for the correction of Khasra Girdawaris, the consolidation proceedings had already been over. The record of the trial Court would further show that the defendants moved an application for the correction of the Khasra Girdawari on 12.1.1978 vide Exhibit P4. This application is dated 9.1.1978. Thereafter the spot was inspected in the presence of the parties and the Assistant Collector IInd Grade, who was authorised under Section 22 of the Act to inspect the spot. After inspection of the spot he came to the conclusion that the defendants are in possession of the suit land, including Khasra No. 1044 and not the plaintiffs. Also it has come in evidence that prior to 1974 there was no revenue entry corroborating the possession of the plaintiffs over the suit land. This order of the Assistant Collector GradeII dated 29.5.1980 was confirmed by the Collector vide order dated 9.4.1981 (Exhibit P5) and again vide order dated 29.9.1981 (Exhibit P6). Both the orders referred to above were confirmed by the Additional Director Consolidation of Holdings exercising powers of the Director Consolidation under Section 42 of the Act. Once it is established that consolidation proceedings were still continuing in the village when the alleged possession was changed in favour of the plaintiffs, the Consolidation Authorities alone had the power and the jurisdiction to correct the Khasra Girdawari, if wrongly entered in the names of the plaintiffs and exactly it has been done in the present case when the defendants moved the application for the correction of the Khasra Girdawari. Once the Consolidation Authorities have acted within the jurisdiction, the jurisdiction of the Civil Court is expressly barred under Section 44 of the Act, which reads as under:

Jurisdiction of Civil barred as regards matters arising under this Act No civil court shall entertain any suit instituted or application made, to obtain a decision or order in respect of any matter which the State Government or any officer is, by this Act, empowered to determine, decide or dispose of.''''

I have already held above that the Assistant Collector IInd Grade, Collector and the Additional Director Consolidation were not functus officio when the first order was passed by the Assistant Collector for the correction of the Khasra Girdawari on the basis of the application dated 9.1.1978 moved on 12.1.1978 (Exhibit P4).

In main plank of the plaintiffs was P.W. 2/1, P.W. 2/2 and P.W. 2/3, the copy of the Consolidation proceedings and the Jamabandis and from these documents it is also not proved that the possession was ever carved out in favour of the plaintiffs, as alleged by them. The entire foundation of the claim of the plaintiffs in this case is with the previous possession i.e. the possession prior to 1974, but there is no corroboration to that effect in order to prove under what circumstances and in what manner the possession of the land in dispute was ever handed over and delivered to the plaintiffs. On the contrary the revenue authorities who were competent to decide the possession after inspecting the spot came to the conclusion that the possession was in fact with the defendants and for the reason the change in the Khasra Girdawari was ordered to be made and that order dated 29.5.1980 was confirmed by the Collector, Palwal, vide order dated 9.4.1981, which order was further confirmed by the Additional Director, Consolidation, vide order dated 29.9.1981, who ordered the Consolidation Officer that the area be allotted to the defendants under the landowners and possession thereof be given to them.

Reliance of the learned counsel for the appellant on State of Haryana and others v. Vinod Kumar and others, 1987 R.R.R. 81 : 1986 PLJ 161, is misplaced because the various orders passed by the Consolidation Authorities under the Act were not without jurisdiction in violation of the principles of the statute or the principles of natural justice and in these circumstances the jurisdiction of the Civil Court was expressly barred under Section 44 of the said Act and read with Section 9 of the CPC.

In the light of above discussion I affirm the findings of the Courts below on issues Nos. 1, 2 and 3 and finding no merit in this appeal dismiss the same with no order as to costs.