Daulat Ram (Deceased) represented by his Legal Representatives vs Nand Kishore and ors.

C.P. Goyal, J (Oral)

The plaintiffappellant filed this suit for partition and separation of 1/2 share of the abadi plot bearing Khasra no. 153/IR. Initially this plot was alotted by he Consolidation Authorites to the respondent. The appellant moved a petition under section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter called the Act) claiming that the plot was allotted to both the parties but inadvertently entered in the name of the respondents in the jambandi. Two of the respondents, Nand Kishore and Brahma Dev appeared before the Additional Director who agreed to accept the claim of the plaintiff provided he gave the land in lieu of the half share in the plot because for the allotment of the abadi plot land had been deducted from their holding alone. The plaintiff agreed to part with the land in lieu of his half share and accordingly the Additional Director passed the order, Exhibit P3, whereby the plaintiff was allowed half share in the plot in dispute. As the respondents were still not accepting the title of the plaintiff, he filed the present suit. The respondents raised an objection that the trial Court had no jurisdiction in the matter which was overruled. However, their other pleas that the plot had fallen to their share in partition and in the alternative that they had become its owner by prescription were upheld and suit dismissed. The lower Appellate Court upheld the judgment of the trial Court on the ground that objection under section 42 of the Act was barred by time and that all the cosharers had not been served with the notice of hearing. Still dissatisfied, the plaintiff has come up in this second appeal.

On none of the two grounds mentioned by the Appellate Authority the order of the Additional Director can be said to be without jurisdiction and void. It has been repeatedly held by this Court that in case of joint owners, notices need not be served on all the cosharers. If there is an effective representation on their behalf that would be sufficient for the purposes of the provisions of Section 42 of the Act. In this case two of the cosharers were present and there is no allegation that there was no effective representation or that the said two cosharers had in any way colluded with the plaintiff. Again, on the question of limitation, it has been consistently held by this Court that if the objection in this regard is not raised before the Additional Director no such objection would be entertainable in the collateral proceedings. The Additional Director had the jurisdiction to condone the delay and if no objection was raised and the delay not condoned, it at worst, would amount to an illegality which could not render the order without jurisdiction or void.

Under issue No. 2, the trial Court held that the parties have already effected partition of their holdings and the disputed plot had fallen to the share of the respondents. This finding was affirmed by the appellate Court. There is obvious fallacy in the reasoning of the Courts below. The plot in dispute stood entered in the names of the respondents when the alleged partition was effected. The question of its partition, therefore, could not arise. The finding of the Courts below on this issue is thus wholly perverse and it hereby reversed.

Both the Courts have held under issue No. 3 that the respondents have acquired title by prescription in the plot in dispute. This finding again is unsustainable. As already stated above, so long as the plot in dispute stood in the names of the respondents, the question of their possession being adverse to the appellant could not arise. After the plot had been ordered to be entered in the names of the parties by the order of the Additional Director, the appellant filed this suit within 2/3 years thereof. The finding on this issue is thus again wholly perverse and is hereby reversed.

In view of the above finding, this appeal is allowed with costs, the impugned judgment and the decree set aside and a preliminary decree passed declaring the plaintiff to be the owner of 1/2 share in the plot in dispute and entitled to its partition and separate possession to the extent of his share. The case would now go back to the trail court for taking further proceedings for separating the share of the plaintiff and passing a final decree.