Maya Devi and others vs Om Parkash (deceased) and others

M. S. Liberhan, J. (Oral)

The plaintiffsrespondent filed suit for possession in respect of site measuring 55 sq. yards, 3 sq feet shown as

`ABCD'' and `EFDG'' in the site plan. Further, the demolition of the unauthorised construction was sought. Damages of Rs. 1,000/ as well as future damages at the rate of 85/ per month for use and occupation of the site in dispute since 1.4.1968 2551969 were claimed. Prayer for issuance of permanent injunction restraining defendants Nos. I and 3 from realising rent from defendant No 2 with a direction to defendant No. 2 to pay rent to the plaintiffs was made. It was averred that the site in dispute forming part of Khasra No. 312 measuring I kanal was owned by Balwant Singh who sold 1/2 share to Om Parkash plaintiff and on the death of Balwant Singh his legal representatives sold the other, 1/2 to the plaintiffs. Defendants Nos. I & 3 were alleged to have taken forcible possession by constructing two Kothas and placing one wooden cabin thereon and had leased them out to defendant No. 2.

The defendants who contested the suit contended that Bakhtawar Singh had purchased share of Banarsi Dass etc. out of Bhasra Nos. 4563 4127/2835 measuring 3 bighas vide saledeed dated 19.4.1954 and they had constructed rooms and placed a wooden cabin on the site in dispute as cosharers. The title of Balwant Singh as cosharer in Khasra Nos. 4563/4127 2835 was not disputed. It was averred that during consolidation proceeding in the year 196162 Khasra Nos. 311 and 312 were carved out in lieu of the above khasra numbers, and Balwant Singh got the land shown as partitioned during consolidation proceedings and got Khasra No. 312 in lieu of his share while the other cosharer''s were shown joint of Khasra No. 311. The defendants challenged the above said partition in the suit contending that the same was illegal and without jurisdiction and the site in dispute was not the ownership of the plaintiffs alone as no partition had taken place amongst the cosharers. The plaintiffs could only seek the relief of partition. Defence of absence of necessary party was raised. Adverse possession was also claimed.

In the replication, the plaintiffs specifically stated that Khasra Nos. 311 and 312 were allotted in lieu of Khasra Nos. 4563, 4127 and 2835 and Khasra No. 312 was allotted to Om Parkash alone and possession was given to him in repartition. The said repartition was challenged in appeal under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1941 (for short the Act. The order of repartition was confirmed as the appeal was dismissed. In view of Section 44 of the Act, the repartition and allotment could not be challenged in Civil Court. Balwant Singh had been exclusively using the said site and claiming title through the allotment in consolidation, and the other cosharers claiming title with respect to Khasra No. 311.

On the pleadings of the parties following issues were framed after remand :

(1) Whether the plaintiffs are the owners of the land dispute ? O.P. P.

(2) Whether the suit is bed for nonjoinder of parties ? O.P.D.

(3) Whether the plaintiffs are not entitled for a decree for possession but the same is adjustable at the time of partition ? O.P.D.

(4) Whither the Khasra Nos. 4563/4127/2835 measuring 30 biswas of Jamabandi 195051 was reserved in the scheme of consolidation and was joint property of the defendants and Balwant Singh vendor and present Khasra Nos. 311 and 312 are the outcome of this Khasra number ? If so to what effect? O.P.D.

(5). Whether partition of Khasra No. 4563/4127/2835 by the consolidation officer is ultra vires, illegal, without jurisdiction and not binding upon the defendants ?

(6) Whether defendants cannot take this plea because of Section 44 of the Consolidation of Holdings Act and because this matter has already been considered in a partition under Section 42 of the said Act ?

(7) Whether the defendants have made construction in Khasra No. 312 and if so, its effect ?

(8) Whether the defendants have become owners of the disputed site by adverse possession ?

(9) Whether the partition of Khasra Nos. 4563/4127/2835 has already been accepted by the defendants and other cosharers and as such cannot be challenged now ?

The trial Court came to the conclusion that Khasra No. 311 and 312 were carved out in lieu of Khasra No. 4563/4127/2135 measuring 30 biswas which was reserved in the consolidation scheme Since Balwant Singh was a cosharer in the said Khasra numbers, consequently, he could not sell specific part out of Khasra No. 312. It was found that the suit was not bad for nonjoinder of parties; the partition was illegal, and without jurisdiction, the defendants could challenge the partition, as it was not accepted by them and the same could be challenged and considered by Civil Court, no adverse possession of the defendants was found. The suit was dismissed.

The plaintiffs preferred an appeal which was accepted by the lower appellate Court, inter alia holding that khasra No. 311 was allotted to Maya Devi and others precessorsininterest of the defendants and Khasra No. 312 was allotted to Balwant Singh, predecessorin interest of the plaintiffs, Civil Court had no jurisdiction to go into the validity of repartition proceedings even when repartition of land is against the scheme. The proper and appropriate remedy for the aggrieved person was to approach the consolidation authorities. It was found that the consolidation authorities had not acted against the scheme and even if the had acted that was not open for the Civil Court to determine it in exercise of its civil jurisdiction, the defendants had accepted the partition in view of various documents relied upon as well as the oral evidence. Maya Devi and others had been considering themselves as owners of Khasra No. 311 and Balwant Singh as owner of Khasra No. 312, and the share of Balwant Singh was rightly separated. The finding of the trial Court was reversed. The suit of the plaintiffs was decreed with respect to possession and with respect to damages, it was dismissed.

The appellants have challenged the decree of the lower Appellate Court by contending : (i) no partition took place during consolidation proceedings and the defendants are cosharers in the land in dispute; and (ii) the partition proceedings, if any, are without jurisdiction and liable to be ignored as all the cosharers had not agreed for the partition. It is also contended that in fact no partition had taken place and reliance was placed upon Exhibit D.W. 10/A. Exhibit D.W. 10/B and Exhibit A/7, Balwant Singh sought partition by Exhibit D.W. 10/A of his entire land in Bhiwanigarh. In Exhibit D. W. 10/B in the zimni order, Jagmal Singh and Sukhdev Singh claimed joint possession but separate from Balwant Singh. In Exhibit A/7 Khasra No. 313, 316, 315 and 319, are shown to have been partitioned but khasra Nos. 311 and 312 do not find any mention. The learned counsel for the appellants contends that from these facts inference be drawn that Khasra Nos. 311 and 312 were never partitioned. Learned counsel further relies upon the draft scheme (copy Exhibit D. 8/B), in which all the coowners are shown as owners with respect to all the numbers which are further shown to be reserved though in copy of the scheme, Exhibit A/1 which is a detailed scheme, area reserved is 2 bighas 9 biswas only which relates to the defendants and qua Balwant Singh nothing is shown to be reserved.

Learned counsel for the respondents controverted the said contentions and contended that Balwant Singh was in possession of specific Khasra No. 312 which is not more than his share. It was further averred that in repartition, Balwant Singh was given separate share. Allotment of Khasra No. 312, to him was challenged under Section 42 of the Act. Petition was dismissed and copy of order dated 21.11 1968 of dismissal is placed on the record as Exhibit P.F. and in view of Section 44 of the Act, Civil Court has no jurisdiction to set aside the order of repartition. The learned counsel relied upon Ram Saran and others v. Mehar Singh and others, 1977 PLJ 393 and Koora Ram (deceased) ep. by L. Rs. v. Prabhu and others, 1986 PLJ 467 : 1985 R.R.R. 5 in support of his above contention. The respondents also relied upon Exhibit A/2 i. e. copy of record of the proceedings of consolidation in which at serial No 16, it has shown that Khasra No. 312 has been allotted to Balwant Singh. Further in Exhibit A/3 i. e. copy of Fard Malkan showing the reserved land, at serial No. 8, an area of 2 bighas 9 biswas is shown to be reserved with respect to the coowners other than Balwant Singh. It was further urged that the suit related to only 55 sq. yards and 3 sq. feet. The appellants have not taken any steps with respect to the remaining land which means that the appellants have accepted the ownership and title of the plaintiffs with respect to the remaining area of Khasra No. 312.

The learned counsel for the appellants contended that the order (copy Exhibit P. F.) relating to repartition proceedings which had taken place without the consent of the cosharers is without jurisdiction and has to ignored being void. The proceedings being without jurisdiction, the Civil Court has jurisdiction to go into them. I have gone through the record.

As it is urged that the repartition is against the scheme and, therefore, the order is without jurisdiction, so the only question that arises is whether the consolidation authorities were devoid of inherent jurisdiction to determine the repartition being in accordance with the scheme or not. In my view, it was the exclusive jurisdiction of consolidation authorities to determine whether the repartition was in accordance with the scheme or against the scheme, as such the order cannot be said to be without jurisdiction. The Civil Court cannot assume jurisdiction to find out whether the orders are in accordance with the scheme or not. The above view is supported by Ram Saran''s case (supra) where the Division Beach has observed :

It was contended by the learned counsel for the appellants that the repartition proceedings carried out by the Consolidation Officer were contrary to the provisions of the Scheme and that the same had to be ignored. What was sought to be urged by Mr. Puri learned counsel was that the right of the plaintiffs under the declaratory decree remained intact and that the allotment made during repartition proceedings could not adversely affect the right of the plaintiffs. We are afraid, we are unable to agree with this contention of the learned counsel. We agree with the learned Single Judge that the matter which was being agitated by the plaintiffs through the suit could not be the subjectmatter of civil litigation and that Civil Court had no jurisdiction to go into the validity of the repartition proceedings. If the repartition was against the Scheme, then the proper and the appropriate remedy for the plaintiffs was to have approached the authorities under the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948."

The order being valid and not challenged in any appropriate proceedings, and having become final, the Civil Court has no jurisdiction to go behind the said orders. The consolidation authorities had allotted Khasra No. 312 to the predecessor of the plaintiffs. The order cannot be challenged as without jurisdiction. In find no error in the finding arrived at on issue No. 1 that the plaintiffs are owners of land in dispute The judgment cited by appellants reported as Ranjit Singh and others v. Supdt. Canal Officer, 1973 PLJ 718 is not parimateria with the facts of the case. In that judgment, the question ion with respect to the title of the land was being determined by the Civil Court. It was observed therein that consolidation authorities exceeded their jurisdiction in transferring the lard on the basis of oral gift which was prohibited by Transfer of Property Act.

No finding on any other issue has been challenged before me.

I, therefore, find no force in this appeal and the same is hereby dismissed with costs.