AMAR SINGH JAGRAM Vs. CHANDGI

JUDGEMENT

(1.) What is more difficult, regaining of possession of agricultural lands to which they had undisputed right, or passing through the eye of a needle, is the question the appellants may well ask in desperation. They may well add that while in theory for every right there maybe a remedy in practice such tenants have no remedy if the interpretation of the scheme of the provisions of the Consolidation Act (East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948.) made by the High Court is upheld. The original appellants, the tillers of the lands who have failed to regain possession for a quarter century after the Consolidation Officer upheld their claim in 1960, having died during the pendency of these appeals instituted 15 years back without reaping the fruits of the order in their favour (now represented by their heirs) may well be justified in saying so. For, notwithstanding the finding of fact recorded by the Consolidation Officer in his order dated April 28, 1960 that the original appellants were in possession of these lands as non-occupancy tenants prior to consolidation in the course of which the concerned land-owner was allotted parcels of land other than the parcels comprised in his original holdings, and they were entitled to be put in possession of the parcels which the land-owner was so allotted in lieu of his original holdings, the tenants have been denied the possession thereof pursuant to the said order of 1960 directing the land-owner to put them in possession. The said order remained a paper-order upon its being challenged as being without jurisdiction in a Civil Court. It was so challenged notwithstanding a provision (Section 44 of the Consolidation Act.) contained in the Consolidation Act excluding the jurisdiction of Civil Courts. The trial court negatived the plea of the plaintiff land-owner (respondent herein) that the defendants-tenants were in reality his labourers or servants and not his tenants. The trial court recorded a finding of fact upholding the plea of the tenants which was confirmed by the lower appellate court. This finding being a pure finding of fact could not have been, and in fact was not assailed in the High Court in the second appeals under Section 100 of the Code of Civil Procedure, preferred by the landowner. The High Court did not disturb this finding, as indeed it could not have, in view of the statutory limitation of section 100 of the Code of Civil Procedure, and yet allowed the second appeals preferred by the land owner upholding his plea that the tenants had no remedy under the Consolidation Act in view of the interpretation of the scheme of the provisions of the said Act canvassed by the land-owner which was sustained by the High Court. The chequered history of the litigation giving rise to the present appeals (By Special leave granted by this Court.) may now be traced.

(2.) One Chandgi (respondent herein) had inducted two tenants (Jagram and Amar Singh) who were in occupation of two different parcels of land from out of khasra Nos. 3, 8, 9, 12 and 18 of village Bawana in Delhi. In the consolidation proceedings initiated under the Consolidation Act, a scheme of repartition was framed and in lieu of the aforesaid parcels of land he was allotted Killa Nos. 21 (4 bighas 16 biswas), 22 (4 bighas 2 biswas) and 23 (4 bighas 15 biswas) of rectangle No. 2. Thus the lands originally comprised in his holding were substituted by the lands comprised in the aforesaid parcels which were allotted to him under the consolidation scheme. The tenants were in actual possession and were actually tilling two parcels out of the original holding prior to consolidation. However, after the allotment of the other parcels of land in substitution of the original parcels of land the tenants were not put back in possession of the corresponding parcels in the substituted lands. Thereupon they approached the Consolidation 0fficer viz. the Naib Tahsildar at Delhi by initiating proceedings under Sections 21/26 of the Consolidation Act. Each of them made a separate application on the premise that in lieu of the land which he was cultivating as a non-occupancy tenant prior to consolidation the corresponding parcels should be restored to him from out of the reallotted lands substituted in lieu of original holding under the Consolidation Scheme. The landowner, Chandgi, lodged an objection. He raised the plea that Amar Singh and Jagram no doubt were tenants in 1950 but that they had voluntarily given up the possession thereof prior to the consolidation and that the landowner himself. was in possession prior to consolidation. The parties produced oral and documentary evidence. After considering the relevant material including the land records and entries of khasra Girdawari the Court of the Consolidation Officer (presided over by Naib Tehsildar) recorded a finding in favour of each of the tenants. Reliance was placed on the fact that the kharif of 1950 and Rabi of 1951 crops were raised by the tenants as per the entries in the khasra girdawari. He also accepted the oral evidence adduced on behalf of the tenants and reached the conclusion that the tenants were in actual possession and that they had not surrendered the tenancy as pleaded by the landowner. He, therefore, upheld the claim of the tenants and passed an order in their favour on 28th April, 1960 whereby he directed that the corresponding parcels of land1 in the substituted killa numbers be allotted to the tenants and that warrant for possession be issued in favour of the tenants. The land-owner did not challenge this order by way of a revision petition under Section 42 of the Act. Nor did he challenge the said order by way of a Writ Petition to the High Court. Thus the order became final as per the submission of the tenants inasmuch as the jurisdiction of the civil court was excluded by section 44 of the Consolidation Act. Chandgi the common land-owner against whom the aforesaid two orders dated April 28, 1960 were passed by the Court of Naib Tehsildar, Delhi, exercising powers as Consolidation Officer, thereafter instituted two separate suits against Jag Ram and Amar Singh raising identical contentions, challenging the said orders of the Consolidation Officer, as without jurisdiction and obtained an order of stay. The tenants contested the suits. The trial court came to the conclusion that the Civil Court had no jurisdiction to entertain the suits and dismissed the suits. The land-owner preferred appeals to the lower appellate court and upon failing in the appeals, preferred two second appeals to the High Court, which by its order dated April 1, 1965 (In R.S. A. No. 51 D and 52 of 1962.) remanded the matter back to the trial court to decide the other issues as in the opinion of the High Court the Civil Court had jurisdiction to entertain the suit. Upon remand, the trial court again recorded a finding in favour of the tenants and repelled the contention that the impugned orders dated April 28, 1960 were without jurisdiction. Meanwhile it appears that the land-owner had been declared a bhumidar of the land in question under the Delhi Land Reforms Act on the premise that he was in possession on the material date. The land-owner appealed to the Court of the Senior Sub-Judge, Delhi who disposed of both the appeals by an extremely well considered common judgment dated February 10, 1966 (In R. S.A. Nos. 360 and 361 of 1965.) whereby he confirmed the judgment and order of the trial court upholding the contention of the tenants that the order passed by the Consolidation Officer was legal and valid. Before the learned Senior Sub-Judge the plaintiff-land-owner had raised the contention that the defendants were not the tenants of the land at all and were merely labourers or servants and were not entitled to be put in possession. The learned Senior Sub-Judge negatived this contention of the plaintiff-land-owner and recorded a clear finding to the effect that the defendants were tenants of the pre-consolidation land prior to the commencement of the Consolidation proceedings in 1952 and that the defendants were in possession of the lands as tenants prior to the consolidation proceedings as reflected in the. passage extracted therefrom:-

(3.) Lastly it was contended that the Consolidation Officer had no jurisdiction to pass an order under Section 26 of the Consolidation Act in favour of the tenants and that the tenants should have pressed their claim when partition and re-partition Schemes were being framed under Sections 14 to 21 of the Consolidation Act. The Lower Appellate Court rejected this plea also on the ground that the point was covered by a decision rendered by H. R. Khanna, J. of the High Court (as he then was) in R. S. A. No. 81 T of 1961 in the case of Munshi v. Bhagwan decided on April 29, 1964. The plaintiff- landowner preferred a second appeal to the High Court. Ordinarily this appeal would have been heard by a learned single Judge of the High Court under section 100 of the Code of Civil Procedure on a question of law. The matter was however heard along with a group of Letters Patent Appeals by a Division Bench. The High Court rendered its common judgment in L. P. A. No. 271/71 giving rise to the present appeals. The High Court took the view that the Consolidation Officer had no jurisdiction to exercise powers under Section 26 of the Consolidation Act. The reasoning of the High Court is reflected in the following passage: