KURDIA Vs. SURTA

JUDGEMENT

(1.) Having its origin In the erstwhile princely State of Jind, this case has rather a chequered history. It would be worthwhile to give, although in brief, the circumstances that have driven the defendant-appellants to this Courts

(2.) The revenue estate of village Bata, Tehsil Narwana, was earlier a part of princely State of Jind. The said revenue estate was divided into four Pattis, namely, Nathawa Patti, Itmayan Patti, Kasayan Patti and Lahoriwal Patti. The revenue estate referred to above was subjectmatter of consolidation somewhere at the end of 19th century. As patti Lahoriwal in village Bata was inhabited by Rajputs, Jats and Muslims, the erstwhile Maharaja of Patiala whose writ ran in District Jind as well held the proprietors representing various communities as detailed above entitled to 1/3rd share each with regard to an area measuring 7,883 Bighas 5 Biswas. Jat proprietors who were in possession of far more area than their entitlement so determined during consolidation proceedings being aggrieved of the division so made on caste basis, and not according to possession, filed a declaratory suit under Section 45 of the Punjab Land Revenue Act, 1887 , in the Court of Tehsildar Narwana seeking relief of cancellation of the shares so fixed at the time of settlement. Obviously, the burden of the plaint was that as per the then existing law, they were entitled to the shares commensurate with the possession that they had over the land in question. This suit was instituted somewhere in the year 1902-03 and was dismissed by Tehsildar vide judgment, copy whereof is placed on record as Ex. DX, and decree (copy Ex. DY). Aggrieved with the judgment and decree passed by the Tehsildar, Jat proprietors carried an appeal to the Court of Nazim Karamgarh which was accepted on 3rd of Phagun, 1962 BK (in or around the year 1905-06 A.D.). The defendants of the said suit preferred Second Appeal before Dewan of the princely State but it was dismissed on 12th Bhadon, 1963 Bk. (equivalent to 27th of August, 1906 A.D.), vide orders copy whereof is placed on record as Ex. D22. The judgment and decree so rendered by Nazim of Karamgarh goes to show that the shares of the proprietors fixed at the time of settlement, and which were later incorporated in the revenue record, are cancelled and the plaintiffs and defendants are held to be co-sharers as recorded in the Jamabandis that came into being prior to consolidation. It is the admitted position that even though the revenue entries that came into being on the basis of consolidation proceedings, were set aside, yet no steps whatsoever were taken towards execution of the judgment and decree so rendered by Nazim of Karamgarh and the entries that came into being after consolidation continued as such for years together. The present suit giving rise to the appeal before this Court came to be instituted on 13th December, 1982, seeking a declaration that the plaintiffs were entitled to claim partition of the joint land on the basis of holding to each proprietor, as recorded in the revenue record in the village. The obvious defence of the defendant-respondents was their entitlement on the basis of possession, as alsothat the plaintiffs could not agitate the matter now on account of the judgment and decree rendered by Nazim of Karam-Farb way back in 1906 which operates as res judicata. The pleadings of the parties gave rise to the following issues :

(3.) On the first question as to whether the decision of Tehsildar and appellate Court operates as res judicata in subsequent proceedings regarding title of the property in question, the contention of Mr. Goyal is that inasmuch as the question agitated in the earlier proceedings was pre-eminently a question that required to be determined by the revenue Courts, the Courts of Tehsildar and Nazim were competent to decide the same and the earlier decision, therefore, being decisions rendered by Courts of competent jurisdiction would operate as res judicata in the present proceedings. The suit of the kind that was filed before the Tehsildar, i.e., for correction of entries was competent under Section 45 of the Punjab Land Revenue Act alone and inasmuch as jurisdiction to deal with a case of that kind as per provisions of Section 158 of that Act vested only with the revenue officers, the case was decided by a Court of competent jurisdiction, contends the counsel. In order to appreciate the contention of the counsel, it will be useful to reproduce Section 45 and the relevant part of Section 158 of the Punjab Land Revenue Act :