BIRU Vs. SURAJ BHAN

JUDGEMENT

(1.) Whether proceedings under Section 21 and 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 envisage that each one of the co-sharers who have joint and indivisible rights must be impugned as a party and individually served therein is this spinal question which has necessitated this reference of the Full Bench. In essence the issue is whether the impleading of the issue is whether the impleading of one of the co-sharers or an adequate hearing given to any one of them can hearing given to any one of them can be deemed (barring fraud or collusion on his part) as a hearing to all the co-sharers.

(2.) The matrix of facts directly relevant to the question may be noticed briefly. Consolidation proceedings in village Karsindhu, Tehsil Narwana provides the base for this protracted litigation. The Consolidation Officer under Section 21 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, hereinafter called the Act, proposed allotment of abadi plot No. 644 to Telu, Mange and Biru and abadi plot Nos. 651 and 657 to Suraj Bhan and Shiv Ram, respectively. After hearing the parties, the Consolidation Officer under Section 21(2) of the Act passed an order finally allotting abadi plot Nos. 651 and 657 to Telu, Mange and Biru and Plot No. 644 was divided into two parts one of which was allotted to Suraj Bhan and the other to Shiv Ram. Against the aforesaid order Suraj Chand filed a joint appeal under Section 21(3) of the Act which was dismissed by the Settlement Officer by his order dated the 29th July, 1964, annexure P. 2. In this appeal only Telu was impleaded as a respondent and he alone was present at the time of the hearing. Against the said order two separate appeals were field one by Suraj Bhan and Smt. Lado, widow of Shiv Chand and other by Sheo Ram. In both these appeals also, Telu Ram alone was impleaded as the respondent. The Assistant Director heard both the appeals together and allowing the same by his order dated the 4th of January, 1965, restored the allotments proposed under Section 21(1). Against the aforesaid order, Telu Ram preferred a petition under Section 42 of the Act on his own behalf as also on behalf of Mange which was dismissed by the Additional Director vide his order dated the 3rd of February, 1966(Exhibit D. 1).

(3.) The present suit giving rise to the proceedings was preferred by Biru and Mange seeking a permanent injunction to restrain Suraj Bhan and Sheo Ram from interfering in their possession of Baras Nos. 651 and 657, two-third share of which was owned and possessed by them. The plaintiff also challenged the orders of the Consolidation Authorities by which the said two plots were allotted to the defendants as void and ineffective against their rights as those orders were obtained behind their back. Telu Ram was impleaded as a pro forma defendant. The suit was contested by Suraj Bhan and Sheo Ram and they pleaded that in consolidation proceedings two plots were finally allotted to them and they had taken possession thereof under those orders. They also pleaded that the Civil Courts had no jurisdiction to try the suit inasmuch as the plaintiffs has no notice of the adverse orders varying the allotment of plots from 651 and 657 to that of 644 and hence the said orders were totally without jurisdiction and not binding on the plaintiffs. The suit was accordingly decreed. Aggrieved by the judgment and decree and contesting defendants appealed and the learned Additional District Judge, Jind, allowed the same vide judgment dated the 7th of December, 1970 and dismissed the suit on the finding that the plaintiffs were sufficiently represented by Telu and, therefore, it must be presume that they had requisite notice of the proceedings which went against their interest. In coming to this conclusion basic reliance was placed on Teg Pal v. State of Punjab, 1970 Pun LJ 654. This is a plaintiffs' second appeal which earlier came up before my learned brother G. C. Mital, J. sitting singly. Noticing an actue conflict of precedent within this Court, he referred the matter for an authoritative decision by the Full Bench vide his elaborate and lucid referring order.