GURDEV SINGH Vs. STATE OF HARYANA

JUDGEMENT

(1.) PETITIONERS seek quashing of order Annexure P -3 or for issuance of any appropriate order or direction as the Court may deem fit in the circumstances of the present case.

(2.) PURSUANCE to the notification under Section 14(1) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1949, a scheme of consolidation was framed on 2.11.1957 which was confirmed and published. No objection was raised in terms of Section 21(1)(2) and (3) of the Consolidation Act. According to the petitioners separate abadi plots were allotted to the petitioners as well as private respondents. Shri Sant Singh respondent No. 3 with a view to get passage to his residential plot earlier filed a suit before the Court of Sub Judge 1 Class, Ambala, for a declaration to the effect that he is owner in possession of Rasta Khas which is shown in the map attached towards the South of the house of Phalel Singh and Kartari and towards the North of the house of Barkha Ram, Sant Singh also prayed for permanent injunction restraining the petitioners from interfering in any manner or causing any obstruction in the Rasta Khas. Interim injunction application filed by the respondent No. 3 was dismissed by the trial Court vide order dated 17.8.1992. Appeal too was dismissed by the District Judge on 2.11.1992. Thereafter, the suit was withdrawn by Santa Singh. It is, thereafter, that respondent No. 3 filed an application under Section 42 of the Act claiming a passage to his plot as the same had not been provided under the Consolidation of Holdings Act. The Director, Consolidation of Holdings vide annexure P3 dated 21.5.1993 accepted the petition of Santa Singh and so allowed him a passage of 3 karams to reach residential plot from Phirni which order is being challenged on the ground that the same is illegal mala fide and based on extraneous considerations.

(3.) THE learned counsel for the petitioners at the outset has challenged the maintainability of the petition under Section 42 on the ground of in -ordinate delay. According to the counsel, the consolidation of holding in the village was completed way back in the year 1957 -58, whereas the petition under Section 42 of the Act was filed in the month of January, 1993. There is no explanation for this inordinate delay and in the absence of the same the Director Consolidation infact erred in law in entertaining as well as condoning the delay in filing the petition. Secondly, the respondent earlier filed a suit and since no interim injunction was granted by the Court the same was got dismissed as withdrawn. Concededly, no permission was sought from the Court in terms of Order 23(3) C.P.C. Decision of the Civil Court binds the parties and so the respondent could not re -agitate the matter by filing the petition under Section 42 of the Act. According to the counsel, even on merits the respondent has no case as another passage exists to reach his residential plot. Thus, it is not a case of non -existence of a path to a plot or to a residential accommodation. In any case, pursuance to the allotment of the area in consolidation of holding, the petitioner has raised construction thereupon and so no such area can be given out of the holding of the petitioner for a path to the contesting respondent.