DAULAT RAM Vs. NAND KISHORE

JUDGEMENT

(1.) The plaintiff-appellant filed this suit for partition and separation of 1/2 share of the abadi plot bearing Khasra no. 153/IR. Initially this plot was alotted by he Consolidation Authorites to the respondent. The appellant moved a petition under section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter called the Act) claiming that the plot was allotted to both the parties but inadvertently entered in the name of the respondents in the jambandi. Two of the respondents, Nand Kishore and Brahma Dev appeared before the Additional Director who agreed to accept the claim of the plaintiff provided he gave the land in lieu of the half share in the plot because for the allotment of the abadi plot land had been deducted from their holding alone. The plaintiff agreed to part with the land in lieu of his half share and accordingly the Additional Director passed the order, Exhibit P-3, whereby the plaintiff was allowed half share in the plot in dispute. As the respondents were still not accepting the title of the plaintiff, he filed the present suit. The respondents raised an objection that the trial Court had no jurisdiction in the matter which was overruled. However, their other pleas that the plot had fallen to their share in partition and in the alternative that they had become its owner by prescription were upheld and suit dismissed. The lower Appellate Court upheld the judgment of the trial Court on the ground that objection under section 42 of the Act was barred by time and that all the co-sharers had not been served with the notice of hearing. Still dissatisfied, the plaintiff has come up in this second appeal.

(2.) On none of the two grounds mentioned by the Appellate Authority the order of the Additional Director can be said to be without jurisdiction and void. It has been repeatedly held by this Court that in case of joint owners, notices need not be served on all the co-sharers. If there is an effective representation on their behalf that would be sufficient for the purposes of the provisions of Section 42 of the Act. In this case two of the co-sharers were present and there is no allegation that there was no effective representation or that the said two co-sharers had in any way colluded with the plaintiff. Again, on the question of limitation, it has been consistently held by this Court that if the objection in this regard is not raised before the Additional Director no such objection would be entertainable in the collateral proceedings. The Additional Director had the jurisdiction to condone the delay and if no objection was raised and the delay not condoned, it at worst, would amount to an illegality which could not render the order without jurisdiction or void.

(3.) Under issue No. 2, the trial Court held that the parties have already effected partition of their holdings and the disputed plot had fallen to the share of the respondents. This finding was affirmed by the appellate Court. There is obvious fallacy in the reasoning of the Courts below. The plot in dispute stood entered in the names of the respondents when the alleged partition was effected. The question of its partition, therefore, could not arise. The finding of the Courts below on this issue is thus wholly perverse and it hereby reversed.