MOHLA Vs. MAYA CHAND

JUDGEMENT

(1.) The plaintiff had filed the suit for declaration that he was the owner of the land as detailed in the plaint according to the order of remand passed by the Additional Director, Consolidation of Holdings, Punjab, on 16th June, 1965, and the Jamabandi for the year 1959-60 and that the order passed by Shri Sultan Singh, Assistant Director Consolidation of Holdings on 18th June, 1959, the order passed by Shri Jaspal Singh, Additional Director, Consolidation of Holdings, Punjab, on 8th December, 1961 and the order passed by this Court dismissing the Writ petition in limine on 10th September, 1962, were illegal, without jurisdiction and ineffective as against his rights. The suit was dismissed by the learned trial Court on the ground that in view of Section 44 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter called the Act), the suit was not maintainable in the civil Court. The plaintiff filed an appeal against that decree and the learned Additional District Judge accepted the appeal on the ground that the suit was maintainable and remanded the case to the trial Court for decision on merits. Feeling aggrieved from the order of the learned Additional District Judge, the defendants have filed this appeal and the main point argued by the learned Counsel for the appellants is that the suit is not maintainable in the civil Court in view of the provisions contained in Section 44 of the Act.

(2.) The facts of the case are that in the village of the parties consolidation proceedings started sometime in 1952 or 1953 and the plaintiff was allotted land in two plots out of which rectangle Nos. 82 and 83 allotted to him were of inferior quality. He filed objections under Section 21(2) of the Act which were accepted and rectangle Nos. 82 and 83 were withdrawn from his block. The defendants filed an appeal before the Settlement Officer under Section 21(3) of the Act which was accepted and the said two rectangles were again allotted to the plaintiff. The plaintiff filed an appeal against the order of the Settlement Officer, and the Additional Director, Consolidation of Holdings Punjab, vide his order dated 16th June, 1956 accepted the appeal and remanded the case to the Settlement Officer, Hissar, with the direction that rectangle No. 82 and 83 should be withdrawn from the block of the plaintiff. The Settlement Officer, in accordance with the said order, withdrew rectangle Nos. 82 and 83 from the block of the plaintiff and against that order, the defendants filed an appeal before the Assistant Director, Consolidation of Holdings, who vide his order dated 18th June, 1959, reallotted rectangles Nos. 82 and 83 to the plaintiff. The plaintiff filed an application under Section 42 of the Act and Shri Jaspal Singh, Additional Director Consolidation of Holdings, affirmed the order of the Assistant Director vide his order dated 8th December, 1961. The plaintiff filed a Writ Petition in this Court against the order of Shri Jaspal Singh which was dismissed in limine on 10th September, 1962. On these facts, the plaintiff filed the suit for obtaining the reliefs set out above.

(3.) Defendant No. 1, besides contesting the suit on merits, raised a preliminary objection to the effect that the suit was not maintainable in the civil Court in view of the provisions of Section 44 of the Act. Defendant No. 2 did not appear in spite of service and ex parte proceedings were taken against him. The trial Court framed the following issue :-