KUNDAN Vs. SARDARA RAMJI LAL

JUDGEMENT

(1.) THE only question arising for consideration in this appeal is whether or not the present suit is barred by Section 44 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act of 1948. Jn so far as the merits are concerned the learned counsel for the appellants has conceded that there, is no substance in the appeal. The question of jurisdiction is also being raised on second appeal for the first time. The plaintiffs have brought the present suit for a declaration that they along with defendants 26 to 32 were exclusive owners of the land described in para 3 of the plaint and for a permanent injunction restraining defendants 1 to 25 and 33 to 35 from interfering with the plaintiffs' ownership and possession of the said land. It was pleaded that the plaintiffs and defendants 26 to 32 were descendants of bahala whereas defendants 1 to 25 and 33 to 35 were descendants of Mehru who were real brothers and were joint owners of the land situate in village Sarai kuhand and in Patties Jasu and Jawahara Har Kishan of village Kohand. It was further alleged that the ancestors of the parties got partition of the joint land in village Sarai Kohand and village Kohand effected through Court sometime in 1910 and mutation was entered on the basis of the said partition; while mutations Nos. 20 and 21 relating to village Kohand were sanctioned, mutation no. 19 relating to village Sarai Kohand was rejected by the revenue authorities under some mistake. It is also pleaded that the plaintiffs and defendants Nos. 26 to 32 were awarded less land in village Kohand and in lieu thereof they were given more land in village sarai Kohand as compared to defendants 1 to 25 and 33 to 35 and the parties continued as owners in possession of the land allotted to them at the time of partition. Recently, so the plaintiffs allege, consolidation of holding proceedings took place when defendants 1 to 25 and 33 to 35 were awarded land, in lieu of the land mentioned above with respect to which mutation No. 19 had been rejected. On the basis of these allegations the plaintiffs claimed that the land with respect to which mutation had been rejected but of which they have all along continued to be owners in possession belonged exclusively to them and that the defendants were not entitled to any share in the land allotted in consolidation proceedings in lieu of the above land. They also claimed ownership on the basis of adverse possession. As stated above the lower appellate Court after considering the merits of the case granted a decree to the plaintiffs as prayed. On issue No. 1 which relates to the jurisdiction of the Civil Courts the counsel on behalf of the plaintiffs did not address arguments in the lower appellate Court; it has been expressly stated in the judgment that the findings of the trial Court on issues 1 and 4 were not disputed.

(2.) AS the question raised was one of inherent jurisdiction of the trial Court to entertain the suit I permitted Mr. Thapar to address arguments on the point because it is well established that it is I never too late to consider whether or not an order is a nullity being without jurisdiction. The only provisions of law on which the learned counsel for the appellant has placed reliance are Section 44 of the East punjab Holdings (Consolidation and Prevention of Fragmentation) Act and Rule 7 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation; Rules of 1949. Section 44 reads thus --

(3.) THE learned counsel for the respondents has drawn my attention to two unreported cases of this Court in Civil Revn. No. 3 of 1953 and Civil Revn. No. 27 of 1955 where the Hon'ble the Chief Justice has observed that the jurisdiction of civil Courts is not barred where question of tide in proceedings Under the East punjab Holdings (Consolidation and Prevention of Fragmentation) Act, is involved in Civil Revn. No. 3 of 1953 (Punj.) the landlords had brought a suit for the ejetment of their tenants and had obtained a decree from a revenue Court in May 1951, in pursuance of which the tenants were actually evicted. On an appeal having been preferred to the Collector by me tenants the case was remanded to the Court below for determining the amount of compensation to which the tenants were entitled and a direction was also given that possession of the land be restored to the tenants. Consolidation proceedings had also started in " (1951 and it appears that Siri Chand defendant No. 1 had been allotted the land belonging to the landlords. In 1952 the Settlement Officer directed the tenants to be put in actual possession of the land which had been allotted to the landlords in the consolidation proceedings before they could be compelled to deliver possession of the land to Siri Chand defendant No. 1 as it was considered that the tenants had the same rights in the new land of their landlords as they had in their old tenancy. Two months later the new Settlement Officer felt that there was no provision of law under which a tenant-at-will, whose land had been allotted to another person, could claim to be put in possession of any other land, with the result that he varied the order of his predecessor to the extent that the tenants were directed to be evicted from the original plot of land without making any order for their (i. e. the tenants) being put in possession of any other plot of land. The tenants declined to vacate the original plot and filed a suit in June 1952 for a declaration that they could not be evicted in consolidation proceedings and for an injunction restraining the Settlement Officer from giving effect to the order passed by him. On these facts the two Courts below had held that the jurisdiction of civil courts to entertain a suit of this nature was barred by Section 44 of the Act of 1948. On second appeal the learned Chief Justice set aside the order of the Courts below and remanded the case to the trial Court for decision on the merits holding that the tenants were entitled to claim by means of a suit that they could not be dispossessed from one plot of land under the provisions of the Act of 1948 without being put in possession of anther plot of land. In support of this decision reliance was placed by the learned Chief Justice on the secretary of State v. Mask and Co. , ILR 1940 Mad. 599: (AIR 1940 P. C. 105), R. v. Governor of Brixton Prison, (1916) 2 K. B. 742 and Lahore Electric Supply Co. Ltd. , Lahore v. Province of Punjab, ILR 1943-24 Lah. 617: (AIR 1943 Lah. 41 ). It is true that in Hem Raj's case a reference was made to Sections 23, 25 and 26 of the Act of 1948 and it was observed that the provisions of the above Act made it clear that no landowner, tenant or lessee could be deprived of the possession of any plot of land until he was put in possession of another plot of land and that the duty of putting a person in possession of the new holding has been entrusted by the legislature to the Consolidation Officer. It was further observed that in that case those officers had not cared to carry out the duty which devolved on them. With these observations the suit was held to be entertainable by the civil Courts. In Civil Revn. No. 27 of 1955 (Punj.) the correctness of a record of rights prepared under the provisions of Section 22 of the East Punjab Holdings (Consolidation and prevention of Fragmentation Act 1948 was held to be capable of being challenged in a civil Court. In that case also my Lord the Chief Justice obseived that a record of rights according to Sub-section (2) of Section 22 of the Act of 1948 is to be deemed to have been prepared under Section 32 of the Punjab Land Revenue Act 1887 and therefore Section 45 of the Punjab Land Revenue Act of 1887 empowered a person aggrieved by an incorrect entry to bring a declaratory suit. It was also observed in this case that Sub-section (2) of Section 22 of the Act of 1948 being a special provision must over-ride the general provision contained in S. 44 of that Act. I have also been referred to Rahmatulla Khan v. Mahabirsiogh, AIR 1956 Nag. 132, where a suit for possession of certain Khud Kasht lands which were the subject-matter of consolidation proceedings to which the plaintiff was not a party was held not to be barred by the provisions of the C. P. Consolidation of Holdings act as the Consolidation Officer under the said Act was not held empowered to determine whether the disputed lands were Khud Kasht or occupancy lands; such a controversy being wholly beyond the scope of the proceedings taken under the c. P. Act. In my opinion this ruling is not of much help to the respondent because in their reported case the plaintiff was admittedly not a party to the consolidation proceedings and besides, we, are not aware of the similarity of the provisions of the C. P. Act with those of the Punjab Act : Mr. Sarin has also submitted that in the present case the Consolidation Officer had himself directed the plaintiff-respondent to have a final decision with respect to his title from the civil Courts; in other words the Consolidation Officer has declined to decide the question of title.