AMAR SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) By Notification No. 5/SS, published on 21st September, 1953, the village of the petitioners, Ghabadan, tehsil and district Sangrur, was notified for consolidation proceedings under the Pepsu Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter called the Act), but the actual work was started in 1956 with the publication of consolidation scheme on 29th July, 1956. In the repartition scheme land measuring 4 Bighas (total value Rs. 2/5/9) in Killa No. 6/21 was allocated to Dharam Singh etc. (Kapur Singh, respondent 4, being one of the co-sharers, vide Resolution No. 16 dated 28th July, 1957). Out of this area, Gian Singh was given 3 Bighas 12 Biswas (total value Rs. 2/1/-) as a mortgagee under all the co-sharers. The remaining area of 8 Biswas has been shown to be in the exclusive possession of Dharam Singh etc. jointly. The possession of the area was taken by Kapur Singh, respondent 4, and he continued to be in possession thereof till on 2nd August, 1963 he sold 10 Bighas 3 Biswas of land to the petitioners by means of a registered deed. The mutation with regard to this sale was sanctioned on 24th February, 1964.

(2.) Shiv Ram and Daulat Ram, jointly impleaded as respondent 3, filed an application under Section 43 of the Consolidation Act, before the Settlement Officer on 4th August, 1962, in which it was stated that they were the owners of Khasra Nos. 1419, 1566, 1576, 1577/1, 1579, 1580 and 1588 measuring about 4 Bighas and 13 Biswas pukhta land, prior to the consolidation, and that they had been shown as owners of that land in the latest Jamabandi of the village for the year 1953-54 on the basis of which the consolidation proceedings were carried out. They had mortgaged the said land along with some other land in favour of Gian Singh on 31st May, 1947. By omission these Khasra numbers were shown to be in the ownership of Dharam Singh, Kapur Singh and Smt. Santi and the names of the applicants were omitted while preparing the Khatauni Istmal vide Khewat No. 157/322/1. Due to this omission or clerical mistake, the applicants could not get the valuation of the above-mentioned Khasra numbers at their respective major portions and that they had been requesting the Consolidation Officers for many years but could not get any relief from them. Reference is made to an application made by the applicants to the Consolidation Officer, Sangrur, on 28th December, 1961. A request was made that the applicants may be given the valuation of the above stated Khasra numbers at the site of their respective rights. The Settlement Officer, after inspecting the record, made a recommendation to the Additional Director, Consolidation of Holdings, to rectify the mistake and to allot to respondent 3 the land to which they were entitled, the details of which were given in his recommendation. According to the order passed by the Settlement Officer, the application was instituted before him on 1st July, 1963, on which he made his report on 9th September, 1963. On his report, the Additional Director, Consolidation of Holdings, Punjab, passed the impugned order treating the application of respondent 3 as under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948. To this application Dharam Singh, Kapur Singh, Smt. Santi and Gian Singh were made parties and they were given notice. After hearing the parties, the learned Additional Director accepted the recommendation of the Settlement Officer and withdrew the land from Dharam Singh, Kapur Singh etc. and gave it to respondent 3. Against this order, the petitioners, who are vendees, have filed the present writ petition.

(3.) It has been contended on behalf of the petitioners that they are purchasers of the land in good faith for valuable consideration and they did not have any notice of any defect in the title of the vendor Kapur Singh, respondent 4. The land had stood in his name ever since 1957 and respondent 3 did not take any proceedings under the Consolidation Act whatsoever till they filed the application above referred to before the Settlement Officer. It is also stated that the Additional Director had no jurisdiction to consider that application under Section 42 of the Punjab Act because it had been filed more than six months after the notification of the re-partition scheme. No reasons have been given why he was entertaining the application after the expiry of the period of limitation. In reply, the learned counsel for the respondents urged that the plea of limitation was not taken before the learned Additional Director and, therefore, this plea cannot be made a ground of attack to the impugned order in the writ petition. The petitioners could not take this plea of limitation before the Additional Director for the simple reason that they had not been made parties to that application although the sale in their favour had taken place on 2nd August, 1963 and the mutation in respect thereof was sanctioned in their favour on 24th February, 1964. The impugned order was passed on 25th April, 1964. If the petitioners had been made parties or had been given notice of the application, they would have raised all sorts of pleas open to them. It is also not understood how the application under Section 42 of the Punjab Act lay before the Settlement Officer. It has been contended by the learned counsel for the respondents that the learned Additional Director exercised his jurisdiction under Section 42 of the Punjab Act suo motu for which there is no period of limitation, as has been held by a Full Bench of this Court in Nar Singh and others v. State of Punjab and another, 1966 2 ILR(P&H) 933. The learned counsel for the petitioners has relied upon a Single Bench judgment of Narula, J. in Bhagwana and others v. State of Punjab and another,1966 CurLJ 5, in which it has been held that where the authority under the Act clearly acted on the petition of a party and had in so many words expressly ignored the period of limitation which he was not competent to ignore, it was not a case of exercise of suo motu jurisdiction.