SANT SINGH ETC Vs. BALBIR SINGH ETC

JUDGEMENT

(1.) Balbir Singh and Jangir Singh respondents filed two separate petitions under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter called 'the Act') for allotment of the area between the abandoned canal and boundary line of village Khirkian Wala where they had previously purchased land prior to the consolidation of holdings. These two petitions were allowed by a common order dated December 16, 1971, of the Additional Director, Consolidation of Holdings, Punjab Chandigarh, and the case was sent to the Consolidation Officer with the direction that they also be given land between the abandoned canal and the boundary line of village Kirkian Wala. The plaintiff-appellants who, in pursuance of the partition scheme, were allotted land measuring 397 kanals 19 marlas in that vicinity apprehending that their allotment might be affected, filed the present suit to challenge the said order of the Additional Director, Consolidation of Holdings, Punjab, on a number of grounds but the only ground which survives for the purpose of this appeal is that the impugned order was passed in violation of the provisions of Section 42 of the Act without affording any opportunity to them of being heard.

(2.) Respondent Nos. 1 and 2 contested the suit and controverted the material allegations made in the plaint. After recording evidence of the parties, the trial Court held that from the two petitions Exhibits P-21 and P-22 it was apparent that Kundha Singh defendant No. 3, Kirpal Singh defendant No. 4, Sardara Singh father of plaintiff Nos. 1 to 4 and Bhag Singh plaintiff were impleaded as parties before the Additional Director; that Kundha Singh and Kirpal Singh were served personally and Bhag Singh by affixation and that Kundha Singh was present before the Additional Director at the time of hearing. On the basis of these facts it was held that as one right-holder who had joint interest with the others was present before the Additional Director when the impugned order was passed, all the cosharers would be deemed to have been effectively represented. Reliance for this view was placed on four decisions of this Court in Lal Beg v. Pohlu and others,1968 PunLR 163 ; Gurnal Singh v. The Additional Director, Consolidation of Holdings Punjab and others,1970 RLR 296; Jahaj Khan and another v. The Additional Director, Consolidation of Holdings, Haryana and another,1970 PunLR 911. In view of this findings, the suit of the appellants was dismissed. On appeal, the learned District Judge, Faridkot confirmed the judgment and decree of the trial Court but on different ground, namely, that the plaintiffs were not entitled to any hearing or notice as by the impugned order they had not been affected adversely in any manner. It was further observed that the land between the abandoned canal and the boundary line of village Khirkian Wala is 1300/1400 acres and the plaintiffs own only about 50 acres out of that land. It could not, therefore, be said that the impugned order was against the plaintiffs or that they were likely to be affected by the same. It is this judgment of the learned District Judge which is under challenge in this second appeal by the plaintiffs. The learned counsel for the appellants invited my attention to Exhibits P-21 and P-22 and the written statement and contended that from the averments in these documents it is apparent that respondent Nos. 1 and 2 were claiming relief against the plaintiffs and respondent Nos. 3 and 4. In Exhibits P-21 and P-22 in the column relating to the names of the persons likely to be affected it is the plaintiffs and respondent Nos. 3 and 4 who are named. Again, in the written statement, the said respondents have specifically urged that they are entitled to the land which had been allotted to the plaintiffs and the said defendants. It was, therefore, argued that there could be no manner of doubt that the grievance of the contesting of defendants was against the plaintiffs and the impugned order would necessarily affect them adversely when the matter is taken up by the Consolidation Officer. I am, however, unable to agree with the contention of the learned counsel. In spite of the averments made by the contesting defendants, it is not necessary that their claim may be satisfied by disturbing the allotment of the plaintiffs. The total area in the vicinity where respondent Nos. 1 and 2 have been directed to be allotted land by the impugned order is 1300/1400 acres and the holding of the plaintiffs is only about 50 acres. The plaintiffs, therefore, may or may not be affected in pursuance of the impugned order and unless they are affected adversely they would have no right to challenge the said order.

(3.) Apart from the above consideration, on facts also the plaintiffs have no case. As noticed above, in the petitions before the Additional Director, Bhag Singh father of the plaintiff Nos. 2 and 3 and Sardara Singh father of plaintiff Nos. 4 to 7 and grandfather of plaintiff No. 1 were impleaded as parties together with defendant Nos. 3 and 4. Bhag Singh and defendant Nos. 3 and 4 were duly served. If the plaintiff Nos. 1 to 7 were not owners when the scheme for consolidation of holdings was finalised and the land stood in the name of Bhag Singh and Sardara Singh, the former would not be entitled either to be impleaded as a party or to be served with any notice. If that be so, it is not disputed, the appearance of one of them would be sufficient to represent all the cosharers as all of them had been impleaded as parties to the petitions. I, therefore, pointedly asked the learned counsel to show any material on the record which could indicate that plaintiff Nos. 1 to 7 were owners of the land in the estate of village Kaoni at the relevant time but he could not do so. The jamabandis, Exhibits P-8 and P-18 which have been produced on the record to show that the plaintiffs were owners of the suit land, were prepared by the consolidation authorities after the repartition had been affected in accordance with the scheme and no copy of the jamabandi prior thereto has been produced. May be that the land prior to the framing of the scheme stood only in the names of Bhag Singh and Sardara Singh which they got transferred in the name of the defendants during consolidation operations. The fact that in the petition under Section 42 of the Act, the names of Bhag Singh and Sardara Singh were mentioned and not of the plaintiffs also strengthens the view that the plaintiffs were not recorded owners at that time and the land stood only in the names of Bhag Singh and Sardara Singh. If that be so, the plaintiffs would not be entitled to an opportunity of being heard in the petitions filed under Section 42 of the Act. The appellants have, therefore, failed even on facts to make out a case that the impugned order was bad for violation of the provisions of Section 42 of the Act inasmuch as no opportunity of hearing was provided to them.