CWP No. 1268 of 1985 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No. 1268 of 1985 (O&M) Date of decision:- 18.01.2011 Amar Singh ....Petitioner Vs. Additional Director, C/H Punjab and others ....Respondents CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA ****** Present:- Mr. Amarjit Markan, Advocate, for the applicants-petitioner. Mr. P.S. Thaira, Addl. A.G. Punjab. Mr. Jai Bhagwan, Advocate, for respondent Nos. 2 and 3. HEMANT GUPTA, J (ORAL) CM No. 15817 of 2010 In view of the averments made in the application, legal heirs of Amar Singh, petitioner, are ordered to be impleaded subject to all just exceptions. CWP No. 1268 of 1985 The challenge in the present petition is to the order passed by the Additional Director, Consolidation of Holdings, exercising the powers of Director, conferred under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (for short, “the Act”), on 01.08.1984 (Annexure P-10), whereby the petition filed by respondent Nos. 2 CWP No. 1268 of 1985 2 and 3 was accepted and two Karam path was ordered to be laid on the western side of Killa Nos. 1805 and 1808 and southern side of Killa No. 1808 and western side of Killa Nos.1855 and 1854. The petitioner has pleaded that consolidation proceedings were conducted in village Chetha Sekhwan in the year 1953 under the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948. In the said scheme, the respondents have been provided path by carving out Pahi No.1806, shown as ABC in Annexure P-1. Earlier, petitioner filed a suit for injunction against respondent No.2 when he threatened to demolish the said path. The said suit was dismissed by the trial Court on 30.11.1972, but the appeal was accepted vide judgment and decree dated 16.01.1975. Respondent No.2 was restrained from interfering with use of Pahi No. 1806, though a finding was returned that the petitioner is using the other path by consent. Thereafter, respondent No.2 filed a petition under Section 42 of the Act, which was dismissed by the Additional Director, Consolidation of Holding, on 24.01.1980 (Annexure P7). Later on 03.06.1984, respondent No.2 filed another petition under Section 42 of the Act for modification of scheme by shifting passage No. 1806 from middle of its holding and to provide passage on the other side, so as to avoid bifurcation of his holding. It is the said petition, which has been allowed by the learned Additional Director, Consolidation of Holdings, on 01.08.1984 (Annexure P-10), the order impugned in the present CWP No. 1268 of 1985 3 writ petition. Learned counsel for petitioner has vehemently argued that passage ABC in site plan Annexure P-1 was provided in the consolidation scheme by carving out Khasra No.1806 in the year 1953-1954. Such passage cannot be permitted to be shifted after more than 30 years on a petition filed on 03.06.1984. It is further contended that Civil Court has passed an order restraining respondent No.2 from interfering into the use of the passage provided by carving out Khasra No.1806, therefore, the decree of the Civil Court cannot be set aside in the manner sought by respondent No.2. Having heard learned counsel for the parties, I do not find any merit in the present petition. Though, passage was provided in the scheme by carving out Khasra No.1806, but the Civil Court has recorded a finding that such passage was being used up to Rabi 1969. It was also held that when the Kanungo visited the spot on 19.07.1969, the disputed Pahi (passage) was not in existence. The relevant extract of the judgment of the Civil Court reads as under:- “A careful perusal of certified copy of khasra girdawari (Ex.D2) and certified copy of Masavi (Ex.P1) will show that the disputed pahi bearing khasra No.1806 was being used as such up to Rabi 1969. The possession of Sadhu Singh defendant-respondent over the disputed pahi had started thereafter. Thus, the findings of the learned trial Court that the disputed pahi was abandoned 20 years ago is not correct. The learned trial Court had made reliance upon the evidence of DW-3 Dharam Pal Kanungo who had visited the spot and submitted his report dated 19.07.1969 certified copy of which is Ex.DW3/A. According to his evidence CWP No. 1268 of 1985 4 the disputed pahi was not in existence when he visited the spot.” The Civil Court had decreed the suit relying upon the scheme providing passage by carving out Khasra No.1806, but it cannot be overlooked that such passage bifurcates the land of the respondent No.2 as two of his Khasra numbers i.e. 1805 and 1808 are segregated from rest of his holding. Vide the impugned order, passage ABC is shifted on the western side of Killa Nos.1805 and 1808, so as to avoid bifurcation of the holding of respondent No.2. Such shifting of passage is in the interest of the parties and does not affect any of the rights of the petitioner, as he is provided passage from the land of respondent No.2 only. In view of the said fact, I do not find any patent illegality or irregularity in the order dated 01.08.1984 passed by the Additional Director, Consolidation of Holdings, which may warrant any interference by this Court in exercise of its writ jurisdiction. Petition dismissed. (HEMANT GUPTA) 18.01.2011 JUDGE aj