RSA No.273 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.273 of 2008 Date of decision : 3-8-2009 Smt. Sharda and others ....Appellants VERSUS Kidara and others ....Respondents CORAM:- HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. R.N. Lohan, Advocate, for the appellants. RAJIVE BHALLA, J. The appellants challenge the judgments and decrees dated 5-2-2004 and 1-9-2007, passed by the Civil Judge (Junior Division) Jind and District Judge, Jind dismissing the suit and the appeal. The plaintiff - appellants filed a suit for declaration, claiming ownership of the suit land and simultaneously prayed that the order dated 10-06-1964, passed by the Assistant Director, Consolidation of Holdings, Rohtak be declared illegal and void. The appellants alleged that in proceedings before the Assistant Director, Consolidation of Holdings, Rohtak, Hira son of Puran influenced Teka their grandfather and father of proforma respondent no.4 to make a statement in his favour that led the consolidation authorities to withdraw the suit land from their holdings. It was further alleged that in the absence of any apparent reason for this statement, the order dated 10-06-1964 is a nullity. In response, the respondents asserted RSA No.273 of 2008 -2- that the suit is barred by time, denied the averments in the plaint and prayed for dismissal of the suit. The trial Court proceeded to frame issues and thereafter called upon the parties to lead evidence. Upon appraisal of the pleadings, the evidence adduced and the arguments addressed, the trial court dismissed the suit by holding that there is no reason to hold that the statement made by Teka was illegal. As regards the argument that the statement by Teka does not bind the interest of Jagan Nath as he was a minor the courts below held that his interest was common with his father and as Jagan Nath had filed a similar suit which was dismissed as withdrawn on 15-04-1982 the appellants who are his children cannot be allowed to reopen the matter. Aggrieved by the aforementioned judgment and decree, the appellants filed an appeal. The District Judge, Jind vide order dated 1-9-2007 dismissed the appeal and affirmed the findings recorded by the trial court. Counsel for the appellants submits that the Courts below have ignored the fact that on 10-6-1964, Jagan Nath was a minor and therefore, legally incapable of making any statement. The statement made by his father Teka does not bind Jagan Nath and therefore, the appellants. It is further submitted that as the land is ancestral in nature, and as parties are co-sharers, the courts below could not have held that the suit is barred under order 23 Rule 1(4) of the CPC merely because their predecessor had filed a prior suit which was dismissed as withdrawn. I have heard counsel for the appellants, perused the RSA No.273 of 2008 -3- impugned judgments as also the questions of law framed by counsel for the appellants. The trial court as also the first appellate court have returned concurrent findings of fact that the order dated 10-6-1964 is legal and valid. It would require mention that the appellants seek to reopen an order passed more than 30 years, before the filing of the suit on the plea that the order is a nullity. In the absence of any circumstance to support this assertion, the courts below did not commit any error in dismissing the suit and the appeal. Teka made a voluntary statement, in favour of his brother Hira that led to the passing of the order dated 10-06-1964. The appellants, who are sons of Jagan Nath s/o Teka have failed to substantiate their assertion of coercion or fraud. The appellants' assertion that Jagan Nath was a minor on 10-06-1964 also remains unsubstantiated. It would be necessary to mention here that Jagan Nath, the predecessor of the appellants, filed a similar suit which was dismissed as withdrawn on 15-4-1982. After holding as above, the courts below proceeded to examine the order dated 10-6-1964, on merits and held that there was no error on facts. It was held that during consolidation proceedings, though 60 standard acres were to be allotted to Teka and Jagan Nath, as permissible area, they were awarded 90 standard acres. The other branch, numbering four were allotted 90 standard acres whereas they were entitled to a total of 120 standard acres. This error was rectified and the excess 30 acres allotted to Teka and Jagan Nath were withdrawn from their land and allotted to RSA No.273 of 2008 -4- Hira etc. It would be necessary to mention here that under the Punjab Security of Land Tenures Act 1953 a land owner is entitled to reserve 30 standard acres as his permissible area. As a consequence, the impugned order is even otherwise legal and void. It would also be necessary to mention here that this order, passed in the year 1964 was never challenged before the consolidation authorities, till the filing of the suit. The question of law framed by counsel for the appellants are therefore answered in the above terms. As the impugned judgments and decrees do not suffer from any error, the appeal is dismissed. (RAJIVE BHALLA) 3-08-2009 JUDGE manju