IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.4167 of 2011(O&M) Date of Decision: December 14, 2011. Ranbir Singh. ...... APPELLANT. Versus Gram Panchayat, Village Bandhwari and others. ...... RESPONDENTS CORAM:- HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Ms. Sharmila Sharma, Advocate for the appellant. ***** RAM CHAND GUPTA, J.(Oral) CM No.12029/C of 2011. The application is allowed subject to all just exceptions. RSA No.4167 of 2011. The present regular second appeal has been filed against the judgment and decree dated 05.09.2011 passed by learned Additional District Judge, Gurgaon dismissing appeal filed by present appellant-plaintiff against the judgment and decree dated 9.11.2010 passed by learned Civil Judge (Junior Division), Gurgaon dismissing the suit filed by appellant-plaintiff. RSA No.4167 of 2011(O&M) I have heard learned counsel for the appellant-plaintiff and have gone through the whole record including impugned judgments passed by the Courts below. Briefly stated, appellant-plaintiff filed the suit for declaration with consequential relief of permanent injunction challenging the order passed by Competent Authority in consolidation proceedings under Section 21 (3) of East Punjab Holdings (Consolidation Prevention of Fragmentation) Act, 1948 (hereinafter referred to as ‘the Act’) on the plea that less land was allotted to the plaintiff. The order was passed by the Competent Authority-cum- Consolidation Officer under the Act and the said order according to the appellant-plaintiff is illegal and erroneous. The remedy was available to the present appellant-plaintiff to go in appeal before the Settlement Commissioner under Section 21(3) of the Act. Jurisdiction of civil Court to entertain and decide the said matter challenging order passed by Competent Authority i.e. Consolidation Officer under the Act has been specifically barred under Section 44 of the Act which reads as under:- “44. No civil court shall entertain any suit instituted or application made, to obtain a decision or order in respect of any matter which the [State] Government or any officer is, by this Act, empowered to determine, decide or dispose of.” It has also been so held by this Court in Joban Singh Vs. Thakur Singh and others 1983 PLJ 212. Operative part of which reads as under:- “2. After hearing the learned counsel for the parties and on consideration of the entire case, I am of the view that the Courts below exceeded their jurisdiction in entertaining the suit. 2 RSA No.4167 of 2011(O&M) A reading of the order of the Consolidation Officer dated 23.6.1971, a copy of which has been produced as Ex.P8 on the record, shows that earlier thereto, the parties had gone up to the Additional Director under section 42 of the Act and the matter was remanded to the Consolidation Officer to pass a fresh order keeping in view the directions made by the Additional Director. The order of the Additional Director was not challenged in the suit nor a copy thereof was produced on the record. Therefore, the matter before the Civil Court was limited to find out whether the order of the Consolidation Officer was within jurisdiction or not. A reading of that order shows that in pursuance of the remand order of the Additional Director, the rights of the parties were determined afresh and the deficiency in the area of Joban Singh defendant was made good to the extent of 1 Kanal 5 Marlas out of the excess allotment made to Thakur Singh plaintiff. No point of jurisdiction arises out of the order of Consolidation Officer. 3. The sole basis on which the Courts below have proceeded is that whole of the Khasra number in dispute was earlier allotted to the plaintiff. This is correct, but Joban Singh was not satisfied with that allotment and took the matter before the Additional Director under Section 42 of the Act when his claim was allowed and the matter was remanded to the Consolidation Officer to make afresh allotment subject to the observations made in the order of the Additional Director and thereafter order dated 23.06.1971 was passed. If the order was 3 RSA No.4167 of 2011(O&M) erroneous on merits or was contrary to the order of the Additional Director, the proper remedy for the plaintiff was only to go up in appeal before the settlement officer under Section 21(3) of the Act and if he was still aggrieved from the order of the settlement officer then to go up in further appeal before the Assistant Director under Section 21(4) of the Act and if still he was not satisfied with the said order, then to go to the Director/Additional Director under section 42 of the Act. But the plaintiff did not choose this course which was available to him under the Act. Instead, he filed the present suit. As already noticed, it has been shown at all as to how the order of the Consolidation Officer was without jurisdiction. As held by a Division Bench in Haqiqat V. The Additional Director, Consolidation of Holdings, Punjab and others, 1981 P.L.J. 239, there is no time limit for the Additional Director to pass appropriate orders in the interest of justice. What the Consolidation Officer has done in this case is, to pass orders keeping in view the remand order of the Additional Director. The remand order of the Additional Director not having been challenged, no question of jurisdiction would survive to challenge the order of the Consolidation Officer. 4. The lower appellate Court was in error in coming to the conclusion that the civil suit is competent on the facts of the present case in view of the Full Bench judgment in Ajit Singh’s case(supra). The facts of Ajit Singh’s case (supra) are wholly distinguishable from the facts of the present case. Therein, it 4 RSA No.4167 of 2011(O&M) was held that if there is some dispute between the co-sharers on a question of title, that could be gone into by the Civil Court and the operation of section 16-A(2) of the Act would be subject to the decision of the Civil Court and the Consolidation Authorities will have to pass fresh orders in view of the decision of question of title by the Civil Court. In the present case, even the pure question of title was not agitated upon by the plaintiff. All that he had asserted was that whole of Khasra number in dispute was allotted to him in 1960 and the change made after ten years, was without jurisdiction. If there had been a dispute between the plaintiff and the defendant as to the share in the joint land held by them and if the plaintiff was claiming certain share and the Consolidation Officer had allowed him less than that share, then certainly he could come to the Civil Court to establish his title and had the Civil Court upheld his contention on the question of his share, then on the basis of declaration granted by the Civil Court, the Consolidation Authorities would have been duty bound to make fresh partition to make good the share of the plaintiff. As already noticed, those are not the facts in the present case and, therefore, the Full Bench decision is wholly inapplicable. 5. For the reasons recorded above, the decision of the Courts below on all the issues is set aside and it is held that the order of the Consolidation Officer is neither illegal, nor without jurisdiction and, therefore, the Civil Court has no jurisdiction to entertain the suit. Consequently, the appeal is allowed, the 5 RSA No.4167 of 2011(O&M) judgments and decrees of the two Courts below are set aside and the suit is dismissed, but without any order as to costs.” Hence, in view of these facts, it cannot be said that any illegality has been committed by learned courts below in passing the impugned judgments and decrees. Finding recorded by both the courts below is fully justified by the evidence on record and is supported by cogent reasons. The said finding is not shown to be perverse or illegal nor it is based on misreading or mis-appreciation of the evidence. Hence, the said finding does not warrant interference in this second appeal. No question of law, much less substantial question of law, arises for determination in this second appeal. Accordingly the appeal is dismissed in limine. ( RAM CHAND GUPTA ) December 14, 2011. JUDGE Sachin M. 6