RSA No.4287 of 2009 (O & M) - 1 - . IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4287 of 2009 (O & M) Date of Decision: 04.05.2011 Daulat Ram ……Appellant Versus Chet Ram and others …...Respondents Coram: HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Harsh Aggarwal, Advocate for the appellant. Mr. Sanjiv Pandit, Advocate for respondents No.1 to 7. L.N. MITTAL, J (ORAL) Plaintiff-Daulat Ram having been non-suited by both the Courts below on preliminary issue, has come up by way of instant second appeal. Plaintiff-appellant alleged that he is owner of two properties depicted by letters ‘ABCD’ in blue colour in the site plan comprised of khasra No.95 and depicted by letters ‘CDEFGC’ in yellow colour in the site plan which bears no khasra number, but by tampering of the revenue record, these two properties have been depicted as khasra No.95/1 and khasra No.95/2 respectively and with different dimensions. Contesting defendants alleged that the revenue record is correct and it was prepared at the time of RSA No.4287 of 2009 (O & M) - 2 - consolidation of holdings and if there is any mistake in the revenue record, the same can be corrected by Consolidation Department only and jurisdiction of Civil Court is barred. Various other pleas were also raised. Following preliminary issues were framed:- “1. Whether jurisdiction of Civil Court is barred under Section 44 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948? OPP 2. Relief.” Both the Courts below have held that jurisdiction of Civil Court is barred by Section 44 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (in short, the Act) and the plaintiff could approach the consolidation authorities under Section 43-A of the Act for necessary correction of revenue record. Accordingly, learned Additional Civil Judge (Senior Division), Balachaur vide judgment and decree dated 10.03.2006 dismissed the plaintiff’s suit. First appeal preferred by the plaintiff has been dismissed by learned Additional District Judge, Nawanshahar vide judgment and decree dated 19.08.2009. Feeling aggrieved, plaintiff has preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. RSA No.4287 of 2009 (O & M) - 3 - At the outset, it has to be noticed that even if the Civil Court did not have jurisdiction to try the suit and the jurisdiction was with consolidation authorities, the suit could not have been dismissed and only the plaint could have been returned. Learned counsel for the appellant vehemently contended that according to plaintiff’s version, there has been tampering with the revenue record depicting the two suit properties as khasra No.95/1 and Khasra No.95/2 whereas the first suit property is comprised of khasra No.95 and the second suit property does not bear any khasra number and the change was not made during consolidation of holdings and, therefore, jurisdiction of Civil Court is not barred. On the other hand, learned counsel for respondent Nos.1 to 7 contended that the change took place during consolidation of holdings and, therefore, jurisdiction of Civil Court is barred. I have carefully considered the rival contentions. Courts below did not give any opportunity to the parties to lead evidence in support of their respective versions. Trial Court observed that since issue No.1 is purely legal one, no evidence was required. This approach of the Courts below cannot be sustained being completely perverse and illegal. Even the lower appellate Court erroneously observed that admittedly the revenue record was prepared at the time of consolidation of holdings. Reference was also made to RSA No.4287 of 2009 (O & M) - 4 - revenue record in this regard. Both the Courts below proceeded on the assumption that the disputed revenue record is result of proceedings of consolidation of holdings. This approach of the Courts below is patently perverse, illegal and unsustainable. It is not the admitted position that the revenue record in question was prepared during consolidation of holdings. It is rather the stand of the contesting defendants only and they have to prove the same by leading evidence. On the contrary, plaintiff’s case is that revenue record has been tampered with to depict the suit properties to be comprised of khasra No.95/1 and Khasra No.95/2. The disputed revenue record has been relied on by the courts below to hold that the same is result of consolidation of holdings. However, no opportunity was given to the plaintiff to depict that the revenue record has been tampered with nor opportunity of leading evidence was given to the contesting defendants to depict that the revenue record in question was prepared during consolidation of holdings leading to bar of jurisdiction of Civil Court. For the reasons aforesaid, judgments and decrees of the Courts below cannot be sustained being perverse and illegal. Substantial question of law to this effect arises for adjudication in this second appeal and the same is answered accordingly. The appeal is, therefore, allowed. Judgments and decrees of the Courts below are set aside and suit is remanded to the trial Court for fresh decision in accordance with law after giving opportunity of leading evidence to RSA No.4287 of 2009 (O & M) - 5 - both the parties. Since evidence is required, to decide the preliminary issues, it would be appropriate that the entire suit is decided on merits including issue of bar of jurisdiction of Civil Court. It is made clear that I have not expressed any opinion regarding preliminary issue No.1 mentioned hereinabove. Files of the Courts below be sent back at once. Parties are directed to appear before the trial Court on 01.06.2011. (L. N. MITTAL) JUDGE 04.05.2011. A.kaundal