RSA No.40 of 1980 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.40 of 1980 Date of Decision: 28.8.2008 Sant Singh .....Appellant Vs. Kirpal Singh and others ....Respondents .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr. J.P.S. Sandhu, Advocate for the appellant. .... RAJIVE BHALLA, J (Oral) The appellant, impugns a judgement and decree dated 14.9.1979 passed by the Additional District Judge, Amritsar, accepting the appeal filed by the respondents, thereby reversing the judgement and decree dated 5.4.1977 passed by the Sub Judge, IInd Class, Amritsar, and as a consequence dismissing the suit for declaration and possession filed by the appellant. Respondent no.1 Kirpal Singh s/o Sant Singh was owner in possession of a house measuring 1 kanal 4 marlas. He sold this property to the appellant for a consideration of Rs.500/- by way of a registered sale deed dated 1.6.1960 and transferred possession to the appellant. It appears that before the appellant could approach the revenue authorities to sanction a mutation, consolidation proceedings commenced in the village, and the land purchased by the appellant which was assigned Khasra No.108, was allotted to one Kirpal Singh s/o Sudagar Singh. Repartition proceedings of RSA No.40 of 1980 2 consolidation were challenged by one Ganga Singh. The Additional Director, Consolidation, after considering the matter in its entirety, directed allotment of Khasra No.108 to respondents no.1,2 and 3 and retrieval of proportional land from them. Taking advantage of this order, defendant no.1 is alleged to have taken possession of the suit property. The plaintiff, therefore, had no option but to file the instant suit for declaration of his ownership and in the alternative for possession. The respondents admitted the sale deed but denied that the suit property was the property sold vide sale deed dt.1.6.1960. It was asserted that the property sold to the appellant was allotted to one Kirpal Singh s/o Sudagar Singh, during consolidation. The appellant, therefore, had to seek his remedy against Kirpal Singh s/o Sudagar Singh and not against the respondents. It was also asserted that as the property was allotted during consolidation, the suit should be dismissed. On the basis of the pleadings of the parties, the learned trial Court framed the following issues :- “1.Whether the plaintiff purchased the land in suit and is owner in possession of the same, if not its effect ? OPP. 2. 2.Whether the suit is properly valued for purposes of court fee and jurisdiction ? 3. Whether the civil court has no jurisdiction to try this suit ? OPD. 4. Whether the suit is bad for misjoinder of necessary parties.? 5. Whether suit is within limitation ? 6. Whether the defendants have become owners of land in suit by adverse possession ? 7. Whether the plaintiff is stopped by act and conduct and RSA No.40 of 1980 3 deed from filing this suit ? OPD 8. Relief.” Under isssue no.1, the trial Court held that respondent no.1, Kirpal Singh had admitted the execution of the sale deed in favour of the appellant. On account of an inadvertent error during consolidation proceedings, land sold to the appellant by respondent No.1 was allotted to one Kirpal Singh s/o Sudagar Singh. The Additional Director, Consolidation, rectified this error but instead of directing allotment of this land to the appellant, allotted it to Kirpal Singh s/o Sant Singh, respondent no.1 alongwith his wife and son, respondents no.2 and 3. It was also held that under the garb of this order, Kirpal Singh dispossessed the appellant. Consequently, the learned trial Court declared the appellant to be owner of the suit land and decreed his alternative prayer for possession. Aggrieved by the aforementioned judgement, the respondents filed an appeal. The first appellate Court upheld the finding, that respondent no.1 had sold property to the appellant but held that as Khasra No. No.108 was allotted to the respondents during consolidation, the appellant could not lay any claim to this land and would, therefore, have to approach the consolidation authorities. It was also held that as this land was allotted jointly to the respondents and as the appellant had no claim against respondents no.2 and 3, the appellant's claim was untenable. Despite service no one has put in appearance on behalf of the respondents at any stage of these proceedings. Counsel for the appellant has framed the following substantial questions of law :- RSA No.40 of 1980 4 “(1)Whether the first appellate Court failed to understand the legal nature of consolidation proceedings, the nature of the order passed by the Additional Director, Consolidation, allotting Khasra No.108 to the respondents and the rights flowing therefrom ? (2)Whether consolidation authorities ,can divest a person of his proprietary rights and if not would civil courts be power less to undo such a wrong? I have heard learned counsel for the appellant and perused the impugned judgement. The appellant, admittedly, purchased property from respondent no.1 vide a registered sale deed dated 1.6.1960. On account of an error during consolidation proceedings, this land, which was assigned Khasra No.108, was allotted to one Kirpal Singh s/o Sudagar Singh. Eventually, the allotment to Kirpal Singh s/o Sudagar Singh, came up for consideration amongst other matters, before the Additional Director, Consolidation. The Additional Director, Consolidation in the exercise of powers under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter referred to as `the Act') re-examined the allotment but instead of allotting Khasra No.108 to the appellant allotted it to respondent no.1 to 3. Under the garb of this order, Kirpal Singh s/o Sant Singh, respondent no.1 dispossessed the appellant compelling him to file the instant suit for declaration and in the alternative for possession. The trial Court held that though the error in consolidation RSA No.40 of 1980 5 proceedings was rectified by the Additional Director, Consolidation and land was retrieved from the kurah (demarcated area) of Kirpal Singh s/o Sudagar Singh but instead of allotting it to the appellant, it was allotted to Kirpal Singh, respondent no.1. Mutation no.988 reflecting this change was accordingly sanctioned. It was held that as respondent no.1 had sold this land to the appellant, he could not be deprived of its ownership or possession, by taking advantage of an error in the order passed by the consolidation authorities. The appellate Court, on the other hand, disregarded or as it appears, was unaware of the nature of consolidation proceedings and, therefore, proceeded to wrongly interpret the nature of the order passed by the Additional Director, Consolidation, the mutation sanctioned thereon and the rights of the parties flowing therefrom. The first appellate Court failed to comprehend that orders passed by consolidation authorities cannot divest or confer proprietary rights and in case such an order is passed civil courts would not be powerless to rectify such an error of jurisdiction and instead of affirming the trial Court's judgement, proceeded to set it aside. An order passed during Consolidation proceedings cannot deprive a person of his rights in or over property. An order, passed by consolidation authorities, that has the effect of divesting a landowner of his proprietary rights would be without jurisdiction. Authorities under the Consolidation Act merely consolidate landholdings fragmented over a period of time. Thus, where a person raises a plea before a Civil Court that he was divested of his proprietary rights, during consolidation proceedings, civil Courts would have jurisdiction and, would therefore, be obliged to decide such a dispute and if the allegation is true proceed to set aside or RSA No.40 of 1980 6 disregard such an order. An order passed by Consolidation authorities depriving a person of his proprietary rights would be without jurisdiction and, therefore, subject to challenge before civil Courts. Though, respondent no.1 admitted the sale deed dated 1.6.1960 and did not dispute that the identity of the property sold matched the property allotted to him during consolidation, the first appellate court proceeded to direct the appellant to approach the Consolidation authorities for his land. The conclusions recorded by the first appellate Court, on a gross misunderstanding of the provisions of the Consolidation Act, the nature of the order passed thereunder and the rights flowing therefrom lead me to a singular conclusion, namely, that the order passed by the appellate authority is not only perverse but discloses a fundamental error of jurisdiction. The substantial questions of law are, therefore, answered in the above terms and by holding that the first appellate Court committed an error of jurisdiction, as it failed to comprehend the legal nature of orders passed in consolidation proceedings and, therefore, illegally directed the appellant to approach the consolidation authorities, disregarding the principles of law that consolidation authorities have no jurisdiction to divest a person of his proprietary rights and in such a situation, a civil Court has jurisdiction to undo the wrong perpetuated by consolidation authorities. The question, therefore, that survives for adjudication is whether the suit land was sold to the appellant vide sale deed 1.6.1960, namely the identity of the property purchased by the appellant? The respondents did not deny the sale deed dated 1.6.1960 but pleaded that the suit property had been allotted to them after it was retrieved from the kurah RSA No.40 of 1980 7 of Kirpal Singh s/o Sudagar Singh, during consolidation proceedings. The learned trial Court held that the land sold by respondent no.1, to the appellant had been wrongly allotted to Karnail Singh s/o Sudagar Singh and thereafter to the respondents. It would also be necessary to mention here that the identity of the property stands established by reference to the boundaries, as set out in the sale deed and the plaint. The correctness of the boundaries were not disputed by the respondents. In order to place the above conclusions in their correct perspective, the findings recorded by the learned trial Court would require reproduction :- “But I am of the opinion that order of Shri Lal Singh, Additional Director copies of which are Ex.P1 and Ex.D.2 have restored status quo, qua the suit property as it existed before the consolidation proceedings. The suit property which was wrongly allotted during the consolidation proceedings to Kirpal Singh son of Sudagar Singh of village Rupowali have reverted back to Kirpal Singh, Parkash Kaur and Ravinderpal Singh defendants. So the plaintiff can rightly assert to reclaim his right to the suit property on the basis of sale deed Ex.P1 executed by Kirpal Singh defendant in his favour. The plaintiff might have been put to difficulties by the action of the consolidation authorities if Shri Lal Singh, Additional Director, Consolidation of Holdings had not passed order Ex.P2 and D.1 but by the said order the mistake on the part of the consolidation authorities during the consolidation proceedings have been rectified RSA No.40 of 1980 8 and the ownership of the suit property has been restored to the defendants and in view of that now the plaintiff has got a right to claim property from the defendants on the basis of the sale deed Ex.P1.” The learned trial Court, thus, held that the property sold to the appellant was wrongly allotted to the respondents. It would require necessary mention that the error in the order passed by the consolidation authorities arose as before the appellant could pray for sanction of a mutation, consolidation proceedings intervened. Respondent no.1 was still reflected as owner in the revenue record. The consolidation authorities, allotted it first to Kirpal Singh s/o Sudagar Singh and thereafter to the respondents. This error by the consolidation authorities, led to the appellant being deprived of his proprietary rights. It is, therefore, apparent that as respondent no.1 admitted sale of the Haveli measuring 1 kanal 4 marlas but sought to deprive the appellant of his proprietary rights by placing reliance upon an error in the orders passed by the consolidation authorities, the first appellate Court should have been able to discern the respondents malafides and thereafter should have proceeded to dismiss the appeal. The appellate Court, as stated herein above, without examining the error committed by consolidation authorities proceeded to reverse the well reasoned judgement of the trial Court, without considering that the appellant, a bonafide purchaser of property, sale whereof has not been denied by the respondent was being deprived of his property for no error or fault on his part. For the reasons stated herein above, the appeal is allowed, the RSA No.40 of 1980 9 judgement and decree dated 14.9.1979 passed by the first appellate Court is set aside and the judgement and decree dated 5.4.1977 passed by the trial Court is restored, with no order as to costs. 28.8.2008 (RAJIVE BHALLA) GS JUDGE RSA No.40 of 1980 10