Regular Second Appeal No. 4167 of 2003 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 4167 of 2003 Date of decision : January 22, 2010 Joginder Nath alias Joginder Pal ....Appellant versus Sat Pal and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Premjit Kalia, Advocate, for the appellant Mr. BR Mahajan, Advocate, for respondent nos. 9 to 15 None for the remaining respondents L.N. Mittal, J. (Oral) By this common judgment, I am disposing of two appeals i.e. RSA No. 4167 of 2003 and RSA No. 4168 of 2003, both filed by Joginder Nath alias Joginder Pal defendant no. 1 against same judgments and decrees of the lower courts. Respondents are plaintiffs or successors-in-interest of some of the plaintiffs since deceased. The plaintiffs filed suit alleging that during consolidation of holdings which took place in the year 1953, suit land measuring 67 kanals 11 marlas was allotted to Manohar Lal, Chaman Lal Regular Second Appeal No. 4167 of 2003 -2- and Vishwa Mitter (hereinafter referred to as the original allottees). They became owners in possession of the suit land. They sold the suit land to plaintiff no. 10 Sat Pal and proforma defendant no. 2 Dharam Pal vide registered sale deed dated 16.6.1959. Accordingly, plaintiff no. 10 and defendant no. 2 became owners in possession of the suit land. They partitioned the suit land among themselves. Plaintiff no. 10 sold 15 kanals 7 marlas of land out of it to plaintiff nos. 1 and 2 i.e. Harbans Singh and Mohinder Kaur vide sale deed dated 9.8.1971 and accordingly they are owners in possession thereof. Defendant no. 2 sold 28 kanalas 15 marlas land to Rajinder Kaur (predecessor-in-interest of plaintiff nos. 3 to 9) vide sale deed dated 9.6.1976 and accordingly plaintiff nos. 3 to 9 are owners in possession of the said land. Plaintiff no. 10 is owner in possession of 8 kanals 13 marlas left with him as exclusive owner. Defendant no. 1 filed application on 20.1.1979 under section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (in short, the CH Act) alleging that he was allotted less land in repartition scheme during consolidation of holdings. Director, Consolidation of Holdings vide order dated 17.3.1979, Ex. P4 modified the scheme of partition and gave the suit land to defendant no. 1. The said order has been challenged in the suit being null and void and against principles of natural justice. Plaintiff nos. 1 to 9 and their predecessors-in-interest were not party to the application before the Director, Consolidation of Holdings and they are bonafide purchasers of the suit land. Application under section 42 of the CH Act filed by defendant no. 1 was hopelessly barred by limitation. Plaintiffs accordingly sought Regular Second Appeal No. 4167 of 2003 -3- declaration that they are owners in possession of their respective lands i.e. plaintiff nos. 1 and 2 of land measuring 14 kanals 5 marlas; plaintiff nos. 3 to 9 of land measuring 28 kanals 15 marlas and plaintiff no. 10 of land measuring 8 kanals 13 marlas and that order Ex. P4 passed by the Director, Consolidation of Holdings is null and void. Defendant no. 1 resisted the suit by pleading that jurisdiction of civil court to challenge order of Director, Consolidation of Holdings is barred by section 44 of the CH Act. It was also averred that plaintiff no. 10 and defendant no. 2 were present and represented before the Director, Consolidation of Holdings and they were heard before order Ex. P4 was passed. Defendant no. 1 had already taken possession of 8 kanals 13 marlas land which is claimed by plaintiff no. 10. Defendant no. 1 also reiterated that during consolidation of holdings he was allotted less land than his entitlement whereas the original allottees Manohar Lal etc. were allotted excess land. Defendant no. 1 remained posted outside the village from 1953 to 1979 and therefore, did not learn of the order passed during the consolidation of holdings. Various other pleas were also raised. Learned Additional Senior Sub Judge, Amritsar vide judgment and decree dated 19.11.1985 decreed the suit of plaintiff nos. 1 and 2 for 14 kanals 5 marlas land and of plaintiff nos. 3 to 9 for 28 kanals 15 marlas land as claimed, but the suit of plaintiff no. 10 qua 8 kanals 13 marlas land was dismissed. Plaintiffs as well as defendant no. 1 preferred appeals against the said judgment and decree. Learned Additional District Judge, Amritsar vide common judgment dated 11.1.2003 decided both the said appeals. Regular Second Appeal No. 4167 of 2003 -4- Appeal of the plaintiffs was allowed and suit of plaintiff no. 10 was also decreed qua land measuring 8 kanals 13 marlas claimed by him whereas appeal of defendant no. 1 stands dismissed. Feeling aggrieved, defendant no. 1 has preferred the instant two regular second appeals because two appeals were decided by the lower appellate court. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellant vehemently contended that jurisdiction of civil court to challenge order passed by Director, Consolidation of Holdings under section 42 of the CH Act is barred by section 44 of the CH Act. Reliance in support of this contention has been placed on three judgments of this Court namely Rattan and another versus The State of Punjab and others, 1965 PLR 276, Joginder Singh and others versus Jagir Singh and another, 1980 PLJ 411 and Koora Ram (deceased) Rep. By L.Rs. Versus Prabhu and others, 1986 PLJ 467. Learned counsel for the respondents, however, contended that plaintiff nos. 1 to 9 were not party before the Director, Consolidation of Holdings and were not afforded opportunity of hearing and therefore, order Ex. P4 passed by the Director is null and void. Attention of the Court has been drawn to proviso to section 42 of the CH Act laying down that no order, scheme or repartition shall be varied or reversed without giving the parties interested notice to appear and opportunity to be heard except in cases where the Central Government is satisfied that the proceedings have been initiated by unlawful consideration. It was accordingly contended that it was mandatory to give notice and opportunity of hearing to plaintiff nos. Regular Second Appeal No. 4167 of 2003 -5- 1 to 9 who were definitely interested persons having purchased their respective lands years before the filing of the application under section 42 of the CH Act by defendant no. 1. Admittedly plaintiff nos. 1 to 9 were neither given notice nor opportunity of hearing by the Director, Consolidation of Holdings and consequently order Ex. P4 passed by the Director is nullity and jurisdiction of civil court to challenge the same is not barred notwithstanding section 44 of the CH Act. Learned counsel for the appellant contended that plaintiff nos. 1 to 9 are co-sharers with plaintiff no. 10 and defendant no. 2 and notice and opportunity of hearing was afforded to plaintiff no. 10 and defendant no. 2 and therefore, order of the Director, Consolidation of Holdings cannot be set aside on the ground that plaintiff nos. 1 to 9 were not given notice or opportunity of hearing. In support of this contention, reliance has been placed on a judgment of Full Bench of this Court in the case of Biru and another versus Suraj Bhan and others, 1983 PLJ 216. It was held therein that it is not necessary that every co-sharer must be formally impleaded or afforded opportunity of hearing and if there is identity of interest, then any one could represent the others as well. I have carefully considered the rival contentions. Plaintiff Nos. 1 to 9 cannot be said to have been represented by plaintiff no. 10 and defendant no. 2 because they are all not co-sharers. Plaintiff nos. 1 and 2 have purchased 14 kanals 5 marlas land bearing specific khasra numbers and similarly plaintiff nos. 3 to 9 are also owners of 28 kanals 15 marlas land of specific khasra numbers purchased by their predecessor. Consequently, plaintiff no. 10 and defendant no. 2 could not Regular Second Appeal No. 4167 of 2003 -6- have represented plaintiff nos. 1 to 9. Admittedly, plaintiff nos. 1 to 9 were not party to the application filed by defendant no. 1 under section 42 of the CH Act nor notice of the said application or opportunity of hearing was given to plaintiff nos. 1 to. 9. Thus, mandatory provision of proviso to section 42 of the CH Act was violated and therefore, civil court has jurisdiction notwithstanding bar of jurisdiction created by section 44 of CH Act. Whenever principles of natural justice are violated, the order becomes nullity and civil court gets jurisdiction even if otherwise there is bar to the jurisdiction of the civil court. In the instant case, there is specific provision in the CH Act i.e. proviso to section 42 of the CH Act laying down that no order, scheme or repartition can be varied or reversed without giving parties interested notice to appear and an opportunity to be heard. In view of breach of said mandatory provision in the instant case, order Ex. P4 passed by the Director, Consolidation of Holdings becomes null and void and therefore, jurisdiction of civil court cannot be said to be barred. The matter may also be examined from another angle. Plaintiffs claimed to be bonafide purchasers of the suit land from the original allottees or their vendees. Consequently, question of title over the suit land arises in the case. However, the Director, Consolidation of Holdings has no jurisdiction to adjudicate upon said question of title. For this reason as well, order Ex. P4 passed by the Director, Consolidation of Holdings is un-sustainable. In addition to the aforesaid, rule 18 of the East Punjab Holdings (Consolidation & Prevention of Fragmentation) Rules, 1949 (in short, the Rules) provides that application under section 42 of the CH Act shall be Regular Second Appeal No. 4167 of 2003 -7- made within six months of the date of the order against which it is filed. It is correct that under the second proviso to rule 18 of the Rules, the competent authority may admit the application after prescribed period of limitation if the applicant satisfied the competent authority that he had sufficient cause for not making the application within the limitation period. In the instant case, defendant no. 1- appellant pleaded in the application under section 42 of the CH Act that he was posted out of his village since 1953 till 1979 and therefore, he could not file the said application within limitation period. However, this vague, general and specious ground by defendant no. 1 for condoning delay of almost 25 years cannot be accepted. Learned lower appellate court has observed that defendant no. 1 was serving in education related department within District Amritsar within which suit land is situated. Other circumstances have also been noticed by the lower appellate court in paragraph no. 19 of the judgment to depict that defendant no. 1 must have been visiting his village during the said period. Even otherwise, defendant no. 1 could not be unaware of the repartition scheme framed by Consolidation Officer under section 21 of the CH Act for long period of more than 25 years. Every land owner had interest in the consolidation proceedings and it cannot be said that defendant no. 1 remained completely ignorant of the land allotted to him in repartition scheme in the consolidation proceedings. Even the Director, Consolidation of Holdings in impugned order Ex. P4, although condoned the delay in filing the application under section 42 of the CH Act by defendant no. 1, did not condone the said delay on the ground pleaded by defendant no. 1 – appellant. On the other hand, the Director condoned the Regular Second Appeal No. 4167 of 2003 -8- said delay observing that there is sufficient substance in the grievance of the applicant. However, the Director did not hold that there was sufficient cause for not making the application within prescribed period of limitation. Even otherwise, long delay of 25 years could not have been condoned on the vague, general and specious ground advanced by the appellant in his application under section 42 of the CH Act. In addition to the aforesaid, plaintiff no. 10 and defendant no. 2 purchased the suit land from the original allottees vide sale deed dated 16.6.1959 and became owners in possession of the suit land. Plaintiff no. 10 and defendant no. 2 were bonafide purchasers of the suit land for consideration. They could not be divested of the suit land almost 20 years after they had purchased it. Plaintiff nos. 1 to 9 are subsequent purchasers and they are also bonafide purchasers of their respective lands and they also could not be divested of the suit land after lapse of more than 25 years since the consolidation holdings took place. This aspect of the case has not even been looked into by the Director, Consolidation of Holdings. In this context it may be noticed with significance that original allottees Manohar Lal, Chaman Lal and Vishwa Mitter were made party to application under section 42 of the CH Act, but perusal of the impugned order Ex. P4 of the Director reveals that notice of the application was not even issued to the said original allottees nor they were present before the Director. Thus, plaintiffs and defendant no. 2 who had purchased the suit land from the original allottees or their vendees have not been compensated in any manner by the Director, Consolidation of Holdings and they cannot be made to suffer merely because defendant no. 1 opted to move application under Regular Second Appeal No. 4167 of 2003 -9- section 42 of the CH Act more than quarter century after the repartition scheme had been finalised on 1.11.1953. It, thus, emerges that examined from any angle, order Ex. P4 passed by Director, Consolidation of Holdings is completely un-sustainable and it has been rightly so held by the courts below. Learned counsel for the appellant contended that the lower appellate court has observed that since possession of 8 kanals 13 marlas land of plaintiff no. 10 had already been taken pursuant to order Ex. P4 prior to the institution of suit, plaintiff no. 10 would have to seek possession thereof by filing a regular suit. It has also been observed by lower appellate court that time spent in RSA (regular second appeal) filed by Joginder Nath defendant no. 1 after appeal of Sat Pal plaintiff no. 10 was earlier accepted in toto i.e. from November, 1986 till decree of the lower appellate court would be set off for computing limitation period for filing suit for possession by plaintiff no. 10. Learned counsel for the appellant objected to the said observation of the lower appellate court contending that defendant no. 1 appellant had not earlier filed any other RSA on account of which litigation period could be excluded for computing limitation period. The contention although apparently attractive cannot be accepted because in fact defendant no. 1 appellant had earlier filed second appeal from order No. 8 of 1988 decided by this Court on 11.10.1999 pursuant to which first appeals preferred by plaintiffs and defendant no. 1 were re-decided by learned Additional District Judge, Amritsar vide impugned judgment dated 11.1.2003. The only error in the aforesaid observation of lower appellate court is that the time was spent in SAO and not in RSA. Regular Second Appeal No. 4167 of 2003 -10- For the reasons recorded hereinabove, I find no merit in the instant second appeals. Accordingly, both the appeals are hereby dismissed. ( L.N. Mittal ) January 22, 2010 Judge 'tiwana'