IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH LPA No.802 of 2011(O&M) Date of decision: 23.05.2011 Janeshar and others …..Appellants versus State of Haryana and others ……Respondents CORAM: Hon’ble Mr.Justice Jasbir Singh Hon’ble Mr.Justice Rakesh Kumar Garg Present: Mr.Ramesh Hooda, Advocate for the appellants Jasbir Singh, J. (Oral) CM Nos.2144 – 2145 of 2011 In view of reasons mentioned in these applications, which are accompanied by the affidavits, the same are allowed, 76 days delay in filing and 16 days in re-filing the appeal stands condoned. LPA No.802 of 2011 This appeal has been filed against an order dated 23.8.2010, passed by the learned Single Judge, dismissing CWP No.5578 of 2004, filed by the appellants. Record reveals that in the year 1974, a notification was issued under Section 14(1) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (in short, the Act), to consolidate the entire holdings in the revenue estate of village Nanhera, district Panipat. It is an admitted fact that the village adjoins the boundary of State of Uttar Pradesh and in between falls river, Yamuna. Due to alluvion and diluvian, because of river action, there is always increase and decrease, so far as total land in the revenue estate is concerned. To settle the dispute, it appears that LPA No.802 of 2011(O&M) Dikshit Commission was appointed. Its award came in the year 1974. Thereafter, it appears that again a notification was issued under Section 14 of the Act, to conduct consolidation in the village. That notification was challenged by filing CWP No.15050 of 1989, however, because in the meantime, on 29.1.1990, the said notification was withdrawn, accordingly, the said writ petition was dismissed as having become infructuous. Thereafter, again the Government issued another notification on 5.3.1990 under Section 14(1) of the Act. The consolidation scheme under the last notification was confirmed on 16.3.2002. The appellants filed an application under Section 42 of the Act, laying challenge to an order passed by the Settlement Commission. Their application was dismissed by the Director Consolidation Holdings, State of Haryana on 16.12.2003, by observing as under:- “After hearing the arguments of the learned counsel for both parties xxxxx brought on record on the file and record of the case, I have reached to this conclusion that the Scheme of Consolidation for the partition of the Khewat of the Shamlat deh are has been rightly sanctioned as per the law and the provisions mentioned in the Shart-wajib-ul-arj and after hearing the concerned proprietors. The provision mentioned under item No.7 of the earlier Scheme of Consolidation is incorrect and not based on any law. As per the provisions of the Shart-wajib-ul-arj, no question of title arises in the partition of the Khewat of the Shamlat deh area and nor Section 111 of the Punjab Land Revenue Act is applicable, because in this area, the area of the owners after having loss (Burd) had been recovered. As has been mentioned in the 2 LPA No.802 of 2011(O&M) Shart-wajib-ul-arj 1975-76 that BRAMADGI:- The land which is lost due to pressure of river flow, it is called BURD. The land which is lost and thereafter recovered in that very year or next year, its entry of ownership is Shamlat deh. The owner whose land has been lost, he has right to cultivate from Shamlat deh recovered land and at the time of partition out of the recovered land after completing the land of those owners whose land had been lost (Burd) due to river action, the remaining are should be partition as per share in shamlat. The measuring of share has been mentioned under Serial No.1 of the Shart-wajib-ul-arj that in our village there is Alaf Auwal Paimana Hakiat Shamlat deh land which is Paimana Hakiat xxxxxx settlement 1842 has the share in the Shamlat area as per legal settlement. After settlement the mutation of inheritance has been made in share of Shamlat. That will be implemented as per the share of ownership. After settlement those mutation which have been entered regarding Shamlat deh, their entries should be made as per the existing rules. The land of Shamlat deh which has been transferred, mortgaged or sold, the original owner would be liable for the same. As per the provisions mentioned in the Shart-wajib-ul-arj, the settlement of area has been corrected from the Kanuni Bandobast 1842. After the sanction of the mutation of inheritance of the recovered area the mutation of the area sold by the owners as per the sanction mutation, has been entered in the record. I agree with the contention of the counsel for the respondents that there is no justification in challenging the 3 LPA No.802 of 2011(O&M) mutations of inheritance the applicants and nor any adverse effect is caused to their interest from these mutations of inheritance and the owners from settlement 1842 upto settlement 1906-07 whose area had been lost they have not been given shamlat share from the remaining area of Shamlat deh. They have been given the area equivalent area to their lost area as per the provisions of Shart-wajib-ul-arj, therefore, also no effect is caused on the share of the appellants. If there is any kind of mistake in the record, it could be rectified by the concerned officer. The contention of the counsel for the appellants is not correct that due to the partition of the Shamlat deh area, the area of their share had been reduced. The appellants have made possession over more area of Shamlat deh and in the partition of Shamlat deh area the total claim of the appellants was of 32 kanals 8 marlas standard and 51 kanals 6 marlas area, whereas, in the new partition they have been allotted an area measuring 32 kanals 15 marlas (standard) and 63 kanals 13 marlas (simple). There is no deficiency in the area of appellants. According to the decision of the Hon’ble Punjab and Haryana High Court reported in 1997(2) P.L.J. page 246 cited by the counsel for the appellants, the total area in the share of the appellants is not 1/3rd, therefore, they have no right to challenge the Scheme of Consolidation. According to the decision of the Hon’ble Punjab and Haryana High Court reported in 1981 P.L.J. page 246 (Full Bench), the Court decree regarding the area of the Khewat of Shamlat deh has no effect. In the partition of the 4 LPA No.802 of 2011(O&M) area of Shamlat deh, the area is allotted as per share. Therefore, also I am also in agreement with the counsel for the respondents. If the appellants had any objection against the published Scheme of Consolidation, a separate petition should have been filed and if there was any objection against the partition also, he can file his separately appeal. The Scheme of Consolidation has been sanctioned according to the Shart- wajib-ul-arj and keeping in view the law and the claim of the appellants also does not above mentioned facts, the appeal is rejected. The stay order dated 28.1.2003 is vacated.” Thereafter, they came to this Court by filing CWP No.5578 of 2004, which, too was dismissed by the learned Single Judge, vide the impugned order. The learned Single Judge rightly came to a conclusion that no question of title was involved. It was further noted, as a matter of fact, that the appellants were claiming land to the extent 32 kanal 8 marla (standard) and 51 kanal 6 marla (ordinary). They were allotted land measuring 32 kanal 15 marla (standard) and 63 kanal 13 marla (simple). If that is so, no loss has been caused to the appellants. It appears that because the appellants were allotted more land than their entitlement, they are trying to delay the proceedings. The learned Single Judge, when dismissing their writ petition, has observed as under:- “A perusal of the pleadings and the arguments addressed by counsel for the petitioners do not reveal that any credible question of title arises much less was pleaded or raised before the Settlement Officer or the Director Consolidation. The petitioners plea that as certain proprietors have obtained decrees, declaring them owners of parts of shamilat land or that some land out of the shamilat khewat has been left out of consolidation 5 LPA No.802 of 2011(O&M) proceedings as it has fallen in Uttar Pradesh, in my considered opinion does not raise a question of title. Apart from the fact that these decrees are collusive, they do not confer any right beyond the shareholding of the property recorded in revenue documents prepared before consolidation proceedings. The Shamilat Khewat, that vests in proprietors, shall have to be partitioned in accordance with the shareholding of proprietors reflected in the revenue record. The land in Uttar Pradesh cannot be partitioned by authorities in Haryana. I therefore, fail to comprehend as to what question of title arises for adjudication as would bar the Settlement Officer from proceeding with partition of the Shamilat Khewat, held jointly by the proprietors. In the absence of any question of title, consolidation authorities have right to proceed to order partition of the land in dispute. It would be necessary to mention that though the petitioners claim title of 32 kanals and 8 marlas (standard) and 51 kanals and 6 marlas, they have been allotted 32 kanals and 15 marlas (standards) and 63 kanals and 13 marlas (simple).” We feel that the order passed is perfectly justified. Even before this Court, the appellants have failed to show any evidence, worth the name, that question of title is involved. It has rightly been observed by the learned Single Judge that the land which falls in the State of Uttar Pradesh, cannot be partitioned by the authorities of the State of Haryana. No case is made out for interference. Dismissed. (Jasbir Singh) Judge 23.05.2011 (Rakesh Kumar Garg) gk Judge 6