CIVIL WRIT PETITION NO.4178 OF 1984 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: AUGUST 26, 2009 Milkha Singh and another .....Petitioners VERSUS Additional Director, Consolidation of Holdings, Punjab, Chandigarh & another ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. K. S. Cheema, Advocate, for the petitioners. Mr. S. S. Gill, DAG, Punjab, for the State. Mr. I. S. Vimal, Advocate, for respondent No.2. **** RANJIT SINGH, J. The petitioners seek quashing of order dated 19.7.1984 passed by Additional Director under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (for short, “the Consolidation Act”). Finding that the Consolidation Officer did not observe the norms and committed an error, which was CIVIL WRIT PETITION NO.4178 OF 1984 :{ 2 }: to be rectified, the Additional Director set aside the order passed by the Consolidation Officer with a direction to the parties to revert back to the position as it existed under Section 21(1) of the Consolidation Act. This order accordingly is challenged by the petitioners. Consolidation in Village Arazi Sabhra was taken up in the year 1981. The petitioners and respondent No.2 were the co-sharers of land measuring 113 kanals 5 marlas alongwith some other co- sharers. Assa Singh, Petitioner No.2, purchased 1/4th share out of this 113 Kanals 5 marlas of land from Buta Singh son of Hari Singh. Buta Singh was successor in interest of the property left by Hari Singh and Bikkar Singh son of Jawand Singh. Petitioner No.2 purchased this land vide registered sale deed dated 10.11.1978. Petitioner No.1, on the other hand, purchased 28 K 6 marla land from Pal Singh, Dial Singh sons of Harnam Singh son of Jawand Singh through a registered sale deed dated 29.3.1982. It is pleaded that most of the area in the village was eroded by river and, thus, uncultivable. The land was described as gairmumkin river. Thus, this entire area of 113 kanals 5 marlas owned as co-sharers by the petitioners and respondent No.2 was described as gairmumkin. After purchase, petitioner No.2 brought the land in his ownership under cultivation from Hari of 1981 and, thus, continued to be in possession. Lateron, these very khasra numbers, apart from some other, were purchased by petitioner No.1 and, thus, he would claim to be in actual cultivating possession of the land. During consolidation, the acquisition of the land on the basis of sale deeds and exchanges were dealt with in Para 4 of the Scheme. Para 11 of the Scheme dealt with carving out of `Kuras' in CIVIL WRIT PETITION NO.4178 OF 1984 :{ 3 }: case where father son, father daughter etc. owned land. Para 19 of the Scheme dealt with those cases where persons became owners by sale. In terms of these paras of the Schemes, the petitioners claim that they are entitled to one block of the land as was rightly carved out by Consolidation Officer and upheld by Settlement Officer. Respondent No.2, however, filed an appeal against these orders under Section 42 of the Consolidation Act, when the impugned order was passed. Main grievance by respondent No.2 was that he was shifted from his possession and fitted at a place where he was not in possession of any land. The petitioners would claim that this plea of respondent No.2 regarding possession is factually and absolutely long as would be clear from jamabandi for the year 1976-77 (Annexure P-4). It is pleaded that the entire area was gairmumkin river and there was no question of actual physical possession of the land by any co-sharer till it was brought under cultivation. As per the petitioners, some area was brought under cultivation for the first time from Hari 1981 and, thus, it continues to be in their possession. The petitioners would also refer to the Khatauni Pamaish (Annexures P-6 and P-7, there English translation being Annexures P6A and P7A respectively) to say that the area given to the petitioners has been shown to be in their possession. Referring to Para 4 of the Scheme, the petitioners would urge that in case of purchase of land, major portion is to be carved out on the land which is so purchased. It is accordingly pleaded that the petitioners have been rightly given land in their tak which was in actual possession of the petitioners and the order passed by the Additional Director is, thus, illegal, arbitrary and CIVIL WRIT PETITION NO.4178 OF 1984 :{ 4 }: unsustainable. In the reply filed, locus on the part of the petitioners to file this petition is raised on the ground that they had acquired this land on 29.3.1982 whereas notification for consolidation was issued on 26.6.1981. It is, thus, pleaded that the acquisition of the land after the notification could not be included in right holders holdings for determining his major portion. Various documents relied upon by the petitioners have been referred to as misleading. It is pleaded that the major portions were to be determined on the basis of verified positions of possession, as per Para 3 of the Scheme. It is further stated in the reply that jamabandies and khasra girdawaries did not depict the correct position of possession and were to be ignored as per the consolidation scheme. As per the answering respondent No.2, the petitioners wanted to take undue advantage of these false entries and had stake their claim before the Consolidation Officer to get Khata numbers of their choice. Basically, the respondents disputed the facts depicted in the documents annexed by the petitioners and, thus, the dispute revolved around in regard to possession only. In fact, the Additional Director in the impugned order has observed that respondent No.2 was in cultivating possession of the area, which was proposed to be given to him under Section 21(1) of the Consolidation Act. He also found that the Consolidation Officer had erred in assessing the possession of the petitioners to the extent that when they had purchased some more share in the joint khata, these shares still meant that the Khata was joint even after such purchase. He accordingly found that plea of respondent No.2 was fair and justified CIVIL WRIT PETITION NO.4178 OF 1984 :{ 5 }: that he should be restored back to the position of 21 (1), which respected his possession. The Additional Director did not accept the plea of counsel for the petitioners that purchase of some more area in the joint khata by them amounted to ousting the petitioners from previous possession under Section 21(2) of the Consolidation Act. The Additional Director has also observed that it is settled law that in joint khata where the share is less or more with particular right holders, he is deemed to be in joint possession of the total area and as such, the cultivating possession is the only criteria which determines the priority to be given to the particular right holder for fitting him. In this view of the matter, he set-aside the order passed by the Consolidation Officer. Conceded position, therefore, is that the cultivating possession is to be the sole criteria which would determine the priority to be given to the particular right holders, when they are holding land jointly. Both the petitioners and respondent No.2 disputed this fact and claimed cultivating possession over the area, which has come to the share of respondent No.2 on the basis of order passed by Additional Director. When the counsel for the petitioners relied upon the documents in support of his plea to show their cultivating possession, the counsel for respondent No.2 challenged the veracity of those documents and termed the same to be misleading. There is otherwise not much substance in the plea raised by the counsel for respondent No.2 on the basis of date of purchase. In fact, as already noticed petitioner No.2 had already purchased 1/4th share of this land vide sale deed dated 10.11.1978 i.e. much before the date of notification for consolidation and only CIVIL WRIT PETITION NO.4178 OF 1984 :{ 6 }: then the land was statedly made cultivable. What was, thus, now required to be seen was as to who is in the cultivating possession and of which Khasra to have his kura as per the Scheme. Thus, the issue basically was dependent upon resolving this aspect of the controversy. It was so noticed in order dated 20.5.2009. It was claimed by counsel for the petitioners on the basis of Annexures P-5 and R-1 that they were in cultivating possession of khasra numbers mentioned therein. With the concurrence of counsel for the parties, it was considered appropriate to call for the status report as regards the physical cultivating possession over these khasra numbers of the land concerned so as to pass the appropriate order. Mr.Surinder Kumar, Assistant from the office of Director, Land Records, who was present in the Court was directed to produce the latest report about the physical cultivating possession of the land from Kanungo of the area concerned. This report was placed on record, which shows that the petitioners were in possession of Khasra Numbers 27M//9/3 (2-13), 10/2 (4-0), 11/1 (7- 7), 11/2 (0-13), 12/1 (7-14), 12/2 (0-18), 19(8-0), 20 (8-0), 21/1 (2-9), 22/1 (2-9) total 44-3 marlas. Thus, the petitioners have been found to be in cultivating possession of the land, which has now been given to respondent No.2. Cultivating possession was considered to be the main reason for setting-aside the order passed by the Consolidation Officer, which has now been found to be factually incorrect. The Additional Director himself found that cultivating possession was the only criteria to determine the priority and since this land has now been found to be in cultivating possession of the petitioners, the order passed by the Additional Director con not be sustained. CIVIL WRIT PETITION NO.4178 OF 1984 :{ 7 }: The writ petition is, therefore, allowed. The order passed by the Additional Director, Annexure P-1, is set-aside and order passed by the Consolidation Officer, Annexure P-2, stands restored. August 26, 2009 ( RANJIT SINGH ) khurmi JUDGE