CWP No. 4539 of 1988 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 4539 of 1988 Date of decision: 03.03.2010 Munna w/o Piara Singh ...... PETITIONER VERSUS The State of Punjab and others ....... RESPONDENTS CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. Ramesh Sharma, Advocate, for the petitioner. Ms. Monica Chhibbar Sharma, DAG, Punjab, for respondents No. 1 and 2. Mr. G.S.Nagra, Advocate, for respondents No. 3 to 7. *** AUGUSTINE GEORGE MASIH, J. (ORAL) Prayer in the present writ petition is for setting aside of the order dated 01.06.1987 ( Annexures P-5) passed by the Additional Director, Consolidation of Holdings, Punjab, Jalandhar, vide which an ex- parte order was passed against the petitioner making the amendments in the consolidation records and quashing of the order dated 24.12.1987 CWP No. 4539 of 1988 2 (Annexure P-6) passed by the Additional Director, Consolidation of Holdings, Punjab, Jalandhar, vide which a petition filed by the petitioner for setting aside the ex-parte order was dismissed for want of jurisdiction. Counsel for the petitioner contends that the petitioner was the owner of the land in question as she had bought the same from one Sh. Dharam Singh, who in turn had purchased from the Central Government . As she did not have the possession of the land, she filed a suit for possession and for recovery of Rs. 3063.66 as mesne profits against respondents No. 3 to 7 who had forcibly took possession. The said suit was decided by the learned Sub Judge Ist Class, Sultanpur Lodhi vide a judgment and decree dated 16.05.1986 in favour of the petitioner declaring her to be the owner of the land and also entitled to possession thereof. Only one Sh. Baldev Singh (respondent No. 4 herein) preferred an appeal against the said decree which came to be decided by the learned Additional District Judge, Kapurthala on 26.11.1986 wherein both the parties, namely Baldev Singh and the petitioner, appeared and made a statement that a compromise has been entered into, according to which, Baldev Singh shall be entitled to retain possession of Khasra No. 24 measuring 8 Kanals up to the month of Harr and he will be entitled to cut the standing Barseen crop and thereafter the petitioner shall be entitled to get actual possession. The entire remaining land, in respect of which decree has been passed by the Lower Court, shall go to the possession of the petitioner immediately along with the standing crop and Baldev Singh shall not, in any way, cause any hindrance in her possession. She will be entitled to cut the standing crop or cultivate or sow which were not yet sown. The petitioner agreed to forego her claim regarding the amount of Rs. 3063/- for which decree was passed by the trial Court. He, on this CWP No. 4539 of 1988 3 basis, contends that the petitioner was the owner of the land in question and, therefore, the impugned order passed by the Additional Director, Consolidation of Holdings, Punjab, Jalandhar, dated 01.06.1987 cannot be sustained. His further contention is that respondent No. 6 Sulakhan Singh preferred a petition under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter referred to as ' the Consolidation Act'). The said petition was filed against the petitioner and her husband. This petition under Section 42 of the Consolidation Act was dismissed by the learned Additional Director, Consolidation of Holdings, Punjab, Jalandhar vide order dated 28.05.1987 (Annexure P-3). The remaining private respondents, namely, Sajan Singh, Baldev Singh, Sukhdev Singh and Gajjan Singh-respondents No. 3,4, 5 and 7 respectively also preferred a petition under Section 42 of the Consolidation Act against the petitioner and her husband Piara Singh but the said petition was withdrawn on 30.03.1987 (Annexure P-4). Thereafter, Punjab Government has preferred a petition under Section 42 of the Consolidation Act through the Deputy Secretary (Rehabilitation) Punjab, Chandigarh, wherein the petitioner was proceeded against ex-parte and the order dated 01.06.1987 was passed by the Additional Director, Consolidation of Holdings, Punjab, Jalandhar (Annexure P-5). On coming to know about the passing of the ex-parte order dated 01.06.1987, the petitioner preferred an application for review of the said order and for setting aside the same on the ground that the ex-parte proceedings initiated against the petitioner were not in accordance with law as she has not been duly served. The summons were never received by her nor were they pasted on the front door of her house. Even the thumb CWP No. 4539 of 1988 4 impression of the Chowkidar, which is stated to be on the summon and the pasting of the same on the door of her house, was found to be incorrect. Counsel for the petitioner contends that the Chowkidar of the village has also sworn an affidavit in support of this contention in favour of the petitioner. The said application was rejected by the Additional Director, Consolidation of Holdings, Punjab, Jalandhar vide order daed 24.12.1987 on the ground that the said authority did not have the jurisdiction to review an order passed by her predecessor. He, on the basis of these pleadings, submits that the impugned orders (Annexures P-5 and P-6) deserve to be set aside and the writ petition be allowed. On the other hand, counsel for respondents No. 3 to 7 vehemently argues that the application under Section 42 of the Consolidation Act was preferred by the State of Punjab on the basis of the records. The petitioner preferred not to contest the said application. As per the records, she has been duly served and, therefore, the contention of the counsel for the petitioner cannot be accepted. He contends that the orders impugned herein (Annexures P-5 and P-6) have been passed by the Additional Director, Consolidation of Holdings, Punjab, Jalandhar on the basis of the records and, therefore, no interference by this Court in the said orders is called for. He further submits that the State of Punjab was not a party in the civil suit or the earlier proceedings under the Consolidation Act preferred by the private respondents. He further submits that as per the records of the Additional Director, Consolidation of Holdings, Punjab, Jalandhar, summons were duly served on the petitioner and a copy of the said summons were placed on record as Annexure R-4/1/T. He, on this basis, submits that the present writ petition deserves to be dismissed as there is no merit in the same. CWP No. 4539 of 1988 5 I have heard the counsel for the parties and have gone through the records of the case. When the case came up for hearing on 01.06.1988, this Court was pleased to stay the operation of the impugned order dated 01.06.1987 (Annexure P-5). The said stay has been continuing since then. It is correct that the State of Punjab was not a party either in the proceedings before the Civil Court or in the petitions, which were preferred by the private respondents. However, the petitioner had a right to contest the application, which was preferred by the State of Punjab under Section 42 of the Consolidation Act. A perusal of the records does indicate that there is a report that the summons were affixed on the door of the house of the petitioner by the Chowkidar. However, the Chowkidar has come in support of the petitioner stating that the thumb impression, which finds mention in the report, is not his. An affidavit was also filed by the petitioner in support of her contention before the Additional Director, Consolidation of Holdings, Punjab, Jalandhar for review of the ex-parte order dated 01.06.1987 that she has neither been served nor has she refused to receive the summons nor the summons were ever pasted on the front door of her house. Keeping these facts in view, it would be just and equitable specially in the light of the Civil Court decrees in favour of the petitioner, to which respondents No. 3 to 7 were parties, that an opportunity is granted to the petitioner to contest the application preferred by the State of Punjab under Section 42 of the Consolidation Act. Accordingly, the present writ petition is allowed. The orders dated 01.06.1987 (Annexure P-5) and 24.12.1987 (Annexure P-6) passed by the Additional Director, Consolidation of Holdings, Punjab, Jalandhar, are hereby set aside and the case is remanded for fresh decision in CWP No. 4539 of 1988 6 accordance with law by giving the petitioner an opportunity to file her response to the application under Section 42 of the Consolidation Act preferred by the State of Punjab and to lead evidence in support of her contentions. It has been brought to the notice of the Court that now the Director,s Land Records, Punjab, Jalandhar, is exercising the powers of the Director, Consolidation of Holdings, Punjab, Jalandhar under Section 42 of the Consolidation Act. The partieqs are directed to appear before the Director, Land Records, Punjab, Jalandhar, on 30.03.2010. ( AUGUSTINE GEORGE MASIH ) JUDGE March 03, 2010 pj