L.P.A. No. 522 of 1996 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. L.P.A. No. 522 of 1996 (O&M) Date of Decision: 12.1.2010. Gurudwara Thara Sahib ....Appellant. Versus The State of Punjab and others ....Respondents. CORAM : Hon'ble Mr. Justice Adarsh Kumar Goel. Hon'ble Mr. Justice Alok Singh. Present:- Mr. Onkar Rai, Advocate for the appellant. Mr. Sudhir Paruthi, Advocate for respondent No. 2. Mr. Ashok Singla, Advocate, for respondents No. 3 and 4. ALOK SINGH, J. 1. Feeling aggrieved from the order dated 14.9.1995 passed by the learned Single Judge of this Court in Civil Writ Petition No. 3756 of 1981 appellant (respondent No.3 in the writ petition) has preferred the present appeal. 2. The main grievance of the appellant is that once land was taken from the possession of the appellant (Gurudwara Thara Sahib) for common purpose i.e. abadi then appellant-Gurudwara should be compensated to the extent of three times by giving land outside the phirni. 3. Briefs fact of the present case are that in 1957 exchange was effected with prior approval of the Consolidation Officer between father of respondents No. 3,4,5 and 6 Shri Gopal Singh (writ petitioner) and respondent No.2. Initially land to the extent of 9 marlas of Khasra No. 99/2 was of the writ petitioner while land of Khasra No. 22/7 was of the second respondent, which was mutually exchanged. After 13 years i.e. on 11.8.1990 present appellant moved an application under section 42 of the Consolidation and Holding Act with the prayer that abadi plots be shifted from the front of Gurudwara Thara Sahib to L.P.A. No. 522 of 1996 (O&M) 2 Khasra No. 9/8 and 8/7. Since no claim was put forward pertaining to Khasra Nos. 99/2, 22/7 which was the subject matter of exchange between the writ petitioner and the second respondent, application of the appellant came to be dismissed vide order dated 30.11.1970. Thereafter concealing that appellant had moved an application which was rejected on 30.11.1970, the appellant moved the application, giving rise to the present appeal, seeking three times of land for the land taken from Gurudwara Sahib for common purpose. Vide Annexure P-3 dated 3.7.1971 matter was remanded by the Additional Director to the Consolidation Officer, Jalandhar to compensate the appellant by giving three times land outside the phirni for the land taken from the appellant within the phirni. Vide order dated 15.5.1972 Khasra No. 22/7 was included in the holding of Gurudwara Sahib after excluding the same from the holding of respondent No.2 herein. 4. Feeling aggrieved from the orders passed by Consolidation Authorities a Writ Petition No. 3756 of 1981 was filed before this Court. Learned Single Judge allowed the writ petition by observing that there is no question of allotting any land to Gurudwara Sahib unless it was shown from where the land of Gurudwara Sahib was taken and to whom it was allotted. 5. Learned counsel for the appellant vehemently argued that once land of Gurudwara Sahib was taken which was situated in phirni then Gurudwara Sahib should have been compensated by giving three times land outside the phirni. He further stated that while exercising the powers under Article 226/227 of the Constitution of India well reasoned orders of Consolidation Authorities should not be disturbed. According to counsel for the appellant learned Single Judge committed manifest error of law while allowing the writ petition. 6. The main question involved in the present appeal is as to whether exchange, accepted in 1957, can be disturbed after long period of 13 years that too on the application of the appellant claiming no title over the property which was given in exchange. 7. We have heard learned counsel for the parties and perused L.P.A. No. 522 of 1996 (O&M) 3 the record carefully. 8. Consolidation authorities have not recorded any finding to the effect that appellant was owner in possession of any part of the land of Khasra No. 99/2. If the appellant was not in possession of any part of Khasra No. 99/2 then compensating the appellant for the land taken from Khasra No. 99/2 cannot be said to be justified and legal. There is a specific finding recorded by learned Single Judge that infact Khasra No. 99/2 was of the writ petitioner while land of Khasra No.22/7 was of second respondent. If it is so than exchange was rightly accepted way back in the year 1957 and consolidation authorities were not within their jurisdiction to disturb the exchange by directing to record the land of Khasra No. 22/7 in favour of present appellant. It is well settled principle of law that if land is not taken from the possession of the person claiming right, then he cannot be compensated for the land taken from the possession of the person recorded in the revenue record. 9. Learned counsel for the appellant on being asked by us repeatedly could not show us any document proving that Gurudwara Sahib/appellant was ever rightful owner or in possession of any portion of land subject matter of exchange in 1957. He could not explain as to why on 11.8.1970 when first application was moved no right was claimed over land which was subject matter of exchange in 1957. Applying the principle of constructive res-judicata as provided in explanation (iv) of Section 11 of CPC that any plea or defence which ought to have been taken and not taken would amount to res-judicata we find that second application was also not maintainable. 10. This Court can interfere in the judgments/orders of Subordinate Courts or Consolidation Authorities invoking jurisdiction under Articles 226/227 of the Constitution of India when this Court finds that impugned judgment is against the law, or perverse or without jurisdiction. Learned Single Judge has rightly observed that Gurudwara Sahib was not the owner of any portion of the land hence giving land to Gurudwara Sahib was not justified. 11. In view of above, appeal lacks merit and deserves to be L.P.A. No. 522 of 1996 (O&M) 4 dismissed. 12. The appeal is dismissed. (ALOK SINGH) JUDGE (ADARSH KUMAR GOEL ) January 12, 2010 JUDGE Reema