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2001 DIGILAW 597 (PNJ)

Jagjit Singh v. Ranvijay Singh

2001-05-25

NIRMAL SINGH

body2001
JUDGMENT Nirmal Singh, J. - This petition is directed against the order of Additional District Judge, Patiala, who vide order dated 2.8.1991 accepted the appeal and remanded the case to the trial Court for disposal according to law. 2. The relevant facts for the disposal of this petition are that during consolidation proceedings in Rajinder Nagar, the consolidation department left 314 kanal 10 marlas land as per "Missal Hakiat" prepared by the consolidation Department as "Jumla Malkan Wa Digar Haqdaran Aranzi Hasab Rasad Rakba" and being the land owner in the said village has also a share in the total land measuring 314 Kanal 10 Marlas. The defendant-respondent filed a petition for re-partition of the land measuring 88 Kanals 18 marlas under Section 42 of the Act before the Director Consolidation of Holdings, who vide order dated 9.6.1987 decided the petition of the petitioner and remanded the case to Consolidation Officer, Mohali for defining the share of the right holders concerned only in the land measuring 88 kanals 18 marlas. The respondent impugned the order by way of declaratory suit on the ground that the order is illegal, null and void, without jurisdiction and is also beyond the scope of the petition as no prayer was made to the Director for defining the share nor any such ground was taken in the petition by the petitioner. The impugned order was also challenged on the ground that the order of the Director is only with regard to the land measuring 88 Kanals 18 marla whereas the total land was 314 kanals 10 marlas. The petition filed by the petitioner under Section 42 of the Act before the Director in the year 1987 was barred by time whereas the consolidation in village Rajinder Nagar has taken place in the year 1959. 3. The defendant contested the suit by way of filing written statement. On the pleadings of the parties, following issues were framed :- "1. Whether the impugned order dated 9.6.1987 is illegal, null and void, without jurisdiction, vague against the principles of natural justice on the grounds alleged in the plaint ? OPP 2. Whether the jurisdiction of this Court is barred under the Punjab Common Lands (Regulation) Act, 1961 and East Punjab Holdings (Consolidation and Prevention Fragmentation) Act ? OPP 3. Whether the plaintiff has locus-standi to file the present suit ? OPP 4. OPP 2. Whether the jurisdiction of this Court is barred under the Punjab Common Lands (Regulation) Act, 1961 and East Punjab Holdings (Consolidation and Prevention Fragmentation) Act ? OPP 3. Whether the plaintiff has locus-standi to file the present suit ? OPP 4. Whether the suit is not maintainable in the present form ? OPD 5. Whether the suit is bad for non-joinder of necessary parties ? OPD 6. What is the effect of dismissal of writ petition by the Honble High Court on 23.7.87 as alleged in para 2 of the preliminary objections of the written statement ? OPD 7. Whether the plaintiff is entitled to the injunction as prayed for ? OPP 8. Relief." Issue No. 2 was treated as preliminary. After hearing the learned counsel for the parties on issue No. 1, the trial Court held that the Civil Court has no jurisdiction to adjudicate upon the matter in the suit, in view of the provisions of Section 44 of the Act and as such the plaint of the suit was turned to the plaintiff for presenting before the appropriate authorities. The defendant filed the appeal before the District Judge, which came up for hearing before the Additional District Judge who vide impugned order accepted the appeal and set aside the findings of the trial Court on issue No. 2 and held that the Civil Court has jurisdiction to try the same and remanded back the case to the trial Court for disposal according to law. 4. The defendant-petitioner being dissatisfied with the order passed by the Additional District Judge, preferred this revision. 5. The learned counsel for the petitioner submitted that the learned Additional District Judge has set aside the order of the trial Court on two grounds, namely, that the respondent was not a party before the Additional Director and that the Civil Court has jurisdiction to entertain and the adjudicate upon the suit. He submitted that before the Director Consolidation, petitioners mother was a party. She contested the petition. After hearing her, the Director Consolidation passed the order in the presence of the mother of the petitioner. When one co-owner is present before the Director Consolidation, the presence of one co-owner will be treated the presence of all co-owner and it will tantamount to an effective representation. She contested the petition. After hearing her, the Director Consolidation passed the order in the presence of the mother of the petitioner. When one co-owner is present before the Director Consolidation, the presence of one co-owner will be treated the presence of all co-owner and it will tantamount to an effective representation. In support of his submission he has placed reliance on Biru and another v. Suraj Bhan and others, 1983 PLJ 216. He further submitted that the other ground on the basis of which the order of the trial Court has been set aside is that the issue with regard to the jurisdiction could not be decided on the basis of the pleadings alone. This issue can only be decided after the parties led their evidence. He submitted that the petitioner filed the petition under Section 42 of the Act and the Director, Consolidation has not over stepped his jurisdiction and the order was legal and valid one. He further submitted that the impugned order was challenged by the mother of the petitioner in Civil Writ Petition No. 4389 of 1987. The said petition has been dismissed by a Division Bench of this Court on 23.7.1987. He submitted that the said judgment has not been challenged by the petitioner or other co-owner in the Supreme Court, therefore, the order passed by the Consolidation Officer has become final. He submitted that once the order has not been procured by way of fraud and misrepresentation then the Civil Court jurisdiction is barred under Section 44 of the Act. 6. On the other hand, Shri S.P. Goel, learned counsel for the respondent has contended that the respondent was not impleaded as a party before the Director, Consolidation. The representative of the co-owner can not be treated as a representative on behalf of the other co-sharer or co-owner. He submitted that if the respondent would have been a party in those proceedings, then the presence of the mother of the petitioner can be taken as presence of the respondent. He submitted that the learned Additional District Judge has rightly held that the Civil Court has jurisdiction to entertain and adjudicate the matter in the suit. The issue regarding the jurisdiction can only be decided on the basis of the evidence led by the parties and not on the basis of the pleadings. 7. He submitted that the learned Additional District Judge has rightly held that the Civil Court has jurisdiction to entertain and adjudicate the matter in the suit. The issue regarding the jurisdiction can only be decided on the basis of the evidence led by the parties and not on the basis of the pleadings. 7. After hearing the learned counsel for the parties and perusing the record, I am of the considered opinion that this revision has merit and deserves to succeed. The petitioners filed a petition before the Director, Consolidation of Holdings, Chandigarh. The said petition was decided on 9.6.1987. Admittedly, in those proceedings Smt. Surinder Kaur Grewal wd/o Ajit Pal Grewal mother of the respondent was a party. Once one co-sharer has been served in the proceedings under the Act then it is not necessary to implead and to give hearing to each of the co-sharer. This proposition has been settled by a Full Bench of this Court in Biru and another (supra) wherein it has been held as under :- "In proceedings under Sections 21 and 42 of the Act, it is not necessary that all the co-sharers must first be impleaded and then served individually. It is held that an adequate hearing given to one or some of the co-sharers is in the eye of the law a hearing of all the body of co-sharers in the absence of fraud or collusion or the failure of any fair and real trial of the issue." Similar view has been taken in Joban Singh v. Thakar Singh and others, 1983 PLJ 212. In the instant case there is no pleading that the co-sharer has suffered the order by way of fraud or collusion. The respondent mother has contested the proceedings under Section 42 of the Act before the Director, Consolidation. The interest of the respondents mother and the petitioner is the same. The mother of the petitioner has also filed Civil Writ Petition No. 4389 of 1987 which was dismissed on 23.7.1987, therefore, from the facts of the case it shows that the order was not suffered by the mother of the petitioner by way of fraud or collusion. So, in view of the above a co-sharer has effectively represented and has been adequately heard and he has suffered an adverse order, the adverse order suffered by him would bind the other co- sharer. So, in view of the above a co-sharer has effectively represented and has been adequately heard and he has suffered an adverse order, the adverse order suffered by him would bind the other co- sharer. The requirement of impleading each and every member of the body as co-sharer would adversely be an exercise in futility as the interest of all co-sharer/co-owner is the same. 8. The trial Court has held as under :- "In the present case, the plaintiff has alleged that the total land which was Jumla Malkan was 314 Kanals 10 marlas whereas the Director vide impugned order, dated 9.6.1988, ordered defining of shares of the defendants qua 88 kanal 18 marlas of land only, whereas, he did not pass any order regarding remaining land, measuring 130 kanal 18 marlas and, as such a question regarding determination of title of remaining land has arisen in this case which is Shamlat Deh and, is owned by the Gram Panchayat of village Rajinder Nagar, and under such circumstances, I have no hesitation in holding that the jurisdiction of the civil Court is barred under Section 44 of the Act, and, as such, this issue is decided against the plaintiff, and, in favour of the defendants." The order passed by the Director, Consolidation is neither illegal nor without jurisdiction. Furthermore, this order passed by the Director, Consolidation has been upheld by the Division Bench of this Court. Therefore, the lower appellate Court was in error in coming to the conclusion that the civil Court is competent to entertain and adjudicate the matter. 9. For the reasons mentioned above, the revision petition is allowed. The order of the lower appellate Court is set aside and the order of trial Court is restored. No order as to costs. Petition allowed.