Gurdev Singh & Others vs Narinder Singh & Others
2023 Latest Caselaw 15377 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

RSA No.363 of 2005 Reserved on: 18.08.2023

.

Date of Decision: 05th October, 2023

Gurdev Singh & others ....Appellants

Versus Narinder Singh & others ....Respondents

Coram Hon'ble Mr Justice Rakesh Kainthla, Judge.

Whether approved for reporting? Yes

For the Appellant : Mr. Bhupinder Gupta, Senior Advocate, with Ms. Rinki Kashmiri, Advocate.

    For the Respondents              :          Mr.   Ajay   Sharma,     Senior
                                                Advocate, with Mr. Athrav
                                                Sharma,      Advocate,        for
                                                respondents No.2, 3, 5 and 6.






                                                Respondents No. 1 and 4 are
                                                deleted   vide order  dated
                                                11.09.2018.





                                                Respondent No.7, already ex
                                                parte      vide order dated
                                                21.12.2015



    Rakesh Kainthla, Judge.



      ________________________

Whether reporters of the local papers may be allowed to see the judgment? Yes

The present appeal is directed against the

judgmentand decree dated 30.03.2005, passed by learned

Additional District Judge (Fast Track Court), Una, District Una,

.

H.P., vide which the appeal filed by the appellants (defendants

before the learned Trial Court) was dismissed and the judgment

and decree passed by the learned Sub Judge Ist Class, Amb,

District Una, H.P. were upheld.(Parties shall hereinafter be

referred to in the similar manner in which they were arrayed

before the learned Trial Court for convenience.)

2 Briefly stated, the facts giving rise to the present

appeal are that the plaintiffs filed a civil suit before the learned

Trial Court seeking a declaration that plaintiff no.1 is exclusive

owner in possession of the land described in head note "a",

plaintiffs No. 2 to 5 are exclusive owners in possession of the land

described in head note "b" and plaintiffs No. 1 to 5 are owners in

possession of the Gair Mumkin land described in head note "c".

The allotment of the land in paras "a" and "b" to the defendants

by Consolidation authorities and entry showing the defendant

no.3 as

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

RSA No.363 of 2005 Reserved on: 18.08.2023

.

Date of Decision:___October, 2023

Gurdev Singh & others ....Appellants

Versus Narinder Singh & others ....Respondents

Coram Hon'ble Mr Justice Rakesh Kainthla, Judge.

Whether approved for reporting?

For the Appellants : Mr. Bhupinder Gupta, Senior Advocate, with Ms. Rinki Kashmiri, Advocate.

    For the Respondents        :       Mr.   Ajay Sharma,       Senior
                                       Advocate, with Mr. Athrav
                                       Sharma,      Advocate,        for
                                       respondents No.2, 3, 5 and 6.




                                       Respondents No. 1 and 4 are





                                       deleted   vide order  dated
                                       11.09.2018.





    Rakesh Kainthla, Judge.

The present appeal is directed against the judgment

and decree dated 30.03.2005, passed by learned Additional District

Judge (Fast Track Court), Una, District Una, H.P., vide which the

the owner of the land mentioned in para "c" of the plaint are

wrong, illegal, null and void having no right, title or interest of the

plaintiffs. A permanent prohibitory injunction for restraining the

.

defendants from taking the forcible possession of the suit land in

any manner, selling, cutting, removing the valuable trees and

grass or changing its nature was also sought.

3. The pedigree table showing the relationship of the

partiesis as under:

Chandu

Sardhu Jolhu Praga Sangra

Nihala Balanda Nandu Ganga Ram (Died issueless) Amar Singh

Sant Ram Tota Ram Natu Ram Bachitter Singh Raghubir Singh

Kuushal Singh Gurdev Singh

Ravinder singh Narinder Singh Kumari Bandana Nirmla Devi

4. The land of the parties was declared surplus after the

enforcement of the H.P. Land Ceiling on Land Holdings Act, 1972.

Plaintiff No.1 and Bachittar Singh, the predecessor-in-interest of

.

plaintiffs No.2 to 5, declared the entire holdings including the

tenancy land in Village Suhin, except the Gain Mumkin Land as

surplus. The Collector, Una, passed an order dated 02.04.1975

declaring the entire holding of the plaintiff surplus in village

Shuin except Gair Mumkin Land. Plaintiff No.1 exchanged the land

mentioned in headnote r "A", and Bachittar Singh, the

predecessor-in-interest of plaintiffs No.2 to 5 exchanged the land

mentioned in headnote "B" with the State Government.

Defendant No. 3 had surrendered his entire land in Village Suhin

to the State Government. The revenue entries wrongly reflected,

defendant no.3 as a co-sharer to the extent of 3203 shares. The

consolidation Authorities wrongly allotted the land based on the

wrong revenue entries. The defendants started interfering with

the possession of the plaintiff. Hence, the suit was filed for

seeking the relief mentioned above.

5. The suit was opposed by defendants no.1 and 2 by filing

a written statement taking preliminary objections regarding lack

of maintainability& jurisdiction, the suit being for non-joinder

and mis-joinder of parities, suit being collusive, andthe plaintiffs

being estopped by their act and conduct to file the present suit and

bar of jurisdiction. The contents of the plaint were denied on

.

merits. However, it was admitted that the land of the parties was

joint with other co-shares before the commencement of the H.P.

Land Ceiling on Land Holdings Act, 1972. It was asserted that

parties declared their land surplus. No appeal was preferred

against the order declaring the land as surplus. The plaintiff

declared the whole land surplus in the village surplus except the

lands which were exempted under the Ceiling Act. The plaintiffs

retained their land in the village of Lohara. Defendant No.1

reserved land in village Suhin and Lohara. The defendant felt

hardship and applied for the review of the order of the Collector.

The Collector reviewed the order and allotted the land to

defendants no.1 and 2 in Village Suhin in lieu of land in Village

Lohara. The exchange was duly approved by the Collector.

Defendants No.1 and 2 became the exclusive owners of the land

allotted to them. The plaintiffs and defendant No.3 have no right,

title or interest in the land of defendants no.1 and 2. The suit was

filed in collusion with defendant no. 3. The land was properly

partitioned by the Consolidation Authorities. The plaintiffs are

estopped from filing the present suit. The Civil Court has no

jurisdiction to hear and entertain the present suit. Hence, it was

prayed that the suit be dismissed.

.

6. Defendant No.4 filed a separate written statement

taking preliminary objections regarding lack of maintainability,

locus standi and jurisdiction, the suit being bad for non-joinder

of necessary parties, the suit being barred by limitation,the

plaintiffs being estopped by their act and conduct to file the

present suit and the suit having been filed incollusion with

defendant no.3. The contents of the plaint were denied on merits.

It was asserted that the parties had their joint holdings in Village

Tibbi also. The parties declared their land surplus as per their

choice and convenience according to their entitlement as per the

H.P. Ceiling on Land Holdings Act. The plaintiffs have declared

entire shareholding including the Gair Mumkin land in Village

Suhin and Tibbi. They have been left with no rights or interests.

The plaintiffs are estopped to file the present suit. The

jurisdiction of the Civil Court is barred; therefore, it was prayed

that the suit be dismissed.

7. Replications denying the contents of the written

statements and affirming those of the plaint were filed.

8. The learned Trial court framed the following issues on

10.02.1992:

1. Whether the plaintiffs are exclusive owners in

.

possession of the suit land as alleged? OPP

2. Whether the plaintiffs are co-sharers with the defendants qua the Gair Mumkin land as alleged? OPP

3. Whether the revenue entries qua the suit land mentioned in portion 'C' are wrong and further allotment of the suit land mentioned in portions A& B

of the head note of the plaint in favour of the defendants by the Consolidation Department is wrong as alleged? OPP

4. Whether the plaintiffs are entitled to the relief of injunction as prayed for? OPP

5. Whether the plaintiffs are entitled to the relief of possession in the alternative as prayed for?OPP

6. Whether the suit is not maintainable in the present

form? OP D Whether the suit is bad for non-joinderand misjoinder of necessary parties as alleged? OPP

8. Whether the suit is collusive as alleged. If its effect?

OPD.

9. Whether the act and conduct of the plaintiff bar to the present suit? OPD

10. Whether the civil court has no jurisdiction in view of the Consolidation of Land Holdings Act, and Ceiling of Land Holdings Act as alleged? OPD.

11. Whether the suit is within time? OPD

12. Whether the plaintiffs have not locus standi and cause of action to file the present suit?OPD.

13. Relief.

9. The parties were called upon to produce evidence.

Plaintiffs examined Nirmala Devi (PW-1). The defendants

examined Gian Chand (DW-1), Jagdish (DW-2), Ramesh Chand

.

(DW-3), and Kushal Singh (DW-4).

10. Learned Trial Court held that an exchange had taken

place and plaintiff No.1 obtained Khasra Nos.

286,453,497,506,584 and predecessors of plaintiffs no. 2 to 5

obtained Khasra Nos. 184 min, 185 min and 185min. The land was

shown to the joint among the co-owners in the revenue record.

The entries were wrongly relied on by the Consolidation

Authorities to partition the land. The jurisdiction of the Civil

Court is not barred because the Consolidation Authorities had

proceeded on the basis of the wrong record. Hence, the learned

Trial Court answered issues no. 1 to 4 and 11 in affirmative, issues

no. 5 to 10 and 12 in negative and decreed the suit of the plaintiff.

11. Being aggrieved with the judgment and decree passed

by the learned Trial Court, the defendants filed an appeal before

the learned First Appellate Court. The learned First Appellate

Court held that the exchange was duly proved.The revenue entries

were wrongly recorded and the Consolidation Authorities had

wrongly proceeded based on the wrong record. Hence, the Civil

Court had jurisdiction to hear and entertain the present suit.

There was no infirmity with the judgment and decree passed by

the learned Trial Court and the appeal was dismissed.

.

12. Feeling aggrieved and dissatisfied with judgments and

decrees passed by the learned Courts below, the present appeal

has been filed, asserting that the learned Courts below failed to

properly appreciate the material placed before them. The land was

partitioned by the Consolidation Authorities and the jurisdiction

of the Civil Court to hear and entertain the present suit was

barred. The plaint ought to have been returned to the plaintiffs for

presentation before the Appropriate Court. Additional issue 12-A

was framed but no findings were returned by the learned Trial

Court. The findings returned by the learned First Appellate Court

Court on this issue are wrong. The findings should have been

called from the learned Trial Court. The presumption attached to

the revenue record was not rebutted and learned Courts below

erred in decreeing the suit. The State of H.P. was not impleaded as

a party and it was a necessary party because the exchange was

claimed with the State of H.P. Hence, it was prayed that the

present appeal be allowed and judgments and decrees passed by

the learned Courts below be set aside.

13. The appeal was admitted on the following substantial

questions of law framed on 01.12.2005:-

1. Whether both the courts below have committed

.

grave illegality and irregularity in holding that the

Civil Court has the jurisdiction to entertain the suit assailing the actions of the authorities exercising

powers under H.P. Consolidation of Holdings Act, HP Ceiling on Land Holdings and Prevention of Fragmentation Act by ignoring the bare provisions of the Statute and misapplying the law?

2. Whether the Lower Appellate Court has committed a grave error of procedure in not remitting the additional issue No.12-A to the trial court for returning findings by observing that the findings on

such issue were covered under issue No.10? Was not

it incumbent for the lower Appellate Court to have remitted the issue and called for the findings from the trial court to prevent failure of justice?

3. Whether both the courts below have fallen in error of law and jurisdictions in not dismissing the claim of the plaintiffs-respondents when State of

Himachal Pradesh being a necessary party was not joined in suit? Was not the suit bad for non-joinder

of necessary parties

4. Whether both the courts below have acted in excess

of their jurisdiction in granting the relief of declaration and injunction in favour of the plaintiffs-respondents without recording any specific findings about the actual physical possession over the land in a suit?

14. I have heard Mr. Bhupender Gupta, learned Senior

Advocate assisted by Ms. Rinki Kashmiri, Advocate for the

appellants/defendants and Mr. Ajay Sharma, learned Senior

Advocate with Mr. Athrav Sharma, Advocate for respondents no. 2,

3, 5 and 6.

.

15. Mr. Bhupender Gupta, learned Senior Counsel for the

appellants/defendants submitted that the learned Courts below

erred in holding that the Civil Suit had jurisdiction to hear and

entertain the present suit. The land was partitioned by the

Consolidation Authorities and the jurisdiction of the Civil Court to

hear and entertain the dispute arising out of the consolidation is

barred under Section 57 of the H.P. Consolidation of Land

Holdings Act. The learned First Appellate Court erred in recording

the findings on additional issue No.12-A and not remitting the

matter to the learned Trial Court. The State of H.P. was a

necessary party because the exchange was stated to have been

effected with the State; therefore, he prayed that the present

appeal be allowed and judgments and decrees passed by the

learned Courts below be set aside.

16. Mr. Ajay Sharma, learned Senior counsel for for

respondents no. 2, 3 5 and 6 supported the judgments and decrees

passed by the learned Courts below and submitted that no

interference is required with the same.

17. I have given considerable thought to the rival

submissions at the bar and have gone through the records

carefully.

.

Substantial Question of Law No.1.

18. Learned Courts below proceeded on the basis that the

entries in the revenue record were incorrect and the Consolidation

Authorities erred in relying upon them. The Civil Court had the

jurisdiction to hear the present suit in view of the wrong

committed by the Consolidation Authorities. The learned Trial

Court relied upon the judgment of this Court in Sant Ram vs.

Bhagwan Lal1994(2) CLJHP 403. The learned First Appellate Court

relied upon judgments of this Court in Lajpat Rain (deceased)

through his LRs Smt. Maya Devi and others vs. Taro Devi and others

1999 (1) SLJ 511 in support of their conclusions. It is not necessary

to deal with these judgments as the matter has been decided by

this Court subsequently. It was laid down by the Hon'ble High

Court in Baldev Singh vs. Siri Ram 2008(1) S.L.C. 421that where the

matter arose from the consolidation proceedings, the jurisdiction

of the civil court is barred. It was observed:-

17. Otherwise also, the consolidation proceedings are conducted under the statute i.e. Himachal Pradesh Holdings

(Consolidation and Prevention of Fragmentation) Act, 1971, which is a complete Code, self-explicit and comprehensive and provides a complete mechanism to the aggrieved party to agitate the matter before the authorities mentioned thereunder by way of appeal or revision. Section 57 of the

.

Act aforesaid bars the jurisdiction of the civil Court as

regards the matter arising under the Act.

18. As is evident from the record, the plaintiff did not

agitate the initial wrong entries despite acquiring knowledge in the year 1974. Further, after delivering the possession to the defendant during the consolidation proceedings at the time of repartitioning of the land in question in accordance with the published scheme under

the Act, he did not assail it before the authorities mentioned thereunder. Thus, the plaintiff was rightly non-suited on the grounds of limitation by both the Courts below. Further, it is a matter arising out of the consolidation proceedings,

therefore, in my opinion, the jurisdiction of the civil Court

is also barred. Further, the earlier entries got eclipsed by the subsequent entries made during the consolidation proceedings, in favour of the defendant which were not assailed under the said Act. Thus the initial entry Ex.PG has

lost its importance in view of the subsequent entries made under a statute.

19. Similarly it was held by this Court in Rakesh Kumar v.

Roshan Lal, 2018 SCC OnLine HP 400that if no efforts were made to

challenge the order passed by consolidation authority as being

without jurisdiction, there is a complete bar of the jurisdiction of

the Civil Court regarding any matter arising out of the

consolidation proceedings. It was observed:-

"15. In SadaNand versus Smt.Tulfu and others, 1999(3) Shim.

L.C. 226, this Court held that once the orders under the Consolidation Act have attained finality and there was no

effort made by the plaintiff to challenge the orders so passed as being without jurisdiction, then as per Section 57 of the Act, there was a complete bar of the jurisdiction of the Civil Court with respect to any matter arising out of the consolidation proceedings or with respect to any other

.

matter in regard to a suit or application could be filed under

the provisions of that Act.

16. A somewhat similar question came up before this Court

in Mohinder Singh and others versus Nikku Ram 2016 (5) ILR (HP) 1199 wherein this Court held that the basis on which a suit is filed out of the consolidation proceedings, then the same is not maintainable. It shall be apt to reproduce the relevant observations as contained in paras 13 and 14 of the

report which read thus:-

"13. Section 57 of the Consolidation Act reads as under:

"57. Jurisdiction of civil court barred as regards r matters arising under this Act-No person shall

institute any suit or other proceedings in any civil court with respect of any matter arising out of the consolidation proceedings or with respect of any other matter in regard to which a suit or

application can be filed under the provisions of this Act."

14. As I have already discussed above, it is not in dispute

that the case of the plaintiffs on the basis of which they filed the civil suit is arising out of the consolidation

proceedings. It is also a matter of record that the plaintiffs were already agitating the issue before the authorities as prescribed under the Consolidation Act

and the suit was filed without disclosing this fact in the plaint. Be that as it may, the fact of the matter still remains that under the provisions of Section 57 of the Consolidation Act, the jurisdiction of the Civil Court is barred with respect to any matter arising out of consolidation proceedings. In this view of the matter, in my considered view, the learned trial Court rightly returned the plaint under the provisions of order 7 Rule, 10(2) of CPC by holding that the suit so filed by the

plaintiffs was barred by the provisions of Section 57 of the Consolidation Act. Similarly, the learned Appellate Court also rightly upheld the findings so returned by the learned trial Court. There is no infirmity with the findings so returned by both the learned Courts below.

.

The judgment of this Court in the case Leetho Versus

Chamelo and others, 2001 2 SLJ 1802, is distinguishable and has no bearing in the present case. In the above case, this Court was dealing with the interpretation of

Section 171 (2) (xvii) of the H.P. Land Revenue Act, 1953 and while interpreting the said provisions it was held by this Court that the statutory provisions of Section 171 (2) (xvii) of the H.P. Land Revenue Act, 1953 puts a bar

that Civil Court shall not exercise jurisdiction over any claim of partition of an estate, holding or tenancy, or any question connected with, or arising out of proceedings for partition, but qualifies that a question

as to title should not be involved in any of the property

of which partition is sought. Thus, on the basis of the language of the said provision, it was held by this Court that there was no absolute bar and the moment the question of title is raised, the Civil Court gets the

jurisdiction. In my considered view, the findings returned by this Court in the abovementioned case do not have any bearing in the present case because in the abovementioned case, this Court was dealing with the

provisions of the H.P. Land Revenue Act and the interpretation given by this Court was based on the

language of the statute itself. Similarly, the judgment passed by this Court in ParmeshwariDass&Ors. Vs. Roshal

Lal & Ors,2009 1 Cur LJ 225 in RSA No. 114 of 1999 is also of no assistance to the appellant because in that case it was held by this Court that the revenue entries recorded therein were a nullity and it was on these bases that this Court is relying upon the judgment of the Hon'ble Supreme Court in Dhruv Green Field Limited v. Hukam Singh and others, 2002 6 SCC 416 held that civil court had jurisdiction as the action complained was a nullity. In the present case, it is an admitted fact that it was the

appellants who invoked the jurisdiction of the competent authority under the Consolidation Act and subsequent proceedings arising thereof were still pending by way of appeal before the competent authority which appeal was also filed by the present

.

appellant under the provisions of the Consolidation Act

when the suit was also simultaneously filed."

17. Bearing in mind the ratio of the aforesaid cases, it would

be noticed that what the plaintiffs have in fact assailed in the suit is virtually the proceedings, or else the instant suit would otherwise be barred by the principle of res judicata in view of the judgment rendered by a learned Division Bench of this Court in Rulia and others versusRoop Lal and others

1992 (1) Shim. L.C. 132.

18. That apart, the pleadings, in this case, are categoric and specific to the effect that it was the predecessor-in-interest

of the defendants, who in connivance with the consolidation staff got his name entered in the revenue

records as an owner to the extent of one share out of 71 shares fraudulently and thereafter filed partition proceedings on the ground that he was one of the co- sharers.

19. Obviously, the sum and substance of the suit filed by the plaintiffs is nothing but to assail the orders passed by the Consolidation Officer which proceedings were contested by

the plaintiffs as admitted by plaintiff no. 1 himself while

entering into the witness box as PW-1. Therefore, this Court has no hesitation to conclude that the suit so instituted by the plaintiffs was barred under Section 57 of

the Act."

20. This Court had distinguished the judgment of Lajpat

Rai in Rakesh Kumar (supra) by holding as under:

"12. The facts of the aforesaid case are clearly distinguishable as the consolidation proceedings in that case had commenced in the year 1977, whereas, the entries in the revenue records (jamabandi) had been changed in

the alleged manner in the year 1972-73. It was in that background that the Court held that a suit for declaration and injunction was still maintainable even in teeth of the bar engrafted in Section 57 of the Act."

.

21. The learned Courts below proceed based on the

premise that entries recorded in jamabandi(Ext. P-17) were

incorrect as they were contrary to the order passed by the

Consolidation Authorities.

22. Learned Trial Court held that plaintiff no.1 and

r to predecessor-in-interest of plaintiff no. 2 to 5 moved an

application before the authorities and obtained the land

mentioned in paras "a" and "b" of the headnote in exchange.

They surrendered the land given in exchange for Village Lohara

and they became exclusive owners.Reliance was placed upon the

orders (Ext.P-9 and P10). Ext.P-9 is an order passed by the

Collector Una, in Land Ceiling Act No. 662 of1974 in respect of

Raghubir Singh, plaintiff no.1. The order reads that Raghubir

Singh had filed an application for reviewing the order dated

14.08.1975, Raghubir Singh claimed that the land in Village Suhin

was near his Abadi land and he wanted to retain the land in Village

Suhin with him and surrender the land located at Village Lohara,

Tehsil Amb. The request was genuine; therefore, Khasra No. 286,

453, 497, 506, 584 measuring 93 Kanal 18 Marla were allowed to

be retained with Raghubir Singh and land bearing Khsara No.

5699, 5565, 5778 min, 5144 min, measuring 93 Kanal 18 marla

.

situated in Village Lohara was ordered to be taken instead of land

located in Village Suhin. Similar is the order (Ext.P-10) although

it is not legible. This order was passed by the Collector in Land

Ceiling Case No. 662 of 19974. It reads that Bachittar Singh was

permitted to retain the land Khasra Nos. 194 min, 185 min and

180 min, measuring 69 Kanals 5 marlas. Significantly, the order

dated14.08.1975, the review of which was sought and granted by

means of these orders was not placed on record. The order(Ext. P-

9& Ex. P10) only shows thatRaghubir Singh and Bachittar Singh

were permitted to retain the land in Villiage Suhin and surrender

the land in Village Lohara. Thus, learned Courts below wrongly

concluded that there was an exchange of the land and they became

the exclusive owner in possession of the suit land.

23. There was no exchange of land. It appears from the

order that initially the land in Village Lohara was retained and the

land in Village Suhin was surrendered. However, this was sought

to be reviewed and the land in Village Suhin was retained and land

in Village Lohara was surrendered. Hence, the status of the

ownership would not be changed by this surrender. The status

would remain the same and it is difficult to conclude based on

material on record that there was an exchange or that the land

.

was exclusively allotted to Raghubir Singh and Bachittar Singh.

The order dated 02.08.1975 would have thrown a light as to what

exactly had happened and in the absence of the same, it is difficult

to speculate based on the review order to conclude that the land

was allotted exclusively to Raghubir Singh and Bachittar Singh.

Hence, the very premise of the learned Courts below that revenue

entries were incorrect and Consolidation Authorities had

proceeded on the basis of incorrect revenue entries conferring the

jurisdiction on the Civil Court is incorrect and both the learned

Courts below erred in returning the holding that Civil Court had

jurisdiction to question the orders passed by the authorities

exercising the powers under H.P. Consolidation of Holding Act.

Hence, this substantial question of law is answered accordingly.

Substantial question of law No.2

24. The learned trial Court framed additional issue 12-A

on 09.03.1994 regarding the rejection of the plaint. However, this

issue escaped the attention of the learned Trial Court while

passing the judgment. Learned First Appellate court held that the

issue was a legal one and could be disposed of without any

evidence. This was correct. Rejection of the plaint was sought on

the ground that the jurisdiction of the Civil Court was barred. The

.

learned Trial Court had held that the civil court had jurisdiction

and it was not necessary to remit the matter to the learned Trial

Court for a decision on the same. Issue No.12-A related to the

rejection of the plaint under Order 7 Rule 11 and the rejection of

the plaint is not dependent upon the evidence. Once the learned

Trial Court had held that it had the jurisdiction, it had rejected the

plea of the defendants that the plaint was liable to be rejected

because the jurisdiction was barred. Thus, a finding was recorded

by the learned Trial Court that it had the jurisdiction meaning

thereby the plaint was not liable to be rejected.Therefore, it was

not necessary to remit the matter to the learned Trial Court. No

prejudice was caused to the defendants as the issues related to the

jurisdiction and rejection of the plaint were virtually the same

issues and there was no failure of justice. Hence, this substantial

question is answered in a negative.

Substantial question No.3.

25. The plaintiffs claimed that they had surrendered the

land. This order was reviewed. The Consolidation Authorities had

wrongly partitioned the land. Their claim was duly supported by

the orders passed by the Consolidation Authorities. They did not

claim any relief against the State of H.P. They were aggrieved by

.

the fact that the land was wrongly partitioned during the

consolidation operation. It was not necessary to join the State of

H.P. to adjudicate such a claim. Hence, the suit is not bad for non-

joinder of State of H.P. and this substantial question of law is

answered in negative.

Substantial question No.4.

26. The learned Trial Court held that in para 10 the

plaintiffs were admittedly in possession of the suit land and they

were declared exclusive owners in possession of the suit land.

This finding was upheld by the learned First Appellate

Court.Therefore, it cannot be said that no specific findings were

recorded regarding the possession of the plaintiff and this

substantial question of law is answered in the affirmative.

Final order:-

27. This Court held in Rakesh Kumar (supra) that the plaint

cannot be ordered to be returned when the Consolidation

Proceedings have already come to an end and the Court has no

option but to dismiss the suit. In the present case, the present

Consolidation proceedings have come to an end. Hence, the plaint

cannot returned and the suit has to be dismissed for want of

.

jurisdiction.

28. In view of the above, the present appeal is allowed.

Judgments and decrees passed by the learned Courts below are

ordered to be set aside and the suit of the plaintiff is ordered to be

dismissed. The record of the case be remitted back to the learned

Courts below. Pending miscellaneous applications, if any, also

stand disposed of.

(Rakesh Kainthla) Judge

05th September, 2023 (Ravinder)