(O&M) Pehlad & Others vs G.P. Yadupur & Others
2025 Latest Caselaw 932 P&H

Punjab-Haryana High Court

(O&M) Pehlad & Others vs G.P. Yadupur & Others on 16 January, 2025

                                      Neutral Citation No:=2025:PHHC:005450


RSA-313-1992(O&M)
        1992(O&M)                               -11-

            IN THE HIGH COURT OF PUNJAB AND HARYANA
                         AT CHANDIGARH

                                                RSA
                                                RSA-313-1992(O&M)
                                                Pronounced on: 16.01.2025

PEHALAD (DECEASED) THROUGH LRS AND OTHERS
                                                                ...Petitioner(s)
                                      Versus
GRAM PANCHAYAT YADUPUR AND ANOTHER
                                                                ...Respondent(s)
CORAM: HON'BLE MR. JUSTICE TRIBHUVAN DAHIYA

Present:-     Mr. Puneet Jindal, Sr. Advocate with
              Mr. Rahul Bansal, Advocate for the appellants.

              Mr. Amar Vivek Aggarwal, Advocate with
              Mr. Abhishek Goyal, Advocate for respondent no.1.

TRIBHUVAN DAHIYA, J.

This is plaintiffs/appellants' first appeal against the judgment and

decree of reversal, dated 15.01.1992, passed by the First Appellate Court.

2. The plaintiffs/appellants with defendant/respondent no.2 filed a

suit for declaration and injunction, dated ted 19.12.1984, claiming to be

owners/proprietors proprietors in possession of land measuring 532 kanals, 3 marlas

situated within revenue estate of village Papri, Tehsil (now District) Palwal, as

per their shares recorded in jamabandi for the year 1951-52. It was pleaded

that during the consolidation of holdings the suit land had been given to them

in lieu of their land comprising in khewat no.11, khatoni no.1 to 27. However,

the authorities wrongly entered the name of defendant/respondent no.1/Gram o.1/Gram

Panchayat, Yadupur, in the revenue record as owner qua this land. This

deletion of their names, as also of their predecessors predecessors-in-interest, as owners of

the suit land was in violation of provisions of the East Punjab Holdings

(Consolidation and Prevention of Fragmentation Fragmentation) Act, 1948 (for short, 'the

Act of 1948') and the rules made thereunder.. There was no area of shamlat hamlat

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deh in village Papri prior to consolidation, nor had the Gram Panchayat ever

exercised its right of ownership against the suit land. Once they started

threatening to interfere with the plaintiffs/appellants' possession on the basis

of wrong revenue entries, the instant suit for declaration was filed.

2.1. The suit was contested by defendant/respondent no.1/Gram o.1/Gram

Panchayat, disputing the plaintiffs/appellants' claim of ownership. The suit

land according to them was a shamlat deh land, which was reserved during

consolidation proceedings and had been vested in the Panchayat for the

benefit of village community and their common purposes. It was also pleaded

that the orderss of consolidation and revenue authorities to that effect were

never challenged by the plaintiffs/appellants in any Court; the same attained tained

finality and could not be challenged after a period of about thirty years.

2.2. On the pleadings of the parties, the following issues were settled

by the trial Court:

1) Whether the plaintiffs are owners in possession of the suit land as alleged, if so, to what effect? OPP

2) Whether the civil court has got no jurisdiction to try the present suit? OPD

3) Whether the suit is bad for non-joinder and mis-joinder of necessary parties? OPD

4) Whether the plaintiffs are estopped by their acts and conduct to file the present suit? OPD

5) Whether the suit of the plaintiffs is false and frivolous and the same is liable to be dismissed with special costs? OPD

6) Relief.

2.3. The trial Court decreed the suit in the plaintiffs/appellants'

favour holding them to be owners of the suit land and that Civil Court had

jurisdiction to hear the matter. The Gram Panchayat went in appeal against it

wherein the findings were reversed by the lower Appellate Court and the suit

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was dismissed with costs vide impugned judgment and decree dated

15.01.1992. The trial Court judgment was reversed mainly on three grounds;

firstly, it was held, as the order of consolidation onsolidation authorities had not been

challenged by the plaintiffs/appellants before the Appellate or Divisional

Authorities under the Act of 1948, the same could not be assailed in the civil

suit; secondly, the suit was held to be barred by limitation as it had been filed

after thirty years of entry of mutation in favour of the Gram Panchayat and

recording of the subsequent jamabandi; and, thirdly, the Civil Court had no

jurisdiction to decide the issue as per the provisions of Section 44 of the Act

of 1948.

3. In this factual background, learned senior counsel for the

plaintiffs/appellants argued that the judgment passed by the lower Appellate

Court was not sustainable since the Consolidation Scheme, though framed on

13.01.1954, had never come into effect. It was framed for village Papri which

was in uninhabited/bey uninhabited/ chirag village as per revenue record and never came

into existence. Resultantly, the land which was reserved for common purposes

by dividing the suit land in the consolidation cou could never be utilised, as Gram

Panchayat of Papri was never formed. Therefore, there was no cause for the

plaintiffs/appellants to challenge the Scheme before authorities under the Act

of 1948. The cause of action to challenge the order of Consolidation Officer

accrued to them only when the Panchayat tried to take over possession of the

suit land. And as per the settled law, limitation does not start running from the

date of mutation or entry in the revenue record; instead, it starts only when the

rights of the parties are threatened. Since plaintiffs/appellants had

undisputedly been shown as owners in the revenue record up to 1951-52, and

continued to be so, their rights could not be extinguished upon passing of

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orders by the consolidation authorities which never came into effect. In

support of his submissions, he has relied upon the judgments in Hazari and

another v. Roop Narain, 1974 AIR (Punjab) 347, and Jaswant Kaur and

others v. Faquiria, Faquiria 2012(4) PLR 713. Lastly, it has been contended by the

learned senior counsel that in terms of law laid down by the full Bench in

Parkash Singh and others v. Joint Development Commissioner, Punjab and

others, 2014(2) RCR(Civil) 721, the Civil Court has jurisdiction to decide the

suit, and the plaintiffs/appellants could not have been non-suited for want of

jurisdiction.

4. Per contra, learned counsel for the respondent/Gram Panchayat

contends that filing of the suit is an abuse of the process of law, as it has been

filed after unexplained delay of more than thirty years and is liable to be

dismissed on this ground itself. Also, the plaintiffs/appellants aintiffs/appellants are the second

and third generation descendants of the original land owners, and there is no

material on record to establish as to why their predecessors-in-interest did not

approach the Court earlier. Secondly, in case there was any irregularity or

illegality in the Consolidation Scheme, it was required to be challenged within

a reasonable time by availing appropriate remedies under the Act of 1948

which the plaintiffs failed to do. Once the Scheme has attained finality it

cannot be questioned.

que Thirdly, the Scheme of Consolidation earmarking the

land for common purposes was made by the cconsolidation authorities, and the

Panchayat was only a beneficiary, still the authorities have not been

impleaded as parties to the suit. In their absence, the onus to establish legality

or otherwise of the Scheme was on the plaintiffs which they failed to

discharge. Accordingly, on account of non-joinder joinder of necessary parties also

the suit is liable to be dismissed. Fourthly, tthere is a presumption of truth

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attached to the Consolidation Scheme, Exhibit P-6, dated 10.03.1954, under

Section 90 of the Indian Evidence Act, as it is a more than thirty years old

document. In fact, the document has been exhibited by the plaintiffs

themselves, and it could not have been challenged lenged by them. Further, one of

the plaintiffs, Girraj, who appeared as PW4, admitted that he was present at

the time of consolidation in 1955; presence of some other plaintiffs has also

been recorded in Exhibit P-6. They cannot now turn around and challenge that

very Scheme. This is a finding of fact recorded by the lower Appellate Court

as well, which is not to be interfered with in second appeal. In support of the

contentions, he has relied upon the law laid down by the Supreme Court in

Gram Panchayat, Kakran v. Additional Director of Consolidation and

another, 1997(8) SCC 484, wherein challenge to the Consolidation Scheme

after an inordinate delay of about forty years without any specific explanation

was declined.

5. Arguments advanced by learned coun counsel for the parties have been

considered, and record has been perused.

6. Originally the suit land was part of one khewat which was under

the ownership of the plaintiffs/appellants and the second defendant, as

established by jamabandi for the year 1951-52, 52, Ex. P-5. It is also a matter of

record that village illage Papri is uninhabited, having no population. Consolidation

of holdings was done in 1954-55, vide Ex. P-11 and P-2, and the suit land was

reserved for common purposes as shamlat deh eh of village Papri, which was

transferred/vested in the name of defendant/Gram Panchayat. There is an

order by the Consolidation Officer, dated 13.01.1954, Ex. P-2, reserving the

land as shamlat hamlat deh for common purposes. It was passed in the presence of

land owners and read over to them as well. Another document, Ex.P-6, is also

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on the file establishing that the land reserved as shamlat deh was mutated in

the name of defendant/Gram defendant/ Panchayat; and the mutation was sanctioned by

the competent ompetent authority in the presence of plaintiffs Radhey Shyam, Husan

Lal, Girraj and Devi Ram, Numberdar, on 07.09.1957 07.09.1957. Subsequent jamabandis

on that basis also stood recorded, viz., for the years 1963-64 and 1968-69, Ex.

P-11 and P-12, 12, respectively, wherein the Panchayat anchayat was shown as owner in

possession of the suit land. Further, PW4/Girraj himself admitted that he was

aware of the revenue entry/mutation sanctioned in 1957. The plaintiffs,

accordingly, cannot be considered to be in possession of the suit land, as the

unchallenged revenue record belies this claim. Resultantly, it cannot be

claimed that no cause of action accrued despite framing of the Consolidation

Scheme or entering of the mutation.

6.1. Besides, the aforementioned factss also establish that the plaintiffs

were well aware of the entries in the revenue record, as the mutation was

sanctioned in the presence of some of them, but they failed to challenge either

the mutation or the subsequent jamabandi entries. And filed the instant suit for

declaration, that too after more than thirty years in 1984 which was not

maintainable being beyond limitation and rightly dismissed by the lower

Appellate Court. The contention that the Consolidation Scheme was framed

for a bey chirag/uninhabited chirag village Papri and never came into existence, nor

could the land have been utilised for common purposes of such a non-existent existent

village in terms therewith, is without substance substance. It is because, the Scheme or

its having been prepared for a non-existent village illage was never disputed by the

plaintiffs, despite being aware of it. Nor did they challenge transfer of the

reserved land to the defendant/Gram Panchayat at any stage. In case there was

any irregularity or illegality about the Scheme or the transfer, it could not

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have been corrected without being challenged which was never done. The

Scheme thus attained finality and the plaintiffs had no right to challenge the

same or the revenue entries recorded on that basis after thirty years by filing

the suit.

6.2. A reference in this regard can be made to the Gram Panchayat,

Kakran case (supra supra), holding as under:

4. This, however, cannot be understood as enabling the party which is aggrieved by the scheme or by repartition to make an application under Section 42 after an unreasonably long lapse of time. Even where no period of limitation is prescribed, the party aggri aggrieved is required to move the appropriate authority for relief within a reasonable time. In fact this Court in the case of Gram Panchayat v. Director, Consolidation of Holdings2 dealing with Rule 18 itself, said that when no limitation is prescribed for an application under Section 42 dealing with confirmation of the scheme, the application should be made within a reasonable time and this question will have to be decided on the facts of each case. In that case the delay of about 3 years and 8 months in filing an application under Section 42 by the Panchayat was held to be not unreasonable. In the present case, however, the delay is of 40 years. We have tried to ascertain from the 2nd respondent whether there is any explanation for this unreasonable and inordinate delay. But no satisfactory explanation appears to be there for this inordinate delay in making the application under Section 42. The only contention which has been urged before us by Respondent 2 relates to the application of Rule 18 and the period of limitation prescribed therein not being applicable where the challenge is to the consolidation scheme and repartition. But even if Rule 18 is not directly attracted, an application which is made after such inordinate delay ought not to have been entertained. It is also contended by the 2nd respondent that the appellants have no locus standi to challenge the order of the Additional Director of Consolidation in a writ petition because cause

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the land in question continued to remain in the name of the proprieto body. He drew our attention to Rule 16(ii) of the said proprietory Rules. Rule 16(ii), however, quite clearly provides that the management of such land shall be done by the Panchayat of the estate or estates concerned on behalf of the village proprietory ry party and the Panchayat shall have to utilise the income and the benefits of the estate or estates concerned. Even before the Additional Director, the appellants were made a party-- respondent. This contention, therefore, has no merit.

6.3. The lower Appellate Court has recorded a finding on issue no.2

that under Section 44 of the Act of 1948 Civil Court has no jurisdiction to go

into the validity of repartition/consolidation proceedings. In case re-partition partition

was against the Consolidation Scheme, the proper course for the plaintiffs was

to approach the consolidation authorities. The finding is contrary to law laid

down by the full Bench in Parkash Singh case, wherein it has been held that

shamlat deh and jumla mushtarka malkan alkan are two distinct varieties of

common land; the former was in existence before consolidation, whereas the

latter was created during the consolidation. It has further been held that the

Act of 1948 does not provide a forum for a person to agitate his rights against

wrongly reserving the land for common purposes during consolidation, and

only Civil Court is the appropriate forum for such a dispute. A reference can

be made to paragraph 63 of the judgment in this regard, which is as under:

63. The question that now remains is to identify the forum, a person who raises a plea that the land is not "Jumla Mushtarka Malkan or that it was created by applying an illegal pro rata cut Malkan"

or that the land was not reserved for common purposes during consolidation, would be required to approach. After due consideration onsideration of the entire matter, we find no provision in the 1961 Act, the 1976 Act or the Consolidation Act that provides a forum to a person who raises such a plea and, therefore, in the

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absence of any fora for deciding such a dispute a person may have to approach a Civil Court but Section 44 of the Consolidation Act prohibits a Civil Court from entertaining any matter which the State Government or any officers are empowered by the Consolidation Act to determine or dispose of. Section 44, however, cannot be read to prohibit Civil Courts from deciding a question of title relating to "Jumla Mushtarka Malkan as what is prohibited by Section 44 is matters that fall to Malkan"

the jurisdiction of State Government or to any officer duly empowered by the Consolidation Act to decide. The Consolidation Act does not confer power whether on the State Government or the officers empowered thereunder to decide a question of title. The jurisdiction of a Civil Court to entertain a dispute regarding "Jumla Mushtarka Malkan" is, therefore, not barred by Section 44 of the Consolidation Act. The only forum available to a person, who raises a dispute regarding title in "Jumla Jumla Mushtarka Malkan" is the principal Court of civil jurisdiction having jurisdiction in the matter, as provided by Section 9 of the Code of Civil Procedure, i.e., a Civil Court.

Accordingly, finding of the lower Appellate Court on issue no.2 to the extent

it holds that the Civil Court has no jurisdiction to try this suit, is set aside

being contrary to the law laid down by the full Bench.

6.4. The reliance placed by the learned senior counsel for the

plaintiffs/appellants on the judgments in Hazar Hazari case and Jaswant Kaur case,

is misplaced as the same have no application to the facts of the instant case.

The judgments lay down, if adverse entries have been made against a person

in the revenue record despite being in physical possession of the property, he

is under no obligation to bring a suit. It is only when his rights are actually

jeopardised and there is a clear threat to infringe the possession, that he must

take resort to proceedings within three years therefrom. In the instant case,

however, in the face of jamabandi entries recording the Gram Panchayat in

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possession over the suit land, it cannot be said there was no threat of

infringement of possession to the plaintiffs and the cause of action did not

accrue to them. Besides, their actual physical possession over the land has

also not been established, as discussed herein before. Therefore, the suit is

barred by limitation and has rightly been dismissed by the lower Appellate

Court.

6.5. In view of the discussion, the second appeal is dismissed by

upholding the impugned judgment, dated 15.01.1992, passed by the lower

Appellate Court, except its finding on issue no.2. The plaintiffs/appellants'

suit, accordingly, stands dismissed with costs.

7. Pending miscellaneous application(s), if any, shall also stand(s)

disposed of as having been rendered infructuous.

                                                      (TRIBHUVAN DAHIYA)
                                                             JUDGE
16.01.2025
Ad
               Whether speaking/reasoned              Yes/No
               Whether reportable                     Yes/No




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