Punjab-Haryana High Court

(O&M) Om Parkash Etc vs Dalip Singh Etc on 20 November, 2025

Author: Amarinder Singh Grewal

Bench: Amarinder Singh Grewal

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

102                                            RSA No.1482 of 1990 (O&M)
                                               Reserved on
                                                        on:17.11.2025
                                               Pronounced on:20.11.2025
                                               Uploaded on:
                                                        on:27.11.2025

Om Parkash and others                                            ... Appellants
                                         versus
Dalip Singh and others                                          ...Respondents

CORAM : HON'BLE MR. JUSTICE AMARINDER SINGH GREWAL

Present:    Mr. Shilak Ram Hooda, Advocate
            for the appellants.

            Mr. Rajender Chhokar, Advocate and
            Mr. Navneet Chhokar, Advocate
            for respondents.

            ***

AMARINDER SINGH GREWAL, J.

1. The appellants, appellants, who were defendants before the learned trial rial Court,

are before this Court in the instant regular second appeal, challenging the judgment

and decree dated 25.04.1990 passed by the learned 1st Appellate Court, whereby

the appeal preferred by the respondents-plaintiffs respondents plaintiffs against the judgment and decree

dated 19.08.1987 of the learned trial Court, Court was allowed. The learned trial Court

had dismissed the suit for declaration filed by the respondents respondents-plaintiffs, plaintiffs, which

was decreed by the learned 1st Appellate Court.

2. For the sake of convenience, the parties are being described in the

manner in which they were before the learned learned Trial Court.

3. Succinctly, the facts of the case are that the respondents-plaintiffs plaintiffs had

instituted the suit under Order 1 Rule 8 CPC for themselves and in their

representative capacity on behalf of all proprietors of Thola Gordhan of village

Kanwali claiming ming therein to be owners in possession of 80 kanals 11 marlas of

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land, comprised in Khewat No.122, Khata No.159 as detailed in para No.1 of the th

plaint. During the consolidation proceedings, this land was reserved for Thola

Gordhan and Chandgi Ram (since deceased), predecessor predecessor-in-interest interest of defendants

No.2 to 7 and Suraj Mal, defendant No.1, co co-sharers sharers of the khewat, moved an

application under Section 42 of the East Punjab Holdings (Consolidation and

Prevention of Fragmentation) Act, 1948 (hereinafter ref referred erred to as the Act of

1948), which was dismissed on 11.02.1964. However, later in time, Assistant

Director, Consolidation vide his order dated 02.07.1964 (Ex.D1) in the appeal filed

under Section 21 (4) of the Act of 1948 by one Sube Singh, wrongly and illegally llegally

came to the conclusion that Suraj Mal, predecessor predecessor-in-interest interest of defendant No.1

and Chandgi, predecessor-in-interest predecessor interest of defendants No.2 to 7 were entitled to 7

bighas and 18 biswas of more land, besides 18 bighas 1 biswa of land already

allotted to them on the ground that they were in possession of the said land since

26.01.1950 and thus, they became owners of the land in question under the Punjab

Village Common Common Lands (Regulation) Act, 1961 (hereinafter referred to as the Act

of 1961).. Since the land as detailed in para No.1 of the plaint was already reserved

under the scheme of consolidation, therefore, order dated 02.07.1964 passed by the

Assistant Director, Consolidation was without jurisdiction jurisdiction.. Thereafter, another

application under Section 42 of the Act of 1961 was filed whereupon the order

dated 28.06.1979 (Ex.D2) was passed remanding the matter back to the Assistant

Director for executing order dated 02.07.1964 (Ex.D1).. However, the case was

again referred back to the Additional Director Consolidation stating therein that

order dated 02.07.1964 could not be executed without amending the scheme of

consolidation. Thereafter, vide order dated 22.05.1981 (Ex.D3) (Ex.D3), the Additional

Director Consolidation allegedly ordered for amending th thee scheme and as a

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consequence thereof, vide order dated 02.12.1981 (Ex.D4), Assistant Director

Consolidation made the defendants owners of 7 bighas 18 biswas of land, out of

the land as detailed in para No.1 of the plaint. Thus, the instant suit was filed

seeking declaration of aforesaid orders Ex.D1 to D4 as illegal, void and without

jurisdiction and further to the effect that land detailed in para No.1 of the plaint was

owned and possessed jointly by the proprietors of Thola Gordhan of village

Kanwali.

4. Upon notice, notice defendants appeared and contested the suit by raising

preliminary objection qua maintainability of suit and on merits, it was stated that

the Assistant Director vide his order dated 02.12.1981 allotted the land measuring 7

bighas 18 biswas to the defendants out of the Thola Gordhan and no objection was

raised by the plaintiffs at that time, thus, they were estopped by their own act from

filing the present suit. It was also averred that earlier application filed under

Section 42 of the Act of 1948 1 was with respect to thola baroj and not thola gordhan

and thus, order dated 11.02.1964 was not binding upon them.

5. On the basis of the pleadings, the learned trial Court had framed five

issues, including the issue of relief. Upon appreciation of the pleadings,

documentary evidence and the material on record, the trial Court dismissed the suit

of the plaintiffs. Aggrieved by the said judgment, the plaintiffs had preferred an

appeal before the learned 1st Appellate Court, which allowed the same vide

judgment gment and decree dated 25.04.1990, 25.04.1990 while set setting aside the judgment and decree

of the learned trial Court. Aggrieved against the aforesaid judgment and decree of

the learned 1st Appellate Court,, the appellants appellants-defendants defendants have approached this

Court in instant regular second appeal.





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6.                                              submitted that the learned 1st

Learned counsel for the appellants submit

Appellate Court has completely misdirected itself in law and on facts in setting

aside the well-reasoned reasoned judgment of the learned trial Court. It was argued that at the

earlier application under Section 42 of the Act of 1948 was for an entirely different

purpose, whereas proceedings challenged in the suit had arisen out of an

application under Section 21(4) 21( of the Act ibid seeking eeking to make good the

deficiency of 7 Bighas Bighas 18 Biswas in the appellants' allotment from the Shamlat

land of Thola Gordhan. It is further contended that the Assistant Director rightly

allowed the claim on 02.07.1964 after hearing all stakehold stakeholders, ers, and subsequent

orders were passed by the competent competent authorit authorities in accordance with law to give

effect to order dated 02.07.1964 passed by the Assistant Director Consolidation.

Consolidation

The learned 1sts Appellate Court gravely erred in disturbing the well well-reasoned reasoned

finding of the learned trial Court while deciding the issue of jurisdiction, as the

jurisdiction of the Civil Court is expressly barred under Section 44 of the Act of

1948. It was also argued that the issue involved was not of granting title in favour

of the appellants by the consolidation authorities, rather it was a case of making

good the deficiency of share, which the appellants were entitled to. The share of

appellants was falling short of 7 bighas 18 biswas biswas of land, as they had become

owner of the same being in possession from 26.01.1950 and thus, it was a case of

making good the deficiency of share, which the appellants were otherwise entitled

to and not of giving any extra land. Furthermore, the cons consolidation olidation authorities

were well within their rights to allot the land after amending the scheme of

consolidation. Moreover, respondents No.1 to 44-plaintiffs plaintiffs were parties to the said

proceedings and it is not the case that the orders were passed behind the their back..





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7. Per contra, learned counsel appearing for respondents No.1 to 4

supported the judgment of the 1st Appellate Court while submitting that the

appellants had no enforceable right to seek any further allotment from the Shamlat

Thola. It was argued that the earlier application moved by the appellants under

Section 42 of the Consolidation Act had already been dismissed on 11.02.1964 on

merits and, therefore, the subsequent proceedings initiated by them amounted to an

impermissible review of the earlier earlier order, which is not contemplated under the Act

of 1948. It was further contended that the Assistant Director, while passing the

order dated 02.07.1964, did not issue fresh notices to all right right-holders holders and,

therefore, the order stood vitiated for violation violation of the principles of natural justice. It

was also urged that the Civil Court Court had jurisdiction to examine the validity of such

orders where questions relating to entitlement, title or proprietary rights are

involved. In support of his contentions, he re relied lied upon the judgments passed by

this Court in Satya Devi Vs. State of Punjab and others 2008(2) LAR 668;

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

others 2014(2) RCR (Civil) 721 and Ishwar Dayal and others Vs. State of

Haryana na and others 2023(3) RCR (Civil) 483.

8. I have heard learned counsel for the parties and have pe perused rused the

paper book with their able assistance as well as the case laws cited.

9. The East Punjab Holdings (Consolidation and Prevention of

Fragmentation) Act, 1948 was enacted just after independence of the country, as a

need was felt for consolidation of agriculture land holdings and to prevent its

fragmentation for better management, utilization utilization and productivity for the

development of the estate. The Preamble of the Act ibid applicable to Haryana

echoes that the Act is hereby enacted to provide for the compulsory consolidation

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of agricultural holdings and for preventing the fragmentation of agricultural

holdings and for any other development purpose on lands owned by the State

Government or Government owned entities in the State of Haryana and for the

assignment or reservation of land for common purposes of the village or villages.

10. A perusal perusal of the above makes it crystal clear that tthe said enactment nactment

brought into existence by the Legislature with an intention to develop agricultural

land and optimize agriculture produce from such land by consolidating the

holdings of a proprietor of land in the village and prevent its fragmentation.

Meaning thereby, a proprietor, who had various chunks of land or land scattered scattere in

pieces, his holding was consolidated for its better management, cultivation and

irrigation in order to augment his agriculture produce. Therefore, the object was to

provide a compact area of land instead of having scattered chunks of land; besides,

avoid oid fragmentation.

11. In the consolidation process, it was also felt that certain lands need to

be kept for common purposes in every village which land was to be given to the

village Panchayats or the Gram Panchayats for its management and control only, only

after er applying a pro-rata pro rata cut on the holdings of proprietors. Section 18 (c) of the

Act of 1948 states that if no land is reserved for common purpose including

extension of the village abadi, or if the land so reserved is inadequate, the

Consolidation Officer Officer was directed to assign such other land for such purpose.

12. The need to keep certain lands for common purpose was basically for

two reasons.. Firstly, for extension of abadi for proprietors and non non-proprietors, proprietors,

desirous of building houses and such land was was to be reserved for carving out plots

of suitable sizes. For the plots allotted to proprietors proprietors, area of equal value were to

be deducted from their holdings but in case of non non-proprietors proprietors (including scheduled

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castes, Sikh backward classes, artisans and llabourers) abourers) depending on agrarian

labour,, these shall be allotted without payment of compensation and they were

deemed to be full owners of plots allotted to them. Secondly, in an estate or estates

where during consolidation proceedings, there is no shamlat deh land or such land

is considered inadequate, land was to be reserved for the village panchayat and for

other common purposes, out of the common pool of the village. Propriet Proprietary ry rights

in respect of land so reserved (except the area reserved for extens extension ion of abadi of

proprietors and non-proprietors) non shall be vested in the proprietary body of the

estate or estates concerned and entered in the column of ownership of record of

rights as jumla malkan wa digar haqdaran arazi hasab rasad raqba. The

managementt of such land shall be done by the panchayat of the estate or estates

concerned on behalf of the village proprietary body and the panchayat shall have

the right to utilize the income derived from the land so reserved for the common

needs and the benefits of the states concerned.

13. Section 14 of the Act of 1948 (as applicable to Haryana only) deals

with consolidation of holdings and the same is reproduced as under:

under:-

"14.

14. Government may of its own accord or on application declare its intention to make scheme for consolidation of holdings. - (1) With object of consolidating holdings in any estate or group of estates or any part thereof for the purpose of better cultivation of lands therein or for any other development purpose on lands owned by the State Government or Government owned entities entities, the State Government may of its own motion or on application made in this behalf declare by notification and by publication in the prescribed manner in the estate or estates concerned its intention to make a scheme for the consolidation of holdings in such estate or estates or part thereof as may be specified.





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(2) On such publication in the estate cconcerned the State Government may appoint a Consolidation Consolidation Officer who shall after obtaining in the prescribed manner the advice of the landowners of tthe he estate or estates concerned and of the non non-proprietors proprietors and the Gram Panchayat, if any, constituted in such estate or estates under the Gr Gram Panchayat Act, Noo IV of 1953 1953,, prepare a scheme for the consolidation of holdings in such estate or estates or pa part rt thereof as the case may be.

(3) Where a notification under sub sub-section section (1) has been made in respect of a group of estates and the holding is situated in mor moree than one estate in the group, then notwithstanding anything contained in the Punjab Land Revenue Act, 1887, the scheme prepared by the Consolidation Officer may provide for the alteration of boundaries of such estates."

estates

Section 19 (applicable to Haryana only) speaks about the publication of draft scheme and Section 20 talks about confirmation of scheme, which are as under:-

scheme. - (1) When the draft scheme of

19. Publication of draft scheme consolidation is ready for publication publication, the Consolidation Officer shall s publish it in the prescribed manner in consultation with the Gram Sabha and in presence of concerned Tehsildar and Block Development and Panchayat Officer in the estate or estates concerned. Any person likely to be affected by such scheme, shall within thirty days of the date of such publication, communicate in within writing to the Consolidation Officer any objections relating to the scheme. The Consolidation Officer shall after considering the objections, if any, received, submit the scheme with such amendments amendm as he considers to be necessary, together with his remarks to the objections, to the Settlement officer (Consolidation).

20. Confirmation of scheme. - (1) The State Government may by notification appoint one or more persons to be Settlement Officers

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(Consolidation) and, by like notification, specify the area in which each such Officer shall have jurisdiction. The Consolidation Officers in the area under the jurisdiction of the Settlement Officer (Consolidation) shall be subordinate to him subject to any conditions tions which may be prescribed.

(2) if no objections are received to the draft scheme published under subsection (1) of section 19 and also if no written or oral objections to the draft scheme are received under sub sub-section section (3) by the Settlement Officer (Consolidation), he shall confirm the scheme. (3) If any objections are received to the draft scheme published under subsection (1) of Section 19 or if any written or oral objections are received by the Settlement Officer (Consolidation) before the received confirmation of the draft scheme by him, the Settlement Officer (Consolidation) may after taking the objections into consideration together with the remarks thereon of the Consolidation Officer and also lso after considering the written or oral objections, either confirm the scheme with or without modifications, or refuse to confirm it. In case of such refusal, the Settlement Officer (Consolidation) shall return the draft scheme, with such directions as m many any be necessary, to the Consolidation Officer, for reconsideration reconsideration and resubmission.

(4) Upon the confirmation of the scheme under sub sub-section section (2) or (3) the scheme as confirmed shall be published in the prescribed manner in the estate or estates concerned.

concern

14. A conjoint reading of Sections 14, 19 an andd 20 of the Act of 1948 makes

it evident that the Government may on its own accord or on application made in

this behalf, declare by notification or by publication in the prescribed manner in the

estate or estates concerned, its intention to make a scheme for the consolidation of

holdings in such estate or estates or part thereof, as may be specified. Thereafter,

a draft scheme is published and any person, who is affected by such scheme, has

been given a right to communicate in writing any objections relating to the scheme

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to the Consolidation Officer, who after considering such objections, has to submit subm

the scheme with such amendments as he considers to be necessary, together with

his remarks on the objections, to the Settlement Officer (Consolidation). The

Settlement Officer (Consolidation) so appointed by the State Government by

notification confirms confirms the scheme after taking into consideration the objections

received, if any, along with remarks of the Consolidation Officer with or without

modification or refuse to confirm it. In case of such refusal, he has to return the

draft scheme with such directions directions as may be necessary to the Consolidation Officer

for reconsideration and resubmission. However, upon confirmation of the scheme,

the same shall be published in the prescribed manner in the estate or estates

concerned.

15. After confirmation of the scheme scheme of consolidation, the land is

repartitioned amongst the landowners of the estate or estates concerned in terms of

Section 21 of the Act of 1948, which is reproduced as under:

under:-

"21. Repartition - (1) The Consolidation Officer shall, after

21. Repartition.

obtaining the the advice of the landowners of the estate or estates concerned, carry out repartition in accordance with the scheme of consolidation of holdings confirmed under section 20, and the boundaries of the holdings as demarcated shall be shown on the shajra which shall be published in the prescribed manner in the estate or estates concerned.

(2) Any person aggrieved by the repartition may file a written objection within fifteen days of the publication before the Consolidation Officer who shall after hearing the oobjector bjector pass such orders as he considers proper confirming or modifying the repartition. (3) Any person aggrieved by the order of the Consolidation Officer under sub-section sub section (2) may within one month of that order file an

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appeal before the Settlement Offic Officer er (Consolidation) who shall after hearing the appellant pass such order as he considers proper. (4) Any person aggrieved by the order of the Settlement Officer (Consolidation) under sub-section sub section (3), whether made before or after the commencement of the East East Punjab Holdings (Consolidation and Prevention of Fragmentation) Second Amendment and Validation Act, 1962, may within sixty days of that order, appeal to the Assistant Director of Consolidation.

(5) Any appeal against an order of the Settlement Officer (Consolidation), pending under sub sub-section section (4) immediately before the commencement of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Second Amendment and Validation Act, 1962, either before the State Government or any officer to whom the powers of the State Government in this behalf have been delegated shall be decided by the Assistant Director of Consolidation. (6) The appellate authority may entertain an appeal under sub sub-section section (3) or sub-section sub section (4) after the expiry of the pe period riod of limitation prescribed therein if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. (7) The State Government may by notification appoint any person to be an Assistant Director of Consolidation to eexercise xercise the powers under this section in respect of such area as may be specified in such notification.

notification."

16. Sections 42 and 44 of the Act of 1948 are also relevant for proper

adjudication of the present case and it is apt to reproduce the same:

same:-

"42.

42. Power Po proceedings. - The State of State Government to call for proceedings Government may at any time for the purpose of satisfying itself as to t the legality or propriety of any order passed, scheme prepared or confirmed or repartition made by any officer under this Act Act,, call for and examine the record of any case pending before or disposed of by

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such officer and may pass such order in reference thereto as it thinks fit :

Provided that no order or scheme or repartition shall be varied or reversed without giving the parties parties interested notice to appear and opportunity to be heard except in cases where the State Government is satisfied that the proceedings have been viti vitiated ated by unlawful consideration.

44. Jurisdiction of Civil Court barred as regards matters arising under this Act. - No civil court entertain any suit instituted or application made, to obtain a decision or order in rrespect espect of any matter which the State Government or any officer is, by this Act, empowered to determine, decide or dispose of.

of."

17. Now coming back to the facts of the case, the scheme of consolidation

was confirmed on 07.08.1962, as is evident from the order dated 11.02.1964

(Ex.P4) passed by the Additional Director, Consolidation, Rohtak, Camp Sonepat.

Sonepat

On 06.07.1963, an application was filed under Section 42 of the Act of 1948 by

Chandgi Ram i.e. predecessors-in-interest predecessors interest of defendants No.2 to7 and Suraj Mal by

submitting that they had submitted sub objections to the scheme of consolidation,

which were rejected by the Consolidation Officer on 05.08.1962 and the appeal

filed against the said order, was also dismissed by the Settlement Officer

(Consolidation), Rohtak on 07.08.1962. Their objecti objection on was that the land

belonged to the thola gordhan was under their cultivating possession and thus, the

said land being owned by the thola gordhan was ultimately vested in the Gram

Panchayat anchayat by virtue of Punjab Act No.18 of 1961, therefore, this area of the he land

could not have been partitioned as proposed in the scheme of consolidation. The

said application of the Suraj Mal and Chandgi Ram was dismissed on 11.02.1964

on the ground that according to the scheme, some area had been kept for securing

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the rights ts of tenants and some area had been left for common purposes and the

remaining area was partitioned according to the scheme, much less, the petition

under Section 42 of the Act of 1948 was also time barred.

18. From a minute perusal of record, it came forth that the bone of

contention stemmed from the order dated 02.07.1964 (Ex.D1) passed by the

Assistant Director Consolidation under Section 21(4) of the Act of 1948, a perusal

of which reveals that the said order was passed on the appeal of one Sube Singh Sin

against the order of Settlement Officer, who vide order dated 17.04.1964 had

accepted the appeal of Chandgi.

Chan gi. The said Sube Singh had sought improvement in

the shape of his kurra. While passing the aforesaid order, the Assistant Director

Consolidation gave 1 kanal 13 marlas of land to Chandgi and Suraj Mal after

withdrawing the same from the shamlat thola gordhan, which was a reserved land

for all the proprietors of thola gordhan under the scheme of consolidation. As a

consequence of this order, orders Ex.D2 to D4 were passed by the competent

authorities under the Act of 1948, 1948 as has been detailed in the foregoing paras of the

judgment.

19. Now coming to the arguments raised by learned counsel for the

appellants, the star argument being the suit barred by jurisdiction under Section 44

of the Act of 1948. A bare perusal of Section 44 of the Act of 1948 reveals that

jurisdiction of the civil court is barred in respect of any matter which the State

Government or any officer is, by this Act, empowered to ddetermine, etermine, decide or

dispose of. In the opinion of this Court, the jurisdiction of the Civil Court is

excluded during the pendency of proceedings under the Act of 1948 or when the

disputed issue is to be expressly adjudicated by the consolidation authoriti authorities.

es. Once

the scheme of consolidation is closed, the consolidation tribunal, which is a quasi-

                                                                              quasi



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judicial/statutory

statutory tribunal becomes functus officio and any order passed by them

thereafter without following the mandate of the Act of 1948 comes under the

jurisdiction diction of Civil Court. In the present case, the scheme of consolidation was

confirmed in the year 1962 and the order was passed by the Assistant Director

Consolidation under Section 21(4) on 02.07.1964 on the appeal preferred by one

Sube Singh, who sought sough improvement in the shape of his kurra. Again, Section 21

of the Act of 1948 deals with repartition of land amongst the landowners of estate

or estates concerned in accordance with the scheme of consolidation of holdings

confirmed under Section 20. Any person, who is aggrieved with the repartition repartit

may file written objection within 15 days of the publication before the

Consolidation Officer, who shall after hearing the objector pass such order as he

considers proper for confirming or modifying the partition. Aggrieved by the order

of Consolidation on Officer, appeal lies under sub-

sub-section section (3) of Section 21 before the

Settlement Officer (Consolidation) within one month of that order and a further

appeal lies against the order of the Settlement Officer (Consolidation) within sixty

days of that order to to the Assistant Director Consolidation. A perusal of order dated

02.07.1964 (Ex.D1) passed under Section 21(4) of the Act, 1948, meant for

repartition of estate or estates concerned after confirmation of scheme of

consolidation of holdings to the landowners, landowners, nowhere reveals that the said order

was passed in pursuance of objections received with respect to repartition of land,

rather the appellant prayed for improving the shape of his kurra, which is not the

scope and ambit of Section 21 of the Act of 1948. Thus, the Assistant Director

Consolidation exceeded his authority and the act done by a quasi-judicial judicial authority

beyond the scope of its power and authority, always amenable to civil court

jurisdiction. Under the garb of improving the shape of kurra of the appellant-Sube Sube

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Singh, Assistant Director Consolidation allotted 1 kanals 13 marlas of land from

the shamlat thola gordhan to appellants without amending the scheme of

consolidation, which is patently illegal. Secondly, there is nothing on record to

show ow that any reasonable notice was given to all proprietors of shamlat thola

gordhan before passing order dated 02.07.1964 (Ex.D1). Thus, the Civil Court has

jurisdiction in cases where the consolidation authorities had taken a decision

without complying with with the provisions of the Act of 1948 and had not acted in

conformity with the principles of natural justice.

20. There is another aspect of the matter. A careful perusal of order dated

02.07.1964 (Ex.D1) reveals that at Sr. No.1, area of 2 kanals 17 mar marlas las was

withdrawn from Chandgi Chand i son of Mehar Singh, Suraj Mal and Dhira sons of Ram

Sarup and area given was also 2 kanals 17 marlas. Further at Sr. No.2, area of 2

kanals and 10 marlas was withdrawn from Smt. Lachmi etc. daughters of Jagdish,

Sat Narain sons ons of Dalip etc. and area given was again 2 kanals and 10 marlas.

However, at Sr. No.3, area of 1 kanals 13 marlas was given to Chandgi son of

Mehar Chand, Suraj Mal, Dhira sons of Ram Sarup from Shamlat Thola Gordhan

and at Sr. No.4, in the column of area area given, 'nil' is written. Where during

consolidation proceedings, there is no shamlat deh land or such land is considered

inadequate, land is reserved for the village panchayat and for other common

purposes under Section 18 (c) of the Act of 1948, out of the common pool of the

village and such land is described as jumla mushtarka malkan wa digar haqdaran

arazi hassab rasad raqba. This land vests in the Gram Panchayat for the purpose

of management and control. Therefore, this land cannot be provided ba back ck to the

proprietor in any circumstance, especially without carrying out amendment in the

scheme of consolidation. Thus, on this ground as well, order dated 02.07.1964 was

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passed by the Assistant Director Consolidation against the mandate of the Act of

1948, 948, which amounted to passing title upon the appellants. It is settled law that

question of title can be decided only by the Civil Court and the Consolidation

Authorities are not empowered to do so under the provisions of the Act of 1948.

Consolidation Authorities A have limited power to record and update fiscal entries

and prepare record of rights but they are not empowered to decide a question of

title or vest/divest a party of its title. The same can only be done by the Civil Court C

especially when the land l in dispute was Jumla Mushtarka Malkan wa digar

haqdaran arazi hassab rasad raqba.

21. Not only this, when the appellants sought execution of the order dated

02.07.1964 on 04.09.1978 i.e. after 14 years under Section 42 of the Act of 1948,

Director Consolidation onsolidation while passing the order dated 28.06.1979, had reproduced

para No.3 of the order dated 02.07.1964 passed by the Assistant Director

Consolidation, a translation translat of the same (being in vernacular) done by this Court is

reproduced as under:-

under:

"After hearing both the parties and after analysing the relevant record, it came to the light that first objection of the appellants appellant is about the thola land, which is allotted to them. The appellants were in possession of 39 bighas 11 biswas of thola land but nnow they have been allotted only 18 bighas 11 biswas. Therefore, as per their entitlement, they have to be allotted 25 bighas 19 biswas from thola land. The appellants appellant were in possession of said land prior to 26.01.1950 and therefore, they became owners ooff the said land in 26.01.1950 their khewat. It is explicitly provided under the Village Common Lands Act that a person who is in possession of land on or before 26.01.1950, shall be vested with ownership of the said land. Therefore, in this matter, appellants have become owners of 25 bighas 19 biswas but this was not done. Therefore, the thola land

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which was in the possession of the appellants, is to be given to them. The objection of the appellants is correct and the same shall be resolved."

22. Vide his order dated 28.06.1979 (Ex.D2), the Director Consolidation

though observed that the repartition exercise of the village under Section 21 of the

Act of 1948 was published on 16.10.1962 and the present application is given on

04.09.1978 i.e. beyond the period of limitation limitation of six months, the same is barred by

limitation. However, in the very next line, he condoned the said delay by merely

stating that since the order passed by the Assistant Director Consolidation is to be

complied with, delay in filing the application application is condoned condoned,, which in the opinion of

this Court is not only shocking but completely outrageous. In the end, he

remanded the matter back to the Assistant Director Consolidation with a direction direct

to act in terms of order dated 02.07.1964 after providin providingg an opportunity of hearing

to all the concerned parties under Section 21(4) of the Act of 1948.

23. Further a perusal of para 3 of the order dated 02.07.1964 (Ex.D1),

reveals that the Assistant Director Consolidation had passed the same as though he

wass a competent authority under the Haryana Village Common Lands (Regulation)

Act, 1961 and not under the Act of 1948. Interestingly, after the matter was

remanded back to the Assistant Director Consolidation under Section 21(4) of the

Act of 1948, when the matter was taken up for decision on 22.05.1981 (Ex.D3), (Ex.D3) it

was brought to the knowledge of Additional Director Consolidation that

application of the appellants under Section 42 of the Act of 1948 on the same

ground had already been dismissed on 11.02.1964 but the aforesaid contention was

discarded by him by stating that this fact should have been brought to the notice of

the Director, who passed the order dated 28.06.1979 (Ex.D2). In the concluding

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paragraph though he also observed that it has not been me mentioned ntioned specifically in

the order dated 28.06.1979 of the Director Consolidation that the scheme be

amended but in order to implement the order dated 02.07.1964, it should be

deemed to be amended to that extent and order ordered the Assistant Director,

Consolidation tion to amend the scheme.

24. Thereafter, before the Assistant Director Consolidation under Section

21(4) of the Act of 1948, it was again contended by the representatives of thola

gordhan that consolidation authority cannot grant any title in favour of any

individual by taking aid of the provisions of Haryana Village Common Lands

(Regulation) Act, 1961 and further, provisions of the said Act were applicable on

shamlat deh and not on shamlat thola. However, the Assistant Collector

Consolidation had brushed aside all the aforesaid contention contentions by merely stating he

has been ordered to implement the order dated 02.07.1964 and cannot comment on

merits of the case. Thus, he ordered to give 1 kanal 13 marlas of land out of the

land reserved for thola gordhan gordhan and amended the scheme of consolidation

accordingly. A perusal of the aforesaid makes it crystal clear that despite

admitting the fact that the application seeking execution of the order dated

02.07.1964 was barred by limitation, though the same was ccondoned ondoned without

assigning any sufficient cause for the same in the order and further, the land was

allotted without amendment of the scheme of consolidation, which was confirmed

and that too, from the land reserved for shamlat thola gordhan. The consolidation consolida

authorities had blown hot and cold at the same time both with respect to limitation

and their authority to amend the scheme.

scheme. They put the cart before the horse in

amending the scheme of consolidation after allotting 1 kanals 13 marlas from the

land reserved served for shamlat thola gordhan.




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25. Further, the learned 1st Appellate Court has rightly held that though

the order dated 02.07.1964 (Ex.D1) cannot be said to be passed while reviewing

the order dated 11.02.1964 (Ex.P4) but the said order (Ex.D1) defi definitely nitely nullified

the effect of order (Ex.P4) and allowed the appellants to take undue advantage of

the same. A Full Bench of this Court in Parkash Singh's case (supra) has held

that consolidation authorities are not empowered to decide a question of title

whether between private individuals or between a Gram P Panchayat anchayat and a private

individual and with respect to common lands, they are onl onlyy empowered to delimit

the shamlat lat khewat and create jumla mushtarka malkhan. The relevant paragraphs

of the said judgment judgm are reproduced as under:-

"24. Apart from creating a new variety of "common land", the "24.

Consolidation Act and the Rules set out a detailed procedure for:-

for:

updating revenue record, preparing a scheme, inviting objections, procedure for valuation of land, consideration of objections/replies and, thereafter, allotment of land and change of possession in accordance with the area so determined. In order to perform these functions, Section 22 of the Consolidat Consolidation ion Act provides that a Consolidation officer shall exercise power of a revenue officer as conferred under Chapter (IV) of the Punjab Land Revenue Act, 1887. Section 22 of the Consolidation Act reads as fo follows:-

"22. Preparation of record of rights. - (1) The Consolidation Officer shall cause to be prepared a new record of rights in accordance with the provision contained in Chapter IV of the Punjab Land Revenue Act, 1887 (XVII of 1887), in so far as these provisions may be applicable for the area under consolidation giving effect to the repartition 2 [and order in respect thereof made] under the preceding section."

25. A Consolidation officer is, therefore, empowered, during consolidation proceedings to decide decide all such disputes and pass all

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such orders that fall to the jurisdiction of a revenue officer, as may be necessary for preparing revenue records and may even partition the land amongst co-sharers.

co Section 16A of the Consolidation Act, which confers power upon a Consolidation Officer to partition land holdings provides that provisions of Chapter (IX) of the Punjab Land Revenue Act, 1887 (the chapter pertaining to partition of land), except Section 117,, i.e., the power of a revenue officer to decide a question of title or refer parties to a civil Court, shall apply to consolidation proceedings. The question whether Consolidation authorities are empowered by Section 16A of the Consolidation Act to decide a disputed question of title came up for consideration before a Full Bench of this Court in Ajit Singh v. Smt. Subaghan and others, AIR 1970, Punjab and Haryana, 93.. After considering the provisions of Sections 16A, and 22 of the Consolidation Act and Section 117 of the 1887 Act, it was held that Consolidation authorities are not empowered to decide a disputed question of title.

26. The final stage of consolidation arrives under Section 21,, of the Consolidation Act, with repartition, whereby new revenue numbers are assigned and possessions are exchanged. A person aggrieved, by a proposed order, may file written objections within 15 days and thereafter file appeals before the Consolidation Officer an and d then onwards to the Settlement Officer, the Assistant Director Consolidation and if still dissatisfied, may approach the State Government, under Section 42 of the Consolidation Act. Section 22 provides for preparation of a new record of rights and Section 23 enjoins upon the Consolidation Officer, where all owners and tenants agree, to call upon them to eexchange xchange possession but if owners and tenants do not agree to enter possession and to fix a date upon which owners and tenants shall be obliged to enter possession of their land holdings as determined in the new record of rights.

27. During this process of repartition, preparation of record of rights and delivery of possession, consolidation authorities also assess the value of "Shamilat Land" delimit "Shamilat Deh" and establish the

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"Shamilat Khewat (as distinguished from "Jumla Mushtarka Malkan") as the ownership ownership of the Gram Panchayat. The possession of "Shamilat land" is accordingly delivered to the Gram Panchayat. In cases, where consolidation was completed before "Shamilat Deh", came to statutorily vest in a Gram Panchayat, the shamilat land continued to be recorded as ownership of proprietors.

28. By the time of re-partition, re partition, Consolidation Authorities had already applied a pro-rata pro rata cut on the holdings of proprietors and created "Jumla Mushtarka Malkan" (as distinct from "Shamilat Deh") for the panchayat and for other common purposes and an entry to that effect is incorporated in the new record of rights, referred to as the "Missal Haqiat", i.e., the first jamabandi prepared after consolidation. As soon as a scheme is complete, the management and control ooff all land created assigned or reserved for common purposes of the village as "Jumla Mushtarka Malkan", under Section 18 and 23A of the Consolidation Act and vests in the Panchayat of that village for the purpose of management and control, as clarified by Rule 16(ii) of the Consolidation Rules.

29. We would, thus notice that during the process of consolidation, a Consolidation officer exercises powers of a revenue officer, as conferred by Punjab Land Revenue Act, 1887, but is not empowered by any provision of the Consolidation Act or the 1887 Act, to decide a disputed question of title. It would be necessary to once again reiterate that the Consolidation Act Act,, does not contain any provision conferring power upon consolidation authorities to decide a question of title whether between private individuals or between a Gram Panchayat and a private individual and with respect to common lands only empowers Consolidation Consolidation authorities, to delimit the "Shamilat Khewat" and create "Jumla Mushtarka Malkan".

26. In view of the judgments passed by the Hon'ble Supreme Court in

Pankajakshi (Dead) through Legal Representatives and others Vs. Chandrika

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and others (2016) 6 SCC 157, Randhir Kaur Vs. Prithvi Pal Singh and others

(2019) 17 SCC 71 and Gurbachan Singh (dead) through LRs Vs. Gurcharan

875, questions of Singh (dead) through LRs and others (2023) SCC Online SC 875

law are not required to be framed in second appeal before the Punjab and Haryana

High Court whose jurisdiction is circumscribed by provisions of Section 41 of the

Punjab Courts Act, 1918.

27. As an upshot of above, this Court finds no ground to interfere with the

reasoned judgment and decree passed by the learned 1st Appellate Court and well-reasoned