Thakkar, J. - (1.) What is more difficult, regaining of possession of agricultural lands to which they had undisputed right, or passing through the eye of a needle, is the question the appellants may well ask in desperation. They may well add that while in theory for every right there maybe a remedy in practice such tenants have no remedy if the interpretation of the scheme of the provisions of the Consolidation Act (East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948.) made by the High Court is upheld. The original appellants, the tillers of the lands who have failed to regain possession for a quarter century after the Consolidation Officer upheld their claim in 1960, having died during the pendency of these appeals instituted 15 years back without reaping the fruits of the order in their favour (now represented by their heirs) may well be justified in saying so. For, notwithstanding the finding of fact recorded by the Consolidation Officer in his order dated April 28, 1960 that the original appellants were in possession of these lands as non-occupancy tenants prior to consolidation in the course of which the concerned land-owner was allotted parcels of land other than the parcels comprised in his original holdings, and they were entitled to be put in possession of the parcels which the land-owner was so allotted in lieu of his original holdings, the tenants have been denied the possession thereof pursuant to the said order of 1960 directing the land-owner to put them in possession. The said order remained a paper-order upon its being challenged as being without jurisdiction in a Civil Court. It was so challenged notwithstanding a provision (Section 44 of the Consolidation Act.) contained in the Consolidation Act excluding the jurisdiction of Civil Courts. The trial court negatived the plea of the plaintiff land-owner (respondent herein) that the defendants-tenants were in reality his labourers or servants and not his tenants. The trial court recorded a finding of fact upholding the plea of the tenants which was confirmed by the lower appellate court. This finding being a pure finding of fact could not have been, and in fact was not assailed in the High Court in the second appeals under Section 100 of the Code of Civil Procedure, preferred by the landowner. The High Court did not disturb this finding, as indeed it could not have, in view of the statutory limitation of section 100 of the Code of Civil Procedure, and yet allowed the second appeals preferred by the land owner upholding his plea that the tenants had no remedy under the Consolidation Act in view of the interpretation of the scheme of the provisions of the said Act canvassed by the land-owner which was sustained by the High Court. The chequered history of the litigation giving rise to the present appeals (By Special leave granted by this Court.) may now be traced.
(2.) One Chandgi (respondent herein) had inducted two tenants (Jagram and Amar Singh) who were in occupation of two different parcels of land from out of khasra Nos. 3, 8, 9, 12 and 18 of village Bawana in Delhi. In the consolidation proceedings initiated under the Consolidation Act, a scheme of repartition was framed and in lieu of the aforesaid parcels of land he was allotted Killa Nos. 21 (4 bighas 16 biswas), 22 (4 bighas 2 biswas) and 23 (4 bighas 15 biswas) of rectangle No. 2. Thus the lands originally comprised in his holding were substituted by the lands comprised in the aforesaid parcels which were allotted to him under the consolidation scheme. The tenants were in actual possession and were actually tilling two parcels out of the original holding prior to consolidation. However, after the allotment of the other parcels of land in substitution of the original parcels of land the tenants were not put back in possession of the corresponding parcels in the substituted lands. Thereupon they approached the Consolidation 0fficer viz. the Naib Tahsildar at Delhi by initiating proceedings under Sections 21/26 of the Consolidation Act. Each of them made a separate application on the premise that in lieu of the land which he was cultivating as a non-occupancy tenant prior to consolidation the corresponding parcels should be restored to him from out of the reallotted lands substituted in lieu of original holding under the Consolidation Scheme. The landowner, Chandgi, lodged an objection. He raised the plea that Amar Singh and Jagram no doubt were tenants in 1950 but that they had voluntarily given up the possession thereof prior to the consolidation and that the landowner himself. was in possession prior to consolidation. The parties produced oral and documentary evidence. After considering the relevant material including the land records and entries of khasra Girdawari the Court of the Consolidation Officer (presided over by Naib Tehsildar) recorded a finding in favour of each of the tenants. Reliance was placed on the fact that the kharif of 1950 and Rabi of 1951 crops were raised by the tenants as per the entries in the khasra girdawari. He also accepted the oral evidence adduced on behalf of the tenants and reached the conclusion that the tenants were in actual possession and that they had not surrendered the tenancy as pleaded by the landowner. He, therefore, upheld the claim of the tenants and passed an order in their favour on 28th April, 1960 whereby he directed that the corresponding parcels of land1 in the substituted killa numbers be allotted to the tenants and that warrant for possession be issued in favour of the tenants. The land-owner did not challenge this order by way of a revision petition under Section 42 of the Act. Nor did he challenge the said order by way of a Writ Petition to the High Court. Thus the order became final as per the submission of the tenants inasmuch as the jurisdiction of the civil court was excluded by section 44 of the Consolidation Act. Chandgi the common land-owner against whom the aforesaid two orders dated April 28, 1960 were passed by the Court of Naib Tehsildar, Delhi, exercising powers as Consolidation Officer, thereafter instituted two separate suits against Jag Ram and Amar Singh raising identical contentions, challenging the said orders of the Consolidation Officer, as without jurisdiction and obtained an order of stay. The tenants contested the suits. The trial court came to the conclusion that the Civil Court had no jurisdiction to entertain the suits and dismissed the suits. The land-owner preferred appeals to the lower appellate court and upon failing in the appeals, preferred two second appeals to the High Court, which by its order dated April 1, 1965 (In R.S. A. No. 51 D and 52 of 1962.) remanded the matter back to the trial court to decide the other issues as in the opinion of the High Court the Civil Court had jurisdiction to entertain the suit. Upon remand, the trial court again recorded a finding in favour of the tenants and repelled the contention that the impugned orders dated April 28, 1960 were without jurisdiction. Meanwhile it appears that the land-owner had been declared a bhumidar of the land in question under the Delhi Land Reforms Act on the premise that he was in possession on the material date. The land-owner appealed to the Court of the Senior Sub-Judge, Delhi who disposed of both the appeals by an extremely well considered common judgment dated February 10, 1966 (In R. S.A. Nos. 360 and 361 of 1965.) whereby he confirmed the judgment and order of the trial court upholding the contention of the tenants that the order passed by the Consolidation Officer was legal and valid. Before the learned Senior Sub-Judge the plaintiff-land-owner had raised the contention that the defendants were not the tenants of the land at all and were merely labourers or servants and were not entitled to be put in possession. The learned Senior Sub-Judge negatived this contention of the plaintiff-land-owner and recorded a clear finding to the effect that the defendants were tenants of the pre-consolidation land prior to the commencement of the Consolidation proceedings in 1952 and that the defendants were in possession of the lands as tenants prior to the consolidation proceedings as reflected in the. passage extracted therefrom:- 1. Killa Nos. 21 to 25 to be allotted to Amar Singh and 4 Bighas and 4 Biswas out of Killa No. 18 to be allotted to Jagram. "Learned counsel for the plaintiff then contended that the defendants were not the tenants of land, that they were merely helpers or servants and that, therefore, they were not entitled to be put in possession. But, as has been rightly held by the Lower Court, it does not stand substantiated that the defendants were merely servants or helpers. The plaintiff did produce some oral evidence in that connection. He when appeared as his own witness (PW 3) stated that the defendants acted as labourers for one year, that they got their wages in kind and that they went away. The entries in the Khasra Girdawari however, do not support the case of the plaintiff. They rather support the case of the defendants. A copy of the Khasra Girdwari is Ex.D. 4. That shows Khasra Nos. 3, 8 and 12 were in possession of Amar Singh as a tenant in Khariff 1950 and 1951. Khasra No. 9 is shown to be in cultivation as a tenant of Jag Ram in Rabi and Khariff 1950 and 1951. This clearly shows that the defendants were the tenants off the pre-consolidation land. It was stated by the plaintiff Chandgi as PW 3 on examination-in-chief that consolidation proceedings started in the year 1952. That means that the defendants were continuing as tenant's prior to the start of consolidation proceedings." (Emphasis added) Thus, a concurrent finding of fact was recorded in favour of the tenants by the trial court and the lower appellate court, that the defendants were tenants in respect of the lands in question and were in possession prior to the consolidation proceedings in the year 1952. The plaintiff- land-owner also raised an inconsistent alternative plea that even if the defendants were tenants, they had relinquished and abandoned their tenancies. On this point also the lower appellate court recorded a clear finding in favour of the tenants. For the sake of preciseness the relevant passage from the judgment dated 10th February, 1966 deserves to be quoted: "Learned counsel for the plaintiff then urged that even if it be taken for granted that the defendants were tenants, they had abandoned their tenancies, that therefore, they had ceased to be tenants and were not entitled to be put in possession of the post consolidation land. He pointed out to the copy of the Khasra Girdawari Ex.D. 4. That copy shows that in Khariff 1951 the land mainly remained uncultivated. He urged that showed that the defendants had ceased to take any interest which raised a necessary inference that they had relinquished their tenancies. The argument is clearly conjectural. The mere fact that the land remained uncultivated for one crop, does not raise any inference about the relinquishment of the tenancy by the tenants." Thus, the plea that the defendants-tenants had 'relinquished' or 'abandoned' their tenancies has been negatived both by the trial court and the lower appellate court and the concurrent finding of these two courts is in favour of the tenants. The other contention that was raised was that the land-owner had meanwhile obtained Bhumidari rights under the Delhi Land Reforms Act and that the orders dated April 28, 1960 passed in favour of the two tenants under Section 26 of the Consolidation Act could not be given effect to. The Lower Appellate Court rejected this plea on the ground that the provisions of the Consolidation Act were not repealed by the provisions of the Delhi Reforms Act and! unhesitatingly repulsed the plea of the appellant-land-owner.
(3.) Lastly it was contended that the Consolidation Officer had no jurisdiction to pass an order under Section 26 of the Consolidation Act in favour of the tenants and that the tenants should have pressed their claim when partition and re-partition Schemes were being framed under Sections 14 to 21 of the Consolidation Act. The Lower Appellate Court rejected this plea also on the ground that the point was covered by a decision rendered by H. R. Khanna, J. of the High Court (as he then was) in R. S. A. No. 81 T of 1961 in the case of Munshi v. Bhagwan decided on April 29, 1964. The plaintiff- landowner preferred a second appeal to the High Court. Ordinarily this appeal would have been heard by a learned single Judge of the High Court under section 100 of the Code of Civil Procedure on a question of law. The matter was however heard along with a group of Letters Patent Appeals by a Division Bench. The High Court rendered its common judgment in L. P. A. No. 271/71 giving rise to the present appeals. The High Court took the view that the Consolidation Officer had no jurisdiction to exercise powers under Section 26 of the Consolidation Act. The reasoning of the High Court is reflected in the following passage: "The power of the Chief Commissioner or of any authority under the Act to revoke a scheme or vary an order must be read to mean during the consolidation proceedings. In other words, these powers cannot be exercised once the scheme is deemed to have come into force and the possession to the allottees covered by the scheme of consolidation or, as the case may be, by repartition has been given subject, of course, to any changes that may be ordered in pursuance of the provisions of sub-sections (2), (3) and (4) of Section 21 or an order passed under Section 36 or 42 of the Act, provided the powers under section 36 or 42 are invoked during the consolidation proceedings. The orders of the authorities under the Act including the orders of the Chief Commissioner have to be passed to further scheme and the re- partition proposals and cannot be passed to order possession to be given to anyone who is not covered by section 26(1) of the Consolidation Act for Section 26 really reiterates the effect of the consolidation holdings which has to be carried out in the manner set out in Sections 14 to 23 read with the relevant rules. The Consolidation of holdings stands concluded as provided by Section 24 once the persons entitled to possession of holdings have entered into possession and thereafter the possession cannot be disturbed until a fresh scheme is brought into force or a change is ordered in pursuance of provisions of sub-sections (2), (3) and (4) of section 21 or an order passed under Section 36 or Section 42 of the Act in proceedings that may be pending prior to the persons entitled to possession entering into possession or being held entitled to possession as provided in sub-sections (1) and (2) respectively of Section 23. In view of the discussion hereinabove it is Obvious that no independent right accrues to tenants or other persons under Section 26 of the Consolidation Act. If a person is not held entitled to possession as postulated by Section 26 in the first instance either when the Scheme is formulated or the repartition proposals are made or implemented, there is no fresh determination of rights to be made under Section 26 by invoking Rule 13 of the Consolidation Rules. The determination takes place earlier and the Consolidation Officer has merely to carry out what has already been determined. Further under Rule 13 only the right of possession is to be settled and not the question of transfer of encumbrance or allotment. It, follows, therefore, that if no determination of rights can be made under Section 26 and consequently no appeal lies from any order purported to have been passed under Section 26 even the Chief Commissioner cannot by virtue of Section 42 make an order at that stage." Thus, the pre-consolidation tenants who had succeeded in securing an order for possession in their favour in 1960 in view of the finding in their favour that they were tenants in respect of the lands comprised in the pre-consolidation holding of the land-owner prior to the consolidation and were accordingly entitled to be put in possession of the corresponding lands allotted to the land-owner in lieu of the original holdings have been obliged to approach this Court by way of the present two companion appeals which have been directed to be consolidated by an earlier order of this Court. They have been obliged to approach this Court notwithstanding the fact that the aforesaid order passed by the Consolidation Officer was not challenged by way of appeal or revision under the Consolidation Act or assailed by way of a Writ Petition and notwithstanding the fact that the trial court and the lower appellate court have recorded a concurrent finding in their favour that they were tenants in respect of the pre-consolidation holdings of the plaintiff-land-owner and that his plea that they were labourers was untenable and his alternative plea that they had relinquished or abandoned the tenancy was also unsustainable.;