- (1.) GAJA Nand, Ram Dyal, Puran Chand, Sheela Devi and Shanti Devi were owners of land measuring 46 K. 16 M. situated in village Kotkapura. Land measuring 20 K. 14 M. was comprised in Khasra No. 13599, 15 K. 8 M. in Khasra No. 13600 whereas 10 K 13 M. in Khasra No. 13601. Vide Sale deed dated 11. 4. 1959, the aforesaid persons sold land measuring 34 K. to the petitioner Remaining land i. e. 12 K. 15 M. was sold to the respondents. There is some confusion with regard to land measuring 2 Marlas. However, parties to the litigation are not raising any dispute with regard to land measuring 2 Marlars Mutations regarding both these sales were sanctioned. Mutation No. 108 was sanctioned in favour of the petitioners whereas mutation No. 115 was sanctioned in favour of the respondents, in the years 1962-63 consolidation took place in the village and new area was carved out and new numbers were given. After consolidation, land measuring 28 K. 4 M. fell to the share of the petitioners whereas land measuring 10 K. 9 M. came to the share of the respondents. Respondents, on 30. 4. 1981, made an application under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation Act, 1948 (hereinafter referred to as the Act) to the Additional Director, Consolidation of Holdings, Punjab. This was followed by second application dated 8. 9. 1981 In these applications, a grievance was made by the respondents that major portion of the area was within the municipal limits and, the before, was reserved area and the possession of the parties was not to be disturbed. The other grievances were that the entire frontage had been allotted to the petitioners; no passage to the land of the petitioners has been provided, the tak of the petitioners was in haphazard manner and not fit for any use. Notice of the application was given to the petitioners who contested the same on various grounds including the ground of limitation. In the application under Section 42 of the Act, respondents had also given an explanation for making the same belatedly. The explanation given was that Gurbachan Singh, predecessor in interest of the present respondent was in the Army and while he was on active duty, possession was taken by the petitioners which was not according to the Scheme. On return from the Army, he moved an application for restoration of the possession. The Additional Director, Consolidation, after hearing both the parties, condoned the delay in filing application under Section 42 of the Act and necessary relief as prayed for was given. The respondents were given 25 Karams from Kotkapura on the northern side and the petitioners were given 67 Karams on the southern side. Similarly, taks of the respondents in the reserved area were carved out on the northern side and that of the petitioners on the southern side. Both the taks of the petitioners were to fall on the southern side of the land. It was also held that the land which had been sold by the petitioners to third person would remain within the tak of the petitioners as was prayed for by them. After passing of this order, the petitioners instead of challenging the same in the writ petition, filed civil suit for declaration and injunction to the effect that they were owners-in-possession of the land measuring 28 K. 4 M. comprised in certain khasra numbers, details of which find mention in the plaint. In the said civil suit, injunction was also sought for restraining the respondents from taking possession of the land which was given to them under the order of the Additional Director, Consolidation. The order of the Additional Director was also challenged that the same was without jurisdiction inasmuch as the Additional Director was not entitled to decide the question of title as the order was against the Scheme and if the Scheme was to be amended, the same had to be brought to the notice of the public which was not done while passing the order. An objection was also taken that the Additional Director was not competent to condone the delay in making application under Section 42 of the Act.
(2.) SUIT was also contested by the respondents on merits, who also raised preliminary objection with regard to jurisdiction of the civil Court to entertain the suit. The precise objection was that the Civil Court had no jurisdiction to go into the question of validity of the order passed by the Additional Director as the jurisdiction of the Civil Court is barred under Section 44 of the Act.
(3.) ON the pleadings of the parties, the trial Court framed many issues including the issue with regard to jurisdiction which was treated as a preliminary issue Parties were given opportunity to lead documentary evidence as the parties were agreeable that the issue can be decided on documentary evidence. The trial Court, on the basis of the documents brought on the record, decided the issue in favour of the respondents and accordingly it was held that the civil Court has no jurisdiction to entertain the suit as the same is barred under Section 44 of the Act. This order was affirmed in appeal. These orders are now being challenged here through this civil revision.;