V.K.BALI, J. - (1.) PETITIONERS Ram Kishan and another through present petition filed by them under Article 226 of the Constitution of India seek writ in the nature of certiorari so as to quash orders. Annexures P -4 and P -5 and to further direct respondent -authorities to partition the joint Khata in accordance with law. Further, declaration is sought to the effect that any provision contained in the scheme or in the impugned decisions barring such partition, would be illegal, arbitrary, mala -fide and in violation of the earlier orders passed by this Court. The reliefs, as indicated above, are sought to stand on the facts which need a necessary mention.
(2.) PETITIONERS are co -sharers by virtue of purchase of land in Khewat No. 8 to the extent of 2277/415895 shares in land measuring 30317 kanals situate in village Mohabbatpur, Tehsil & District Hissar. Vide notification dated September 15, 1952, the village aforesaid was brought under consolidation as per the provisions of East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter to be mentioned as the 1948 Act) and a scheme under the Act was prepared in which, inter -alia, it was provided that joint Khatas would be partitioned between the parties and separate khata of each holder would be prepared and that the rights of tenants would be protected and their possession would be maintained on the area allotted to their respective land -owners. Some co -sharers, it is stated, who were in actual possession and wanted to retain their possession on the whole area, represented that there should be no partition of the joint khata. This led to the filing of representations and counter -representations by the co -owners and ultimately the Director. Consolidation exercising powers under Section 42 of the 1948 Act directed that joint khewat could not be partitioned without the consent of all share -holders. Aggrieved, some of the co -owners filed Civil Writ Petition (No. 1641 of 1960) which was allowed on October 18, 1963 by the Division Bench Operative part of the judgment reads as under : " In view of the above, therefore, we accept this petition and make the rule absolute and quash the impugned order directing the non -partition of the joint khatas and direct that further proceedings will be taken in accordance with law. There will be no order as to costs. " Copy of the judgment aforesaid has been placed on records as Annexure P -1. It is pleaded that the authorities under the Act did not implement the judgment, referred to above, and efforts were made to nullify its effect. This again led to the filing of Civil Writ Petition (No. 2167 of 1965) by some co -sharers. The petition was allowed and impugned orders passed by the Additional Director of Consolidation and the Settlement Officer were quashed except to the extent that insofar as those orders set aside new paragraph 7 -B in the Scheme of the Consolidation, the same was to remain untouched. The authorities were directed to amend, alter and change the Scheme of Consolidation to bring it in conformity with the observations of the learned Judges of the Division Bench in their judgment dated October 18, 1%3 and while doing so it was also directed that for the purposes of partition and consolidation of holdings, the basis on which the authorities were to proceed, would be jamabandi for the year 1950 -51. When even the orders aforesaid brought no tangible results, some of the co -owners were constrained to file yet another writ petition bearing No. 1209 of 1969 which was disposed of vide orders dated September 18,1969, operative part of which runs thus: "both the writ petitions are, therefore, disposed of accordingly. As the consolidation proceedings have been pending since a very long time, the authorities are directed to expeditiously proceed to conclude the same. The parties are, however, left to bear their own costs in this Court. " The Government, with a view to nullify the decisions referred to above, de -notified the consolidation scheme itself. In the year 1980 on the application of some land -owners, the State Government again issued notification under Section 14 (1) on December 1,1980 and draft scheme dated August 5,1987, was prepared and objections were invited. Petitioners submitted objections wherein they questioned the provision in the scheme and pleaded that their rights should be determined on the basis of Jamabandi for the year 1950 -51 and that the area be partitioned. These objections were ignored and the authorities concerned proceeded to approve the scheme. The Settlement Officer, however, heard the objections of petitioners and others on December 29,1987 resulting into direction issued by him that the partition would be effected in the khewat and a list should be prepared of the persons who were in possession of more than their share or who were tenants on the land. For further proceedings the matter was fixed for February 3, 1988. However, the hearing was postponed to February 4, 1988, on which date the Settlement Officer dismissed the objections stating that partition could not be carried out. Aggrieved, petitioners preferred petition under Section 42 of the Act before the Director, Consolidation but with no success. It is these orders i. e. one passed by the Settlement Officer and the other passed by the Director, Consolidation, that have been challenged in the present petition.
(3.) IT is pleaded and so argued by learned counsel appearing on behalf of the petitioners that respondents have clearly erred in ignoring the directions issued by this Court in decision, Annexure P -1 and orders subsequent thereto. Even legal position has been mis -interpreted and mis -construed. In case a co -sharer is in possession of area in excess to his share in the joint holding he is entitled to keep possession only till such time there is partition of the land. He cannot be treated as tenant at will of the excess area in his possession and that the view of the authorities that there could not be partition of such land as question of title was involved, is incorrect and, thus, cannot sustain. It is further contended that the view of the Authorities that the earlier scheme having been revoked, the directions issued by this Court would stand nullified, is incorrect. The present scheme, for all intent and purposes would be deemed to be a substitute for earlier scheme.;