- (1.) The petitioner is a resident of village Bareta, tehsil Mansa, district Bhatinda, where he held a joint khata with Parkash Chand son of Nauharia Mal in equal shares. Out of this khata some fields were in the possession of Parkash Chand as co-sharer while others were in the possession of the petitioner without getting the joint khata partitioned, Parkash Chand sold specific field numbers in the khata which were in his possession as co-sharer to Bakshi Singh respondent 3, and thus Bakshi Singh came into possession of those fields as a co-sharer with the petitioner. The consolidation proceedings were held in the village and in the course of those proceedings the joint khata between the petitioner and Bakshi Singh, respondent 3, was partitioned, taking into consideration the quality of the land and, each party was allotted land according to the value of the land of his share. The lands of the two co-sharers were demarcated so that each party could take possession of the land allotted to him. No objection to the partition of the joint khewat was taken by any person.
(2.) Bakshi Singh, respondent 3, and his son Gurdial Singh respondent 4, filed certain objections as regards some plots to be allotted to them in repartition but those objections were rejected by the Consolidation Officer. Respondent 4 filed an appeal against that order before the Settlement Officer which was dismissed by order dated September 15, 1964. No further appeal was filed to the Assistant Director Consolidation of Holdings, but a petition under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act (hereinafter called the Act), was filed which was granted by the Additional Director, Consolidation of Holdings, Punjab, Hissar, by order dated April 6, 1965. The date of the filing of the petition is not indicated in the order. In this order, the learned Additional Director, held that when the repartition was carried out, it was decided to give to Bakshi Singh one-half share in both the khewats which were jointly owned by him and Pali Ram petitioner. The standard value of the area to which Bakshi Singh was entitled came to 16 Kanals 4 Marlas but he was given 12 Kanals 12 Marlas of land. He then goes on to state - "the case of the petitioner is that he had purchased area including in khewat No. 402/877 and he was, therefore, entitled to 16K-4M. One solution in these circumstances was to refuse to partition the khewat. Now that the khewat has been partitioned, I think that the petitioner will have to take 12K - 12M std only. The possession of Parkash Chand was as a co-sharer and it could not be deemed to be adverse to Pali Ram co-sharer. At the same time I think that since petitioner held possession over Khasra Nos. 722 and 729 we should give him possession of equivalent area and the balance of area should therefore, be given to him as tenant under the other co-sharer, that is, Pali Ram. The petitioner would pay batai at the rate prevailing in the village. If the parties think that it is a matter in which a question of title is involved, they could raise this objection before a competent Court." Aggrieved from this order, the petitioner has filed the present writ petition in this Court and it is submitted that the order of the learned Additional Director, detecting some of the area out of the share of the petitioner to be given to respondent 3, Bakshi Singh, as a tenant under the petitioner, is illegal and without jurisdiction. The Consolidation Officers have no jurisdiction to give any land of a right-holder to another right-holder as a tenant under the former after the partition of the joint khewat between them. The consolidation authorities are duty bound to deliver the possession to the right-holders to whose share the land has fallen after partition of the joint khewat. It is further submitted that a co-sharer can remain in possession of specific khasra numbers only uptill the time of partition. After partition, he is to give up necessarily possession of the land which is found in excess of his share and he has no right to remain in possession of the excess area. The learned counsel for the respondents does not dispute these propositions of law. All that he has urged is that the tenancy created in favour of Bakshi Singh may be quashed but he should not be deprived of the possession of the land of which tenancy has been created in his favour. It is clear from the order of the learned Additional Director that he was not giving land measuring 16 Kanals 4 Marlas, instead of 12 Kanals and 12 Marlas to Bakshi Singh respondent in full ownership. He was giving 3 Kanals 12 Marlas of land, the difference between 16 Kanals 4 Marlas and 12 Kanals 12 Marlas as a tenant under Pali Ram which he had no jurisdiction to do under any provision of the Act. This order is, therefore, liable to be set aside.
(3.) Bakshi Singh respondent died during the pendency of the writ petition on March 29, 1966. An application for bringing his legal representatives on the record was filed on October 26, 1966. One of his legal representatives, that is, Gurdial Singh (son) was already on the record as respondent 4. On February 3, 1969, when that application came up for hearing before me, it was submitted by the learned counsel for the respondents that the writ petition had abated as the application for bringing on record the legal representatives of Bakshi Singh respondent had been not filed within 90 days of his death nor was an application for setting aside the abatement made within 60 days of the abatement. The application for bringing the legal representatives on record was made more than 150 days after the death. I ordered that this matter would be decided by the Bench hearing the writ petition.;