- (1.) ON the death of Harnam Das, his land, situate in village Barod, in Tehsil Jind of Sangrur District, was mutated one-half in the name of his widow Subhagan, respondent 1, and the other half in the name of his son, Ranjit Singh. The total area of the land was 142 Bighas and 17 Biswas. So half of that, that is to say, a few Biswas over 71 Bighas was mutated in the name of Ranjit Singh. No partition had taken place between the mother and the son. On February 16, 1949, Ranjit singh sold 65 Bighas and 8 Biswas of land, out of the total holding of 142 Bighas and 17 Biswas, to Ajit Singh appellant by a registered sale deed. The area sold was both irrigated, whether by canal or well, and unirrigated. Ranjit Singh said in the sale deed that he was the sole owner of the whole land, but because of the ruler's circular in the former Jind State with regard to the rights of widows in hindu families, half of the land from the inheritance of his father had been mutated in the name of his mother as a widow. He further said that his half share was mortgaged with the Jind Cooperative Bank. He claimed to be in possession of the total area. Specific survey numbers were sold to Ajit Singh appellant.
(2.) SOMETIME in 1961 proceedings for consolidation of holdings started in village barod in consequence of a notification under Section 14 of the East Punjab holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (East Punjab act 50 of 1948 ). In the course of the preparation of the scheme of consolidation on February 5, 1964, the Mukhtar or attorney of respondent 1 raised an objection that joint khewat of respondent 1 be directed to be partitioned, obviously asking the Settlement Officer to make a provision in that behalf in the scheme. In paragraph 5 of the petition under Article 226 of the Constitution by respondent 1 it is clearly stated that the Settlement Officer gave notice of that objection to Ajit singh appellant and, after hearing both the parties, ordered that the joint khewat of respondent 1 be partitioned and her share in the land be separated. At that stage Ajit Singh appellant said that respondent 1 was dead and her Mukhtar or attorney had no right or status to have the joint khata partitioned, whereupon the settlement Officer ordered the Mukhtar or attorney of respondent 1 to produce respondent 1 within ten days before the Consolidation Officer. In paragraph 6 of the petition it is stated that respondent 1 duly appeared before the Consolidation officer on February 18, 1964, and her statement was recorded by him, when she clearly said that she wanted her joint khata to be partitioned. No return to the petition of Res. 1 was filed by Ajit Singh appellant, but a return to it was filed on behalf of respondents 2 to 6, namely, the State of Punjab, the director of Consolidation of Holdings, the Settlement Officer, Jind, and the consolidation Officer, Jind. In that return the facts given as above from paragraphs 5 and 6 or the petition of respondent 1 are not denied. In paragraph 5 of that return it is said that Ajit Singh appellant moved an application under section 36 of East Punjab Act 50 of 1948 before the Settlement Officer praying for keeping the khewat joint by amending the scheme. On February 20, 1984, the application of Ajit Singh appellant was dismissed by the Settlement Officer, copy of whose order is Annexure 'a' to respondent 1's petition. It is pointed out in that order that when the Settlement Officer visited the village on February 5, 1964, in connection with the confirmation of the scheme of consolidation, Ajit Singh appellant raised two objections, (a) that respondent 1 was dead and her attorney was not competent to ask for partition of land and (b) that since he had purchased specific survey numbers from the joint khewat, the partition will affect him adversely. He, therefore, prayed that application of respondent 1 for partition of the land be disallowed. The Settlement Officer found that respondent 1 being a widow and a weaker party had been deprived of her legitimate share in the land and the best part of the land had been sold by her son Ranjit Singh to Ajit Singh appellant. The Settlement officer also found that respondent 1 was not residing in the village. He ordered respondent 1's attorney to produce her before the Consolidation Officer and she was duly produced before the said officer on February 18, 1964, when her statement was taken by that officer to the effect that she wanted her land partitioned. The Settlement Officer pointed out that according to the order in regard to confirmation of the scheme under Section 19 (2) of East Punjab Act 50 of 1948 the joint khewat was to be partitioned. He then referred to the application of Ajit Singh appellant and pointed out that what this appellant at that stage urged was (i) that a question of title was involved and so the partition should not be allowed, and (ii) that he would be put to much loss because he had made substantial improvements on the land he had purchased from Ranjit Singh cosharer. He, therefore, sought amendment of the scheme under Section 36 of East punjab Act 50 of 1948. The Settlement Officer then proceeded to say that he found no reason to differ from his previous order, pointing out that Ajit Singh appellant bad purchased land from a joint khata and his yendor, Ranjit Singh, was not competent to alienate specific survey numbers. He, however, directed that 'the possession of the vendee will be respected during partition only to the extent or his share in a particular kind of land. ' He also pointed out that Ajit Singh appellant should nave known that the khewat was joint and according to law the other cosharers could claim partition of land at any time. So he dismissed Ajit Singh appellant's application under Section 36 of East Punjab Act 50 of 1948. Against that order there was an application under Section 42 of that Act by Ajit singh appellant to the Director of Consolidation of Holdings, respondent 3. After referring to the co-ownership of respondent 1 and her son Ranjit Singh in the total area of the land and the area sold by Ranjit Singh to Ajit Singh appellant from the joint holding, with specific survey numbers, respondent 3 pointed out that on evaluation of the lands with respondent 1 and Ajit Singh appellant in the course of consolidation of holdings the value of the area with respondent 1 came to 42-4 standard kanals and that with Ajit Singh appellant to 178-19 standard kanals. The disparity is immediately apparent. Respondent 1 wanted the joint holding to be divided according to shares, obviously the shares shown in the revenue papers where she was shown as half owner of the land with her son Ranjit Singh vendor. Ajit Singh appellant claimed to have improved the land since the date of the sale in his favour on February 16, 1949, and urged that the benefit of the improvement should not go to respondent 1, Respondent 3 then proceeded to make this order, which is the operative part of his order, dated March 28, 1964, copy Annexure 'b' to respondent 1's petition, obviously this is a correct demand and we cannot allow shrimati Subhagan (respondent 1) to have share from the value enhanced by Ajit singh (appellant) during the period after the date of sale. (The improvement, however, has been denied by the Mukhtar of Shrimati Subhagan.) Therefore, in such a case the Consolidation Department should keep khewats Nos. 10, 42 and 46 (the joint land of Ajit Singh appellant and respondent 1) joint and I, therefore, order accordingly and set aside the order dated 20-2-1964 passed by the settlement Officer, Consolidation of Holdings, Sangrur. " this is the only ground on the basis of which respondent 3 interfered with the order of the Settlement Officer, respondent 4. There is a copy, at pages 40-42 of the paper-book, of the grounds in his application, under Section 42 of East Punjab act 50 of 1948 by Ajit Singh appellant before respondent 3. No return was filed to respondent 1's petition by Ajit Singh appellant. It may be that a copy of those grounds was filed with the return by respondents 2 to 5, that is to say, the Punjab state and the Consolidation Officers. In the course of arguments tie learned counsel for the appellant has referred to grounds 6 and 7, out of those grounds, which read - "6. That the petitioner (Ajit Singh appellant) has acquired such rights in the whole land that no one is entitled to get any part of it partitioned. A question of title is involved. According to Section 16-A of the consolidation Act, the consolidation authorities have no jurisdiction to partition such a khewat 7. That specific khasra numbers have been sold to the petitioner (Ajit Singh appellant) and since then the petitioner is the exclusive owner and in possession of these khasra numbers. The question of being joint with anybody does not arise at all. In this way also there is involved a question of title concerning the said khewat. " A copy of respondent 3's order, Annexure 'b' to respondent 1's petition, of March 28, 1964, shows that the Mukhtar or attorney of Ajit Singh appellant with counsel appeared before respondent 3. So the case of Ajit Singh appellant was argued and urged before respondent 3 by his counsel. There is not one single word in the order of respondent 3 on any of the grounds urged before him except the one on the basis of which he proceeded to make the order, that ground being the claim of ajit Singh appellant with regard to the improvements made by him on the land purchased from Ranjit Singh since the date of the purchase on February 16, 1949. It was after that that on May 12 1964, respondent 1 filed her petition under Article 226, challenging the legality and validity of respondent 3's order made on March 28, 1964, copy Annexure 'b' to her petition. Only the State of Punjab and the three officers under the provisions of East Punjab Act 50 of 1948 made a return to that petition, but not Ajit Singh appellant. Respondent 1 urged in her petition that in the jamabandi or record-of-rights she was shown co-sharer of the land with Ajit singh appellant and was entitled to partition of the same, to which the reply on the side of respondents 2 to 5 was that she could get her khewat partitioned if there was no question of title. Another ground taken by respondent 1 was that respondent 3 had not given any reason to set aside the order of the Settlement Officer and even the previous order of February 5, 1964, had not been set aside, and to this the return of respondents 2 to 5 said that respondent 3 had given reasons in his order and it was merely accidental slip that an incorrect date was mentioned regarding the order of the Settlement Officer, respondent 4, which respondent 3 was setting aside. It was pointed out that in fact he was setting aside Settlement Officer's order of February 5, 1964. To another ground on the side of respondent 1 that the order of respondent 4, the Settlement Officer, Jind, of February 5, 1964, was perfectly legal and there was no appeal or revision against that order, the reply rendered in the return of respondents 2 to 5 was that 'the propriety and legality of the order was examined by the Director, Consolidation of Holdings. Punjab, and a decision on merits was made. The return emphasised that question of title in this case was involved and that could not be adjudicated upon by the consolidation authorities under the provisions of West Punjab Act 50 of 1948. Respondent 1, according to them, should seek her remedies in a civil Court. On November 23, 1965, a learned Single Judge accepted the petition of respondent 1 and quashing the order of respondent 3 restored that of respondent 4, the Settlement Officer. The learned Judge pointed out that no co-sharer can take possession of a specific portion of land adversely affecting his co-sharer, that in partition co-sharers are to have equal areas of land, quality-wise, and that a cosharer's right to have joint land partitioned or a provision with regard to partition made in the scheme of consolidation under Section 16-A of East Punjab Act 50 of 1948 cannot be defeated by mere contention that the other co-sharer is in possession of a specific portion of land which he has improved, the exception to this being a case where question of title is involved as was held in Ram Gopal v. State of Punjab, 1965-67 Pun LR 1102. The learned Judge then proceeded to rely on Pat Ram v. State of Punjab, Civil Writ No. 1641 of 1960, D/-18-10-1963 (Punj), where it has been held that the consolidation authorities had to effect partition in accordance with the entries in the jamabandis and, consequently an order directing that the partition should not take place of the joint khata was neither legal nor bona fide and had to be quashed. The learned Judge pointed out that "the decision in Pat Rams case, Civil Writ No. 1641 of 1960, D/-18-10-1963 (Punj), entirely covers the present petition and in this view it is clear that the director of Consolidation had no jurisdiction to upset the order of the Settlement officer directing the partition of the khewats inasmuch as in the present case "no question of title is involved. " It is against the judgment and order of the learned judge that Ajit Singh appellant has come up in appeal under Clause 10 of the letters Patent and so also respondents 2 to 5 in his appeal. The appeal o Ajit singh appellant is Letters Patent Appeal No. 354 of 1965 and that of respondents 2 to 5 in that appeal is Letters Patent Appeal No. 35 of 1966.
(3.) THESE appeals came for hearing before Falshaw, C. J. , and my learned brother mahajan, J. , on March 24, 1966, when the same were referred to a larger Bench with this order, -- "in the present case we were at first inclined to uphold the decision of the learned Single Judge on the ground that no question of title arose, but it is clear that there is a dispute which in a sense can be called a question of title, and as has been pointed out by the learned Advocate-General appearing on behalf of the State if the order of the Settlement Officer for the partitioning of the joint holdings according to the shares in revenue entries is upheld, Ajit Singh might be left with no remedy at all or no recourse to a civil Court in the light of the provisions of Sub-section (2) of Section 16-A. The question of whether one or more of joint owners of the holding of land have in come manner or other acquired rights which go beyond their rights as recorded in the revenue records is one which is constantly arising and the question is whether the Consolidation Officers should be deemed to have the powers of the revenue Court under Section 117 of the Land Revenue Act to determine such questions as if they were civil Courts or should in every case leave the parties to have their rights determined by competent civil Court, and there is also the question whether where once a decision of this kind has been made by a Consolidation Officer a party would have the right to establish his rights in civil Court in spite of the provisions of Section 16-A (2)?" This is how these appeals come before this Bench.;