A.D.Koshal, J. - (1.) IN this appeal under Clause 10 of the Letters Patent against the judgment, dated the 26th of August, 1966, of Narula, J., the sole question arising for decision is as to whether a tenant, who has been forcibly dispossessed by his landlord sometime prior to the commencement of the consolidation proceedings in the village where the land covered by the tenancy is situate, is entitled to regain the possession of that land by recourse to Section 43 of the Pepsu Tenancy and Agricultural Lands Act, 1955 (hereinafter referred to as the Act) in spite of the fact that the said proceedings have been carried out and finalised.
(2.) THE facts giving rise to the appeal may be briefly stated. The disputed land is situated in village Khangarh, District Sangrur, and belongs to Hartej Bahadur Singh Respondent No. 1, under whom the Appellant was holding it as a tenant. Before the commencement of the consolidation proceedings in the village, Respondent No. 1 obtained possession of the land which was done, according to him, by a compromise between himself and the Appellant and, according to the latter, illegally and forcibly. In 1957 -58 the consolidation authorities, acting under Section 23 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter to be referred to as the Consolidation Act), handed over possession of the land comprised in the tenancy of the Appellant to Respondent No. 1. The Appellant and one Tek Singh, filed an application under Section 43 of the Act on the 23rd of January. 1959, before the Collector praying for ejectment of Respondent No. 1 from the disputed land or for possession in respect thereof on the ground that they had been dispossessed therefrom forcibly. The application was dismissed by the Collector on the 10th of April, 1961, with the finding that the proper remedy for the Applicants was to knock at the door of the consolidation authorities. The finding was reversed in appeal by the Commissioner, who remanded the case for a decision on merits. The Collector then held that the Appellant had been forcibly dispossessed from khasras Nos. 231 282 and 749. being a part of the land claimed by him and directed that possession thereof be returned to him. The Appellant and Respondent No. 1 both went up in appeal to the Commissioner, who held that the former had also been in possession of khasra No. 596 as a tenant under Respondent No. 1 and directed that he be put back into possession thereof along with that of the three khasra numbers mentioned earlier. The matter was agitated by Respondent No. 1 before the Financial Commissioner in a petition for revision which was dismissed.
(3.) IT was then that Respondent No. 1 came to this Court on the writ side with a petition under Articles 226 and 227 of the Constitution of India praying that the order of the Financial Commissioner be quashed. Relying upon Hartej Bahadur Singh v. The State of Punjab and Ors., 1964 P.L.R. 751 the learned Single Judge held in the impugned order that the Appellant could not avail of the remedy under Section 43 of the Act but was bound to knock at the door of the consolidation authorities who could give him the necessary relief in accordance with the provisions of the Consolidation Act. It was urged before him that Hartej Bahadur Singh's case (1), (supra) was distinguishable inasmuch as the finding therein was that the consolidation authorities had failed to deliver possession of an erstwhile tenant (that is, a person, who had continued to retain the status of a tenant in possession right up to the time when consolidation work was started in the village in which the land in dispute was situate) while in the present case, according to the averments made by both parties, the Appellant had been deprived of the land in dispute before the consolidation proceedings were commenced. The learned Single Judge, however, was of the opinion that there was no distinction between the two cases, both of which were governed according to him, by the ratio in Hartej Bahadur Singh's case (1), which he laid down as follows: if the landlord is in unauthorised possession of a parcel of land from which he had dispossessed a tenant, the latter can claim ejectment of the landlord from that parcel of land in proceedings under Section 43 of the Act. At the same time it has been clearly held that if the land in the possession of the landlord has not been obtained by the landlord by forcible dispossession of the tenant, but from the consolidation authorities, the remedy of a tenant, who was ousted before the delivery of possessions by the consolidation authorities, is not under Section 43 of the Act.;