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Punjab-Haryana High Court
Dilbag vs Patram And Others on 10 March, 2021 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No.8 of 2021 (O&M)
Reserved on : 17.02.2021
Pronounced on : 10.03.2021
Dilbag
… Appellant
Versus
Patram and others
… Respondents
CORAM : HON’BLE MR.JUSTICE G.S. SANDHAWALIA
Present: Mr. V.K. Jindal, Senior Advocate
with Mr. Akshay Kumar Jindal, Advocate for the appellant.
(The proceedings have been conducted through
video conferencing, as per instructions.)
G.S. Sandhawalia, J.
The plaintiff-appellant being unsuccessful in both the Courts
below in his suit for declaration has filed the present regular second appeal,
challenging the order of the Revenue Court dated 15.09.2006 passed by the
Assistant Collector IInd Grade, Bhiwani, wherein ex parte proceedings had
been initiated against him and his application for setting aside the same was
dismissed on 15.12.2008.
2. Challenge has also been made to the preparation of Naksha
‘Kha’ and the order dated 29.01.2009 (Annexure A-1), whereby he was
allowed to join the proceedings from that stage by the Collector, Bhiwani.
Thereafter, order dated 24.04.2009 (Annexure A-5), whereby his objections
were rejected by the Assistant Collector IInd Grade, Bhiwani and the order
of the Financial Commissioner dated 17.07.2009 (Annexure A-8) which had
affirmed the decision of the Collector, allowing him to join proceedings,
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were all also subject matter of challenge in the civil suit.
3. Counsel for the appellant has vehemently submitted that the
Courts below were not justified by allowing the revenue authorities to
proceed against the appellant in his absence and only permitting to join
the proceedings at a belated stage as such and, therefore, challenge has
been made to the order of the Courts below by holding out that Civil
Court had failed to set aside the proceedings of the revenue authorities,
though it was competent to do so. The appellant was serving in the Army
as such and, therefore, had not been properly served and his rights were
affected as such by not allowing him to join the partition proceedings.
4. The facts would show that the civil suit was instituted on
11.09.2014 after the Financial Commissioner had dismissed two
revisions; one filed by the appellant and other had been filed by Balbir @
Inder, brother of the appellant. The appellant not being satisfied with the
said order at that point of time chose not to file any writ petition against
the said order, but had chosen to invoke the jurisdiction of the Civil
Court.
5. A perusal of the partition proceedings which were initiated
by respondents No.1 to 7 would go on to show that apart from the
appellant his brother Balbir @ Inder was also arrayed as respondent.
Their sister Suman was also one of the respondents alongwith them. The
service upon him was allegedly not effected on account of the fact that he
was serving in the Army and, therefore, he was proceeded against ex
parte on 15.09.2006. His application for setting aside the same was
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dismissed on 15.12.2008 against which he had approached the Collector,
Bhiwani. The Collector noticed that the registered letter had been sent
and, thereafter, proclamation was done in the village and the partition
proceedings had been initiated. It was further noticed that there were
three other registered letters and the report was that the appellant refused
to accept. Resultantly, his application was partly allowed to the extent
that he would be allowed to join the proceedings at the then present stage
i.e. Naksha ‘Kha’.
6. Not being satisfied with the said order, the appellant had as
such filed an appeal before the Commissioner, Hisar Division. His
brother Balbir @ Inder had also joined the proceedings taking the plea
that he was a minor and that he be granted time to file objections. The
Commissioner noticed that on 28.02.2008, amendment of Naksha ‘Kha’
had been allowed and Revision No.6386 of 2008 had been filed before
the Commissioner and amendment was made in the said Naksha ‘Kha’.
As per the consent statement of both the parties, the Assistant Collector
2nd Grade, Bhiwani, had been ordered to make amendments. It was
noticed that proclamation proceedings had been conducted on account of
the return of the registered letter and, therefore, service had been
effected, as per the provisions of Section 20 of the Punjab Land Revenue
Act. Resultantly, his appeal as such was dismissed by the Commissioner
on 17.07.2009, which order has now been placed on record as
Annexure A-8. As noticed, he was unsuccessful before the Financial
Commissioner, who had dismissed the appeal on 18.03.2014 (Annexure
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A-2).
7. Vide judgment dated 27.08.2018, the Civil Court while
taking into consideration the statement of the appellant, who was the only
witness, came to the conclusion that there was a hierarchy of appeals
from the Assistant Collector 2nd Grade to Financial Commissioner, under
the Punjab Land Revenue Act, 1887, for adjudication of matters
pertaining to the partition of land. It was held that the objections had
already been dismissed by the Assistant Collector 2nd Grade and Sanad
Takshim had been prepared and, thus, it rejected the case of the
plaintiff/appellant for declaration.
8. The Appellate Court, as such, before whom the plea taken
was that the brother of the plaintiff namely Balbir @ Inder stays with his
sister defendant No.12, who was major and had wrongly been shown as
minor. The same was met by the lower Appellate Court by noticing that
the respondents had placed on record Ex.D1, which was a suit filed by
the brother of the appellant namely Balbir Singh @ Inder Singh on
03.06.2010. The said suit had been dismissed on 17.09.2014 (Ex.D2) in
default, just after the filing of the present suit on 11.09.2014. In the said
suit, the present appellant had also been impleaded as proforma defendant
No.14 and, therefore, it was held that on the day of the institution of the
present suit, earlier suit was pending and plaintiff did not disclose this
fact in his plaint. In addition to that the Appellate Court noticed that the
final partition by way of Sanad Takshim had been done on 01.09.2009
(Annexure A-7) and the suit had only been filed on 09.09.2014 after more
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than 5 years.
9. Thus, it is apparent that the appellant and his brother have
been effectively trying to stall the partition proceedings in one form or
the other, which were initiated way-back in which they had been
proceeded against ex parte on 15.09.2006.
10. The Full Bench of this Court in ‘Biru Vs. Suraj Bhan’, 1983
AIR (Punjab) 347 has held in consolidation proceedings that service
upon one co-share is effective service upon the others and the only
exceptions would be fraud or collusion. The relevant para of the said
judgment reads as under:-
“11. Lastly the concept of representation of the whole estate by
one or some out of the many legal representatives has not only
been generally accepted but finally sanctified in Harihar Prasad
Singh v. Balmiki Prasad Singh, AIR 1975 SC 733. Therein it
has been held that even where only some of the legal
representatives of the deceased were brought of the record, they
would represent the whole estate and the other legal
representatives as well, and the judgment would be binding on
all in the absence of any fraud or collusion or on the ground of
very special circumstances, showing that indeed the trial had not
been fair or real against the absent heir at all or where there was
a special case which was not and could not be tried in the
proceedings. The rule deducible from the observations of the
final Court appears to be that where the interest is common and
identical, then one of such persons having such common and
identical interest may well represent the others and also bind
them. However, the inarticulate premise of this well settled rule
is that there should be absence of a fraud or collusion and a fair
and real trial of the issue. If the aggrieved party can establish that
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in fact the proceedings were vitiated by fraud or collusion or that
there was no fair or real trial at all, then alone the representation
concept can be ousted and the decision can be held to be not
binding.
12. From the aforesaid larger conspectus of the wide ranging
jurisprudential principle that where there is identity and jointness
of interest then any one of such persons might well represent the
others and also bind them, it seems manifest that this principle
would be equally, if not more strongly, attracted in the
proceedings under the Consolidation Act as well. As has been
noticed earlier, this statute is a piece of progressive Agrarian
legislation with some urgency of object to be achieved and not a
has been picturesquely said a mere slow motion picture. In view
of the fact that consolidation proceedings all over the State may
affect millions of right-holders of land and because of
interminable litigation and clash of interest, it would be beyond
the realm if practicability to demand the impleading of each
individual or joint co-sharer to every proceeding. Ever more
doctrinaire may be the demand of not only impleading each such
co-sharer but effectively serving each of them and securing their
representation. An overly meticulous approach to the problem
imbued with overly legal formalism may ultimately nullify or
frustrate the laudable objects of the statute itself. It was pointed
out on behalf of the respondents that if a hypertechical view was
to be taken then the absence of either impleading one of the co-
sharers or the inadvertent failure of service of any one of them
may render the whole action beyond the provisions of the Act.
Once that is so, such an action may well attract the jurisdiction of
the civil courts, which with their tardy process would hamstring
the very purpose of expeditious compulsory consolidation of
wasteful and uneconomic land-holdings. Similarly, it was rightly
pointed out that not one but most of the proceedings under the
Act involved a chain-reaction affecting a larger number of joint
right-holders and to insist upon the impleading and service of
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each one of the co- sharers would in effect the creating
impassable road-blocks in the achievement of the central purpose
and object of the legislation. A plausible and particular example
given was that of the alignment of village paths which is the
larger conspectus may involve not only all the right-holders of a
village estate but even all the resident therein. To insist that each
one of the joint or individual right-holders must for such a
purpose be both impleaded and served would be a counsel of
perfection impossible of practical achievement. I am, therefore,
of the view that the sound principle of effective representation by
a co-sharer where his interests are common and identical with
others, is doubly attracted and applicable to proceedings under
the Consolidation Act.
13. From the above, it inevitably follows that it is neither within
the letter nor spirit of Sections 21 and 42 of the Act that every
co-sharer must be mandatorily impleaded in proceedings
thereunder. Indeed, as has been highlighted earlier, the Act itself
does not enjoin any such legal formality. However, this should
not preclude a petitioner in a particular case to pin-point a right-
holder who is to be adversely affected and therefore, impleading
him as party in the application. On practical considerations this
would in fact be apt but a failure to do so does not in any way
affect the validity or the legality of the proceedings. By virtue of
the proviso to Section 42 of the Act and the large principle of
affording an opportunity to show cause to call persons adversely
affected in quasi-judicial proceedings it is always necessary to
afford them a hearing when action against them is envisaged. In
the consolidation proceedings, therefore, in cases of co-sharers
where their interests are joint and identical then an effective
hearing given to one would, in the eye of law, be a hearing given
to all, which in law would suffice. This salutary principle is, of
course, subject to the rule that where such a hearing is vitiated by
fraud or collusion or the absence of any fair and real trial of the
issue, then such a hearing would not be binding upon the other
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co-sharers.”
11. In the present case, it is the pleaded case of the appellant
that his brother was a major and, therefore, it is apparent that the family
members as such were aware of the partition proceedings, which were
initiated. The appellant and his brother just want to challenge them
separately in different manners, One challenge was initiated before the
Revenue Court, where on being unsuccessful, civil suit was filed by
Balbir @ Inder on 03.06.2010 which was got dismissed in default after 4
years of institution on 17.09.2014. Thereafter, instead of challenging the
order of the Financial Commissioner before this Court by way of filing
the writ petition, the civil suit was filed by the appellant after 5 years
when final partition had been done.
12. This Court in the case of ‘Rai Jasbir Singh Vs. Balwant
Singh and others’ 2006 (1) PLR 339, has held that in the absence of any
fraud or mis-representation, an ex parte order passed by the Revenue
Court on the bare plea of service not being effected, cannot be set aside
and the plaintiffs approaching the Civil Court to challenge the order
passed by Revenue Court, without exhausting the remedies available to
them, was held not to be tenable.
13. The said view was followed by this Court in ‘Sucha Singh
and another Vs. Naranjan Singh and others’, 2015 (4) RCR (Civil)
978, wherein it was held that specific provision for filing of an appeal
before the higher Revenue Authorities had been made in Section 13 of
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the Punjab Land Revenue Act, 1887. In the absence of any illegality in
the order of the Revenue Court, the Civil Court had no jurisdiction and
they could always approach the Commissioner against the orders of the
Collector and, resultantly the appeal was dismissed on the ground that it
was not raising any substantial question of law.
14. Herein also, the issue is the same as the appeal had been filed
to get set aside the ex parte proceedings initiated on 15.09.2006. Having
exhausted his remedy of appeal before the Commissioner, who had partly
allowed him to join the proceedings and, thereafter, having been gone to
the Commissioner on 17.07.2009 unsuccessfully and after loosing out
before the Financial Commissioner, the appellant cannot be permitted to
change tracks and shift the venue of jurisdiction to the Civil Court. If he
was aggrieved, he could have filed the writ petition before this Court.
Even otherwise, the conduct of the appellant has already been noticed
that he and his brother as such have been trying to stall the partition
proceedings for the last more than a decade. Therefore, this Court is of
the opinion that no further indulgence is liable to be granted to such
litigants by entertaining the present appeal.
15. Resultantly, in the absence of any substantial question of law
being raised, the present appeal is dismissed in limine.
(G.S. SANDHAWALIA)
10.03.2021 JUDGE
Naveen
Whether speaking/reasoned: Yes/No
Whether Reportable: Yes/No
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