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1997 (SUPPL.) CIVIL COURT CASES 0507

PUNJAB AND HARYANA HIGH COURT

R.L.ANAND, J.

C.W.P.No.4230 of 1980, D/12.12.1996.

Gulu Ram & Ors.

Vs
Chief Secretary, Haryana Govt.

Transfer of Property Act, 1882, Section 54 - Title - No body can

convey a better title than the one which he possesses at the time of sale.
(Para 6)

Specific Relief Act, 1963, Section 34 - Declaratory decree - It only

recognises the pre-existing rights of a person in whose favour such decree
or order is passed by the Civil Court - Declaratory decree does not confer
any right for the first time - It only recognises a right which already
existed in one's favour. (Para 6)

East Punjab Holdings (Consolidation and Prevention of

Fragmentation) Act, 1948, Section 21(1) - Distribution of shares - While
framing the scheme under the Act, the entire holding of original owner is
taken into consideration so as to allot him a fresh area of the equal value -
The scheme or the Act does not contemplate that the loss if any during
distribution should be borne by the last person. (Para 6)

Constitution of India, 1950, Article 226 - Once a valid order has

been passed by the competent authority taking care of all the facts and
circumstances and after proper appreciation of the scheme under the Act,
Writ Court has hardly any scope for interference. (Para 6)

Counsels:
Mr.Raman Mahajan, for the petitioners Mr.R.S.Chahar; Addl.A.G.(H)
with Mr.Azad Singh AAG (H) for the respondent Nos.1 to 3;
Mr.G.S.Bawa, for the respondent Nos.4 to 16.

JUDGMENT

R.L.Anand, J. - Gulu Ram and others have filed the present writ
petition against the respondents under Articles 226/227 of the Constitution of
India for the issuance of an appropriate writ/direction and they have prayed for
the quashment of the orders dated 11.8.1980, Annexure P.6 passed by
respondent No.3, Additional Director, Consolidation of Holdings, Haryana,
Chandigarh and the petitioners have made a further prayer that till the disposal
of the writ petition they should not be disturbed from the possession of the

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land in dispute.

2. The case set up by the petitioner in the writ petition is that they and
respondents Nos.4 to 13 are the rightful holders in the revenue estate of
village rori, Tehsil and district Sirsa. A notification under Section 14(1) of the
East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act,
1948 (hereinafter called the At) was issued by the State Govt. In pursuance of
the said notification the consolidation scheme was prepared of the village and
it was published on 29.3.1970 and was confirmed on 7.10.1970. The repartition
proceedings as required under Section 21(1) of the Act was carried on
30.4.1971. It has been further averred that Smt.Raj Kaur, respondent No.13 was
a co-sharer in Khewat No.225 and she sold her share measuring 88 Kanals 19
Marlas on 15.6.70 to Jagraj Singh and others. At the time of sale Smt.Raj Kaur
was not owner in Khewat No.502 and she became the owner of this khewat on
subsequent stage of 15.6.70 when the land measuring 88Kanals 19Marlas was
sold by Smt.Raj Kaur to Jagraj Singh and others. Khewat No.225 was not
partitioned during consolidation operations.The petitioners purchased 43
Kanals 2 Marlas of land from Smt.Raj Kaur out of her share in Khewat No.502
vide sale deed dated 12.1.1971 for a valuable consideration and in lieu of the
land purchased by the petitioners out of Khewat No.502 and also on the basis
of a decree passed by the Civil Court, they were allotted land measuring 43
Kanals 2 Marlas comprised in Kila No.163/1, 164/5, 6, 7/2, 8/1 and 14 and the
petitioners entered into the possession of allotted khasra numbers. Thereafter,
Jagraj Singh and others filed objections under Section 21(2) of the Act for the
allotment of full share purchased by them out of Khewat No.225 and their
objections were dismissed on 26.2.1975 by the Consolidation Officer. The
appeal filed by Jagraj Singh was also dismissed by Settlement Officer on
16.4.1976. Later on Jagraj Singh, respondent No.4 filed application under
Section 42 of the Act before the Additional Director, Consolidation of Holdings
Haryana who allowed the application of Jagraj Singh and vide order dated
14.12.77 remanded the case to the Consolidation of Holdings Haryana who
allowed the application of Jagraj Singh and vide order dated 14.12.77
remanded the case to the Consolidation Officer vide orders Annexure P.1. After
the remand, the case was contested by the Consolidation Officer on 26.6.78
vide orders Annexure P.2. Vide orders dated 26.6.78 the land measuring 5
standard kanals and 8 standard marlas 9 i.e. 43 Kanals 2 Marlas which was
allotted to the petitioners and denoted by khasra numbers referred to above
was withdrawn from the petitioners and according to the petitioners no area in
lieu of any land allotted to them was given. Orders dated 26.6.78. Annexure P.2
was challenged before respondent No.3 who dismissed the objections of the
present petitioners vide orders dated 11.8.80 annexure P.6. The challenge in
the present writ petition has been given to the orders Annexure P.6 dated
11.8.80 on the grounds that respondent No.3 had adopted procedure
unknown to the law with motive to cause wrongful loss to the petitioner and
wrongful gain to respondent Nos.4 to 13. According to the petitioners,
Annexure P.6 is bad, null and void without jurisdiction as Jagraj Singh
respondent purchased the land from Smt.Raj Kaur in Khewat No.225 vide sale
deed dated 15.6.70 which was never partitioned during the consolidation

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operations. Smt.Raj Kaur was not the owner of Khewat No.502 on the date of
the execution of the sale deed dated 15.6.70 in favour of respondents No.4 to
13; hence the rights of the petitioners could to be interlinked with Khewat
No.225 as they had purchased the land measuring 43 kanals 2 marks from
Khewat No.502 which was not challenged or disputed till today. It has also
been alleged in the petition that vide orders dated 11.8.80, the Additional
Director Consolidation of Holdings i.e. respondent No.3 could not review or
recall its earlier order vide which the case was remanded to the consolidation
officer on 14.12.77 Annexure P.1. In short the case of the petitioners is that
they cannot be made to suffer as they had purchased the land from Smt.Raj
Kaur from Khewat No.502 which was independent from Khewat No.225.

3. There are two sets of written statement on behalf of the

respondents. Respondent No.3 has filed the written statement and denied the
allegations. This written statement has been necessitated because of certain
allegations which have been levelled by the petitioner against the respondent.

4. The main contest has been given by respondents No.4 to 6 and it

has been submitted by them that Smt.Raj Kaur vendor had a vested right in
Khewat No.502. In fact, she had already a right in this Khewat and the civil
court decree formally recognised her rights declaring Smt.Raj Kaur to be the
owner of the land comprised in Khewat No.502. It was denied that Smt.Raj
Kaur was not the owner in Khewat No.502 as on 15.6.70 when on that day, the
land measuring 88Kanals 19 Marlas was sold by Raj Kaur in favour of
respondent No.4 and others. According to these respondents decision given by
respondent No.3, Annexure P.3 is completely in accordance with the rules and
regulation. It is a well reasoned and speaking order. After the remand, the
Consolidation Officer was affirmed by respondent No.3 in appeal decided on
11.8.1980 Annexure P.6. This order dated 11.8.80 is not an order of review of
his previous order dated 14.12.77. In fact, vide orders dated 14.12.77, the then
Additional Director ignored the provisions of scheme framed under the Act
which was very much in existence and at that time and the Additional Director
Consolidation did not take note of all the facts. Justifying the orders dated
1.8.80 Annexure P.6, the present respondents prayed for the dismissal of the
writ petition and they have further submitted in their written statement that
the scheme framed by the authorities under the Act related to for the whole
village and not for a particular body Thola or Panna or Khewat. The scheme
applies to all the landowners in respect of their entire holding and not in a
particular Khewat. respondent No.3 rightly held that the petitioners being the
last purchasers were required to suffer the loss.

5. I have heard Shri Raman Mahajan, Advocate on behalf of the

petitioners and Shri Azad Singh, AAG, Haryana on behalf of respondents No.1
and 3 and Shri G.S.Bawa appearing on behalf of respondents No.4 to 13 and
with their assistance have gone through the record of the case and I am of the
considered opinion that this writ petition is devoid of any merit.

6. It is a settled law that nobody can convey the better title than the

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one which he possesses at the time of the sale if vide sale deed dated 12.1.71
Smt.Raj Kaur could not convey a better title to the present petitioners, the
latter cannot take the advantage of any civil Court decree or order either in
their favour or in favour of Smt.Raj Kaur because a declaratory decree only
recognises the pre-existing rights of a person in whose favour such decree or
order is passed by the Civil Court. A declaratory decree does not confer any
right for the first time. Rather it only recognised a right which already existed in
one's favour. Simply that the petitioner has purchased area from Khewat
No.502, then it cannot be permitted to say that its Khewat cannot be
interlinked with Khewat No.225 from which Khewat, respondents No.4 to 13
purchased the area measuring 88 Kanals 19 Marlas on 15.6.70. The present
petitioners came into the picture subsequently to the sale made in favour of
respondents No.4 to 13 by Smt.Raj Kaur. With this background, I have to see
whether the orders Annexure P.6 suffers from any illegality. Vide orders dated
14.12.1977, Annexure P.1 Additional Director, Consolidation of Holdings
Haryana exercising the powers under Section 42 of the Act set aside the orders
of Consolidation Officer dated 26.2.1975 and of Settlement Officer dated
16.4.76 and directions were given afresh to the Consolidation Officer to hear
the case on merits after affording the opportunity to both the parties to
explain their case. It was further directed that notice be also issued to Smt.Raj
Kaur in determining the case of the parties. After the remand, the orders dated
26.6.78 was passed and when the scheme was read in extenso it was noticed
that a subsequent purchaser would suffer in case it is noticed that his vendor
did not have a valid or existing interest at the time of his sale. By giving
interpretation to the scheme the Consolidation Officer came to the conclusion
that in the event of sale of more than the share, the last purchaser shall bear
the loss. It was also held that Jagraj Singh and others purchased 88 Kanals 19
Marlas of land on 15.6.70 equivalent to 16 standard Kanals while Gulu Ram and
others purchased 43 Kanals 2 Marlas of land on 12.1.71 from the same owner.
Gulu Ram and others being the last purchasers; hence according to the
provisions of the scheme the area purchased by Gulu Ram and others was to
be withdrawn from them and it was to be given to Jagraj Singh and others so
as to complete their area which was purchased by them from Smt.Raj Kaur. The
effect of the decree dated 31.5.77 obtained by the petitioners was also
considered. As I had already stated above that Smt.Raj Kaur could not pass a
better title on the basis of a decree when Jagraj Singh and others were not
party to that decree which was obtained on consent. Against the order dated
26.6.78, the impugned order Annexure P.6 was passed and the Additional
Director, Consolidation considered the entire facts of the case in a right
perspective manner and finally came to the conclusion that the application of
Gulu Ram and others under Section 42 is devoid of any merit. It will be useful
for me to incorporate the operative part of the order Annexure P.6 which is
contained in para No.5 of the order, which is reproduced as follows:

'After examining the record and considering the arguments led on

behalf of the parties I feel that a very simple case has become complicated
because of the failure on the part of the respondents to dig out the relevant
provisions of scheme given at P-574 line 3, while arguing the case before the

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Additional Director, on 14.12.77. A perusal of the said remand order shows that
Shri R.K.Jindal the then counsel for the petitioners Jagraj Singh. etc. did point
out that:-

'It is provided in the scheme that in the event of partitioning of Khata if

the co-sharer had sold more than the share due to him the last purchaser is to
suffer.'

This assertion was, however, not substantiated and hence it was

observed by the Additional Director, C/H that:

'I have gone through the scheme. There is no provision in the scheme
that the last purchaser is not entitled to land if he purchases from a co-sharer
who has sold more than his share.'

The learned Additional Director, C/H further observed that:-

'None of the learned counsel has provided any law on the point that
the absence of such a provision what is the method for giving the land to the
respective purchaser whether a cut be made on all the right-holders or the last
purchaser should be penalised inspite of giving them ample opportunity for
the purpose.'

The above observation of the learned Additional director, C/H lead me

to the conclusion that if this provision had been brought to the notice of the
Additional Director C/H on 14.12.77, the subsequent litigation would have
been unnecessary nad the matter may have been settled then only. Though
this case was argued by Shri R.S.Balhara, learned counsel for the petitioners at
length, yet the arguments are not strong enough to make me ignore the
provision of the scheme contained at P-574 S.No.3. Merely because the
provision happens to be made under a wrong special heading, does not mean
that their impact to the present case is lost. The attempt to single out the
special clause and not to read the scheme as whole, to my mind is feasible
attempt on the part of the learned counsel for the petitioners to distract this
Court from the legality of the case. The consolidation scheme as a whole is
relevant for deciding all issues arising out of any consolidation proceedings.
The consolidation for a right holder is done on the basis of the entire holding
in a village and not for a petti, Thole, Pana or a Khewat. The share of Smt.Raj
Kaur was, therefore, rightly calculated by the C.O. in his order dated 26.6.78
and on the basis of that share the respective rights of the present petitioners
and the present respondents were rightly brought out. In view of the foregoing
discussion, I find that the petitioners have failed to substantiate their claim and
have failed to bring home their contention that the loss should be borne by
Jagraj Singh etc. respondents.'

The above would show that when earlier orders dated 14.12.77 was
passed by the Additional Director, this officer did not take into consideration
the entire factual position. Otherwise it is a settled law that while framing the
scheme under the Act, the entire holding of original owner is taken into

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consideration so as to allot him a fresh area. The order dated 11.8.80, Annexure
P.6 thus in the opinion of this Court does not suffer from any illegality. I also
do not find any merit in the contention of Shri Raman Mahajan, when he
submitted that the consolidation authorities could not touch Khewat No.502
out of which land was purchased by the present petitioners. This Court cannot
lose sight of the fact that in Khewat No.502 Smt.Raj Kaur had the interest like
Khewat No.225 and she could not convey a better title to the petitioners in
Khewat No.502. If a valid order has been passed like Annexure P.6 after taking
care of all the facts and circumstances and after proper appreciation of the
scheme and also after taking into account the share of Smt.Raj Kaur, this Court
cannot interfere in such a well reasoned order like Annexure P.6 dated
11.8.1980.

In the light of above, I do not find any merit in this writ petition which
is hereby dismissed leaving the parties to bear their own costs.

Petition dismissed.

*****

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