Lawyers Directory Listing
Chat with us free on WhatsApp — tell us your city and legal matter and our team connects you with the right lawyer. No form, no fee.
Reference by A. R. Changez, J. in Second Appeal No. 44 of 1954, answered by Full Bench on 3rd January, 1961.
Whether and when jurisdiction of Civil Court barred under provisions of Act to deliver possession of land allotted to person under consolidation scheme.
The plaintiff brought a suit for possession of land alleged by him to have been allotted to him during the consolidation proceed ings and of which he had entered into physical possession under the consolidation scheme but was later unlawfully dispossessed by the defendant therefrom. The defendant contested the suit and alleged that he was in adverse possession of the land in dispute for more than 12 years preceding the suit and that the suit was time barred and that, in any case, the plaintiff was not entitled to get possession through a Civil Court as his remedy lay in moving the consolidation authorities to deliver possession as provided for, by the Punjab Consolidation of Holdings Act, 1936. The suit was decreed in the first instant by the trial Court but on appeal the Senior Civil Judge dismissed the suit, holding that in view of Ss. 11 and 22 of the Punjab Consolidation of Holdings Act, 1936, the Civil Court had no jurisdiction to deliver possession of land, allotted under the consolidation scheme and the plaintiff should seek his remedy provided by that Act. On a second appeal filed by the plaintiff the single Judge of the High Court hearing the appeal felt that the question "whether the jurisdiction of the Civil Court is barred under the provisions of the Punjab Consolidation of Holdings Act (IV of 1936) to deliver possession of the land allotted to a person under the consolidation scheme was not free from difficulty and as such it should be examined by a larger Bench. The question was, therefore, referred first to a Division Bench and later to a Full Bench.
Held, that in general, possession can be delivered under a scheme of consolidation by the consolidation officer only, but in the present case it could be delivered only, by the Civil Court. Section 11 of the Punjab Consolidation of Holdings Act, 1936, empowers a consolidation officer to deliver possession and since section 22 of the Act prevents a Civil Court from entertaining & suit in a matter in respect of which a consolidation officer is "empowered" by the Act to take a decision, in ordinary circum stances the jurisdiction of the Civil Court is barred. In the instant case, however, one of the defendants' pleas was that of adverse possession and since the decision of the question of adverse possession . amounts to a decision of a question of title, a question which the consolidation officer is not empowered to decide, the matter falls out of the limitation of section 22 of the Act, and the Civil Court's normal jurisdiction asserted itself.
Khan Muhammad v. Risaldar Ata Muhammmad Khan P L D 1955 Lah. 436 distinguished.
Gurdit Singh v. Labh Singh 63 P R 1894 ref.
Abdul Hafeez for Appellant.
Karam Elahi for Respondent.
Date of hearing : 21st May, 1956.
A. R. CHANGEZ,
J.‑This second appeal has arisen out of a suit brought by Muhammad Shafi appellant for possession of two kanals of land forming part of Khasra No. 316 of village Hammu Gakhar in Tehsil Sialkot. It was alleged by the plaintiff that this' field belonged to him and had been allotted to him during the consolidation proceedings and he had entered into physical possession of the whole field in pursuance of the consolidation scheme in February 1950, and thereafter the defendant bad unlaw fully dispossessed him of two kanals out of this field.
The defendant contested the suit and alleged that he was in adverse possession of the land in dispute for more than 12 years preceding the snit and the suit was time‑barred and that, in any case, the plaintiff was not entitled to get possession through a Civil Court as his remedy lay in moving the consolidation authorities to deliver possession as provided for by the Punjab Consolidation of Holdings Act.
On the pleadings of the parties, the following issues were framed :‑
1. Is the suit within time
2. Has the defendant acquired an adverse title in the suit land by prescription
3. What is the effect of the consolidation proceedings on the rights of the parties.
The learned trial Court decided issues Nos. 1 and 2 against the defendant and, without giving a finding on issue No. 3, decreed the plaintiff's suit.
On appeal by the defendant, the learned Senior Civil Judge remanded the case for a decision on issue No. 3. The trial Court then held that the possession of the land had not been delivered to the plaintiff under the consolidation scheme and that the Civil Court had, therefore, no jurisdiction to give possession to the plaintiff.
After the receipt of the finding on issue No. 3, the lower appellate Court then heard the appeal. The defendant did not challenge the findings of the trial Court on issues Nos. 1 and 2. The learned Senior Civil Judge upheld the finding of the trial Court on issue No. 3 that the possession of the land had not been delivered to the plaintiff under the consolidation scheme. He also held that the disputed portion of Khasra No. 316 was not in the possession of the plaintiff either immediately before the consolida tion or at any time during or after the consolidation proceedings. It was further held that in view of sections 11 and 22 of the Punjab Consolidation of Holdings Act (IV of 1936), hereinafter referred to as the Act, the Civil Court had no jurisdiction to deliver possession of the land, allotted under the consolidation scheme, and the plaintiff should seek his remedy provided by that Act. The appeal was accepted and the suit of the plaintiff was dismissed with costs.
The plaintiff has now come up in second appeal before this Court. Ch. Abdul Hafeez, the learned counsel for the appellant, has urged that irrespective of the fact whether the possession had been delivered to the plaintiff under the consolidation scheme or not, the civil Court has the jurisdiction to grant the necessary relief by delivering possession of the land.
It was contended by him that the law does not require the party, to whom the land has been allotted under the Act, to apply for possession within any fixed time. He also urged that the consolidation officer has a discretion to put a party in possession thereof from such date as he may deem expedient and he may exercise the powers of a revenue officer under the Punjab Land Revenue Act, 1887, in order to give possession.
It was, therefore, argued that if a party fails to apply for delivery of possession or the consolidation officer does not exercise his discretion for one reason or the other, is such a party deprived to seek his remedy in a Civil Court He maintained that this could not have been the intention of the Legislature.
In support of his argument, reliance was placed on Khan Muhammad v. Risaldar Ata Muhammad Khan (P L D 1955 Lah. 436) in which a Division Bench of the Lahore High Court repelled the contention that the civil Court had no jurisdiction to entertain such a suit. The facts of the above‑mentioned case were almost similar to the facts in the present case, but it was held in that case that posses sion had been given to the plaintiff by the consolidation officer. That case is, therefore, distinguishable to this extent, but the learned Judges, while dealing with the question whether the Civil Court had the jurisdiction to entertain such a suit, observed as follows :‑
"The argument is vitiated by several erroneous assumptions underlying it. Firstly, section 11 of Act IV of 1936 confers upon the Consolidation Officer the powers' of a Revenue Officer under Act XVII of 1887 only in order to give possession,' it does not make the provisions of section 122 or of any other section of that Act applicable en bloc to the proceedings for delivery of possession under section 11 of the former Act.
There is, therefore, no warrant for the contention that the Consolidation Officer is also bound to deliver possession within three years of the final scheme. On the contrary he is given the discretion to put the allottees in possession from such date as he may deem expedient. The authority of 63 P R 1894 is, therefore, inapplicable to the present case. Secondly, the Jurisdiction of a civil Court to deliver possession of property allotted in partition proceedings is not taken away by anything contained in section 122 of Act XVII of 1887, but by section 158 which provides:
A Civil Court shall not have jurisdiction in any matter which the Provincial Government or Revenue Officer is empowered by this Act to dispose of, or take cognizance of the manner in which the Provincial Government or any Revenue Officer exercises any powers vested in it or him by or under this Act.'
A Consolidation Officer, even though he possesses the powers of a Revenue Officer under Act XVII of 1887 has no powers vested . . . . . in him by or under' that Act and, therefore, he cannot exercise' any powers under it. Section 158 of Act XVII of 1887 has no application to the powers exercised under Act IV of 1936 ; nor is there any provision in the latter Act barring the jurisdiction of the Civil Court. Again the plaintiff in this case is not asking, nor could he have asked, the Consolidation Officer to put him in possession of the holdings allotted to him under the scheme of consolidation. That has been admittedly done already. This is the usual suit for possession against a trespasser".
It will thus be noticed that the attention of the learned Judges was not invited to section 22 of the Act which runs as follows :‑
"No Civil Court shall entertain any suit instituted, or application made, to obtain a decision or order in respect of any matter which the Provincial Government or any officer is, by this Act, empowered to determine, decide or dispose of."
Ch. Karam Ilahi Chauhan, the learned counsel for the respondent, argued that if the provisions of section 22 of the Act had been brought to the notice of the learned Judges, the conclusion arrived at in the above case might have been different. He has contended that as there is no time limit fixed under the Act the plaintiff can even now move the consolidation officer to deliver the possession of the land in dispute. He urged that in view of the clear provision of section 22 of the Act the jurisdiction of the Civil Court is barred.
In a similar case under the Land Revenue Act the Punjab Chief Court laid down in Gurdit Singh v. Labh Singh (63 P R 1894) that in view of the provisions of sections 122 and 158 of the Land Revenue Act the Civil Court had no jurisdiction to entertain a suit for possession of the property allotted to the plaintiff in partition proceedings for three years from the date on which the partition had taken effect.
Sections 11 and 22 of the Punjab Consolidation of Holdings Act are akin to sections 122 and 158 of the Land Revenue Act.
This ruling was considered by the learned Judges in the above mentioned case and was held to be inapplicable to the facts of the case.
As such the point involved in this appeal is not free from difficulty. On the one hand, the learned Judges have decided in P L D 1955 Lah. 436 that a Civil Court has jurisdiction to entertain such suits, but, on the other hand it is apparent that the attention of the learned Judges was not invited to section 22 of the Act which bars the jurisdiction of the Civil Court in such matters.
As the question is likely to arise frequently in similar proceed ings, it would be desirable that the question be examined by a larger Bench.
The following question may be referred to a larger Bench :‑
"Whether the jurisdiction of the Civil Court is barred under the provisions of the Punjab Consolidation of Holdings Act (IV of 1936) to deliver possession of the land allotted to a person under the consolidation scheme."
These papers may be laid before my Lord the Chief Justice for necessary orders.
Abdul Hafeez for Appellant.
Karam Elahi Chauhan for Respondent.
Date of hearing : 19th December, 1960.
9 KAYANI, C. J.‑The question referred to the Full Bench is whether the jurisdiction of the Civil Court is barred under the provisions of the Punjab Consolidation of Holdings Act (IV of 1936) to deliver possession of the land allotted to a person under the consolidation scheme".
2. As a result of consolidation proceedings in the village Hamon Gakhar of Sialkot District in 1949, Khasra No. 316, which has an area of 6 kanals, was allotted to the plaintiff, Muhammad Shafi. In 1952 he filed a suit for the possession of 2 kanals out of the 6 kanals, on the ground that the defendant, Ahmad Din, had dispossessed him of these 2 kanals after possession had been delivered to him in February 1950 in pursuance of the consolidation proceedings. The defendant pleaded that he had been in adverse possession for a period exceeding twelve years and that, in any case, the plaintiff could obtain possession only through the con solidation officer under section 11 of the Consolidation of Holdings Act. The learned Civil Judge who tried the case found that the plaintiff had been in possession within twelve years and, holding that the decision of the question whether the consolidation proceedings had any effect on the rights of the parties had thus become infructuous, decreed the suit. In appeal, the Senior Civil Judge remanded the case for a decision on the remain ing point also, whereupon the trial Court found that possession had not been delivered to the plaintiff under the consolidation scheme and that the Civil Court had consequently no jurisdiction to give possession to the plaintiff. When the case went back to the Senior Civil Judge after remand, the defendant's counsel stated that he would not press the plea for adverse possession and would confine himself to the question of jurisdiction. The Senior Civil Judge agreed on this point with the trial Judge and accepting the appeal dismissed the suit. On second appeal, the question was referred first to the Division Bench and then to the Full Bench.
3. The relevant provisions of the Punjab Consolidation of Holdings Act are contained in sections l l and 22.
"11. The landowners and tenants affected by the scheme of consolidation, shall be entitled to possession of the holdings and tenancies allotted to them under the scheme, and the consolida tion officer shall by order direct that they be put in possession thereof from such date as he may deem expedient after the final confirmation of the scheme and may, if necessary, exercise the powers of a Revenue Officer under the Punjab Land Revenue Act, 1887, in order to give possession."
"22. No Civil Court shall entertain any suit instituted, or application made, to obtain a decision or order in respect of any matter which the Provincial Government or any officer is, by this Act, empowered to determine, decide or dispose of."
4. It was argued for the plaintiff that since the word "may" in the last clause of section 11 left it to the option of the consolida tion officer to exercise or not to exercise the powers of a revenue officer in order to give possession, if these powers were not exercised, the Civil Court would necessarily have jurisdiction to entertain a suit for possession, and there would be, consequently, a correspond ing option to seek the consolidation officer's assistance or not to seek it. We do not think section 11 can be so mildly interpreted, for it requires the consolidation officer effectively, as a part of the fulfilment of the consolidation scheme, to put in possession of the holdings allotted to them persons who are affected by the scheme of consolidation. The option to exercise the powers of a revenue officer under the Land Revenue Act apparently arises only when his order requiring the delivery of possession is not complied with. The Consolidation of Holdings Act itself does not provide any procedure for the delivery of possession and for that purpose section 11 empowers the consolidation officer to exercise the powers of a revenue officer.
5. It is thus clear that the least thing which section 11 does is to "empower" a consolidation officer to deliver possession, and since section 22 prevents a Civil Court from entertaining a suit in a matter in respect of which a consolidation officer is "empowered" A by the Act to take a decision, in ordinary circumstances the jurisdiction of a Civil Court is barred. This, however, would be subject to two considerations. The first consideration is that a consolidation officer exists even after the termination of the con solidation proceedings. We have now obtained information on this point from the Board of Revenue and have been told by the Secretary, Board of Revenue, through a telephone to the Registrar that "before the Land Reforms Regulations there existed a perma nent consolidation officer in Sialkot District", and there exists one even now: It is thus clear that an application for the delivery of possession could have been made to him in pursuance of the scheme of consolidation. If a consolidation officer refuses to act under section 11 because the consolidation proceedings for a certain village have terminated, his refusal is illegal, because section 11 does not contemplate that he becomes functus officio at any time.
6. The second consideration, however, is more decisive in the present case. This relates to the defendant's contention in the trial Court that he was in adverse possession. Now, since the decision of the question of adverse possession amounts to a decision B of a question of title, a question which the consolidation officer is not empowered to decide, the matter falls out of the limitation of section 22, and the Civil Court's normal jurisdiction asserts itself. Mr. Karam Elahi Chauhan contended for the defendant that this also was a matter which the consolidation officer could decide and he referred to the language of section 7 which reads :‑
"When a scheme of consolidation has been prepared, the consolidation officer shall consider and, as far as possible, remove the objections, if any, made to the scheme by any person interested in it."
Mr. Chauhan argued that the defendant's plea of adverse possession was an objection within the meaning of section 7. We do not agree, firstly because the section itself shows that it will be an objection "made to the scheme" and, secondly, even if there were no such explicitness in the section, unless it were definitely provided by an Act that questions of title would be decided by the summary agency employed therein, we shall hold that such questions will be deter mined by the ordinary Civil Court only.
7. That the objection founded on adverse possession was given up at the stage of appeal cannot affect our decision, because the trial Court itself was faced with the question of jurisdiction.
8. Our answer, therefore, is that although, in general, possession can be delivered under a scheme of consolidation by the consolidation officer only, in the present case it can be delivered only by the Civil Court.
K. B. A.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer