P L D 1954 Lahore 371 (PLP)

SHABIR AHMAD, J.‑‑Regular Second Appeal No. 238 of 1952 will also be disposed of by this order not only because the appellants in both the appeals are the same but also because the questions that require determination in the two appeals are identical. It was in view of these facts that the suits out of which these appeals arise were disposed of together as were the appeals in the lower appellate Court. Briefly stated the facts are these. The Shamilat land of village Ghulaman in Bhakkar Sub‑Division of the Mianwali District was partitioned in 1946 and a partition‑deed was prepared by the Revenue Officer. According to this partition‑deed the land in suit fell to the shares of the plaintiff‑appellants. However it remained in possession of the defendant respondents. It appears that some time after the partition, consolidation proceedings started and they finished on the 11th of August 1949 when mutations with regard to the land falling to the shares of the co‑sharers because of consolidation proceedings was entered. Even in the consolidation proceed?ings the plaintiff‑appellants were allotted the land which had fallen to their shares at the time of the partition. As defendant‑respondents continued in possession of the land even after the consolidation proceedings had ended, the appellants brought suits on the 16th of July 1951 for possession of the land. The defendants in the suit which is the subject‑matter of Regular Second Appeal No. 237 of 1952 were Khan Muhammad and Dost Muhammad, sons of Hayat Khan, while those in the suit which is the subject of Regular Second Appeal No. 238 of 1952 were Allah Yar and his brother Muhammad. These suits were consolidated along with two other suits of identical nature and on the pleadings of the parties the trial Judge framed twelve issues the second of which was:‑ Has this Court jurisdiction ? The twelfth issue related to the relief which was to be granted to the plaintiffs, while the others dealt with other matters that arose on the pleadings of the parties. The learned trial judge decided the issues of which the burden was on the plaintiffs in favour of the plaintiffs and those of which the burden was on the defendants against the defendants, with the result that the suits were decreed. No appeals appear to have been taken in the other two suits but appeals were instituted in the two suits mentioned above. These appeals were accepted on the 5th of June 1952 by Sardar Ata Ullah who was then the Senior Civil judge with enhanced appellate powers at Mianwali. The learned lower appellate Court accepted the appeals on the finding that the decision of the learned trial judge on issue No. 2 was wrong and the Civil Courts had no jurisdiction. It is against these decisions that the two appeals have been instituted. The lower appellate Court has held that the Punjab Consolidation of Holdings Act (Punjab Act IV of 1936) took away the jurisdiction of the Civil Courts for three years to grant possession of land falling to the share of a landowner on consolidation of holdings. The provisions of law relied upon for this view are section 122 of the Punjab Land Revenue Act and section 11 of the Punjab Consolidation of Holdings Act which are in the following terms:‑ "

122. An owner or tenant to whom any land or portion of a tenancy, as the case may be, is allotted in proceedings for partition shall be entitled to possession thereof as against the other parties to the proceedings and their legal representatives, and a Revenue Officer shall on application made to him for the purpose by any such owner or tenant at any time within three years from the date recorded in the instrument of partition under the last foregoing section given effect to that instrument so far as it concerns the applicant as if it were a decree for immovable property." "

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 consolidation 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." The learned counsel for the respondents went a step further than the lower appellate Court and argued that once consolidation proceedings had taken place, the jurisdiction of Civil Courts to grant possession of the land allotted to any person as a result of the consolidation was taken away for all times, and for this contention reliance was placed on section 22 of the Punjab Consolidation of Holdings Act (IV of 1936), which is in the following terms :‑ "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. The argument was that because under section 11 of the Act a Revenue Officer can give possession, section 22 of the Act takes away the jurisdiction of Civil Courts to give possession of the land which can be dealt with under section

11. The learned counsel for the appellants urged that what had taken place was killabandi proceedings contemplated by Article 243 of the Punjab Settlement Manual and not consolidation of holdings mentioned in the Punjab Consolida?tion of Holdings Act 1936 and, therefore, section 11 of the Punjab Consolidation of Holdings Act, even if it barred the jurisdiction of the Civil Courts to grant possession of the land which was the subject of consolidation proceedings, could not have been invoked. The contention of the learned counsel for the appellants that the killabandi proceedings mentioned in the plaint were not proceedings under the Punjab Consolidation of Holdings Act 1936 has no force. The learned trial judge decided the case on the assumption that killabandi proceedings mentioned in the plaint were consolidation proceedings held under the Act of 1936 and it may be safely assumed that the plaintiffs had taken up that position before him. It does not appear to have been contended before the lower appellate Court that the killabandi proceedings mentioned in the plaint were not proceedings under the Consolidation of Holdings Act 1936 ; but the most significant thing is that in the grounds of appeal in this Court which are identical in both the appeals it has been specifically mentioned that the killabandi proceedings mentioned in the plaint were proceedings under the Consolidation of Holdings Act. In these circumstances I am not prepared to accept the argument of the learned counsel for the appellants that the Consolidation of Holdings Act 1936 had been introduced into the proceedings without any justification. The question that falls for determination is whether the jurisdiction of Civil Courts to grant possession of land falling to the shares of the plaintiff‑appellants as a result of con?solidation proceedings had been taken away. Section 11 of the Punjab Consolidation of Holdings Act 1936 confers on Consolidation Officers the powers which the Revenue Officer has been given under the Punjab Land Revenue Act to grant possession. Now under the Punjab Land Revenue Act (XVII of 1887) the question of delivery of possession of land can arise under Chapter VI, Chapter VII or Chapter IX a Chapter VI deals with the collection of land revenue and arrears thereof and comprises of sections 69 to

96. It is in section 95 that a reference has been made to delivery of possession and it is said therein that the Collector shall put in possession the person declared to be the purchaser of the property and shall grant him a certificate to the effect that he has purchased that property. Chapter VII which consists of sections 97 to 99 relates to recovery of other demands by Revenue Officers. Section 99 enacts that the provisions of Chapter VI were to be applicable to recovery of demands mentioned in Chapter VII as if those demands were arrears of land revenue. It follows, therefore, that if any property is sold for recovery of any sum mentioned in Chapter VII, it is the Collector who is to deliver possession of the property sold. Section 122, however, which occurs in Chapter IX; the Chapter dealing with partition of land, gives a Revenue Officer certain powers with regard to delivery of possession of property which has been the subject of partition. As section 11 of the Consolidation of Holdings Act 1936 mentions that the Consolidation Officer shall have the powers of a Revenue Officer, it may be presumed that reference is to the powers conferred on a Revenue Officer under section 122 of the Punjab Land Revenue Act and not to powers conferred on the Collector by section 95 or Chapter VII of that Act. In these circumstances a Consolidation Officer acting under the Consolidation of Holdings Act 1936 will have the same powers to deliver possession to a person entitled to it under the consolidation scheme as a Revenue Officer in partition proceedings under the Punjab Land Revenue Act. With regard to the delivery of possession of land falling to the share of any landholder on partition effected under Chapter IX of the Land Revenue Act, the jurisdiction of civil Courts to deliver possession has been taken away for three years by section 122 of that Act and I would, therefore, hold that the of lower appellate Court was right in its conclusion that for a period of three years from the date of the termination of the consolidation proceedings no Civil Court could grant the plaintiffs, whose land had been dealt with in the consolidation scheme, a decree for possession of the land. It is well‑settled that the exclusion of jurisdiction of Civil Courts, which are Courts of general jurisdiction, is not to be readily inferred and I am not prepared to accept the contention of the learned counsel for the respondents that with regard to land dealt under the Consolidation of Holdings Act 1936 the jurisdiction of the Civil Court to pass a decree for possession had been taken away for all times. If the Legislature had intended to exclude the jurisdiction of Civil Courts in this matter for all times it would have made that clear and the absence of any words indicating that the Civil Courts were barred for all times from taking cognizance of a suit for possession of land dealt with by a Consolidation Officer proves that it was not intended to bar the jurisdiction of Civil Courts except to the extent to which it is barred under section 122 of the Punjab Land Revenue Act 1887. But the contention of the learned counsel for the respondents may be repelled on another ground. The respondents did not appeal against the decision of the lower appellate Court that the jurisdiction of the civil Court was barred only for three years and, though they may support the judgment of the lower appellate Court on any ground, they cannot, without filing appeals or cross‑objections ask for a relief which goes beyond that granted to them by the lower appellate Court. I would accordingly dismiss both the appeals but leave the parties to bear their own costs throughout. K. M. A. ??????????? Appeal dismissed.