1. This appeal has been filed against the judgment and decree of the Senior Subordinate Judge, Ferozepore, dated October 11, 1961, who affirmed the judgment and decree of the trial Court by which the suit of the plaintiffs had been dismissed.
2. The facts which have given rise to this litigation are the Santa Singh the father of the plaintiffs was the owner of the land in dispute, which was sold by him along with some other land to Ujagar Singh and Bikar Singh. The plaintiffs filed a suit of possession by pre-emption, which was decreed. The Revenue Officers entered a mutation of gift bearing No. 4657 of the land in dispute in favour of a school situated in Sekha Kalan, which was managed by the defendant and the same was sanctioned on January 16, 1968. According to the plaintiffs, the mutation in favour of the school is illegal, void and ineffective as their father never made a gift of that property in favour of the school. It is further stated that the gift could not be effected orally by their father as the Transfer of Property Act, 1882 was applicable in the State of Punjab and that the consolidation authorities had no right to attest such a mutation. The defendant contested the suit and that the Civil Court had no jurisdiction to try the suit. The trial Court came to the conclusion that the Civil Court had the jurisdiction to try the suit; that the plaintiffs could not challenge the gift and that the plaintiffs were not challenge the gift and that the plaintiffs were not challenge the gift and that the plaintiffs were not estopped from filing this suit. The trial Court dismissed the suit in view of the aforesaid findings. The plaintiffs filed an appeal before the Senior Subordinate Judge, who affirmed the finding of the trial Court and dismissed the appeal. They having felt aggrieved have come up in appeal to this Court.
3. The only submission of the learned counsel for the appellants is that Section 123 of the Transfer of Property Act, 1882 was applicable in the State of Punjab on the date when the oral gift is alleged to have been made by Santa Singh the father of the appellants, and, therefore, it was illegal and void. The learned counsel for the respondent states that under Section 33 of the East Punjab of Fragmentation) Act, 1948, (hereinafter referred to as the Consolidation Act), an oral gift could be made. I have heard the contentions of the learned counsel for the parties at length and I am of the view that the contention of the learned counsel for the appellants has got a great force. Section 33 of the Consolidation Act is as follows:--
'Notwithstanding anything contained in any law for the time being in force:--
(a) no instrument in writing shall be necessary in order to give effect to a transfer involved in carrying out any scheme of consolidation of holdings, and
(b) no instrument, if executed, shall require registration.'
A reading of the said Section shows that the instrument in writing is not necessary in order to give effect to a transfer involved in carrying out any Scheme of Consolidation of Holdings. It does not say that even transfers other than those involved in carrying out any scheme of consolidation do not require instrument. The section overrides the provisions of Transfer of Property Act, 1882 applicable of the State of Punjab only for a limited purpose, namely that transfers to carry out the scheme of consolidation of holding need not be in writing and it any instrument has been executed that will not require registration. Regarding other transfers the Transfer of Property Act, 1882, shall remain applicable. The phraseology used the Legislature is very clear and the same cannot be interpreted in any other way. In case the intention of the legislature was that all transfers during the pendency of the Consolidation proceedings did not require an instrument in writing, then the wording of the section should have been different, and the words 'involved in carrying out any Scheme' need not have been incorporated in the section. The Section could have been that no instrument in writing shall be necessary in order to give effect to a transfer during consolidation of holdings. For the reasons given above, in my view, the oral gift could be made by Santa Singh in favour of the school. In Jamabandi Exhibit P-2 prepared after the consolidation this land was shown in the ownership of Santa Singh. The mutation Exhibit P-1 entered on November 27, 1956 and attested on January 16, 1958, mutating the land in the name of the school will not affect the right of Santa Singh in the property in dispute. The appellants have pre-empted the sale of the land effected by Santa Singh in favour of Ujagar Singh and Bikar Singh. They, therefore, have become owners of the property in dispute after their suit had been decreed.
4. The learned counsel for the respondent argues that the Civil Court has no jurisdiction and in support of his contention he relies on Section 44 of the Consolidation Act. He cannot get any benefit from the aforesaid section. The Civil Courts are entitled to decide the question of title of the properties. Their jurisdiction for deciding such questions has not been taken away. In the present case the consolidation authorities also exceeded their jurisdiction in transferring the land in dispute on the basis of oral gift by Santa Singh in favour of respondent. It is well-known principle of law, that if any officer acting under any provision of law exceeds his jurisdiction and acts illegally, the jurisdiction and acts illegally, the jurisdiction of the Civil Court in such cases is not barred. I am fortified from the observations in Lal Beg v. Pohlu, (1968) 70 Pun LR 163, wherein it has been observed:
'That under Section 44 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act the jurisdiction of the Civil Court is barred only where the State Government or the officer concerned acts within the provisions of the Act, and not where the acts illegally and in contravention of the mandatory provisions of the Act, or in excess of the powers conferred by it. Where the Special Tribunal or Authority acts ultra vires or illegally, the Civil Court has, by virtue of Section 9, Civil Procedure Code power, to interfere and set matters right.'
I, therefore, do not find force in this contention of the learned counsel of the respondent.
5. In view of the reasons recorded above, I accept the appeal and decree the suit of the appellants with no order as to costs.
6. Appeal allowed.