(1) The three petitioners Nanga Nanhar and Om Parkash claiming to be tenants at will of land measuring 7 bighas and 7 biswas in village Bhageshri in Charkhi Dadri Tehsil of Mohindergrah District have sought the intervention of this Court under Arts. 226 and 227 of the Constitution of India to challenge the validity of the order passed by the Additional Director Consolidation of Holdings on the 20th of November, 1962, directing Prithi Singh respondent No. 3 to be put into his possession.
(2) The state of Bhageshri was brought under consolidation by virtue of the notification issued on the 22nd of November, 1954, under sub-section (1) of section 14 of the Consolidation Act. The scheme for repartition published on the 27th of April, 1957, after disposal of the objections received against the draft scheme. The scheme was revoked later and the revised scheme for re-partition of the village was published by the Consolidation Officer under S. 21(1) of the Act on the 19th of February, 1960.
(3) According to the petitioners they have been in possession as coshares and tenants of 7 bighas and 7 biswas of land. The 3rd respondent Prithi Singh claimed to be an owner of the entire area and actually obtained in a an application for partition made before the authorities under the Punjab Land Revenue Act a mutation in his favour on the 11th of January, 1957. Although the disputed land is said to have been allotted in favour of the petitioners this order of allotment was set aside under S. 42 of the Act by the Additional Director on the ground that the 3rd respondent has established his claim to it under mutation No. 239 of the 11th of January, 1957. The foundation of the claim of the 3rd respondent is the mutation of the 11th of January, 1957.
(4) In the contention of Mr. Prem Chand Jain a partition should be effected by the consolidation authorities under S. 16-A of the Consolidation Act and all partition proceedings under the Punjab Land Revenue Act will be suspended during the currency of the consolidation proceeding s. Section 32 of the Consolidation Act says--
'32. After a notification under sub-section (1) of S. 14 has issued no proceedings under Chapter IX of the Punjab Land Revenue Act, 1887, in respect of any estate or a sub-division of an estate effected by the scheme of consolidation shall subject to the provisions of S. 16-A be commenced and where such proceedings were commenced before the issue of the notification they shall remain in abeyance during the pendency of the consolidation proceedings.'
Section 16-A to which reference has been made gives power to make provision in the scheme to partition joint lands and joint occupancy in tenancies notwithstanding anything contained in Chapter IX of the Punjab And Revenue Act, The combined effect of S. 16 and 32 of the Act is obviously to give exclusive jurisdiction to the consolidation authorities to carry out partition proceedings. The order of mutation on which the fifth of the 3rd respondent is based was passed on the 11th of January, 1957 when the partition proceedings in the village were in progress. The 3rd respondent should have moved the consolidation authorities for partition and in fact an order had been made in favour of the petitioners granting them allotment of the land. The order passed by the Additional Director in respect of the same land on the basis of a mutation made by the Land Record authorities during consolidation proceedings in clearly without jurisdiction and has to be set aside.
(5) This petition will therefore be allowed and the order of the Additional Director passed on the 20th of November, 1962, would be quashed. There will be no order as to costs of this petition.
(6) Petition allowed.