JUDGMENT
S.K. Jain, J.
1. Agricultural land bearing rectangle No. 31, killa No. 2 (8-0). and rectangle No. 31, killa No. 9(8-0) was a part of shamlat Mansha Patti in the area of village Khol, Tehsil and District Rewari. Proprietors of the village had a share in said shamlat Patti Hasab Rasad Zare Khewat. Plaintiff being proprietor of the village was in cultivating possession of killa Nos. 31/2 and 31/9 of the above said land for the last 25 years. He constructed a Chapper on the said land. Defendants No. 9 and 10 eluded with the Revenue Patwari and got this land shown to be under their cultivation in khasra girdawari without any notice having been served upon the plaintiffs. Defendant No. 5 instituted a civil suit on 31.10.1985 against the plaintiff and others alleging that he had a path through the said land as also through killa No. 1 and 10/1.
2. That suit was contested by the plaintiff specifically denying the existence of any such path. Defendant No. 5 made a statement in that suit that he had been given a path by the Director Consolidation and, therefore, the suit was dismissed as withdrawn. On enquiry it came to light that Director Consolidation in case No. 360/84. passed order dated 20.12.1985 thereby allotted the path to defendants No. 1 to 8 through the suit land. The plaintiff then filed Civil Suit No. 57 on 11.3.1986 for a decree for declaration and permanent injunction challenging the order dated 20.12.1985 of the Director Consolidation ‘inter-alia’ on the ground : that the proprietors who were necessary parties had not been arrayed as such in the suit; that no notice was served upon them before passing that order; that munadi was never effected on 12.4.1985; in the village inviting the proprietors to appear before the Director Consolidation on 20.12.1985; that consolidation proceedings took place in the village somewhere in the year 1960 and had been completed after sometimes and now after a lapse of 25 years, the Director Consolidation had no jurisdiction to entertain such an application under Section 12 of the Act, it being hopelessly time barred; that during Consolidation proceedings defendants No. 1 to 16 had been allotted a passage towards the northern side of their holdings and the said passage was still in existence; and that on the basis of the impugned order and mutation No. 963, the defendants were adament in carving out a passage through the suit land which was in exclusive possession of the plaintiffs.
3. The suit was contested by the defendants. After the parties led evidence on the issues framed by the trial Court, learned Sub Judge 1st Class, Rewari, vide his judgment and decree dated 5-8-1992 dismissed the suit 6f the plaintiff.
4. Civil Appeal No. 84 instituted on 2.9.1992 by the plaintiff against the said judgment and decree was. dismissed by Additional District Judge, Rewari, on 16.1.1993.
5. It is that judgment and decree of the first appellate Court which has been appealed against by the plaintiff and which requires my examination of its sustainability.
6. I have seen the pleadings in the suit, evidence adduced by the parties in the suit and the judgments of both the Courts below.
7. Learned counsel for the appellant has argued that the order dated 20.12.1985 passed by Director Consolidation under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, hereinafter referred to as the Act, was null and void being without jurisdiction for the reasons.
(i) that the suit land through which the path has been allotted to the respondents was in possession of the appellant who was not impleaded as a part before the said authority. No notice whatsoever was issued to the appellant and the impugned order to his determent was passed on his back without affording him any hearing opportunity; and
(ii) that during the consolidation of holdings grandfather of respondents No. 1 to 8 was provided with a path to his kurrah and once a path is provided during consolidation proceedings, whether convenient or not, the Director Consolidation of Holdings had no jurisdiction under Section 42 of the Act to provide an addition path. He could, no-doubt, change the path when the scheme was prepared. In any case, it could not be done after a lapse of 25 years.
8. In reply learned counsel for the respondents has argued that due notice through munadi was given to all the right holders including the appellant. Moreover, other right holders who had interest identical to that of the appellant in the suit land were parties to the proceeding under Section 42 of the Act, and, therefore, the interest of the appellant was adequately represented.
9. In order to appreciate rival arguments, I have perused the record.
10. In the list of proprietors Ex. PG name of the plaintiff finds place at serial No. 238. In Jamabandi for the year 1980-81 (Ex. PC) Killa No. 31/2(8-0) has been shown to be part of shamlat Mansha Patti under the cultivation of Tek Chand share-holder, defendant No. 9 whereas killa No. 31/9 is shown to be in possession of Jagdish, defendant No. 10. Thus the record of rights does not help the plaintiff. Coming to the oral evidence. I find that Sohan Lal PW1, Banarsi Dass PW4, Sugghar PW7 and Ram Niwas PW8 and the plaintiff himself, who appeared as PW6 have no doubt stated that the suit land was in exclusive possession of the plaintiff since the time of consolidation. The witnesses of the defendant Rajpal Patwari DW1, Ram Kumar DW2 and Suraj Mal DW3 have also stated that the land situated towards the south of the holdings of the defendants was completely under crops and there was no rasta running through it. Ashok Kumar Somani DW5 has admitted that in the year 1986 at the time of demarcation of the path (rasta) crops were standing over the whole of the suit land. All this shows that the suit land was certainly in possession of the plaintiff but strangely enough he did not take any steps whatsoever to get the revenue entries corrected. Ex. PE is the copy of order dated 10.1.19S6 passed by Shri Randhir Singh, Sub Judge IInd Class, Rewari in civil suit No. 899 instituted on 31.10.1985 by Vijay Kumar Somani, defendant No. 5 herein, against Birdhu Singh, plaintiff herein, and five others for a decree of permanent injunction and declaration. Counsel for the plaintiff in that suit made a statement Ex. PF to the effect that the Consolidation Officer has decided the matter with regard to the path and, therefore, no relief remained to be granted in the suit which might dismissed as withdrawn. On the basis of the said statement, the suit was” dismissed accordingly. From all the above plaintiff was in possession of the suit land but in view of the fact that the plaintiff was not shown in possession of the said land in the revenue record, there was no occassion for the Director Consolidation of holdings to serve a notice in writing on the plaintiff with regard to the proceedings under Section 42 of the Act nor the plaintiff was entitled to any opportunity of being heard. Similar view was taken by a Single Bench of this Court in Sant Singh etc., v. Balbir Singh etc., 1980 C.L.J. (Civil) 67, wherein it was held that where the plaintiffs were not recorded as owners at the relevant time they would not be entitled to any opportunity of being heard in the petition filed under Section 42 of the Act. Besides, what has been stated above it has been established in the evidences of Ram Kumar DW2, Suraj Mal DW3 and Ashok Somani DW5 that Munadi was duly effected on 14.12.1985 by Jug Lal Chowkidar with regard to the proceedings under Section 42 of the Act before the Director Consolidation on 20.12.1985.
11. The point in controversy can also be examined from another angle. Perusal of the order Ex.DW5/6 dated 20.12.1985 passed by Shri O.P. Tanja, Director Consolidation of Holdings Haryana, Chandigarh shows that Ram Kumar Lamberdar, Jagdish son of Chatra, Major Suraj Mal Sarpanch, Som Pal Singh Panch, Ram Kumar Larriberdar, Tek Chand son of, Bir Lal were present when this order was passed. All of them are the right holders of the village and have interest identical to the plaintiff in shamlat Mansha Patti. Two of them namely Tek Chand defendant No. 9 and Jagdish defendant No. 10 have been shown in possession of killa Nos. 31/2 and 31/9 respectively in the jamabandi for the year 1980-81. It is now well settled that it is; not necessary in proceedings under Section 42 of the Act that all co-sharerers must first be impleaded and then served individually, If adequate hearing is given to one or some of the co-sharers, it will tantamount to a hearing of all” the body of co-sharers, in the eye of law, in the absence of fraud or collusion or failure of any ,fair. or real trial of the issue. It is not the case of the plaintiff that either the said right holders had colluded against him or had played fraud on him or that there had been a failure of any fair or real trial of the issue. Besides, what has been mentioned above, the service had also been effected on all the co-sharer-right holders by way of munadi as mentioned in the earlier part of this judgment. In holding the above view I am fortified by a Full Bench judgment of this Court in Biru v. Suraj Bhan, (1983)85 P.L.R. 568 (F.B.).
12. Next objection of the learned counsel for the appellant is that the State Government should not have passed the impugned order long after the record of consolidation proceedings had been consigned to the record room. I find myself, unable to accept this contention. Provisions of Section 42 are broad based and therefore, in the peculiar facts and circumstances of this particular case where it is established on record that village Khol to which the parties belonged is located in the south of the holding of the defendants and they had to walk a long distance to approach their fields from the northern passage the Director Consolidation had rightly accommodated them by giving a passage from killa No. 31/2 and 31/9 because already existing passage upto killa No. 10/1 touched the boundary of killa No. 31/9. Further perusal of order Ex. DW5/6 shows that equivalent area had been allotted in lieu of the land in dispute. In holding the above view I am fortified by a Single Bench judgment of this Court in Rattan v. The State of Punjab, (1965) 67 P.L.R. 276. Thus, the second argument of the learned counsel for the appellant also does not find favour with me.
13. In view of the above discussion, the concurrent findings recorded by two Courts below do not warrant interference by this Court in this Regular Second Appeal and are affirmed.
14. In the result, the judgment of the lower appellate Court is upheld. This Regular Second Appeal is dismissed. No costs.