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25th February, 2014 MUNSAB KHAN (THROUGH LRS) ......Appellants
Through: Mr. N.P. Singh, Advocate.
Through: Mr. D. Rajeshwar Rao, Advocate.
To be referred to the Reporter or not? VALMIKI J. MEHTA, J (ORAL)
JUDGMENT
1. This Regular Second Appeal is filed against the judgment of the first appellate Court dated 16.2.2012 dismissing the appeal filed by the appellants/plaintiffs by refusing to condone the delay of approximately sixty days.
2. The only ground for filing of the first appeal with delay was of the illness of the appellant no.2, however, no proof of illness of the appellant no.2 was filed and therefore the appeal was dismissed as barred by time. 2014:DHC:1061
3. I may note that even on merits, prima facie the appellants have no case on merits, because, the suit for injunction was dismissed by the trial Court by giving valid reason that the appellants were not the owners and in cultivatory physical possession of the land bearing khasra no.34/10/1 (2-10) situated in revenue estate of village Mandoli, Shahdara, Delhi admeasuring 2 bighas and 10 biswas inasmuch as the owner of the land was Gaon Sabha post the consolidation proceedings in the village. Trial Court has held that once the appellants/plaintiffs have failed to show that they are the owners and proceedings before the revenue authorities are going on in order for the appellants to establish their ownership rights, the suit cannot lie.
4. To the findings of the trial Court, I would add that in view of Section 44 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter referred to as ‘the Act’) civil court does not have jurisdiction with respect to consolidation proceedings which achieve finality under the Act. Therefore, once in view of the consolidation proceedings the appellants are not shown to be the owners, civil court cannot come to a finding against the decision of the authorities under the Act and which is final and which decision cannot be changed in the civil court as per Section 44 of the Act.
5. In view of the above, there is no merit in the appeal and the same is therefore dismissed, leaving the parties to bear their own costs.
FEBRUARY 25, 2014 VALMIKI J. MEHTA, J. Ne