JUDGMENT

THAKKAR, J.:— What is more difficult, regaining of possession of agricultural lands to which they had undisputed right, or passing through the eye of a needle, is the question the appellants may well ask in desperation. They may well add that while in theory for every right there maybe a remedy in practice such tenants have no remedy if the interpretation of the scheme of the provisions of the Consolidation Act (East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948.) made by the High Court is upheld. The original appellants, the tillers of the lands who have failed to regain possession for a quarter century after the Consolidation Officer upheld their claim in 1960, having died during the pendency of these appeals instituted 15 years back without reaping the fruits of the order in their favour (now represented by their heirs) may well be justified in saying so. For, notwithstanding the finding of fact recorded by the Consolidation Officer in his order dated April 28, 1960 that the original appellants were in possession of these lands as non-occupancy tenants prior to consolidation in the course of which the concerned land-owner was allotted parcels of land other than the parcels comprised in his original holdings, and they were entitled to be put in possession of the parcels which the land-owner was so allotted in lieu of his original holdings, the tenants have been denied the possession thereof pursuant to the said order of 1960 directing the land-owner to put them in possession. The said order remained a paper-order upon its being challenged as being without jurisdiction in a Civil Court. It was so challenged notwithstanding a provision (Section 44 of the Consolidation Act.) contained in the Consolidation Act excluding the jurisdiction of Civil Courts. The trial court negatived the plea of the plaintiff land-owner (respondent herein) that the defendants-tenants were in reality his labourers or servants and not his tenants. The trial court recorded a finding of fact upholding the plea of the tenants which was confirmed by the lower appellate court. This finding being a pure finding of fact could not have been, and in fact was not assailed in the High Court in the second appeals under Section 100 of the Code of Civil Procedure, preferred by the landowner. The High Court did not disturb this finding, as indeed it could not have, in view of the statutory limitation of section 100 of the Code of Civil Procedure, and yet allowed the second appeals preferred by the land owner upholding his plea that the tenants had no remedy under the Consolidation Act in view of the interpretation of the scheme of the provisions of the said Act canvassed by the land-owner which was sustained by the High Court. The chequered history of the litigation giving rise to the present appeals (By Special leave granted by this Court.) may now be traced.

2. One Chandgi (respondent herein) had inducted two tenants (Jagram and Amar Singh) who were in occupation of two different parcels of land from out of khasra Nos. 3, 8, 9, 12 and 18 of village Bawana in Delhi. In the consolidation proceedings initiated under the Consolidation Act, a scheme of repartition was framed and in lieu of the aforesaid parcels of land he was allotted Killa Nos. 21 (4 bighas 16 biswas), 22 (4 bighas 2 biswas) and 23 (4 bighas 15 biswas) of rectangle No. 2. Thus the lands originally comprised in his holding were substituted by the lands comprised in the aforesaid parcels which were allotted to him under the consolidation scheme. The tenants were in actual possession and were actually tilling two parcels out of the original holding prior to consolidation. However, after the allotment of the other parcels of land in substitution of the original parcels of land the tenants were not put back in possession of the corresponding parcels in the substituted lands. Thereupon they approached the Consolidation 0fficer viz. the Naib Tahsildar at Delhi by initiating