Mr. Rakesh Kumar Jain, J.: - This appeal is filed by defendant no.1 in a suit for declaration filed by the plaintiffs that they along with defendants no.5 to 10 are owners in possession of the land in dispute, situated in village Rojhka, Tehsil and District Rewari. Defendants no.1 to 4 (hereinafter referred as the “contesting defendants”) had been using the northern killa line of rectangle no.12, killa nos.24, 23, 22 to reach their land, which was shortest rasta to reach their land. Defendant no.1 moved an application under Section 21(2) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (here-in-after referred to as the “Act”), which was allowed by the Consolidation Officer on 16.11.1988 with a link passage to the land of the contesting defendants which passes through rectangle no.12, killa no.11/3 belonging to the plaintiffs. The plaintiffs had filed the present suit to challenge the aforesaid order on the ground that the said order has been passed without affording any opportunity of hearing and is, thus, liable to be ignored as not binding on them.

2. The contesting defendants filed a joint written statement. They averred that they are not the owner of the entire land shown in the green colour in the site plan and are owners only of the land comprising in khewat no.19, khatauni no.22, rectangle no.11, killa nos.16, 17, 24, 20/2 and rectangle no.12, killa no.25. The disputed rasta had already been in existence between killa no.11/2 and 11/3 and being used by the contesting defendants to reach their land. It is also averred that the Consolidation Officer had issued summons and even got pasted a copy thereof on the house belonging to the plaintiffs and proforma defendants but they did not turn up to join the proceedings. It was, thus, pleaded that the impugned order has been rightly passed by the Consolidation Officer and the suit was resisted on the ground that the Civil Court had no jurisdiction to try the suit.

3. The plaintiffs filed replication and reiterated their stand taken in the plaint.

4. On the pleadings of the parties, issues were framed and both the parties led their oral as well as documentary evidence in support of their case.

5. The Trial Court had found that the impugned order was passed by the Consolidation Officer ex-parte on the basis of a report of the Process Server on the summons stating that Roop Chand son of Tulsi Ram (proforma defendant no.6) was not available and that a copy of the summons had been affixed at his house in the presence of Lambardar, though there is no report that Roop Chand had evaded service or refused to accept the service. It was found that there was no reference in the impugned order that any attempt was made to effect service on any of the plaintiffs or the proforma defendants except Roop Chand and insofar as affixation is concerned, no direction was obtained before effecting substituted service. The plaintiffs also produced Lal Singh Lambardar (PW1) who had stated that no notice was affixed on the house of Roop Chand in his presence, which vitiates the report of the Process Server on the basis of which the impugned order had been passed. It was, thus, observed by the learned Trial Court that the impugned order was passed without observing the principles of natural justice and decreed the suit while dealing with Section 44 of the Act on the ground that the Consolidation Officer was required to issue notices to all the interested persons before passing the impugned order and has relied upon the judgment reported as Punjab State and other v. Bhagwan Singh and others, 1983 PLJ 40.

6. Defendants no.1 to 4 challenged the judgment and decree of the Trial Court. It was observed by the lower Appellate Court that the consolidation took place in the village in the year 1988 when Sube Singh defendant no.1 filed the application under Section 21(2) of the Act for, providing 2 karam wide passage in the land of the plaintiffs and proforma defendants.