Des Raj and Another vs The Gram Sabha of Village Ladhot and Another

J.V. Gupta, J.—This order will dispose of R.S.A. Nos. 575 to 590 of 1969 as all of them arise out of the same judgment of the District Judge, Rohtak dated March 1, 1969.

The Plaintiff Appellants filed these suits for permanent injunction against Gram Sabha and Gram Panchayat, Ladhot, on the allegations that the Shamilat land of Pana Ladhot had been partitioned between the various proprietors in the year 1945-46 and that they were individually in cultivating possession of their shares on payment of land revenue. It is further pleaded that according to them the disputed land of all the cases have not vested in the Panchayat and as such the Panchayat could not take the possession of that land and therefore, the order passed by the Assistant Collector First Grade in putting the Panchayat into possession of all the disputed land was without jurisdiction.

The suits were contested by the Gram Panchayat and it was pleaded that the suit land of all these cases had vested in the Panchayat and it had never been partitioned and the Plaintiffs of all these cases have never remained in possession as alleged by them. On the pleadings of the parties the trial Court framed the two sets of issues which are as under:

(1) Whether the Plaintiffs are owners in possession of the land in dispute? OPP.

(2) Whether the order of the A.C. 1st Grade, Rohtak is void and without jurisdiction and what is the effect of the order on these suit? OPP.

(3) Whether the suits in the present form are not maintainable? OPD

(4) Relief.

The following are the issues framed in case of Manga Ram v. Gram Sabha and Ors.:

(1) Whether the Plaintiff is the owner in possession of the suit land? OPP

(2) Whether any partition was effected amongst the proprietors of Pana Ladhot as mentioned in para 3 of the plaint? OPP

(3) Whether the suit is not maintainable in the present form? OPD

(4) Whether the Plaintiff has no locus standi to file this suit? OPD

(5) Whether the order of the Assistant Collector 1st Grade for the ejectment of the Plaintiff is without jurisdiction? OPD

(6) Whether the Plaintiff is entitled to the relief claimed? OPP

(7) Relief.

The trial Court dismissed the Plaintiff''s suit as it came to the conclusion that the Plaintiffs have failed to prove any partition between the proprietors as alleged by them and the land has vested in the Gram Panchayat under the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter called the Act), in view of the provisions of Section 2(g)(3) thereof. In appeal this finding of the trial Court has been maintained and consequently the decrees of the trial Court dismissing the Plaintiff''s suits have been affirmed. Feeling aggrieved against this order the Plaintiffs have filed these appeal in this Court.

The learned Counsel for the Appellants contended in the first instance that the land in dispute is not Shamilat Deh as defined in Section 2(g) of the Act as it is specifically excluded under Clause (viii) thereunder. Clause (viii) provides that the land which "was shamilat deh, was assessed to land revenue and has been in the individual cultivating possession of co-sharers not being in excess of their respective shares in such shamilat deh on or before the 26th January, 1950", shall not be included in Shamilat deh.

I have heard the learned Counsel for the parties, but I do not find any merit in this contention. In the plaint there is no such allegation that the Plaintiffs are not in possession in excess of their respective shares in Shamilat Deh on or before January 26, 1950. The Plaintiffs filed the suits with the specific allegations that they are in cultivating possession of their land according to private partition. It has been concurrently found by both the Courts that the Plaintiffs have failed to prove any such partition as alleged by them. In view of this concurrent finding it cannot be held that the land in dispute is excluded from the definition because of the provisions of Clause (viii) of Section 2(g) of the Act.

The learned Counsel for the Appellants then contended that the land in dispute does not fall within the definition of Shamilat Deh u/s 2(g)(9) of the Act which reads thus:

Lands described in the revenue records as Shamilat, tarafs, pattis, pannas and tholas and used according to revenue records for the benefit of the village community or a part thereof or for common purposes of the village.

The argument of the learned Counsel is that according to the entries in revenue record the land in dispute is shown in possession of the proprietors i.e. "Makbuja Malkan" and therefore, under these circumstances it cannot be held that the land is being used for the benefit of the villnge community or a part thereof or for common purposes of the village. In support of his contention, he has relied on a Full Bench judgment of this Court reported as Gram Panchayat Sadhraur (formerly Dhumma) and Gram Sabha Sadhraur formerly Dhumma v. Baldev Singh and Ors. 1997 PLJ 276. One of the questions referred to the Full Bench was that whether the view of law taken in Cooperative Society of Improvement of Shamilat Patti Harnam Singh Lambardar of village Khanni and Anr. v. Gram Panchayat of village Khanni 1962 PLR 730, proceeds on a correct interpretation of the expression, for the benefit of the village community or a part thereof or for common purposes of the village occurring in Sub-clause (3) of Clause (g) of Section 2 of the Act. In para 7 thereof it has been held that the interpretation placed on Sub-clause (3) of Clause (g) of Section 3 of this Act given in Co-operative Society of Improvement of Shamilat Patti Harnam Singh''s case (supra) cannot bear scrutiny and does not lay down a correct view of law. It has been further observed that the expression "benefit of the village community or a part thereof" cannot be given by any stretch a restricted meaning so as to confine the benefit to only the owners of the land. Besides, it is also, necessary that the entries in the revenue records must show that actually some benefit was being derived from the use of such land by the village community or a part thereof.

The learned Counsel for the Respondents argued that the Plaintiffs never pleaded such a case in the trial Court nor there was any specific issue framed to this effect and therefore, the Plaintiffs cannot be allowed to urge this point for the first time in second appeal.

After hearing the learned Counsel for the parties and in view of the judgment of the Full Bench in Gram Panchayat''s case (supra), I am of the opinion that the land in dispute is not covered by the definition in Shamilat Deh as given in Section 2(g)(3) of the Act. In the plaint, it has been specifically pleaded in para 4 that the Shamilat Deh of Pana Ladhot has not been used according to the revenue record for the benefit of the village community or a part thereof or for the common purposes of the village. In the written statement in reply thereto it has been stated that the area is included in Shamilat Deh and the same is being used for the common purposes of the village community and therefore, it vests in the Gram Panchayat Lad hot. In view of these pleadings it cannot be argued that this point is being taken for the first time in second appeal. Moreover the lower Appellate Court has discussed this point in detail and relying upon Gram Panchayat of village Khanni''s case (supra), it has been held that the disputed land had rightly vested in the Panchayat under the provisions of the Punjab Act No. of 1954. Since this authority has been overruled by a Full Bench judgment, therefore, the finding of the lower Appellate Court on this point is liable to be set aside. Under these circumstances, the contention of the learned Counsel for the Respondents has no force.

As a result of the above discussion and in view of the judgment in Baldev Singh and Ors. case (supra), the order of the Assistant Collector 1st Grade for the ejectment of the without jurisdiction. Consequently these appeals succeed and the judgments and decrees of the Courts bellows are set aside and the Plaintiffs suit are decreed with no order as to costs.