Kanshi Ram vs Narain Singh

Rajendra Nath Mittal, J.—This revision petition has been filed by Kanshi Ram decree-holder against the judgment of the executing court dated 7th August, 1979, holding that the final decree has become inexecutable.

The case has got a chequered history. The suit for partition of Shamilat land was filed in the Court of the Senior Subordinate Judge, Rohtak, in January, 1948. Ultimately, a final decree for partition was passed by him on 7th November, 1970. An appeal against that decree was dismissed by the District Judge, Rohtak, on 2nd August, 1972. The second appeal (R.S.A. No. 1664 of 1972) to this Court was also dismissed on 18th August, 1978. During the pendency of second appeal, CM. No. 97-C of 1978 was filed wherein an objection was taken that the decree had become inexecutable on account of insertion of Clause (4a) in Sub-section (g) of Section 2 of the Punjab Village Common Lands (Regulation) Act, 1961, hereinafter referred to as the Act. The said Sub-section defines ''shamilat deh''. That application was also dismissed along with the second appeal.

After the dismissal of the second appeal, the decree-holder started execution proceedings. Again, an objection petition was filed by Narain Singh, Respondent, that the property vested in the Gram Panchayat by victue of Clause (4a) ibid and the decree had become inexecutable. The objection was contested by the decree-Holder who inter alia pleaded that the rights of the parties had been determined while passing of the final decree and therefore, the objection petition was liable to the dismissed.

The learned executing court came to the conclusion that Clause (4a) in Sub-section (g) of Section 2 of the Act inserted on 23rd June, 1973, had restrospective effect and therefore, by virtue of that clause read with Section 4(2) of the Act, the property in dispute vested in the Gram Panchayat. Consequently, it accepted the objection and held that the decree was inexecutable. Kanshi Ram decree-holder has come up in revision against the said judgment to this Court.

It is contended by the learned Counsel for the Petitioner that the rights of the parties had been determined on 7th November, 1970, when final decree was passed and therefore, by virtue of Clause (4a) ibid read with Section 4 of the Act, the property does not vest in the Panchayat Deh. He also submits that Clause (4a) ibid is not retrospective as interpreted by the executing Court.

I have given due consideration to the argument of the learned Counsel and find force in it. Clause (4a) was inserted by Section 2 of the Punjab Village Common Lands (Regulations) Haryana Amendment Act, 1973. Section 2 reads as follows:

Amendment of Section 2 of the Punjab Act 18 of 1961.--After Sub-clause (4) of Clause (g) of Section 2 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as the principal Act), the following sub-clause shall be inserted namely:

(4a)--vacant land situate in abadi deh or gora deh not owned by any person.

The language of the section does not show that the Legislature wanted to give Clause (4a) retrospective effect. It is well-settled that the provisions of an enactment creating or taking away substantive rights are ordinarily prospective; they are retrospective only if the Legislature by express or implied words makes them so. The intention of the Legislature is to be gathered from the words used by it, giving them their plain meanings. Therefore, it cannot be held that Clause (4a) came into operation, retrospectively. The finding of the learned executing Court to the contrary is erroneous and is liable to be set aside. The rights of the parties in this case had been determined by the final decree. The parties thereafter were to be delivered possession of the plots allotted to them. Consequently, after the final decree, Shamilat land ceased to be Shamilat and the areas allotted to the parties became vested in them. Therefore, Clause (4a) ibid, which came into operation in 1973, will not effect their rights. It is also not out of place to point out that an application containing similar objections was filed during the pendency of the appeal in this Court and it was dismissed. Therefore, the objection was also not available to the Respondent. After taking into consideration all the aforesaid circumstances, I am of the view that the executing Court misdirected itself in holding that the decree was inexecutable.

For the aforesaid reasons, I accept the revision petition with costs, set aside the order of the executing Court and direct it to execute the decree in accordance with law. The parties are directed to appear before the executing Court on 10th June, 1983.