Khiali Ram vs Subedar Mast Ram and Others

Shamsher Bahadur, J.—The respondent proprietors, who are eight in number, in execution of their decree for possession against the appellant Khiali Ram passed on 18th of August, 1953, started execution proceedings on 6th of August, 1960. The objections of the judgment-debtor were dismissed by the executing Court on 1st of May, 1961. The judgment-debtor preferred an appeal before the District Judge, Hoshiarpur, and at the time of arguments an objection was raised that the Punjab Village Common Lands (Regulation) Act, 1961, (hereinafter called the Act) enforced with effect from 22nd of April, 1961, had vested the land of which possession was claimed, in the Panchayat which alone could enforce the decree against. the judgment-bebtor. It does not appear to have been disputed that the land which had been in possession of the judgment-debtor was shamilat tikka and under clause (g) of section 2 of the Act, shamilat tikkas are included in the shamilat deh. Section 3 of the Act gives retrospective operation to clause (s) of section 2 of the Act with effect from 1954 when the Punjab Village Common Lands (Regulation) Act of 1954 was first promulgated. Under sub-section (1) of section 4 of the Act:

all rights, title and interests whatever in the land, which is included in the shamilat deh of any village and which has not vested in a panchayat shall, at the commencement of this Act, vest in panchayat constituted for such village.

It has not been disputed that there is a Panchayat of the village in which the land in suit is situated. The lower appellate Court, before whom the objection was raised for the first time, did not agree to the contention raised on behalf of the judgment-debtor and the appeal was accordingly dismissed.

In further appeal to this Court, the only point which has now been urged by Mr. Mahajan is that the decree which was passed against the appellant has really become inexecutable at the instance of the decree-holder proprietors, by virtue of the provisions of sections 3 and 4 of the Act read with clause (g) of section 2. In support of this contention, the learned counsel has relied on the support of two decisions of the Supreme Court. In Raja Sailendra Narayan Bhanj Deo Vs. Kumar Jagat Kishore Prasad Narayan Singh, , it was held that the Land Reforms Act passed by the State of Bihar made the decree for redemption which had been passed earlier inexecutable and infructuous. The tenures had vested in the State of Bihar and the mortgagee under the Act had no longer any interest in the tenures nor was he in possession of them. Their Lordships accordingly reached the conclusion that the mortgagee could not carry out the decree by reconveying the tenures to the mortgagor or put him into possession. The mortgaged property having vested in the State in pursuance of the provisions of the Land Reforms Act, the right to redeem under the redemption decree had become infructuous. On a parity of reasoning, it has been argued that the shamilat likka in respect of which a decree for possession had been obtained by the decree-holders no longer vested in the proprietary body but the Panchayat had become its owner in whom it vested u/s 4 of the Act. The panchayat alone could, therefore, enforce its right of possession and the judgement debtor could not be ejected at the instance of the proprietors who had obtained the decree for possession. The Panchayat could, if it is so minded, claim the right of possession as the land in dispute now vests absolutely in it.

The second authority on which reliance is placed by Mr. Mahajan is reported at page 123) of the same volume, viz. Haji Sk. Subhan Vs. Madhorao, The Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950, had abolished the rights of the proprietors of the lands held by them and vested them in the State. Said Mr. Justice Raghubar Dayal at page 1234 in discussing the main object of the Act:

All the bundle of rights which a proprietor; possesses on account of his proprietorship of land within the estate etc., should cease, except such rights which are saved to the proprietor under some specific provision of the Act. Any rights which accrue to the proprietor under a decree by virtue of his proprietary right will not, under the scheme of the Act, prevail over the statutory consequences following the vesting of the proprietary rights in the State and will be lost to the proprietor. One such right is the right of the proprietor under a decree to obtain possession over certain land. Such a decree for recovery of possession is the result of the recognition of the proprietor''s right of possession as proprietor over that land as against the claim of the judgment-debtor to retain possession of that land. The proprietary right vests in the State and as a consequence of it the proprietor''s right under the decree to obtain possession also vest in the State, even though the State gets right to the possession of the land under other provisions of the Act as well.

It follows, therefore, that the Panchayat in whom the proprietary rights now vest in pursuance of section 4 of the Act alone has the right to the possession of the land and the proprietors under the decree which was passed before the Act have ceased to have any right in this shamilat tikka, and as observed by their Lordships of the Supreme Court, the proprietor''s right even under the decree to obtain possession also vests in the Panchayat.

Mr. Daulat Ram Manchanda, the learned counsel for the respondent, however, contends on basis of rule 16 of Order 21 of the CPC that the decree which was passed in favour of the proprietors has to be transferred in favour of the Panchayat by operation of law and the transferee in such a case may apply for execution of the decree to the Court which passed it, and does not in any way impair the right of the proprietors under the decree to obtain possession. In my opinion, the position is not analogous to the one envisaged in rule 16 of Order 21. The Punjab Village Common Lands (Regulation) Act 1961, has vested the entire ownership of the shamilat deh in the body of the Panchayat and the proprietors have ceased to have any interest in it. This is not a case of two or more persons having an interest in a decree. The decree has become inexecutable so far as the proprietors are concerned and has become infructuous. The Panchayat alone can claim or ask for possession.

This appeal, therefore, must succeed and the objections of the judgment-debtor must be allowed. As the judgment-debtor succeeds as a result of the Punjab Village Common Lands (Regulation) Act, which came into force after the order of the executing Court, I would make no order as to costs of this appeal.