Laxmi Narain vs Debi

G.C. Mital, J. (Oral)

Laxmi Narain and others filed a suit under Order 1, Rule 8 of the Civil Procedure Code for separate possession by partition of Abadi Deh. On 1st June, 1974 preliminary decree for partition was passed. In pursuance of the preliminary decree the Local Commissioner was appointed to report about the mode of partition, which report was filed on 31st October, 1974. Thereafter, certain proprietors filed objections. One of the objections was that in view of Section 2(g)(4a) as inserted by Act No. 23 of 1973 in the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter called the Act), the land in dispute was Shamilat Deh and was impartable. The objections were accepted and the trial Court vide judgment and decree dated 14th April, 1978, declined to pass a final decree and dismissed the suit after recording a finding that the land had vested in the Gram Panchayat, and, therefore, it could not be partitioned. The plaintiffs went up in appeal. The learned Additional District Judge, Rohtak, concluded that in view of clause (4a) of Section 2(g) of the Act, the land in dispute was Shamilat Deh and, therefore, any question that it was not Shamilat Deh could be raised in proceedings under Section 13B of the Act and not before the Civil Court. By order dated 25th January, 1979, the appeal was accepted and after setting aside the judgment and decree of the trial Court, it was ordered that the plaint be returned to the plaintiffs for presentation to the proper Court for determination of the fact whether or not the land in dispute vested in the Gram Panchayat. The plaintiffs still feeling aggrieved have filed second appeal against the order of returning the plaint for presentation to proper Court.

At the very threshold the counsel for the appellants has invited my attention to the Haryana Act No. 2 of 1981, by which amendment has been made in the Act, as a result of which clause (4a) in section 2(g) has been omitted. Because of this change in law, it is argued that the very basis of the judgment of the Courts below that the land is Shamilat Deh in view of clause (4a) has evaporated and, therefore, the Abadi Deh land in dispute, which is jointly held by the proprietors would not came within the definition of Shamilat Deh and, therefore, the Act would not be applicable and Civil Court will have the jurisdiction to proceed with the partition.

After hearing the learned counsel for the parties and in view of the omission of clause (4a) from Section 2(g) by the 1981 Act, the only conclusion that has to be drawn is that the Abadi Deh land jointly owned by the proprietors does not come within the definition of Shamilat Deh contained in Section 2(g), and, thereof, the Act would not be applicable. However, the learned counsel for the objectors has argued that they had raised several other objections, which were not decided by the two Courts below. He could not convince me that in view of omission of clause (4a), the land in dispute can be termed as Shamilat Deh.

For the reasons recorded above, this appeal is allowed. The order of the lower appellate Court is set aside and the matter is remitted to the trial Court to proceed with the case from the stage, prior to passing of judgment and decree dated 14th April, 1978. It will be open to the objectors to press their other objections raised by them in their objection petition and the trial Court will proceed to decide the entire matter in accordance with law. The parties through their counsel are directed to appear before trial Court on 9th January, 1984. There will be no order as to costs in this appeal.