Prem Chand and others vs Mehar Singh and others

S.P. Goyal, J.

This judgment will dispose of three petitions, Civil Revisions Nos. 2782, 2949 and 2950 of 1986, as they involve similar facts and common questions of law.

Proprietors of four village, Rehmana, Bajana Khurd, Sitawali and Awaspur claiming themselves to be the owners of the abadi deh filed for court suits for partition and possession of their individual shares. In all the suits, preliminary decrees were passed and in one of them Civil Suits No. 1329 of 1972 (Chattar Singh and others v. Chandgi and others), even the final decree was passed on February 13, 1976. Before any further proceedings could be taken, sub clause (4a) in Section 2(g) was inserted by the Punjab Village Common Lands (Regulation) Haryana Amendment Act, 1973 (hereinafter referred to as `the Act'') whereby vacant lands situate in abadi deh or gora deh not owned by any person were included in the definition of shamilat deh. The judgment debtors, relying thereon, filed objections that the land in dispute being shamilat deh by virtue of the said provision vests in the Gram Panchayat and, as such, the decrees passed have been rendered unenforceable and the suits liable to be dismissed. Their objections were sustained by the trial Court and the cases consigned to be the record with the observation that no further action could be taken in the matter. Aggrieved thereby, the plaintiffs went in appeal and the learned Additional District Judge vide judgment dated February 5, 1979, reminded the cases to the trial Court to determine as to whether the suit land was not covered by the words shamilat deh as defined in Section 2(g) inclusive of the newly inserted clause (4a) of the act and further directed that in case it was found that the suit land did not fall within the purview of shamilat deh and was otherwise of partible nature, to proceed to dispose of the suit in accordance with law.

Although the learned Additional District Judge observed in his judgment that the provisions of newly inserted clause (4a) were retrospective in operation, yet the trial Court, relying on a Divison Bench decision of this Court in Bajinder Singh and another v. The Assistant Collector 1st Grade and others, 1983 PLJ 116, overruled the objections duly exercised by the Civil Court and the decrees passed prior to the insertion of the new clause. Dissatisfied therewith, the defendants have approached this Court by way of these revisions.

The legality of the impugned orders was challenged on the ground that the judgment of the learned Additional District judge dated February 5, 1979, had become final and the points settled therein operated as res judicata between the parties. It had been held by the Additional District Judge that the newly inserted clause (4a) was retrospective in its nature and that the preliminary decrees passed stood set aside and the suits dismissed by the judgment of the trial Court dated October 6, 1976. It is, however, not necessary for the disposal of these petitions to go into these matters because the provisions of the said clause (4a) are not attracted to the present case on facts admitted between the parties in their pleadings. Neither in the objections filed nor in the written statement it was averred that the land in dispute was vacant land not owned by Andy person. The plea raised by the non proprietor defendants was that they are the owner of their houses and the Gitwar where they were carrying on their trade or profession. The proprietor defendants as well as the village Panchayat admitted that the land in dispute was owned by the proprietors of the village including the plaintiffs. It is, therefore, evident that though there was dispute between the parties as to who was the owner and of which portion, but it stood admitted at all hands that the abadi land was owned either by the proprietors or the non proprietors and no portion of the suit land was stated go be not owned by any person. At it is only the vacant land situate in abadi deh and gora deh not owned by the proprietors of the village including the plaintiffs. It is, therefore, evident that though there was dispute between the parties as to who was the owner and of which portion, but it stood admitted at all hands that the abadi land was owned portion, but it stood admitted at all hands that the abadi land was owned either by the proprietors or the non proprietors and no portion of the suit land was stated to be not owned by any person. As it is only the vacant land situate in abadi deh and gora deh not owned by any person which is included in the definition of shamilat deh by virtue of the newly inserted clause (4a), its provisions would not be applicable to the present case, nor the land in dispute by shamilat deh as defined in Section 2(g) of the Act. The objections raised, therefore, were wholly misconceived.

As a matter of fact, whole of the abadi deh in the village is owned by its proprietors'' body. The clause inserted, therefore, appears to be wholly meaningless. it appears, that what the Legislature intended to achieve by the insertion of the said clause was to declare the vacant land in the abed the or gora deh to be shamilat deh, whcih is not in the exclusive use or possession of any person. But on the present phraseology, it is not possible to take a view that the vacant land in abadi deh or gora deh which is not in exclusive use or possession of any person would be covered by the definition of shamilat deh. Nor it would be permissible to substitute the word "owner" by the word "possession" to give some meaning to the newly inserted clause (4a).

For the reasons recorded above, these petitions must fail and are hereby dismissed but without any order as to costs.