Suraj Mal and others vs Devi Singh alias Deepa and others

J.V. Gupta, J.

This is defendants'' second appeal against whom the suit for partition of the abadi deh land has been decreed by both the Courts below.

It is not disputed that the suit land is recorded as abadi deh ghair mumkin in the revenue record. The plaintiffs brought the suit for possession by way of partition of the suit land. The suit was instituted under Order 1 rule 8, Code of Civil Procedure. According to the plaintiffs, the suit land vested in the proprietors of the village amongst whom a dispute had arisen and they wanted the suit land to be partitioned except the one where the nonproprietors (ghair biswadars) had raised houses. The suit was contested inter alia on the ground that the Civil Court had no jurisdiction to entertain the suit; the Gram Panchayat had not been made a party which was a necessary party and, therefore, the suit could not proceed. The trial Court found that the suit land did not vest in the Gram Panchayat because the same did not fall within the meaning of shamilat deh as defined in section 2 (g) of the Punjab Village Common Lands (Regulation) Act, 1961, and was recorded as anadi deh in the copy of the jamabandi for the year 197778, Exhibit P 4. It may be stated here that during the pendency of the suit, which was field on June 13, 1980, subclause (4a) of the said Act was omitted vide Haryana Act No. 2 of 1981, which came into force with effect from February 12, 1981. Later on by Haryana Act No. 15 of 1983, the said subclause (4e) was reinserted with effect from February 12, 1981. Thus, the said subclause which was once omitted, continued to be there on the statute book because by the Haryana Act No. 15 of 1983, it was reintroduced in the abovesaid Act with retrospective effect. In spite of the reassertion of the said subclause by the Haryana Act No. 15 of 1983, the trial Court did not notice the said amendment and decided case on the basis as if subclause (4a) did not exist and, therefore, the suit land being the abadi deh did not vest in the Gram Panchayat. Consequently, the plaintiffs'' suit was decreed and a preliminary decree for possession was passed. In appeal, the learned District Judge affirmed the said findings of the trial Court and, thus, maintained the decree decreeing the plaintiffs'' suit. Surprisingly enough the District Judge also did not discuss the effect of the re insertion of sub clause (4a) by the Haryana Act No. 15 of 1983, with effect from February 12, 1981, in the abovementioned Act.

The Learned counsel for the appellants submitted that in view of subclause (4a) of section 2 (g), shamilat deh included vacant land situated in abadi deh or gore deh not owned by any person. That being so, argued the learned counsel, the same vested in the Gram Panchayat and, therefore, the Gram Panchayat was a necessary party. Moreover, in view of section 13 of the aforesaid Act, no civil Court shall have the jurisdiction to entertain or adjudicate upon any question whether any land or other immovable property is or is not shamilat deh or any land or other immoveable property or any right, title or interest in such land or other immovable property vests or does not vest in a Panchayat under that Act. Thus, argued the learned counsel, the civil Court had no jurisdiction to try that suit, as the land vested in the Gram Panchayat. In support of the contention, the learned counsel relied upon Gram Panchayat Sadhraur and Gram Panchayat Sadhraur v. Baldev Singh, 1983 Punjab Law Journal 276; Gram Panchayat Sadhraur v. Baldev Singh 1983 Punjab Law Journal 19; Gram Panchayat Village Mau v. Amin Chand, 1983 Punjab Law Journal 329 : 1984 R.R.R. 441 and Bhim Singh v. Gram Panchayat of village Kharkheri, 1982 Punjab Law Journal 476. Reference was also made to Order 1 rule 9, Code of Civil Procedure, to contend that the suit was liable to be dismissed for nonjoinder of the necessary parties.

The learned counsel for the plaintiffs respondents submitted that the land did not vest in the Gram Panchayat because it was owned by the proprietors. Only the vacant land situated in abadi deh which was not owned by any person vested in the Gram Panchayat in view of subclause (4a) of section 2 (g) of the abovesaid Act. It was also stated that there was no lis between the Gram Panchayat and the plaintiffs and that being so, the civil Court had the jurisdiction to decide the matter. In support of the contention, the learned counsel relied upon Bhagu v. Ram Sarup, 1985 Punjab Law Journal 366 : 1985 R.R.R. 353. According to the learned counsel, but since permission under Order 1 rule 8, Code of Civil Procedure was granted and munadi was made in the village, the Gram Panchayat will be deemed to be a party to the suit.

After hearing the learned counsel of the parties, I find force in the contentions raised on behalf of the appellants.

The trial Court decided the matter on the assumption that subclause (4a) of section 2 (g) of the Act was omitted and was not there at the time of the deciding of the suit. As regards the lower appellate Court, it did not go into the question, though an argument was raised, before it in appeal. In view of subclause (4a) of section 2 (g), it could not be disputed that the shamilat deh includes vacant land situated in abadi deh or gora deh not owned by any person. Once it is so found, then section 13 of the Act is a bar to the entertaining of a suit to adjudicate upon any question whether any land or other immovable property is or is not a shamilat deh or any land or other immovable property or any right, title or interest in such land vested or did not vest in the Gram Panchayat under the Act. Admittedly, the suit land is recorded in the copy of the jamabandi for the year 197778, Exhibit P4, as abadi deh. If it is so, the prima facie it is included in the definition of shamilat deh under Section 2(g) read with subclause (4a), and section 13 of the Act is a complete bar to the entertainment or adjudication of this question by the civil Court. The judgment of this Court in Laxmi Narain v. Delhi, 1984 Punjab Law Journal 198 : 1984 R.R.R. 2, relied upon by the lower appellate Court in this behalf, was clearly distinguishable as the said case was decided when subclause (4a), had been omitted by the Haryana Act No. 2 of 1981 and was no more on the statute book, as is clear from paragraph 3 of the judgment which reads

"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, therefore, the Act would not be applicable. However, the learned counsel for the objectors has argued that they had raided 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."

Besides, the Gram Panchayat was never made a party to the suit. To say that the suit was brought under Order 1 rule 8, Code of Civil Procedure, and, therefore, the Gram Panchayat will be deemed to be a party, has no substance. The Gram Panchayat is a body corporate and when the suit land formed part of the shamilat deh, then it was a necessary party. In the absence of the Gram Panchayat, it could not be decided whether the plaintiffs are the owners of the suit land or not, Bhagu''s case (supra), relied upon by the learned counsel of the plaintiffsrespondents has no applicability to the facts of the present case. In the said case, the Gram Panchayat was not a party to the suit. Therefore, it was held therein that any finding either way will not affect the interest or title of the Panchayat in the suit land; hence the jurisdiction of the civil Court was not barred. As regards the present case, the suit land being abadi deh is included in the definition of the term shamilat deh and hence prima facie less in the Gram Panchayat. In the absence of the Gram Panchayat it could not be decided that the plaintiffs are the owners thereof.

In this view of the matter, this appeal succeeds and is allowed. The, judgments and decrees of the Courts below are set aside and the plaintiffs'' suit is dismissed with no order as to costs.