Punjab-Haryana High Court
Ram Chander And Ors. vs Chanda And Ors. on 15 July, 1996
Equivalent citations: (1997)116PLR344
JUDGMENT N.K. Kapoor, J.
1. This is unsuccessful defendants' appeal. The defendants have challenged the judgment and decree of the Additional District Judge dated 15.2.1980 whereby the judgment and decree of the trial Court was reversed thus decreeing the suit of the plaintiffs as prayed for.
2. Briefly put, plaintiffs filed a suit in a representative capacity against the defendants seeking a decree for declaration to the effect that the preliminary decree dated 8.8.1969 and final decree dated 15.7.1974 in a partition suit titled Inder Singh etc. v. Bhagwana and Ors., are illegal, wrong, against law, arbitrary, against the scheme, null arid void and has been obtained fraudulently and collusively and so does not affect the rights of the plaintiffs in any manner. It is the case of the plaintiffs that they are proprietors and right-holders of village Jassia, Tehsil and District Rohtak, and so have a right to file the present suit. Since the proprietors are numerous and the persons filing the present suit have common interest with the other proprietors and so they have filed the suit in representative capacity. Preliminary decree as well as final decree has been challenged by the plaintiff, on numerous grounds, namely, (a) that no notice of suit was served upon them, even the proclamation was not made in strict compliance with Order 1, Rule 8 of the Code of Civil Procedure; (b) that the Court while granting preliminary decree ordered the Local Commissioner for partitioning the suit land according to their respective share in the joint land but the same has not been so one by the Local Commissioner appointed by the Court; (c) that as per preliminary decree, pucca/kacha houses of the proprietors in the abadi were not be disturbed; (d) that the Local Commissioner had also included the area under ponds, streets, thorough-fares, schools and gardens in the partition pool; and (e) that the area-of the suit land comprised in Khewat No. 550/554 Khatauni No. 929 as per jamabandi for the year 1963-64 is the ownership of Gram Panchayat, Jassia, and so could not be partitioned. Even the civil court has no jurisdiction to include such a land for the purpose of partition. Thus the judgments impugned are against law, without authority and hence null and void.
3. The claim of the plaintiffs was resisted by the contesting defendants who filed written statement controverting the various material averments made by the plaintiffs.
1. Whether the impugned decree is null and void and liable to be set aside on the grounds mentioned in para No. 5 of the plaint ? OPP
2. Whether the suit is barred by the principles of res-judicata ? OPD
3. Relief.
The trial Court afforded opportunity to the plaintiffs as well as the defendants to adduce evidence in support of their respective contentions. The trial Court, however, found no ground to set aside the decree passed in favour of the defendants. Accordingly, the suit of the plaintiffs was dismissed vide judgment and decree dated 20.9.1979.
4. Feeling dissatisfied with the judgment and decree of the trial court, the plaintiffs preferred appeal and assailed its correctness on facts as well as on law. Before the lower appellate Court, counsel for the appellants drew the attention of the Court to para No. 5(f) of the plaint wherein it was specifically mentioned that the subject matter of adjudication was, in fact, shown to be owned by Gram Panchayat as per entries in the revenue record. With this background, it was urged that since such a land fall within the ambit of shamilat deh, the same vested in the Gram Panchayat and so could not be partitioned and that too by a civil court. In addition thereto, learned counsel for the appellants drew the attention of the court to section 2(g)(4a) of the Punjab Village Common Lands (Regulation) Act, 1961 (for short 'the Act') for the contention that even a vacant land situate in abadi deh or gora deh not owned by any person too fall within the ambit of 'shamilat deh'. The lower appellate Court examined the contentions raised in the light of facts on record as well as statutory provisions in this regard and finally came to the conclusion that in view of the provisions contained in section 2(g)(4a)of the Act, the land comes within the purview of shamilat deh and so could not be partitioned. The court further held that no such suit for partitioning of such a land could be filed by any person. This way it was held that the impugned judgment and decree is inexecutable, inoperative and unenforceable.
5. At the motion hearing, it was urged by the counsel for the appellants that section 2(g)(4a) has been omitted as the President has already given assent to the amendment proposed. Accordingly, the court issued notice of motion. Thereafter, the matter remained pending for a pretty long time for effecting service upon the respondents. Since none put in appearance despite service, the appeal was admitted on 29.11.1982.
6. Challenging the judgment and decree of the lower appellate Court, the counsel argued that the preliminary decree and the final decree passed by court being between the parties had attained finality and so the same could not be questioned again by the same set up of the persons who, in fact, were parties to the earlier proceedings. According to the counsel, the earlier decision binds the present plaintiffs. This way the present suit was barred by the principle of res-judicata. According to the counsel, otherwise also the lower court has erred in law in reversing the judgment and decree of the trial court and that too for no valid reason. Elaborating, the counsel argued that, in fact, no such plea was raised by the plaintiffs i.e. with regard to the provisions contained in section 2(g)(4a) of the Act and so the same could not be made basis to unsettle a claim validly decided by the competent court. The counsel further argued that as a matter of fact during the consolidation of holdings in the Village a cut was imposed by the authorities so as to extend the limit of abadi deh and this way this area, now subject matter of adjudication, was carved out of the property of proprietors. As per provisions of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, such a land can be made use of for common purpose of the village like carving out of park, street, playground etc. Ownership of such a piece of land remains with the proprietors for all intents and purposes. Precisely for this reason proprietors thought of partitioning the joint holding according to their respective shares as the same was not used for common purpose. This way the Court below had erred in the law in not properly perusing the averments made by the parties and the documentary evidence adduced in support of their contentions, thus resulting in failure of justice.
7. Having heard learned counsel for the appellants and after perusing the reasoned judgment of the lower appellant Court coupled with the revenue record adduced in evidence by the parties, I am of the view that the appeal is devoid of any substance and deserves to be dismissed. Inder Singh and others filed a suit for possession by partition of abadi deh of village Jassia, Tehsil Rohtak. According to these persons, they were proprietors of the village and have share in the abadi deh. Since they could not enjoy the abadi deh, so they thought it appropriate to get it partitioned. Thus the suit filed was partitioning of land terming it to be 'abadi deh'.
8. The Punjab Village Common Lands (Regulation) Act, 1961 received the assent of the President of India on 22nd April, 1961 and was published in Punjab Gazette (Extraordinary) on May 4, 1961. The aim of the Act as given in the preamble is to consolidate and amend the law regulating the rights in shamilat deh and abadi deh. Section 4 of the Act provides for vesting of abadi deh in Panchayat. A duty is cast on the panchayat to utilise and dispose of the same for the benefit of the residents of the village' concerned. Section 2(g) of the Act defines 'shamilat deh'. It includes various categories of land recorded in revenue record as shamilat deh or charand, shamilat tikkas, shamilat tarafs, natties, annas and tholas which are being used for the benefit of the village community etc etc and as per section, 2 (g)(4a), vacant land situate in abadi deh or gora deh not owned by any person. Thus, as per definition of shamilat deh, it excludes abadi deh but includes any land situate in abadi deh or gora deh which is not owned by any person.
9. As per evidence on record i.e. copy of jamabandi for the years 1963-64, 1968-69, the land in dispute is shown to be owned by gram panchayat as per ownership column of jamabandi. Even in the cultivation column of the jamabandi none of the names of any of the appellants or of any other proprietors is recorded. So it can be taken that no part of the land, subject matter of the present dispute, is in possession of the appellants. Such an area comes within the purview of shamilat deh and as per provisions of the Act, the dispute, if any, regarding exclusion of such an area from the definition of shamilat deh is excluded from the purview of civil Court. At best, the defendant-appellants could file a suit under section 13-A of the Act. Otherwise too, merely terming such a vast area as forming part of 'abadi deh' without any prima facie proof could not confer jurisdiction on the civil court. In the instant case, exclusion has been claimed on the ground that it is a vacant site within the abadi deh. Such an area comes within the shamilat deh, as per section 2(g)(4a) vide Act No. 23 of 1973. So even the only ground on the basis of which the appeal was admitted has become non-existent. No ground to vary or reverse the well reasoned judgment of the lower appellate Court. Dismissed. No costs.
1. This is unsuccessful defendants' appeal. The defendants have challenged the judgment and decree of the Additional District Judge dated 15.2.1980 whereby the judgment and decree of the trial Court was reversed thus decreeing the suit of the plaintiffs as prayed for.
2. Briefly put, plaintiffs filed a suit in a representative capacity against the defendants seeking a decree for declaration to the effect that the preliminary decree dated 8.8.1969 and final decree dated 15.7.1974 in a partition suit titled Inder Singh etc. v. Bhagwana and Ors., are illegal, wrong, against law, arbitrary, against the scheme, null arid void and has been obtained fraudulently and collusively and so does not affect the rights of the plaintiffs in any manner. It is the case of the plaintiffs that they are proprietors and right-holders of village Jassia, Tehsil and District Rohtak, and so have a right to file the present suit. Since the proprietors are numerous and the persons filing the present suit have common interest with the other proprietors and so they have filed the suit in representative capacity. Preliminary decree as well as final decree has been challenged by the plaintiff, on numerous grounds, namely, (a) that no notice of suit was served upon them, even the proclamation was not made in strict compliance with Order 1, Rule 8 of the Code of Civil Procedure; (b) that the Court while granting preliminary decree ordered the Local Commissioner for partitioning the suit land according to their respective share in the joint land but the same has not been so one by the Local Commissioner appointed by the Court; (c) that as per preliminary decree, pucca/kacha houses of the proprietors in the abadi were not be disturbed; (d) that the Local Commissioner had also included the area under ponds, streets, thorough-fares, schools and gardens in the partition pool; and (e) that the area-of the suit land comprised in Khewat No. 550/554 Khatauni No. 929 as per jamabandi for the year 1963-64 is the ownership of Gram Panchayat, Jassia, and so could not be partitioned. Even the civil court has no jurisdiction to include such a land for the purpose of partition. Thus the judgments impugned are against law, without authority and hence null and void.
3. The claim of the plaintiffs was resisted by the contesting defendants who filed written statement controverting the various material averments made by the plaintiffs.
1. Whether the impugned decree is null and void and liable to be set aside on the grounds mentioned in para No. 5 of the plaint ? OPP
2. Whether the suit is barred by the principles of res-judicata ? OPD
3. Relief.
The trial Court afforded opportunity to the plaintiffs as well as the defendants to adduce evidence in support of their respective contentions. The trial Court, however, found no ground to set aside the decree passed in favour of the defendants. Accordingly, the suit of the plaintiffs was dismissed vide judgment and decree dated 20.9.1979.
4. Feeling dissatisfied with the judgment and decree of the trial court, the plaintiffs preferred appeal and assailed its correctness on facts as well as on law. Before the lower appellate Court, counsel for the appellants drew the attention of the Court to para No. 5(f) of the plaint wherein it was specifically mentioned that the subject matter of adjudication was, in fact, shown to be owned by Gram Panchayat as per entries in the revenue record. With this background, it was urged that since such a land fall within the ambit of shamilat deh, the same vested in the Gram Panchayat and so could not be partitioned and that too by a civil court. In addition thereto, learned counsel for the appellants drew the attention of the court to section 2(g)(4a) of the Punjab Village Common Lands (Regulation) Act, 1961 (for short 'the Act') for the contention that even a vacant land situate in abadi deh or gora deh not owned by any person too fall within the ambit of 'shamilat deh'. The lower appellate Court examined the contentions raised in the light of facts on record as well as statutory provisions in this regard and finally came to the conclusion that in view of the provisions contained in section 2(g)(4a)of the Act, the land comes within the purview of shamilat deh and so could not be partitioned. The court further held that no such suit for partitioning of such a land could be filed by any person. This way it was held that the impugned judgment and decree is inexecutable, inoperative and unenforceable.
5. At the motion hearing, it was urged by the counsel for the appellants that section 2(g)(4a) has been omitted as the President has already given assent to the amendment proposed. Accordingly, the court issued notice of motion. Thereafter, the matter remained pending for a pretty long time for effecting service upon the respondents. Since none put in appearance despite service, the appeal was admitted on 29.11.1982.
6. Challenging the judgment and decree of the lower appellate Court, the counsel argued that the preliminary decree and the final decree passed by court being between the parties had attained finality and so the same could not be questioned again by the same set up of the persons who, in fact, were parties to the earlier proceedings. According to the counsel, the earlier decision binds the present plaintiffs. This way the present suit was barred by the principle of res-judicata. According to the counsel, otherwise also the lower court has erred in law in reversing the judgment and decree of the trial court and that too for no valid reason. Elaborating, the counsel argued that, in fact, no such plea was raised by the plaintiffs i.e. with regard to the provisions contained in section 2(g)(4a) of the Act and so the same could not be made basis to unsettle a claim validly decided by the competent court. The counsel further argued that as a matter of fact during the consolidation of holdings in the Village a cut was imposed by the authorities so as to extend the limit of abadi deh and this way this area, now subject matter of adjudication, was carved out of the property of proprietors. As per provisions of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, such a land can be made use of for common purpose of the village like carving out of park, street, playground etc. Ownership of such a piece of land remains with the proprietors for all intents and purposes. Precisely for this reason proprietors thought of partitioning the joint holding according to their respective shares as the same was not used for common purpose. This way the Court below had erred in the law in not properly perusing the averments made by the parties and the documentary evidence adduced in support of their contentions, thus resulting in failure of justice.
7. Having heard learned counsel for the appellants and after perusing the reasoned judgment of the lower appellant Court coupled with the revenue record adduced in evidence by the parties, I am of the view that the appeal is devoid of any substance and deserves to be dismissed. Inder Singh and others filed a suit for possession by partition of abadi deh of village Jassia, Tehsil Rohtak. According to these persons, they were proprietors of the village and have share in the abadi deh. Since they could not enjoy the abadi deh, so they thought it appropriate to get it partitioned. Thus the suit filed was partitioning of land terming it to be 'abadi deh'.
8. The Punjab Village Common Lands (Regulation) Act, 1961 received the assent of the President of India on 22nd April, 1961 and was published in Punjab Gazette (Extraordinary) on May 4, 1961. The aim of the Act as given in the preamble is to consolidate and amend the law regulating the rights in shamilat deh and abadi deh. Section 4 of the Act provides for vesting of abadi deh in Panchayat. A duty is cast on the panchayat to utilise and dispose of the same for the benefit of the residents of the village' concerned. Section 2(g) of the Act defines 'shamilat deh'. It includes various categories of land recorded in revenue record as shamilat deh or charand, shamilat tikkas, shamilat tarafs, natties, annas and tholas which are being used for the benefit of the village community etc etc and as per section, 2 (g)(4a), vacant land situate in abadi deh or gora deh not owned by any person. Thus, as per definition of shamilat deh, it excludes abadi deh but includes any land situate in abadi deh or gora deh which is not owned by any person.
9. As per evidence on record i.e. copy of jamabandi for the years 1963-64, 1968-69, the land in dispute is shown to be owned by gram panchayat as per ownership column of jamabandi. Even in the cultivation column of the jamabandi none of the names of any of the appellants or of any other proprietors is recorded. So it can be taken that no part of the land, subject matter of the present dispute, is in possession of the appellants. Such an area comes within the purview of shamilat deh and as per provisions of the Act, the dispute, if any, regarding exclusion of such an area from the definition of shamilat deh is excluded from the purview of civil Court. At best, the defendant-appellants could file a suit under section 13-A of the Act. Otherwise too, merely terming such a vast area as forming part of 'abadi deh' without any prima facie proof could not confer jurisdiction on the civil court. In the instant case, exclusion has been claimed on the ground that it is a vacant site within the abadi deh. Such an area comes within the shamilat deh, as per section 2(g)(4a) vide Act No. 23 of 1973. So even the only ground on the basis of which the appeal was admitted has become non-existent. No ground to vary or reverse the well reasoned judgment of the lower appellate Court. Dismissed. No costs.