Punjab-Haryana High Court
Lataf Ali Khan (Since Deceased vs Jai Chand And Others on 18 December, 2013
Author: K. Kannan
Bench: K. Kannan
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Regular Second Appeal No.1898 of 1981 (O&M)
Date of decision: 18.12.2013
Lataf Ali Khan (since deceased,through his LRs) and another.
... Appellants.
Versus
Jai Chand and others .... Respondents
CORAM: HON'BLE MR. JUSTICE K. KANNAN
----
Present: Mr. Amit Jain, Advocate,
for Mr. Arun Jain, Senior Advocate,
for the appellants.
Mr. M.S. Sindhu, Advocate,
for respondent No.25.
----
1. Whether reporters of local papers may be allowed to see the
judgment ? Yes.
2. To be referred to the reporters or not ? Yes.
3. Whether the judgment should be reported in the digest ?Yes.
----
K.Kannan, J. (Oral)
I. Questions of law
1. The following substantial questions of law arise for consideration in this second appeal:-
i) Whether the lower appellate Court not having disturbed the trial Court's finding regarding ownership of the share claimed by the plaintiffs justified in holding that the civil court had no jurisdiction to grant the relief by virtue of the provisions of East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948?Kumar Sanjeev
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ii) Whether a property described as "mustarka malkan" in the revenue record and the description of the plaintiff as a proprietor not sufficient to discredit the contention that the property vested with the gram panchayat as contended by the defendant-panchayat?
II. The basis for plaintiffs' claim
2. The plaintiffs are the appellants before this Court. The suit had been filed against the defendants for possession by way of declaration that the plaintiffs were the owners of 66 kanals 6 marlas representing 61346/223176 share of the agricultural land measuring 238 kanals 16 marlas comprised in Khewat No.210, Khatauni Nos.273 to 279. The plaintiffs' contention was that at the time of consolidation, a cut had been imposed on the land of the proprietors according to the holdings in the common land in the village and after making provision for the common purposes, an area measuring 238 kanals 16 marlas had been left that was undistributed amongst the proprietors. The plaintiffs as owners were, therefore, entitled to the share that belonged to them and they were entitled to put in possession. The plaintiffs would complain that the property had been left in the possession of defendants 7 to 23 who the plaintiffs would complain as in unlawful possession.
III. Defence by Gram Panchayat
3. The principal defence was entered by the gram panchayat contending that the property had been left for common Kumar Sanjeev 2013.12.21 16:24 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.1898 of 1981 (O&M) -3- purposes and for the enjoyment of the gram panchayat. The gram panchayat would assert that since the time of consolidation, the property was being leased out and the income was realized by the gram panchayat. The trial Court held that by the fact that the property has been entered as "mustarka malkan", the ownership of the property vested with the plaintiffs as proprietors, but, however, since it was left for common purposes, the plaintiffs could not secure the relief of recovery of possession. The appellate Court did not upset the finding regarding the plaintiffs' proprietorship as found by the trial Court, but it proceeded to hold that the suit itself was not competent for the relief claimed and it was barred under Section 44 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (for short, the 1948 Act). IV. Justification for additional evidence- scheme of consolidation
4. At the time of appeal, the gram panchayat has filed an application under Order 41 Rule 27 CPC giving the certified copy of the scheme which was published in the village in consolidation in Urdu with translation in Hindu and English. The application has been directed to be considered along with the appeal. The two courts have held that since the entries in the jamabandis made reference to the "mustarka malkan" as in the column of ownership and hence, the plaintiffs were the proprietors. The gram panchayat has contended all along in its statement and attempted to show at the Kumar Sanjeev 2013.12.21 16:24 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.1898 of 1981 (O&M) -4- trial as well that the property had been in its management by way of leases. The plaintiffs themselves were complaining of the private respondents as being in 'unlawful possession' from Gram Panchayat, meaning thereby that the plaintiffs themselves had not inducted them in possession, on the other hand, their possession was referable to the gram panchayat's act of lease in their favour. There has been a contention that the manner of use of the property by the gram panchayat was not specifically brought out by the terms of the scheme. There is perhaps no proper justification for non-production of the copy of the scheme but all the same, the scheme which is published in the gazette being a public document cannot be doubted in its authenticity. I would find the copy of the scheme filed in Court is a very important piece of evidence that will help the court in determining not merely the character of property but the manner of user of the property as claimed by the respective parties. I, therefore, allow the petition filed under Order 41 Rule 27 CPC and take the copy of the scheme on record as an exhibit on the defendants' side.
V. The transferee pending appeal allowed to prosecute appeal; justification for rehearing appeal
5. At the time of appeal, there has been a transfer of interest by the plaintiffs-appellants to a third party who filed an application for impleadment. I have directed the impleadment by Kumar Sanjeev 2013.12.21 16:24 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.1898 of 1981 (O&M) -5- order dated 11.10.2013 and the newly added party literally substitutes the existing appellant as a person who has purported to gain interest in the property. The appeal had been previously disposed of in the absence of 25th respondent-gram panchayat. When the petition was filed for rehearing, it was contested as not competent and that there was an undue delay in filing the application for rehearing. I have passed an order on 11.10.2013 allowing the application filed by the 25th defendant and brought it for fresh hearing. After the order was passed on 11.10.2013, it appears that the appellant, who has since been impleaded as a purchaser, had challenged the order passed by this Court before the Supreme Court and when the case was brought for hearing on 15.11.2013, the counsel asked for time making reference to the pendency of the case before the Supreme Court. Since it was urged in that case that SLP was to be brought for hearing in the first week of December, I had adjourned the case to 10.12.2013. The case when it was again called on that date, I was informed that the Supreme Court had again adjourned the case and I had, therefore, brought it for hearing today on 18.12.2013 finally with a specific direction that if there are no orders from the Supreme Court in the meanwhile, I may be compelled to take the case. Since the case on board was identified as amongst the oldest cases in the High Court of Punjab and Haryana and cases prior to 1990 have been specifically identified by the Kumar Sanjeev 2013.12.21 16:24 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.1898 of 1981 (O&M) -6- Chief Justice in its administrative jurisdiction and assigned to this Court specifically for disposal, I feel obliged to take up the case for disposal notwithstanding the fact that an application for rehearing which was allowed by the court was stated to be in challenge before the Supreme Court. I believe, I commit no impropriety in taking up the matter for adjudication for the endeavour is to see that an adjudication that is made is on merits that would allow for parties to ventilate the legal grievances in a proper way after a full-fledged adjudication on merits.
VI. Extent of bar of jurisdiction of civil court
6. The crucial point urged by the learned counsel for the appellant is that when the two courts below have held that the property belonged to the plaintiffs as proprietors, the appellate Court could not have rejected the suit as incompetent under Section 44 of the 1948 Act. The counsel would read to me the particular Section which I reproduce as under:-
"44. Jurisdiction of civil court barred as regards matters arising under this Act.-No civil court shall entertain any suit instituted or application made, to obtain a decision or order in respect of any matter which the State Government or any officer is, by this Act, empowered to determine, decide or dispose of." Kumar Sanjeev 2013.12.21 16:24 I attest to the accuracy and integrity of this document chandigarh
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7. The counsel would argue that the 1948 Act makes specific provisions relating to the manner of preparation of scheme for consolidation of holdings, delimiting the common purposes provisions for compensation to owners and for publication and in respect of any of these matters. There will be a bar in respect of matters where the authorities have specific powers in specified matters. I accede to the plea and hold that the suit for recovery of possession claiming ownership was not barred. All that is required to be seen is whether such a prayer was tenable, but there could be no bar against a suit for recovery of possession claiming on the basis that the plaintiffs were the proprietors and the application under Section 44 was not attracted to the frame of the suit. VII. Core controversy in whom the property vests?
8. The trial Court has rejected the prayer for recovery of possession although it held the plaintiffs to be the proprietors only on the ground that the property had been utilized for a common purpose and it had been managed by the gram panchayat and consequently, the question of recovery of possession from the hands of the defendants was not competent. The 25th defendant (gram panchayat) has itself not preferred the appeal but so long as the suit was dismissed by the trial Court and the appellate Court also affirmed the same, there was no requirement of the defendants to prefer any cross appeal or cross objection but it was still competent Kumar Sanjeev 2013.12.21 16:24 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.1898 of 1981 (O&M) -8- to state that a particular finding entered holding the plaintiffs to be the proprietors was not justified and that the property had actually vested with the gram panchayat. The question would, therefore, be whether the property vested in the gram panchayat and I had allowed for both parties to argue the said point although it is concluded in favour of the plaintiffs in so far as the proprietorship was concerned by the two courts below.
(i) Contention of appellant: specific common purpose not spelt out in scheme. Hence, no vesting in gram panchayat.
9. The learned counsel for the appellants will refer me to the provisions under Section 23-A of the 1948 Act to contend that the management and control of the land left for common purposes would no doubt vest in a panchayat and there was nothing to show that the suit property had been assigned to any particular purpose that was reserved in common. The common purposes themselves are defined under Section 2(bb) which sets out 4 different uses and the reproduction of the Section itself will be most appropriate to consider the nature of common purpose and the manner of vesting contemplated under Section 23-A. Section 2(bb) of the 1948 Act is reproduced as under:-
"2(bb) "common purpose" means any purpose in relation to any common need, convenience or benefit of the village and includes the following purposes:- Kumar Sanjeev 2013.12.21 16:24 I attest to the accuracy and integrity of this document chandigarh
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(i) extension of the village abadi;
(ii) providing income for the Panchayat of the village
concerned for the benefit of the village community;
(iii) village roads and paths; village drains, village wells, ponds or tanks; village watercourses or water-
channels; village bus stands and waiting places; manure pits; hada rori; public latrines; cremation and burial grounds; Panchayat Ghar; Janj Ghar; grazing grounds; tanning places; mela grounds; public places of religious or charitable nature; and
(iv) schools and playgrounds, dispensaries, hospitals and institutions of like nature, water-works or tube-wells whether such schools, playgrounds, dispensaries, hospitals, institutions, water-works or tube-wells may be managed and controlled by the State Government or not."
Sub clause (iv), referred to above, that examines the use of a property for schools, playgrounds shall become vested in the State Government and for all other purposes mentioned in Clauses (i) (ii) and (iii), it will become vested in the panchayat. The learned counsel would argue that the common purposes mentioned would still make available only properties which were originally taken for common purpose but if not put to such use by a specific manner so Kumar Sanjeev 2013.12.21 16:24 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.1898 of 1981 (O&M) - 10 - spelt out, the property will revert to proprietors. All the properties that had not been put to use for a common purpose by the panchayat will qualify for an expression "Bachat land" which did not vest with the gram panchayat. The counsel would refer me to a Full Bench ruling of this Court in Jai Singh and others Versus State of Haryana-2003 HRR 357 that examines the constitutional validity of amendment which was made in the State of Haryana by introducing sub clause (6) and explanation to the definition of shamlat deh. The exception shall be a bachat land which the Full Bench ruled as a land which was not earmarked for a common purpose and left out as bachat under the consolidation scheme which would not vest in the gram panchayat and the proprietors could file a tile suit and the panchayat would have no concern with such land. This argument of the counsel was to point out that the amendment itself came only in the year 1992 and, therefore, the vesting provisions and wider explanation given to common purpose that vested in panchayat did not apply to suits which had been instituted before the Amendment Act and even after the amendment, the property that had been left out of common purpose and which had not been in the possession of the panchayat always vested with the proprietors and the plaintiffs' right cannot, therefore, be denied.
(ii) Gram Panchayat's contention: If property had been left in consolidation with Gram Panchayat, whether actually used or not, vesting in Gram Panchayat will take place. Kumar Sanjeev 2013.12.21 16:24 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.1898 of 1981 (O&M) - 11 -
10. The learned counsel for the respondents would join issue on the aspect of the reservation of the property as left out of common purpose by pointing out that the written statement is to the effect that the property was being used by the gram panchayat for a common purpose and was utilizing the same by leasing and the property, therefore, become vested with the gram panchayat. I have already held that the document filed by the respondent as additional evidence was to be received as an important piece of document and, therefore, it would be appropriate to refer to the terms of the scheme which were published on 15.01.1958. Para IV sets out the details of land left for common purposes. The various purposes are mentioned in 20 categories and the Category No.15 is the land of gram panchayat as mentioned as under:-
Sr. Name of Common Khasra No. Value Ordinary standard No. purpose
1. ..... .... .... ....
to 14
15. Land of Gram 61/1, 2, 9 to 12, 4//1, 240-0 80-11 Panchayat 2, 9 to 12, 19 to 22, 10//1, 2, 9 to 12, 19 to 22, 62//4 to 7, 14, 15, 1/25, 3//5/2 The counsel would argue that this property has been shown to be the property left for common purpose and this is the nature of common purpose as explained in the very same scheme. The scheme reads, inter alia, "......land left for use of general public be deducted from the landowners as per their land as there is no common land in this village and Gram Panchayat." In para 6, it is again stated, "There is Kumar Sanjeev 2013.12.21 16:24 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.1898 of 1981 (O&M) - 12 -
no common panna and common village land in this village." These two references, according to the counsel for the respondents, were a justification why the property was identified as common purpose and left in the enjoyment of the gram panchayat.
(iii) Proof of possession with Gram Panchayat
11. The counsel would also refer me to the document filed as D1 to D16 which are the leases conducted periodically by the gram panchayat in respect of the suit property. The jamabandis for the year 1958 gazette till the time of suit covered Ex.P6 to P17 referred to the ownership column as "mustarka malkan" and the cultivator's column has been shown as "makbuja gram panchayat deh". The Full Bench decision in Jai Singh's case (supra) actually has adverted to the manner of vesting in para 46 as under:-
"46. The land reserved for common purposes under Section 18(c), which might become part and parcel of a scheme framed under Section 14, for the areas reserved for common purposes, vests with the Government or Gram Panchayat, as the case may be, and the proprietors are left with no right or interest in such lands meant for common purposes under the scheme. There is nothing at all mentioned either in the Act or the rules or the scheme, that came to be framed, that the proprietors will lose right only with regard to land which was actually Kumar Sanjeev 2013.12.21 16:24 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.1898 of 1981 (O&M) - 13 -
put to any use and not the land which may be put to common use later in point of time. In none of the sections or rules, which have been referred to by us in the earlier part of the judgment, there is even slightest inkling that the scheme envisages only such lands which have been utilized. That part, in all the relevant sections and the rules, words mentioned are 'reserved or assigned'. Reference in this connection may be made to sub-section (3) of Section 18 and Section 23-A. The provisions of the statute, as referred to above, would, thus, further fortify that reference is to land reserved or assigned for common use, whether utilized or not."
12. The counsel would argue that only a property which is not reserved or earmarked for a common purpose would qualify as bachat land and a property which is earmarked for a common purpose although recorded as Jumla Mustarka Malkan would still vest in gram panchayat, if in the column of possession, it is shown that it was with gram panchayat. The reference to this argument is sourced to weight of consideration of the Full Bench in para 49 that reads thus:-
"49. The lands which, however, might have been contributed by the proprietors on prorata basis, but have not been reserved or earmarked for common purposes in Kumar Sanjeev 2013.12.21 16:24 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.1898 of 1981 (O&M) - 14 -
a scheme, known as Bachat land, it is equally true, would not vest either with the State or the Gram Panchayat and instead continue to be owned by the proprietors of the village in the same proportion in which they contributed the land owned by them. The Bachat land, which is not used for common purposes under the scheme, in view of provisions contained in Section 22 of the Act of 1948, is recorded as Jumla Mustarka Malkan Wa Digar Haqdaran Hasab Rasad Arazi Khewat but the significant difference is that in the column of ownership proprietors are shown in possession in contract to the land which vests with the Gram Panchayat which is shown as being used for some or the other common purpose as per the scheme."
If the property was, therefore, referred as having put to common use by the gram panchayat as for generating income for the gram panchayat and shown through the records that it was being leased out periodically, I would reckon that such a property is a property vesting with the gram panchayat whether it actually used or not. The relevant provision in the Act would be required to be reproduced. Section 23-A, which we have made reference earlier, reads thus:-
"23-A.-Management and control of lands for common purposes to vest in Panchayats or State Kumar Sanjeev 2013.12.21 16:24 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.1898 of 1981 (O&M) - 15 -
Government.- As soon as a scheme comes into force, the management and control of all lands assigned or reserved for common purposes of the village under Section 18:
(a) in the case of common purposes specified in sub-clause (iv) of clause (bb) of section 2 in respect of which the management and control are to be exercised by the State Government, shall vest in the State Government; and
(b) in the case of any other common purpose, shall vest in the Panchayat of that village;
and the State Government or the Panchayat, as the case may be, shall be entitled to appropriate the income accruing therefrom for the benefit of the village community, and the rights and interests of the owners of such lands shall stand modified and extinguished accordingly:
Provided that in the case of land assigned or reserved for the extension of village abadi or manure pits for the proprietors and non-proprietors of the village, such land vest in the proprietors and non- proprietors to whom it is given under the scheme of consolidation."
13. In this case, there is actually proof of user which is evident through the documents and by way of admission at the trial. The question of recovery of possession of such a property which is vested with the gram panchayat did not arise and I would find that a property which was reserved as common ought to therefore be Kumar Sanjeev 2013.12.21 16:24 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.1898 of 1981 (O&M) - 16 - treated as a property vesting in gram panchayat by virtue of Section 23-A(b). We have extracted the definition of "common purpose" and sub clause (ii) refers to a provision for income for the panchayat of the village concerned for the benefit of the village community must be taken as common purpose. There will be therefore no escape from the conclusion that the plaintiffs' right to recover possession does not arise in respect of a property that becomes vested with the gram panchayat.
14. I am not examining whether the amendment made in the year 1992 by introducing Section 2(6) and the explanation has any bearing to this case. Prospective or otherwise the manner of vesting contemplated under Section 23A(b) itself makes it irrecoverable at the instance of the plaintiff and the successor.
15. The second appeal is consequently dismissed with costs. Counsel's fee ` 10,000/-.
(K.KANNAN) JUDGE 18.12.2013 sanjeev Kumar Sanjeev 2013.12.21 16:24 I attest to the accuracy and integrity of this document chandigarh