Himachal Pradesh High Court
Jagdish Chand And Others vs Amar Singh And Others on 1 July, 2015
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
RSA No. 228 of 2002 alongwith .
RSA No. 490/2002Reserved on: 1.6.2015 Decided on: 1.7.2015 ______________________________________________________
1. RSA No. 228 of 2002 Jagdish Chand and others. ...Appellants.
Versus
Amar Singh and others. ...Respondents.
2. RSA No. 400 of 2002
State of Himachal Pradesh. ...Appellant.
Versus
Jagdish Chand and others. ...Respondents.
______________________________________________________________ Coram:
Hon'ble Mr. Justice Rajiv Sharma, Judge.
Whether approved for reporting?1 YES (RSA No.228/2002) For the Appellants : Mr. Bhupender Gupta, Sr. Advocate with Mr. Ajit Jaswal, Advocate.
Mr. Sameer Thakur, Advocate vice Mr. O.P. Thakur, Advocate for respondents No. 1 to 3.
Mr. Parmod Thakur, Addl. A.G. for respondent No.5.RSA No. 490/2002
Mr. Parmod Thakur, Addl. A.G. for the Appellant-State.1
Whether reporters of the local papers may be allowed to see the judgment? YES ::: Downloaded on - 15/04/2017 18:29:19 :::HCHP 2 Mr. Bhupender Gupta, Sr. Advocate with Mr. Ajit Jaswal, Advocate for respondents No. 1, 6 to 12.
.
Mr. Sameer Thakur, Advocate vice Mr. O.P. Thakur, Advocate for respondent Nos. 3 to 5.
____________________________________________________________ Justice Rajiv Sharma, Judge.
Since both the Regular Second Appeals are directed against the common judgment and decree dated 18.4.2002 rendered by the District Judge, Hamirpur in Civil Appeal Nos.
134/1993 and 151/1993, the same were taken up together and are being disposed of by a common judgment.
2. "Key facts" necessary for the adjudication of this appeal are that the legal heirs of plaintiff-respondent Jalha Ram (herein after referred to as 'plaintiff' for convenience sake) instituted a Civil Suit No. 68/1979 against the appellants-defendants and respondent No.4 Tikka Maheshwar Chand for permanent injunction and mandatory injunction in the representative capacity with the averments that the land entered in Khata No.1 min, Khatauni Nos. 7 and 8, Khasra Nos. 751/591 min, 617, 751/591 min measuring 14 kanals and Khata No.91, Khatauni No.111, Khasra Nos. 752/591 and 754/591 measuring 12 Kanals total area of both the khatas measuring 26 kanals, situated ::: Downloaded on - 15/04/2017 18:29:19 :::HCHP 3 in Tikka Jhalan, Mauza Hathol, Tehsil and District Hamirpur, as per jambandi for the year 1970-71 is recorded .
in the ownership of the defendants and Bartandari rights of the plaintiff and other Tikadarans of the proprietary body of the Tika Jhalan as per letter No. 1353 dated 11.3.1897 in the remarks column. The suit land was owned by Maheshwar Chand, originally arrayed as defendant No.1 and his ancestors since long and was subject to the Bartandari rights of the plaintiff and other Tikadarans. Defendant No.1 has sold his ownership rights to appellants-defendants and Jagdish Chand, predecessor-in-interest of defendant Nos. 2 to 8 Paras Ram. The suit land was Banjar Kadim in the shape of 'Charand' in which plaintiff and other Tikadarans have Bartandari rights of grazing, sandh bihag, extracting land and stones, cutting bushes etc. and burying children and their animals and other rights subservient to it.
Defendants No.2 to 9, appellant Jagdish Chand and legal heirs of Paras Ram were unnecessarily interfering in the Bartandari rights of the plaintiff and other Tikadarans.
3. Defendant No.2, namely, Jagdish Chand and legal heirs of Paras Ram filed their separate written statements.
According to them, they have enclosed the suit property for ::: Downloaded on - 15/04/2017 18:29:19 :::HCHP 4 the last 20 years and have also constructed houses. The plaintiff and other Tikadarans were neither exercising nor .
allowed to exercise alleged Bartandari rights over the suit land. The alleged Bartandari rights were never exercised on the spot over the suit land for over 12 years. The suit land was also under cultivation for more than 12 years.
4. The State of Himachal Pradesh was also ordered to be added as defendant No.10 vide judgment dated 31.5.1985. State Government has also filed written statement.
rAccording to the averments contained in the written statement, now under the H.P. Village Common Lands Vesting and Utilization Act, 1974, the land in question was vested in the State of H.P. free from all encumbrances and the rights of Tikkadarans including plaintiff and defendants No.1 to 9 were put to an end.
5. Separate replications were filed. Issues were framed by the learned Sub Judge 1st Class (II), Hamirpur on 23.12.1980. The suit was decreed on 31.1.1984. Defendant Jagdish Chand and legal heirs of Paras Ram filed an appeal before the District Judge, Hamirpur. The judgment and decree of the trial court dated 31.1.1984 was set aside by the learned District Judge on 31.5.1985 and the case was ::: Downloaded on - 15/04/2017 18:29:19 :::HCHP 5 remanded back and the plaintiff was permitted to file amended plaint after adding Collector, Hamirpur as .
defendant No.10. Learned Sub Judge 1st Class (II), Hamirpur framed additional issues on 21.2.1986, including "Whether the land in suit has been legally vested in the State of H.P." Learned Sub Judge 1st Class dismissed the suit on 28.4.1986. Plaintiff Jalha Ram instituted an appeal against the judgment dated 28.4.1986. Learned District Judge allowed the appeal on 7.6.1993 and remanded the matter back to the trial court for deciding the suit afresh. The trial court decreed the suit on 19.8.1993. Defendant Jagdish Chand, legal heirs of original plaintiff Jahla Ram and the State of H.P. instituted appeals against the judgment and decree dated 19.8.1993 by way of Civil Appeal Nos.
134/1993, 145/1993 and 151/1993. Learned District Judge on 18.4.2000 allowed Civil Appeal No. 145 of 1993 and the suit was decreed as a whole and the defendants were restrained from causing interference in the Bartandari rights of the plaintiff and other Tikadarans over the entire suit land. The appeal filed by defendant No.2 Jagdish Chand and connected appeal No. 151/1993 filed by the State of H.P. were dismissed. Hence, the present Regular Second Appeals.
::: Downloaded on - 15/04/2017 18:29:19 :::HCHP 6The appeal filed by Jagdish Chand and legal heirs of Paras Ram challenged the judgment and decree dated 18.4.2002 in .
Civil Appeal No. 134/1993 and the State of H.P. challenged the judgment and decree dated 18.4.2002 in Civil Appeal No. 151/1993. RSA No. 228/2002 was admitted on 16.8.2002 on the following substantial questions of law:
1. "Whether the first appellate Court had no jurisdiction to go into the question of validity of the conferment of the proprietary rights qua a part of the suit land particularly in the absence of the persons on whom such proprietary rights were conferred, namely, S/Sh. Raj Kumar and Shiv rDutt. If so, its effect?
2. Whether the judgment and decree of the first appellate Court is perverse, and against the settled position of law that the land which vests in the State under the H.P. Village Common Land (Vesting & Utilization) Act, vests free from all encumbrances?
3. Whether theCivil Courts had no jurisdiction to try the suit?
4. Whether the suit was precluded under Order 9 Rule 9 of the Code of Civil Procedure?"
6. RSA No. 490/2002 was also admitted on the substantial questions of law, on which RSA No. 228/2002 was admitted since both the appeals had arisen from the same judgment and decree. RSA No.490/2002 was connected with RSA No. 228 of 2002 on 12.11.2002.
7. Mr. Bhupender Gupta, learned Senior Advocate, on the basis of the substantial questions of law has ::: Downloaded on - 15/04/2017 18:29:19 :::HCHP 7 vehemently argued that both the courts below have not properly construed oral as well as documentary evidence. He .
then contended that the Civil Court had no jurisdiction to try the suit.
8. Mr. Parmod Thakur, learned Additional Advocate General has vehemently argued that the property has vested in the State of Himachal Pradesh free from all encumbrances under section 3 of the Himachal Pradesh Village Common Lands Vested and Utilization Act, 1974.
9. Mr. Sameer Thakur has supported the judgment and decree dated 18.4.2002.
10. I have heard the learned counsel for the parties and have gone through the records carefully.
11. Since all the substantial questions of law are interlinked and interconnected, they are being discussed together to avoid repetition of discussion of evidence.
12. This case, as noticed hereinabove, has chequered history. The suit filed by the plaintiff was decreed on 31.1.1984. It was remanded back. The trial court dismissed the suit. It was again remanded back on 7.6.1993. The trial court has partly decreed the suit on 19.8.1993 and the first ::: Downloaded on - 15/04/2017 18:29:19 :::HCHP 8 appellate court has decreed the suit in its entirety on 18.4.2002.
.
13. According to PW-1 Jahla Ram, the suit land was owned by Raja Nadaun. The residents have rights to burry their dead animals and to use the land for answering the call of nature. These Bartandari rights were in existence since their ancestors.
14. PW-2 Hans Raj and PW-3 Sunder Singh have corroborated the statement of PW-1 Jahla Ram.
15. DW-1 Jagdish Chand has deposed that he has purchased the land from Raja Sahib in the year 1968. The sale deed was duly registered. Mutation was also attested in his favour. He has enclosed the suit land. He has cultivated the part of the suit land. In his cross-examination, he has deposed that the mutation might have been attested in the year 1968. He did not know the total sale consideration he paid at the time of buying the land. He did not know about the nature of the land. He could not produce the sale deed.
16. DW-2 Dalip Chand has deposed that the land was owned by Jagdish for the last 15-16 years. He has fenced the land. He has admitted in his cross-examination that the ::: Downloaded on - 15/04/2017 18:29:19 :::HCHP 9 residents of the area used to have Bartandari rights when Raja was owner of the land.
.
17. DW-3 Om Parkash has deposed that the portion of the land was cultivable and the remaining was Banjar.
However, in his cross-examination, he has deposed that in Jamabandi the suit land is entered as Banjar Kadim.
18. In rebuttal, plaintiff has examined Lakha Ram.
PW-4 Lakha Ram has deposed that the residents have Bartandari rights over the suit land. The land never came in possession of the defendants. It was Banjar.
19. PW-5 Rangil Singh has also deposed that neither Jagdish nor Paras Ram became owner of the land. Residents have every right over the suit land.
20. Plaintiff also examined three more additional witnesses, i.e. Gian Singh, Jagdish Chand and Dharam Singh. PW-1 Gian Singh has deposed that the villagers have Bartandari rights over the suit land. The land was Banjar.
PW-2 Jagdish Chand has deposed that the land was previously owned by Raja Nadaun. The villagers have Bartandari rights over the suit land. PW-3 Dharam Singh has testified that the land was Shamlat. The villagers were having their Bartandari rights over the same. PW-4 Jahla ::: Downloaded on - 15/04/2017 18:29:19 :::HCHP 10 Ram has also deposed that all the villagers have Bartandari rights over the suit land. The land in question was Shamlat.
.
21. DW-1 Jagdish Chand has again reiterated that he has purchased the portion of the land and also taken the land on lease. He used to pay rent @ Rs 2/- and @ Rs.1.50 paisa. He has tendered the receipts in earlier litigation.
22. DW-2 Sikander Singh has deposed that he has seen the Shamlat land.
23. The plaintiff has proved Ex.P-1 and P-2, copies of Jamabandi for the year 1970-71, Ex.P-3 copy of Wazib-Ul-
Aarj, Ex.P-4 list of Tikadarans, Ex.P-5 copy of Jamabandi for the year 1960-61, Ex.P-6 copy of Jamabandi for the year 1944-45, Ex.P-7 copy of Jamabandi for the year 1970-71, Ex.P-8 copy of Jamabandi for the year 1977-78, Ex.P-9 copy of Jamabandi for the year 1965-66, Ex.P-10 and P-11 copies of Jamabandi for the year 1977-78 and Ex.P-12 copy of Jamabandi for the year 1982-83. Defendants have proved copies of Jamabandi, pedigree table and Khasra Girdwari Ex.D-1 to Ex.D-28 alongwith copies of mutations.
24. According to appellant Jagdish Chand, he has purchased the portion of the suit land in the year 1968 and he was also tenant over the suit land and has paid rent @ Rs.::: Downloaded on - 15/04/2017 18:29:19 :::HCHP 11
2/- and @ Rs. 1.50 paisa. It is evident from the Jamabandi starting from 1910-1911 till 1968-69 that there is a reference .
to order passed by the Financial Commissioner dated 11.3.1897 whereby rights of Bartandars were protected. It is only in the year 1970-71 that the entries were changed whereby defendant Jagdish Chand and predecessor-in-
interest of Paras were shown as owners. In these entries also, there is a reference to order of the Financial Commissioner to protect the rights of Bartandars.
According to Wazib-ul-arz Ex.P-3 Bartandarans have common rights over the suit land. The list of Bartandarans is Ex.P-4. The witnesses of the plaintiffs have also admitted that it was Shamlat land and was used as such. It is also clear from the entries, as noticed hereinabove, that the land was Shamlat though entry of Banjar Kadim has been made. The plaintiffs and other similarly situate persons could exercise their Bartandari rights if the land was Shamlat and not otherwise. Jagdish Chand has specifically deposed that he has purchased the land in the year 1968, but he could not produce the sale deed.
25. Now, as far as the conferment of proprietary rights is concerned, there is no order on the basis of which entries ::: Downloaded on - 15/04/2017 18:29:19 :::HCHP 12 in Jamabandi were made conferring the proprietary rights upon Jagdish Chand and others. PW-1 Gian Singh and PW-3 .
Dharam Singh have admitted that the suit land was Shamlat. The part of the suit land was mutated in favour of the State as owner. The land was used for common purposes by villagers. Moreover, the defendants could not acquire proprietary rights since it was a Banjar Kadim land. Thus, there was no cultivation on the land.
26. The Punjab Village Common Lands (Regulation) Act, 1953 was repealed by the Punjab Village Common Lands (Regulation) Act, 1961 whereby the Shamlat lands were vested in the Punjab for the benefits of inhabitants. Sub-
section (g) of section 2 defines the Shamilat land as under:
"Shamilat deh" includes-
( 1) lands described in the revenue records as shamilat deh excluding abodi deh;
(2) shamilat tikkas;
(3) lands described in the revenue records as shamilat, tarafs, pattis, pannas and tholas and used according to revenue records for the benefit of the village community or a part thereof or for common purposes of the village;
(4) lands used or reserved for the benefit of village community including streets, lones, playgrounds, schools, drinking wells, or ponds within abadi deh or gorah deh; and (5) lands in any village described as banjar qadim and used for common purposes of the village according to revenue Records"::: Downloaded on - 15/04/2017 18:29:19 :::HCHP 13
27. Section 3 of the Act defines the lands to which the Act applied. It is evident from sub-clause (3) of clause (g) of .
section 2 that the land described in the revenue records as Shamlat, tarafs, patties, pannas and tholas and used according to revenue records for the benefit of the village community or a part thereof or for common purposes of the village was included in the definition of Shamlat deh. It is also evident from section 2 (g) (5) that of the Punjab Village Common Lands (Regulation) Act that the land in any village described as Banjar Kadim and used for common purposes of the village according to revenue records would also falls within the expression of "Shamlat". The rights of the villagers have been protected by the Financial Commissioner as per letter No. 1353 dated 11.3.1897. These lands vested in the State of Himachal Pradesh after the enforcement of the Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974. It was also made clear that the land to which the Punjab Act was applicable, it would be deemed to be vested with the State of Himachal Pradesh. Thus, the Shamlat land was required to be vested initially in the Punjab as per the Punjab Village Commons Lands (Regulation) Act, 1961 and thereafter in the State of H.P. free ::: Downloaded on - 15/04/2017 18:29:19 :::HCHP 14 from all encumbrances. The area in question was part of the Punjab and after the Punjab Reorganization Act, 1966 has .
merged with the State of Himachal Pradesh.
28. Learned Single Judge of Punjab and Haryana High Court in Rattan Singh and another vs. The Commissioner, Ambala Division and others, 1993 PLJ 667 has held that the land described as Banjar Kadim will fall in the definition of Shamalat land. Learned Single Judge has also held that even if the entries in the Wajib-ul-arz are not repeated in later settlement, evidentiary value of entries remain the same. Learned Single Judge has held as under:
"4. Learned counsel for the petitioners contended that the land in dispute was not Shamlat Deh as defined in Section 2 (g) (5) of the Act. According to the learned counsel, the land was never used for common purpose of the village as per the revenue record and the same was in possession of the village as per the revenue record and the same was in possession of the petitioners on January 9, 1954.
It could only vest in the Gram Panchayat if the same was being used for the benefit of the village community according to the revenue record. The entry 'Makbuja Malkan' appearing in the Jamabandi for the year 1954-55 did not mean that it was being used for the common purposes of the village. The land was Banjar Qadim on January 9, 1954 and was owned and possessed by the Biswedars of Panna Bhuchan. He counsel in support of his submission, placed strong reliance on Gram Panchayat Sadhraur (Foermerly Dhumma) and Gram Sabha Sadhraur v. Baldev Singh and others, 1977 PLJ 276 (Full Bench) and Des Raj and another v. The Gram Sabha of Village Ladhot and another, 1981 PLJ 300.
6. Section 2 (g) (5) of the Act reads as under: -
"2(g) 'Shamlat Deh' includes -::: Downloaded on - 15/04/2017 18:29:19 :::HCHP 15
(5) lands in any village described as banjar qadim and used for common purposes of the village according to revenue records:"
On the relevant date, viz. January 9, 1954, the land in .
dispute was described in the revenue record as 'Banjar Qadim Makbuja Malkan", The user of the land was not recorded in the Jamabandi for the year 1953-54. It has been found, as already noticed that the land was not in the cultivating possession of co-
sharers on the relevant date. It was recorded as Banjar Qadim in possession of the Malkan. The fact that the land was brought under cultivation by the co-sharers after January 9, 1954 would not in any way help them as this act of theirs cannot take away the land out o the definition of Shamilat Deh. The provisions of Section 2
(g)(5) reproduced above are couched in clear language. The land described as Banjar Qadim and used for the common purposes of the village will fall in the definition of Shamilat Deh.
8. It has been held in Jati and others v. Gram Panchayat Bichhpari 1979 PLJ 595, that Sharat Wajib-ul-arz is a part of record of rights and a Revenue Act and even if the entrie in the Wajib-ul-ar are not repeated in the later Settlement, its evidentiary value remains the same. A reading of the entry in the Wajib-ul-arz reproduced above in the contenxt of this case clearly shows that the land in dispute which was recorded as Banjar Qadim Makbuza Malkan, was being used by the village community for common purposes i.e. for grazing the cattle. The cattle of the proprietors and the non-proprietors had thus a right to graze in the land. User of the land for common purposes, though not recorded in the Jamabandi for the year 1953-54 yet the entry in the Wajib-ul-arz would continue to show that the land was being used for common purposes of the village unless this entry was later altered. It was so done somewhere in the year 1963, but that would not make any difference, the relevant date, being Janaury 9, 1954. The land thus in my view has rightly been held to fall in the definition of Shamilat Deh."
29. In the instant case, in Ex.P-3 copy of Wajib-ul-arz, as noticed hereinabove, the land was reserved for the village community, i.e. grazing of cattle, burying of dead animal etc. ::: Downloaded on - 15/04/2017 18:29:19 :::HCHP 16
30. The first appellate court has come to a wrong conclusion that the suit land was entered in the revenue .
record as Banjar Kadim and it would not vests in the State of H.P. free from all encumbrances. The land was always Shamlat. However, the findings recorded by the first appellate court that the defendants have failed to prove that they have become tenants are affirmed. The entries made in Jamabandi for the year 1970-71 in favour of defendants were abrupt/stray and were without any order passed by any competent authority. Even according to Wazib-ul-arz, as noticed hereinabove, Bartandars have common right over the suit land.
31. Their Lordships of the Hon'ble Supreme in Raja Rajinder Chand vs. Mst. Sukhi and others, AIR 1957 SC 286 have held that the Wajib-ul-arz, though it does not create a title, gives rise to a presumption in its support which prevails unless the presumption is promptly displaced. Their Lordships have held as under:
"[19] It is not disputed that under S. 31 of the Punjab Land- Revenue Act, 1887, Wajib-ul-arz is a part of the record-of-rights, and entries made therein in accordance with law and the provision, of Ch. IV of the Act and the rules thereunder, shall be presumed to be true (vide S. 44). The Wajib-ul-arz or village administration paper is a record of existing customs regarding rights and liabilities in the estate; it is not to be used for the creation of new rights or ::: Downloaded on - 15/04/2017 18:29:19 :::HCHP 17 liabilities. (see para.295 of the Punjab Settlement Manual, pp.146- 147, 1930 ed.). In appendix VIII of the Settlement Manual, Section E, are contained instructions with regard to the Wajib-ul-arz and .
instruction No. 2 states:
"The statement shall not contain entries relating to matters regulated by law, nor shall customs contrary to justice, equity or good, conscience, or which have been declared to be void by any competent authority, be entered in it. Subject to these restrictions, the statement should contain information on so many of the following matters as are pertinent to the estate:
........................................................................
(h) The rights of cultivators of all classes not expressly provided for by law (for instance, rights to trees or manure, and the right to plant trees) and their customary liabilities other than rent.
........................................................................ r (j) The rights of government to any nazul property, forests, unclaimed, unoccupied, deserted, or waste lands, quarries, ruins or objects of antiquarian interest, spontaneous products, and other accessory interest in land included within the boundaries of the estate.
...................................................................
(l) Any other important usage affecting the rights of landowners, cultivators or other persons interested in the estate, not being a usage relating to succession and transfer of landed property"
[20] In the cases before us, the appellant did not base his claim on custom, though referring to his right he said in his plaint - 'this has been the practice throughout'. What he really meant by 'practice' was the land system prevailing under the old independent Katoch rulers. We have already held that the appellant did not get the sovereign right of the independent Katoch rulers; nor did the grant made in 1842 gave him any right to the royal trees. The entry in the Wajib-ul-arz of 1892-93 (Ex. P-5) is not really in his favour, it states that trees of every kind shall be considered to be the property of the owners (adna maliks), but the owners shall have no right to pine trees; for this last part of the entry which is somewhat contradictory of the earlier part, a reference is made to pare. 78 of Anderson's Forest Settlement Report as authority for it. That ::: Downloaded on - 15/04/2017 18:29:19 :::HCHP 18 paragraph, however, stated in clear terms - 'No orders have begin passed by me in regard to trees on fields, as the present enquiry extended only to the waste land'. it is obvious that the entry in the .
Wajib-ul-arz of 1892- 93 went much beyond what was stated in para.
78 of Mr. Andersons' report, and so far as the right to pine trees on proprietary and cultivated lands was concerned, the statement made a confusion between Government jungle, recently reclaimed land and proprietary land. On its own showing, the entry was not the statement of an existing custom, because it referred to para.78 of the Forest Settlement Report; far less did it show any surrender or relinquishment of a sovereign right by Government in favour of the Raja. Indeed, it is difficult to understand how the surrender or relinquishment of such a right can be the subject of a village custom or can be within the scope of an entry in the Wajib-ul-arz. The original grant in favour of Raja Jodhbir Chand was by means of a Sanad, and one would expect any additional grant or surrender to be embodied in a similar document. At any rate, if the intention of government was to surrender a sovereign right in favour of the Raja, one would expect such intention to be expressed in unambiguous language. In Khalsa villages, Government did surrender their right to trees on Shamilat lands of adna-maliks on the authority of letter No. 347 of January 6, 1867. Taking the most favourable view for the appellant, the entries in the Wajib-ul-arz in these cases can be said to express the views of certain revenue authorities as to the rights of the Raja or the intention of Government; but the views of the revenue authorities as to the effect or construction of a grant or the intention of government in respect of a grant, do not conclude the matter or bind the civil Courts. (See Rajah Venkata Narasimha Appa Row v. Rajah Narayya Appa Row, 7 Ind App 38 (PC) (B)).
[22] A large number of decisions in which entries of the Wajib-ul-arz of the Riwaji-i-am and the value to be given to them were considered, have been cited before us. In some of them, entries in the Wajib-ul-arz were accepted as correct and in others they were not so accepted, notwithstanding the statutory presumption attaching to the entries under S. 44 of the Punjab Land Revenue Act, 1887. We do not think that any useful purpose will be served by examining those decisions in detail. The legal position is clear enough. As was observed by the Privy Council in ::: Downloaded on - 15/04/2017 18:29:19 :::HCHP 19 Dakas Khan v. Ghulam Kasim Khan, AIR 1918 PC 4 (C), the Wajib- ul-arz, though it does not create a title, gives rise to a presumption in its support which prevails unless the presumption is properly .
displaced. It is also true that the Wajib-ul-arz being part of a revenue record is of greater authority than a Riwaji-i-am which is of general application and which is not drawn up in respect of individual villages, Gurbakhsh Singh v. Mst. Partapo, ILR 2 Lah 346 : (AIR 1922 Lah 234) (D). Whether the statutory presumption attaching to any entry in the Wajib-ul-arz has been properly displaced or not must depend on the facts of each case. In the cases under our consideration, we hold ,for the reasons already given by us, that the entries in the Wajib-ul-arz with regard to the right of the Raja in respect of chil trees standing on cultivated and proprietary lands of the adna-maliks, do not and cannot show any existing custom of the village, the right being a sovereign right; nor do they show in unambiguous terms that the sovereign right was surrendered or relinquished in favour of the Raja. In our view, it would be an unwarranted stretching of the presumption to hold that the entries in the Wajib-ul-arz make out a grant of a sovereign right in favour of the Raja; to do so would be to hold that the Wajib-ul-arz creates a title in favour of the Raja which it obviously cannot."
32. Their Lordships of the Hon'ble Supreme Court in State of Punjab vs. M/s Vishkarma and Co. and others, 1993 Sup (3) SCC 62 have held that Wajib-ul-arz is a document included in the record of rights cannot be disputed since it contains the statements on matters envisaged under clauses (a) and (b) of sub-section (2) of section 31 of the Punjab Land Revenue Act, 1887. Their Lordships have held as under:
"[7] Brick-earth with which we are concerned in the present appeals, is a minor mineral was not disputed, although it is not any of the mines or minerals covered by Section 41 of the Revenue Act ::: Downloaded on - 15/04/2017 18:29:19 :::HCHP 20 as would make itbecome the property of the State. If the owner of such brick-earth is the State of Punjab, liability to pay royalty for removal of such brick-earth and to obtain permit or licence for such .
removal, necessarily arises because of the operation of the Act and the Rules. But the courts below have concurrently found that the brick-earth concerned in the suits out of which the present appeals have arisen was in lands which formed the estates of the private owners and as such the same belonged to such landowners. It is so found on their reading of the entries in Wajib-ul-arz pertaining to the concerned estates. That Wajib-ul-arz is a document included in the record-of-rights cannot be disputed since it contains the statements on matters envisaged under clauses (a) and (b) of Ss. (2 of Section 31 of the Act. According to the courts below Wajib-ul-arz document being record-of-rights of estates completed after November 18, 1871, and there being nothing expressly stated in them that the forest or quarry or land or interest in the estates belong to the government, the lands in such estates including brick-
earth in them shall be presumed to belong to the concerned landowners as is declared in Ss. (2 of Section 42 of the Revenue Act."
33. Their Lordships of the Hon'ble Supreme Court in Shish Ram and others vs. State of Haryana and others, (2000) 6 SCC 84 have held that the definition of Shamilat deh provides that it shall include "lands described in the revenue record as Shamilat deh or (Charand in Haryana) excluding abadi deh". Their Lordships have held as under:
"[7] Learned counsel for the appellants then tried to make a distinction between the charand land and the shamilat deh. In support of his contentions he referred to Annexures I and II wherein the land, the subject matter of the dispute has been defined to be charand land. The definition of shamilat deh provides that it shall include "lands described in the revenue record as shamilat deh or (charand-in Haryana) excluding abadi deh". Relying upon the Khushi ::: Downloaded on - 15/04/2017 18:29:19 :::HCHP 21 Puri's case (1978 Pun LJ 78) the High Court in the impugned judgment was, therefore, right in holding that there did not exist any distinction between the charand and shamilat deh and the .
contention of the appellants that the charand could not vest with the Gram Panchayat under the Act was based upon wrong assumptions."
34. Their Lordships of the Hon'ble Supreme Court in State of H.P. vs. Tarsem Singh and others, (2001) 8 SCC 104 while interpreting section 3 of the H.P. Village Common Lands Vesting and Utilization Act, 1973 have held that consequences of vesting of right in the land free from all encumbrances is that the interest, right and title to the land including the easementary right stood extinguished and such rights vested in the State free from all encumbrances.
Contention that easementary rights being over the land rather than "in" the land would not vest in the State was expressly rejected. Their Lordships have held as under:
"[9] In the present case, S.3 of the Act starts with a non obstante clause. Notwithstanding contained in any law, agreement, instrument, custom or usage or any decree of the Court, all rights, title and interests in the land shall stand extinguished and all such rights, title and interest shall vest in the State free from all encumbrances. If we accept the argument of learned counsel for the respondents that easementary right being over the land and the same has not vested in the State under S.3 of the Act, the result would be that the land would carry burden or charge affecting possession, interests and rights in the land. Such a meaning cannot be given to the expression 'free from encumbrances.' When the legislature has used the expression 'free from encumbrances,' it ::: Downloaded on - 15/04/2017 18:29:19 :::HCHP 22 means the vesting of land in the State is without any burden or charge on the land, including that of easementary right. We are, therefore, of the view that the consequence of vesting of right in .
the land free from all encumbrances is that the interest, right and title to the land including the easementary right stood extinguished and such rights vested in the State free from all encumbrances.
35. Their Lordships of the Hon'ble Supreme Court in Ramkanya Bai and another vs. Jagdish and others, (2011) 7 SCC 452 have held that Wajib-ul-arz is the record of customs in a village in regard to (i) easements including the right to irrigation and right of way; and (ii) the right to fishing in privately owned/held lands and water bodies. Their Lordships have further held that customary easements are the most difficult to prove among easements. Their Lordships have held as under:
"13. It is thus clear that what could be decided under section 131 of the Code is a dispute relating to a claim for a customary easement over a private land, relating to a right of way or right to take water, which is not recognized and recorded as a customary easement in the village Wajib-ul-arz.
30. Wajib-ul-arz is thus the record of customs in a village in regard to (i) easements (including the right to irrigation and right of way); and (ii) the right to fishing in privately owned/held lands and water bodies. The entries therein could be modified in the manner provided in sub-section (5) of section 242 of the Code. Though the Code provides for maintaining a record of all customary easements imposed upon privately held lands and water bodies, significantly the Code does not provide the remedies available in the event of disturbance or interference with such easements recorded in Wajib-
ul-arz, as the remedy is only way of a suit before the civil court.
::: Downloaded on - 15/04/2017 18:29:19 :::HCHP 2331. Customary easements are the most difficult to prove among easements. To establish a custom, the plaintiff will have to show that .
(a) the usage is ancient or from time immemorial;
(b) the usage is regular and continuous;
(c) the usage is certain and not varied; and
(d) the usage is reasonable. If the Wajib-ul-arz (where such a record is maintained) records or shows the customary easement, it would make the task of civil courts comparatively easy, as there will be no need for detailed evidence to establish the custom. Be that as it may. If the remedy for violation of a customary easement recognized and recorded in the Wajib-ul-arz is by way of a civil suit, it is inconceivable that in regard to violation of a customary easement not recognized or recorded in the Wajib-ul-arz, the remedy would be only by way of a summary enquiry by the Tahsildar under section 131 of the Code, and not by a suit, before the civil court."
36. Mr. Bhupender Gupta, learned Senior Advocate has vehemently argued on the basis of substantial questions of law that section 10 of the H.P. Village Common Lands Vesting and Utilization Act, 1973 bars the jurisdiction of the Civil Courts. Learned District Judge, Hamirpur while remanding the matter to the trial court vide judgment dated 31.5.1985 has categorically laid down that the three material issues were required to be decided after taking into consider the provisions of the Punjab Village Common Lands (Regulation) Act, 1961 and Himachal Pradesh Village Common Lands (Vesting and Utilization) Act, 1974, more particularly, since case of the plaintiff was that the suit land ::: Downloaded on - 15/04/2017 18:29:19 :::HCHP 24 was Shamlat and it was recorded in the ownership of Raja Nadaun by the then Financial Commissioner, Punjab who .
had protected the common rights of the villagers recorded in the Wazib-ul-arz. Thereafter, the trial court has framed the following additional issue:
"Whether the suit was not maintainable in the present form?
OPD-10"
37. The State Government had taken a specific preliminary objection in the written statement, which reads as under:
"That the learned court has no jurisdiction to entertain and try to present suit under H.P. Village Common Lands Vesting & Utilization Act, 1974".
38. This issue has not been considered by the courts below in right perspective by taking into consideration section 10 of the Punjab Village Commons Lands (Regulation) Act, 1961.
39. In a recent judgment, their Lordships of the Hon'ble Supreme Court in Sarjeet Singh (Dead) through Legal representatives vs. Hari Singh and others, (2015) 1 SCC 760 while interpreting sections 7, 11 and 13 of the Punjab Village Common Lands (Regulation) Act, 1961 have held that the civil court had no jurisdiction to entertain or ::: Downloaded on - 15/04/2017 18:29:19 :::HCHP 25 adjudicate upon any question pertaining to Shamilat deh.
Their Lordships have held as under:
.
"6. 'Shamilat' connotes commonality of possession, in contradistinction to ownership individually or severally. Shamilat deh are common or village lands. Banjar in common parlance means fallow or barren or unproductive hence shamilat banjar common uncultivable lands and banjar qadim common/village lands left fallow for a long period. Patti/Pati has various contextual connotations including a strip of land detached from the original village though dependent on it; it is a subdivision of land.
7. For facility of reference Section 2(g) of the Punjab Village Common Lands (Regulations) Act, 1961 as applicable to Haryana is extracted below:-
2(g) "Shamilat deh" includes -
(1) Land described in the revenue records as Shamilat deh or Charand excluding abadi deh;
(2) shamilat tikkas;
(3) lands described in the revenue records as shamilat, tarafs, pattis, pannas and tholas and used according to revenue records for the benefit or the village community or a part thereof or for common purposes of the village;
(4) lands used or reserved for the benefit of the village community including streets, lanes, playgrounds, schools, drinking wells, or ponds within the sabha area as defined in clause (mmm) of Section 3 of the Punjab Gram Panchayat Act, 1952, excluding lands reserved for the common purposes of a village under Section 18 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (East Punjab Act 50 of 1948), the management and control whereof vests in the State Government under Section 23-A of the aforesaid Act; and (4a) vacant land situate in abadi deh or gorah deh not owned by any person;
(5) lands in any village described as banjar qadim and used for common purposes of the village according to revenue records;
Provided that shamilat deh at least to the extent of twenty-five per centum of the total area of the village does not exist in the village; but does not include land which -
::: Downloaded on - 15/04/2017 18:29:19 :::HCHP 26(i) becomes or has become shamilat deh due to river action or has been reserved as shamilat in villages subject to river action except shamilat deh entered as pasture, pond or playground in the revenue .
records;
(ii) has been allotted on quasi- permanent basis to displaced person; (iia) was shamilat deh, but has been allotted to any person by the Rehabilitation Department of the State Government, after the commencement of this Act, but on or before the 9th day of July, 1985;
(iii) has been partitioned and brought under cultivation by individual land-holders before the 26th January,1950;
(iv) having been acquired before the 26th January, 1950, by a person by purchase or in exchange for proprietary land from a co- sharer in the shamilat deh and is so recorded in the jamabandi or is supported by a valid deed;
(v) is described in the revenue records as shamilat, taraf, pattis, pannas and thola and not used according to revenue records for the benefit to the village community or a part thereof or for common purposes of the village;
(vi) lies outside the abadi deh and was being used as gitwar, bara, manure pit, house or for cottage industry immediately before the commencement of this Act;
(vii) Omitted by Act No. 18 of 1995;
(viii) was shamilat deh, was assessed to land revenue and has been in the individual cultivating possession of co-sharers not being in excess of their respective shares in such shamilat deh on or before the 26th January, 1950; or
(ix) is used as a place of worship or for purposes subservient thereto; lands reserved for the common purposes of a village under Section 18 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (East Punjab Act 50 of 1948), the management and control whereof vests in the Gram Panchayat under Section 23-A of the aforesaid Act. Explanation.- Lands entered in the column of ownership of record of rights as 'Jumla Malkan Wa Digar Haqdaran Arazi Hassab Rasad', 'Jumla Malkan' or 'Mushtarka Malkan' shall be shamlat deh within the meaning of this section.
::: Downloaded on - 15/04/2017 18:29:19 :::HCHP 27[8] We shall now return to the facts of the case in hand. The jamabandi relating to the subject land recites that the owner of the subject land is Shamilat Patti. Hardwari and Mangal were holding .
the land as Gair Marusi having half share each in Gair Mumkin Gitwar Bila Lagan Bawajay Sayak Keti, which the Trial Court has rightly explained as land of which possession has been given by the proprietor, in the present case the Shamilat Patti, to the two named persons for the specific purpose of repairing agricultural implements. Since the allotment is intrinsically in the nature of a licence of common village land for a particular user, it is legally inconceivable that these two persons could have effected an oral exchange with the Defendants. The ownership collectively vested at all times with the Gaon or Shamilat patti. Ergo, none of the litigating parties could assume ownership or exclusive and proprietary possession thereto.
9. Gair Mumkin literally means that which is not possible; and in the present context indicates waste or uncultivable land. Bila Lagan connotes either rent-free grant or one where the rent has not been fixed. Sayar/Sayer literally refers to moveables; it also concerns miscellaneous levies apart from land revenue. As defined in Ganga Devi vs. State of U. P., 1972 AIR(SC) 931, it "includes whatever has to be paid or delivered by a licencee on account of right of gathering produce, forest rights, fisheries and the use of water for irrigation from artificial sources". Sayar or Sayer are variable imposts on movable property and are thus distinct from land revenue.
[11] The Trial Court had decreed the suit, holding that the Plaintiffs were entitled to the possession of the disputed land. It, therefore, directed the Defendants to handover the land in its original shape, to the Plaintiffs and other Co-owners within two months from the date of the decision. This finding has not been disturbed by the First Appellate Court. These two Courts failed to keep in mind that the land was Shamilat deh and hence no person, including the Plaintiffs, could have laid claims to separate or individual possession thereof. In second Appeal, however, in terms of the impugned Judgment, the High Court has correctly dismissed the Plaintiffs' suit holding that the Plaintiffs shall be at liberty to ::: Downloaded on - 15/04/2017 18:29:19 :::HCHP 28 seek partition of the suit land and other joint land in accordance with law.
[12] Having considered the matter in all its complexities, we .
are persuaded to uphold the directions of the High Court. However, this is primarily and principally for reasons different to those that have prevailed upon the learned Single Judge. The land in question is admittedly Shamilat Patti Sayar, i.e. common village lands the user of which is not confined strictly to cultivation. The holding of Hardwari and Mangal is thus in contradistinction to that of khewat i.e. proprietorship of the land. This is amply evident from the fact that so far as the grant of Hardwari and Mangal is concerned, it specifically envisages the repairing of agricultural implements of the villagers by them. Hardwari and Mangal were legally incompetent to transfer the possession by mutual compact with any third person, including co-sharers. Shamilat deh require to be carefully and assiduously protected, and this is the avowed purpose of the Punjab Village Common Lands (Regulation) Act, 1961 as applicable to both the States of Punjab and Haryana. The three Courts below have failed altogether in giving effect to Section 7 of the said Act which provides, inter alia, that the Assistant Collector of First Grade alone can eject any person who is in wrongful and unauthorized possession of the shamilat deh of any village and instead put the Panchayat in possession thereof. The Proviso to sub-section 7(1) empowers the Assistant Collector (who is a Revenue Official and not a Civil Court) to even decide a question of title to the land if it happens to be raised. Section 11 of the Act thereafter enables any person, or even a Panchayat, to approach the Collector to decide any claim in respect of the land. It is evident from the reading of these provisions that instead of approaching the Civil Court, if the Plaintiffs had any grievance against the Defendants as regards the possession of the suit land, they ought to have ventilated their grievances before the Collector and not before the Civil Court. The provisions of Sections 7 and 11 thereof have been blatantly violated by the Plaintiffs and ignored by the Courts below. If any doubt remains as to the correct forum for the resolution of the dispute pleaded in the Plaint, Section 13 of the Act makes it clear that the Civil Courts have no jurisdiction to entertain or adjudicate upon any question pertaining to shamilat deh.
::: Downloaded on - 15/04/2017 18:29:19 :::HCHP 29[13] It is always a brooding possibility that collusive suits are filed by co-sharers or other persons in the endeavour that shamilat deh may be metamorphosed or transformed into privately owned .
lands, always to the detriment of the gram sabha and of the villagers collectively. The three Courts below have not been adequately alive to this very important aspect. The land in question was, in fact, licenced to the co-sharers and was not their privately owned properties, individually or severally or collectively."
40. The land stood vested in the Panchayat as per the provisions of the Punjab Village Commons Lands (Regulation) Act, 1961 and the same has further been vested in the State as per section 3 of the Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974 free from all encumbrances. Thus, the appellant-defendant could not purchase the land in the year 1968 nor proprietary rights could be conferred upon them since it was a Shamlat land.
Thus, the suit pertaining to Shamlat land was not maintainable in the civil court. The remedy provided under the Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974 was required to be invoked by the plaintiff.
41. All the substantial questions of law are answered accordingly.
42. In view of the analysis and discussion made hereinabove, RSA No. 228/2002 is dismissed and RSA No. ::: Downloaded on - 15/04/2017 18:29:19 :::HCHP 30 490/2002 preferred by the State of H.P. is allowed. Civil Suit No.68/1979 is dismissed. Pending application(s), if any, also .
stands disposed of. There shall, however, be no order as to costs.
(Justice Rajiv Sharma), Judge.
1.7.2015
*awasthi*
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