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2003 DIGILAW 1012 (PNJ)

Surjit Singh v. Amar Singh

2003-07-25

M.M.KUMAR

body2003
Judgment M.M.Kumar, J. 1. This appeal filed by the plaintiff-appellant is directed against the concurrent findings of facts recorded by both the Courts below by invoking Section 100 of the Code of Civil Procedure, 1908. Both the Courts have concurrently found that the plaintiff-appellant has failed to adduce any evidence showing that he is owner in possession of the property in dispute. The plaintiff-appellant has placed reliance on Ex.P1 the site plan and Ex.P2 a compromise entered into between the parties in proceedings under-taken under Section 107/151 of the Code of Criminal Procedure. 1973. 2. Mr. Bhag Singh, learned counsel for the plaintiff-appellant has argued that the nature of the land is abadi deh and no record is kept for proving the possession or the ownership. According to the learned counsel the statement made by the plaintiff-appellant along with the site plan Ex.P1 adequately establishes their case. 3. Having heard the learned counsel, I do not feel persuaded to accept his submissions because even in respect of abadi deh land, proof could have been furnished with regard to possession and ownership. Paragraph 11 of Appendix VII of the Punjab Settlement Manual refers to the Village Sites popularly known as abadi-deh in the following words:- "The village site should be measured in one number, together with the small plots attached in which cattle are penned, manure is stored, and straw is staked and other waste attached to the village site. The entry in the column of ownership and occupancy will be simply Abadi Deh." In para 131 of the Punjab Settlement Manual expression abadi has been defined, which reads as under:- "The abadi - The houses of the members of the brotherhood and of their dependents are usually built close together in some convenient part of the village. It may be noted that this inhabited site or abadi is excluded from the operation of the Land Revenue Act "except so far as may be necessary for the record, recovery and administration of village cesses." The houses of the village menials are usually placed on the outskirts pf the abadi, and those occupied by men of impure castes sometimes occupy a separate site or sites at a little distance from it" 4 The aforementioned paragraphs came up for consideration before a Division Bench of this Court in the case of Ishwar Singh v. State of Haryana and Ors., (1995-3)111 P.L.R. 613. The Division Bench was considering the question of abadi-deh/lal lakir for the purposes of measuring the sites of stone crushers. The argument was that the stone crushers could be situated at the specified distance, which might be measured from abadi deh. Rejecting that argument and referring to the afore-mentioned two paras from the Punjab Settlement Manual, the Division Bench held as under:- "In other words, Abadi Deh would mean such land which is inhabited by villagers including plots of land in which cattle are penned, manure is stored and straw is staked and other waste attached to the village site which is not assessed to land revenue. In the Shajras such an area is inked in red and in common parlance abadi deh is known as area within the Lal Lakir. According to the instruction for the guidance of the consolidation staff issued under the East Punjab Holdings (Consolidation of Prevention and Fragmentation) Act 1948, it is provided that in every village after ascertaining the Shajras a provision shall be made for the passages and roads leading to the main highway, railway line and canals etc. The passages provided for going from one village to the other and the circular roads around the village are known as Phirni the width of which is required to be from 4 to 6 Karams. The properties, within Lal Lakir and Phirni are therefore well defined and properly understood by the revenue agencies." 5. On the basis of afore-mentioned views of the Division Bench, it can hardly be disputed that record in respect of abadi-deh exist, which might have been produced to show the nature of possession or nature of title acquired by the plaintiff-appellant. The question also came up for consideration before the Lahore High Court in the case of Chunni Lal and Anr. v. Beant Singh and Ors., A.I.R. 1938 Lahore 642. In that case, the Court has concluded that in case of non-proprietors residing within the abadi-deh, it should be presumed that they have acquired full rights of ownership over their houses and the sites, which they occupy with complete power to alienate them. Holding that there would always be presumption that the proprietary body intended the non-proprietor while making the grant of the property not to have any right to alienate. In order to prove otherwise overwhelming evidence was required. Holding that there would always be presumption that the proprietary body intended the non-proprietor while making the grant of the property not to have any right to alienate. In order to prove otherwise overwhelming evidence was required. The observation of the Court reads as under:- "In the Punjab villages, it is a matter of presumption that the abadi deh is a common property of the proprietary body until partition has taken place and when an outsider is allowed to settle permanently in the village and build a house in a abadi deh, it is further to be presumed that he does so by license from the proprietors. It is improbable that the terms of this license are ever put into words, but they are known to the parties concerned and are to be implied from local usage much in the same way as certain terms will be read into any other transfer of property, unless there is evidence to the contrary. When a non-proprietor is granted a site for building in a village, one of these implied terms is that he may not transfer it, though it will be allowed to descend to his own family. The addition of such a term to the grant may be called a local custom but it would probably be better to refer such customs as "usage" in order to distinguish them from customs which are governed by Section 5, Punjab Laws Act. It is a question of fact whether such a restriction on transfer is to be taken as an implied term when a site is granted to a non-proprietor in any particular village. Generally, it will be presumed that the proprietary body intends the grant to be subject to a restriction on transfer and that this condition has been accepted by any non-proprietor accepting the grant. The presumption may be rebutted in a variety of ways. It may be shown that the course of dealings between proprietors and non-proprietors over a long term of years has been such as to indicate that no restriction on transfer is implied when a grant is made. It is quite possible that the growth of a village or its absorption into a large town may lead the proprietary body to acquiesce in a system which allows the free transfer of residential sites. As observed in the passage quoted above, usages of this kind are not immutable. It is quite possible that the growth of a village or its absorption into a large town may lead the proprietary body to acquiesce in a system which allows the free transfer of residential sites. As observed in the passage quoted above, usages of this kind are not immutable. I agree however with the learned. Subordinate Judge that very strong evidence will be needed to show that the proprietors of a village have surrendered their privileges. It is a presumption of law that each man must be expected to act in a manner most favourable to his own interest, and instances intended to show that surrender of these privileges must exclude the possibility of any other construction." 6. In view of the above mentioned legal position, it can hardly be accepted that no proof of possession could be furnished because in the Shajra such an area is inked in red. No such evidence has been produced. Therefore, the appeal is without any merit and is liable to be dismissed. For the reasons stated above, this appeal fails and the same is dismissed.