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2003 DIGILAW 1616 (PNJ)

Phuman Ram v. Munshi Ram

2003-12-03

M.M.KUMAR

body2003
Judgment M.M.Kumar, J. 1. This is defendants appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity the Code) challenging the judgment of reversal passed by the learned District Judge, Hoshiarpur on 18.9.1984. The learned District Judge decreed the suit of the plaintiff-respondent and set aside the judgment dated 29.7.1983 passed by the Additional Sr. Subordinate Judge, Hoshiarpur who had dismissed the suit of the plaintiff-respondent. 2. Plaintiff-respondent Munshi Ram filed Civil Suit No. 434/ASSJ/82 on 7.9.1981 seeking a declaration that he is owner in possession of the house marked ABCD in the site plan attached to the plaint and the portion marked AEFD shown red in the site plan as part of the court-yard of his house. It was claimed that the house had remained in possession of the ancestral of the plaintiff-respondent since times immemorial which is in his possession as owner. It is further alleged that Panchayat of the village built a pucca drain on the north and west of the house and have started threatening him that he would be dispossessed from the portion marked AEFD shown red in the site plan which is claimed to be part of the courtyard of his house. Plaintiff-respondent filed an application before the District Development and Panchayat Officer with a prayer to restrain defendant-appellant from interfering in his possession which was dismissed resulting into filing of the instant suit. In the written statement defendant-appellant took a preliminary objection stating that the suit is barred by the principles of res judicata. It was alleged that the disputed taur marked AEFD shown red in the site plan was a public place used by all the Adharmis for common purposes which vested in the Gram Panchayat. The objection of mis-joinder and non-joinder of parties was also raised. It was further submitted that the plaintiff-respondent was estopped from filing the suit as his earlier suit was dismissed by the District Development and Panchayat Officer on 10.9.1979. It was further asserted that the Civil Court has no jurisdiction to try the suit. The averment with regard to ownership and possession of the plaintiff-respondent over the portion AEFD shown red in the site plan was denied by asserting that Gram Panchayat is owner of the property in dispute. It was further asserted that the Civil Court has no jurisdiction to try the suit. The averment with regard to ownership and possession of the plaintiff-respondent over the portion AEFD shown red in the site plan was denied by asserting that Gram Panchayat is owner of the property in dispute. A replication was also filed wherein it was pleaded that the District Development and Panchayat Officer did not have any jurisdiction to determine the controversy raised in the suit and there is no bar against filing of civil suit despite the fact that earlier application filed by the plaintiff-respondent was dismissed. It was denied that the suit land has ever vested in the Gram Panchayat. On the basis of the pleadings of the parties, following issues were framed: "1. Whether the Civil Court has no jurisdiction to try the present suit? 2. Whether the suit is bad for mis-joinder and non-joinder of necessary parties? 3. Whether the present suit is barred by the principle of res judicata? 4. Whether the plaintiff is owner in possession of the property in dispute? 5. Whether the plaintiff is entitled to the declaration and injunction as prayed for? 6. Whether the property in dispute forms part of Kh. No. 17? 7. Relief." 3. Learned Additional Senior Subordinate Judge recorded a finding on issue No. 1 that the taur marked as AEFD shown in red colour in the site plan is a shamilat deh and Vest in the Gram Panchayat and therefore it is covered by the Village Common Lands (Regulation) Act, 1961 (for brevity the Act) and the departmental authorities were fully entitled to adjudicate on the controversy raised. 4. On issue No. 2, also the objection raised by the plaintiff-respondent was sustained that plaintiff-respondent had failed to implead necessary parties. It was held that the suit was liable to be dismissed under Order 1 Rule 9 (proviso) of the Code. 5. On issue No. 3, the trial Court held that the principle of res judicata would apply as already an application has been decided by the District Development and Panchayat Officer on 10.9.1979 Ex.D4. 6. Issue Nos. 4 and 6 were considered redundant and issue No. 5 was decided against the plaintiff-respondent in view of the decision on issues already decided. On account of the findings on the aforesaid issues, the suit was dismissed. 7. 6. Issue Nos. 4 and 6 were considered redundant and issue No. 5 was decided against the plaintiff-respondent in view of the decision on issues already decided. On account of the findings on the aforesaid issues, the suit was dismissed. 7. On appeal, before the District Judge, the finding on issue No. 1 was reversed on the ground that the land in dispute marked AEFD and shown in red colour in the site plan is abadi deh which does not fall in the definition of expression shamilat deh. Therefore, the bar created by Section 13 of the Act was not attracted. On the basis of the report of the Local Commissioner and document Ex.P3 which is a copy of entry in the misal Khasra Khana Shamari Village Dadiana Khurd year 1850, the District Judge held that the land in dispute is abadi deh which would not attract the application of the Act. The finding of the District Judge reads as under: "Now, it is to be seen if the disputed site i.e. taur claimed by the plaintiff forms part of shamilat deh or if it forms part of the Abadi deh. In this respect, document Ex.P3 is most relevant. It is copy of entry in the Misal Khasra Khanna Shamari village Dadiana Khurd year 1850. It mentions plot No. 17 under occupation of various adharmis including one Jodha ancestor of plaintiff-appellant. It is common case of the parties that the plaintiff-appellant earlier had applied to the Collector for an injunction against the defendant-respondents and during the pendency of that application a commission was appointed to visit the site in dispute and to make a report. The Local Commissioner made the report on 30.12.1978, copy of which is on the file and the Local Commissioner confirmed that the disputed site falls within plot No. 7 which is Abadi deh. This fact is further mentioned in the judgment of the Collector copy of which is Ex.D4. Again during the pendency of the case before the trial Court another Local Commissioner was appointed who gave his report Ex.LC/1. It also mentioned that the disputed plot is part of abadi deh and not shamilat. It is not owned by Gram Panchayat or any other person but in possession of the plaintiff-appellant. Moreso, it is common case that the disputed plot is within the lal lakir i.e. within the Abadi deh. It also mentioned that the disputed plot is part of abadi deh and not shamilat. It is not owned by Gram Panchayat or any other person but in possession of the plaintiff-appellant. Moreso, it is common case that the disputed plot is within the lal lakir i.e. within the Abadi deh. The report Ex.LC/1 further confirms that the disputed plot which has been mentioned by the plaintiff-appellant as Courtyard adjoins the house of the plaintiff-appellant just in the front, where the plaintiff has set up khaddi and manger etc. It is well settled that house does not mean the construction of the building alone but also includes the site attached herewith. We have the definition of the house under the Act as provided in Section 2(c)." 8. On issue No. 2 also, the learned District Judge held that once the land is not part of shamilat deh as defined by Section 2(g)(1) of the Act then the Gram Panchayat was not a necessary party as plaintiff-respondent had no claim against the Gram Panchayat. The views of the District Judge on issue No. 2 reads as under: "Firstly, when the dispute does not pertain to the shamilat land the Gram Panchayat is not a necessary party and the plaintiff-appellant was required to implead only those defendants who threaten his possession over the disputed plot. The plaintiff has no claim against the Panchayat nor the panchayat has any right to interfere in the possession over the plot which is part of the abadi deh. It is also in the evidence that the village Panchayat has constructed the drain beyond this disputed plot and the street is also beyond this plot. As such, the Gram Panchayat was not a necessary party. Moreover, we have the consecutive reports of two Local Commissioners appointed from time to time to determine the possession of the disputed plot vis-a-vis, the possession and ownership and it is established by the Local Commissioners that the Gram Panchayat has nothing to do with the plot and it forms part of the plot No. 17 of the Adharims. The possession of the plaintiff finds established by the report of the Local Commissioner besides he is using the disputed plot as his courtyard where he is running his khaddi tethering his cattle. The possession of the plaintiff finds established by the report of the Local Commissioner besides he is using the disputed plot as his courtyard where he is running his khaddi tethering his cattle. He is in exclusive possession of the plot and can legally protect his possession as against the other co-sharers, if any, till the whole plot No. 17 is partitioned between the co-share i.e. the Adharmis. The mere fact that the plaintiff-appellant impleaded Gram Panchayat in his application before the Collector in the civil suit which was dismissed vide judgment Ex.D3, does not by implication make Gram Panchayat a necessary party in the instant suit. A perusal of the judgment Ex.D3 would show that the learned Sub Judge dismissed the suit on the score that the dispute pertain to Shamilat deh and barred under Section 13 of the Act. Similarly, the Collector vide his decision, copy of which is Ex.D4, declined to issue injunction against the Panchayat holding that it had no such jurisdiction. The matter was left undecided. The plaintiff has specifically pleaded in para No. 4 of his plaint that the old revenue record was not available to the plaintiff at the time he filed application to the DD & PO and the earlier suit. The very fact that the disputed plot falls within the abadi deh any decision by the Collector was a nullity because it had no jurisdiction to pass any order on such a dispute. The judgment in the earlier suit as aforesaid was on the assumption that the dispute pertains to shamilat deh. Accordingly this Court finds that the suit is not bad for non-joinder of necessary parties in any manner and the findings on the issue No. 2 are reversed and this issue is decided against the defendants." On issue No. 3, the findings were also reversed because the decision of the District Development and Panchayat Officer elated 10.9.1979 Ex.D4 was held to be a decision not by a Court and Section 11 of the Code would not be applicable. Copy of the judgment of the Civil Court Ex.D3 did not prevail with the district Judge because the basic ingredients of Section 11 of the Code were not satisfied as the pleadings of the parties in the previous suit were not produced in order to arrive at a conclusion that issue between the parties were the same on which the judgment Ex.D3 was delivered. In support of the afore-mentioned view reliance was placed on the judgment in the cases of Syed Mohd. Salie Labhai and Ors. v. Modh. Hanifa and Ors., A.I.R. 1976 S.C. 1569. 9. Issue No. 4 was decided in favour of the plaintiff-respondent by holding that the plaintiff-respondent was owner in possession in his capacity as a co-sharer. Issue No. 6 was also decided in favour of the plaintiff-respondent on the basis of the document Ex.P4 read with the report of the Local Commissioner dated 20.12.1978. 10. Accordingly, on the basis of the findings recorded by the learned District Judge, the suit of the plaintiff-respondent was decreed and the judgment of the learned Additional Senior Subordinate Judge, Hoshiarpur was set aside. 11. Shri K.S. Dadwal, learned counsel for the appellant No. 3 has argued that any land which is being used for village common purpose including the land described as abadi deh is to be taken as shamlat deh. According to the learned counsel, the District Judge had made grave error by treating the land as abadi deh and holding that the land would not vest in the Gram Panchayat. According to the learned counsel once this basic issue is determined in favour of the defendant-appellant then all other issues would automatically be decided against the plaintiff-respondent. 12. Shri J.B.S. Gill, learned counsel for the respondent has referred to the definition of Shamlat deh in Section 2(1)(g) of the Act and argued that the land is described in the revenue record as abadi deh and has been specifically excluded from the definition of shamlat deh. Accordingly, if the land in dispute is shown to be abadi deh only then the Civil Court would be entitled to adjudicate upon the right of the parties and the District Development and Panchayat Officer would have no jurisdiction over the land. 13. Accordingly, if the land in dispute is shown to be abadi deh only then the Civil Court would be entitled to adjudicate upon the right of the parties and the District Development and Panchayat Officer would have no jurisdiction over the land. 13. After hearing the learned counsel for the parties and perusing the impugned judgment, I am of the considered view that the conclusion recorded by the learned District Judge is liable to be affirmed because the land in dispute has been found to be abadi deh which is excluded from the definition of the land known as shamlat deh. It is only in respect of the land described in the revenue record as shamlat deh that authorities under the act would be entitled to adjudicate and no other. In respect of the other land, the jurisdiction of the Civil Court would remain intact. For facility of reference, Section 2(g)(1) of the Act is reproduced hereunder: "2. Definitions.- In this Act, unless the context otherwise requires: xxx xxxx xxx xxx (g) Shamlat deh includes, 1) Land described in the revenue records as Shamilat deh excluding abadi deh." A perusal of the afore-mentioned Sections makes it evident that abadi deh land has been expressly excluded from the definition of shamlat deh. On other issues, it has been found that the plaintiff-respondent is owner in possession on the basis of the detailed evidence. Once it has been found that the land is abadi deh, the earlier order dated 10.9.1979 passed by the District Development and Panchayat Officer would not come in the way of the plaintiff-respondent for filing the suit nor there would be estoppel. It would further be clear that in respect of the land which is abadi deh, only the Civil Court would have jurisdiction. Therefore, I am of the view that this appeal is without any merit and the same is liable to be dismissed. 14 The argument that the suit land is being used for village common purposes has not impressed me because there is no material document or evidence on record to substantive this claim. Such an argument cannot be advanced for the first time at the stage of second appeal under Section 100 of the Code. This argument is, therefore, rejected. For the reasons recorded above, this appeal fails and the same is dismissed.