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2004 DIGILAW 122 (HP)

BIJA RAM v. STATE OF H. P.

2004-06-10

M.R.VERMA

body2004
JUDGMENT M.R. Verma, J.—This Second Appeal has been preferred by the appellants-plaintiffs (hereafter referred to as the plaintiffs) against the judgment and decree dated 3.9.1990 passed by the learned District Judge, Solan, whereby the judgment and decree dated 1.6.1988 passed by the learned Senior Sub Judge, Solan, in Civil Suit No. 112/1 of 1987 has been reversed. 2. Brief facts leading to the filing of the present appeal may be summarised as follows : The plaintiffs claim that they are the owners in possession of the land measuring 2 bighas 2 biswas, comprising Khasra No. 603, Khewat Khatauni No. 33/86, situate in Village Dawanti, Tehsil Kandaghat, District Solan (hereafter referred to as the suit land) for the last more than 70 years since the time of their predecessors-in-interest. It is further claimed that the suit land is not Shamlat land and thus could not vest in the Panchayat and/or respondent-defend-ants-State (hereafter referred to as the State). The revenue entries showing the suit land as having vested in the State are not correct and not binding on the plaintiffs. In the alternative, claim of the plaintiffs is that even if they are not found to be the owners of the suit land their possession cannot be disturbed because they had been in possession of the suit land for 12 years before the coming into force of the Punjab Village Common Lands (Regulation) Act, 1961. 3. The District Collector, one of the defendants in the suit, resisted the suit on the preliminary objections that the Civil Court has no jurisdiction to try the suit which even otherwise was not maintainable and the plaintiffs have no cause of action to sue. On merits, it has been claimed that the suit land is Shamlat land and thus has rightly been vested in the State of Himachal Pradesh free from all encumbrances under the provisions of the H.P. Village Common Lands (Vesting and Utilization) Act, 1974, therefore, the plaintiffs are encroachers and are liable to be ejected. 4. On the pleadings of the parties, the learned trial Judge framed the following issues: 1. Whether the plaintiffs are in possession as owners of the suit land for more than 70 years? OPP 2. Whether the suit land is not Shamlat as alleged? OPP 3. Whether plaintiffs are holding the suit land adverse to the title of time owner as alleged? OPP 4. Whether the plaintiffs are in possession as owners of the suit land for more than 70 years? OPP 2. Whether the suit land is not Shamlat as alleged? OPP 3. Whether plaintiffs are holding the suit land adverse to the title of time owner as alleged? OPP 4. Whether possession of the plaintiffs can not be disturbed as alleged? OPP 5. Whether revenue entries about the suit land are wrong, illegal not binding on plaintiffs? OPP 6. Whether the suit land is cultivable and residential as alleged? OPP 7. Whether this Court has no jurisdiction to try the suit? OPD 8. Whether the suit is not maintainable? OPD 9. Whether the plaintiffs have no cause of action? OPD 10. Relief. 5. The trial Court vide judgment dated 1.6.1988 decided Issues No. 1, 2, 4 and 5 in favour of the plaintiffs, Issue No. 6 partly in favour of the plaintiffs. Issue No. 3 against the plaintiffs and Issues No.7 to 9 against the defendants and on the basis of the findings so recorded decreed the suit of the plaintiffs declaring that the plaintiffs are the owners in possession of the suit land and the revenue entries to the contrary are wrong, illegal and not binding on the plaintiffs and as a consequential relief restrained the defendants from interfering in the possession of the plaintiffs over the suit land. 6. Feeling aggrieved by the judgment and decree of the trial Court, the defendants-State preferred an appeal in the Court of the learned District Judge, Solan who vide impugned judgment dated 3.9.1990 allowed the appeal and set aside the judgment and decree passed by the trial Court and dismissed the suit of the plaintiffs. Hence, this appeal by the plaintiffs. 7. The Second Appeal preferred by the plaintiffs was earlier allowed by this Court vide judgment dated 21.11.1997 but the said judgment was set aside by the Apex Court and the appeal was remitted to this Court to formulate substantial question(s) of law, if any, for consideration and thereafter to dispose of the appeal. 8. This appeal was admitted for hearing on the following substantial question of law: Whether the land in dispute had wrongly vested in the State of Himachal Pradesh ignoring the provisions of Sections 2(g) and 4 of the Punjab Village Common Lands (Regulation) Act, 1961? 9. 8. This appeal was admitted for hearing on the following substantial question of law: Whether the land in dispute had wrongly vested in the State of Himachal Pradesh ignoring the provisions of Sections 2(g) and 4 of the Punjab Village Common Lands (Regulation) Act, 1961? 9. I have heard the learned Counsel for the plaintiffs and the learned Deputy Advocate General for the State and have also gone through the record. 10. Insofar as the status of the land in suit at the relevant time is concerned, in the absence of cogent and reliable evidence, has to be determined with the aid of the entries in the revenue records. As per the copy of Jamabandi for year 2001-2002 Vikarami (Ex. DK) and the subsequent Jamabandi for the year 2005-2006 Vikarami (Ex. DJ), in the column of ownership the entry is Shamlat Deh Hash Rasad Jareh Khewat and in the column of possession the entry is Makbuja Malkaan in respect of khasra number 603 measuring 13 bighas 19 biswas and in the column of liability to pay revenue the entry is Parta BASHARAH Khewat No.1. Same are the entries in the copy of Jamabandi for the year 1952-53 (Ex. DG). However, in the column of Kafiat, it has been mentioned that khasra No. 603 min measuring 2 bighas 2 biswas has been allotted to Mathu on payment of land revenue of Rs. 2/- and the mutation in this regard was attested on 27.3.1955. In the following Jamabandi, i.e., Jamabandi for the year 1956-57, copy whereof is Ex. DH, the entry in the column of ownership is Shamlat Deh Hash Rasad Jareh Khewat but in the column of possession Mathu, the predecessor in interest of the plaintiffs, had been shown in possession of the suit land, i.e., khasra No. 603 min as gair maurusi on payment of Rs. 2/-. In the subsequent entries in the Jamabandis for the years 1960-61 (Ex. DF), 1964-65 (Ex. DE), 1969-70 (Ex. DD) and 1974-75 (Ex. DC), the entry in the column of ownership is Nagar Panchayat Deh but the land is shown in possession of Mathu aforesaid as a nautor granted to him. Evidently, the entry in the ownership column appears to have been changed because of coming into being of the Punjab Village Common Lands (Regulation) Act (Act No. 1 of 1954). In the copies of Jamabandis for the years 1979-80 and 1984-85, respectively, Exs. Evidently, the entry in the ownership column appears to have been changed because of coming into being of the Punjab Village Common Lands (Regulation) Act (Act No. 1 of 1954). In the copies of Jamabandis for the years 1979-80 and 1984-85, respectively, Exs. DB and DA, State Government has been substituted in place of Nagar Panchayat Deh otherwise the entries regarding possession etc. remain the same. The substitution of the State in place of Nagar Panchayat Deh appears to have come into being on the basis of the Himachal Pradesh Village Common Lands (Vesting and Utilization) Act, 1974. The basic question, thus, is whether the suit land was Shamlat Deh and, therefore, capable of having vested in the Panchayat under Act No. 1 of 1954 (supra) and have vested in the Panchayat in view of the provisions of Sections 3 and 4 of the Punjab Village Common Lands (Regulation) Act, 1961 and thus could finally vest in the State under the provisions of the H.P. Village Common Lands (Vesting and Utilization) Act, 1974. 11. Section 4 of Punjab Village Common Lands (Regulation) Act, 1954 provides for vesting of such Shamlat Deh of any village in a Panchayat from the date of commencement of the Act which Shamlat Deh had not already vested in the Panchayat irrespective of any agreement, instrument, custom, usage, decree or order of any Court or authority However, Section 3 of the Punjab Village Common Lands (Regulation) Act, 1961, protects the rights of those persons in whom the rights, title and interests in the land were vested immediately before the commencement of the Shamlat law. The relevant part of Section 3 of the Punjab Village Common Lands (Regulation) Act, 1961 reads as follows : "(2) Notwithstanding anything contained in sub-section (1) of Section 4,- (i) where any land has vested in a Panchayat under the shamilat law, but such land has been excluded from shamilat deh under clause (g) of Section 2 other than the land so excluded under sub-clause (ii-a) of that clause, all rights, title and interest of the Panchayat in such land as from the commencement of the Punjab Village Common Lands (Regulation) Amendment Act, 1995, shall cease and all such rights title and interest shall vest in the person or persons in whom they were vested, immediately before the commencement of the shamilat law; (ii) where any land has vested in a Panchayat under this Act, but such land has been excluded from shamilat deh under sub-clause (ii-a) of clause (g) of Section 2, all rights, title and interest of the Panchayat in such land, as from the commencement of the Punjab Village Common Lands (Regulation) Amendment Act, 1995, shall, cease, and all such rights, title and interest shall on or before the 9th day of July, 1985, revest in the person or persons to whom the land so excluded has been allotted or otherwise transferred by sale or by any other manner whatsoever......" 12. Be it stated that the aforesaid Jamabandis have been produced in evidence and relied upon by the defendant-State who has not in any manner challenged the correctness of these entries. Thus, on the own showing by the defendant, the suit land could not vest either in the panchayat or in the State Government. 13. Be it stated that the aforesaid Jamabandis have been produced in evidence and relied upon by the defendant-State who has not in any manner challenged the correctness of these entries. Thus, on the own showing by the defendant, the suit land could not vest either in the panchayat or in the State Government. 13. What could vest in the Panchayat/State Government is Shamlat Deh which has been defined vide Section 2(g) of the Punjab Village Common Lands (Regulation) Act, 1961, which reads as under: "2(g) shamilat deh includes— (1) lands described in the revenue records as shamilat deh 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 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, lanes, 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: (i) but does not include land which— (ii) has been allotted on quasi-permanent basis to a displaced person; (ii-a) was shamilat deh, but, has been allotted on quasi-permanent basis to a displaced person, or, has been otherwise transferred to any person by sale or by any other manner whatsoever 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 is so recorded in the jamabandi or is supported by a valid deed (and is not in excess of the share of the co-sharer in the shamilat deh), added by Act 19 of 1976. (v) is described in the revenue records as shamilat taraf; pattis, pannas and thola and not used according to revenue records for the benefit of 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, a house or for cottage industry immediately before the commencement of this Act; (vii) * * * (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) was being used as a place of worship or for purposes subservient thereto immediately before the commencement of this Act." 14. It has to be examined in view of the aforesaid definition whether in view of the entries in the relevant revenue records till the land is shown having vested in the Nagar Panchayat Deh, i.e., Exs. DK, DJ, DH and DG can be said to be Shamlat Deh within the meaning of the aforesaid definition which necessarily must be meant for the benefit of the village community or a part thereof or for the common purposes of the village. 15. The term "Khewat" in the phrase "Hash Rasad Jareh Khewat" may mean proprietary land or the land revenue assessed on the land (see Daya v. Budh Ram (AIR 1925 Lahore 127). 16. The expression "Shamlat Deh Hasb Rasad Jareh Khewat" and the revenue having been assessed as Parta Bashrah Khewat No., leads to the only conclusion that the land in question was not reserved or used for benefit of the village community or a part thereof or for common purposes of the village. It is moreso because it was in the possession of the village land owners meaning thereby the Khewatdars and not in possession of any other person belonging to the village community. 17. In Des Raj and another v. The Gram Sabha of Village Ladhot and another (1981 PLJ 300), Punjab and Haryana High Court while dealing with the same question held as under : "7. 17. In Des Raj and another v. The Gram Sabha of Village Ladhot and another (1981 PLJ 300), Punjab and Haryana High Court while dealing with the same question held as under : "7. The learned Counsel for the appellants then contended that the land in dispute does not fall within the definition of Shamilat Deh under Section 2(g)(3) of the Act which reads thus : "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." The argument of the learned Counsel is that according to the entries in revenue record the land in dispute is shown in possession of the proprietors, i.e., "Makbuja Malkan" and therefore, under these circumstances it cannot be held that the land is being used for the benefit of the village community or a part thereof or for common purposes of the village. In support of his contention, he has relied on a Full Bench judgment of this Court reported as Gram Paachayat Sadhraur (formerly Dhumma) and Gram Sabha Sadhraur (formerly Dhumma) v. Baldev Singh and others, 1977 P.L.J. 276. One of the questions referred to the Full Bench was that whether the view of law taken in Co-operative Society of Improvement of Shamilat Patti Harnam Singh Lambardar of village Khanni and another v. Gram Panchayat of Village Khanni, 1962 P.L.R. 730, proceeds on a correct interpretation of the expression, for the benefit of the village community or a part thereof or for common purposes of the village occurring in sub-clause (3) of clause (g) of Section 2 of the Act. In para 7 thereof it has been held that the interpretation placed on sub-clause (3) of clause (g) of Section 2 of this Act given in Co-operative Society of Improvement of Shamilat Patti Harnam Singhs case (supra) cannot bear scrutiny and does not lay down a correct view of law. It has been further observed that the expression "benefit of the village community or a part thereof" cannot be given any stretch a restricted meaning so as to confine the benefit to only the owners of the land. It has been further observed that the expression "benefit of the village community or a part thereof" cannot be given any stretch a restricted meaning so as to confine the benefit to only the owners of the land. Besides, it is also, necessary that the entries in the revenue records must show that actually some benefit was being derived from the use of such land by the village community or a part thereof." 18. Thus, the suit land immediately before it was entered as having vested in the Nagar Panchayat Deh being in possession of the proprietors could not be said to be Shamlat Deh and, hence, could not vest in the Nagar Panchayat. 19. There is yet another aspect of the case. Even if it is assumed that the suit land was a part of Shamlat Deh even then it is land covered under Section 2(g)(ii-a) of the Punjab Village Common Lands (Regulation) Act, 1961 which provides that if the land was Shamlat Deh but has been transferred to any person by sale or by any other manner whatsoever, it will not be deemed as Shamlat Deh. It emerges from the evidence produced by the defendant itself that the suit land stood transferred in favour of Mathu on being allotted to him as nautor. Once the land was allotted to Mathu as nautor the suit land ceased to be Shamlat Deh even if it was so and could not vest in the Nagar Panchayat and subsequently in the State Government. 20. On the contrary, even if the land in suit was shown to have vested in the Nagar Panchayat by virtue of the provisions of Punjab Common Lands (Regulation) Act, 1953 still being the land allotted to Mathu, the predecessor-in-interest of the plaintiffs, if revested in him and Nagar Panchayat ceased to have any right, title or interest therein by virtue of the provisions of Section 3(2)(ii) of the Punjab Common Lands (Regulation) Act, 1961 which provides for such revesting of the land in the transferee. 21. Thus, the lower Appellate Court holding the suit land as Shamlat Deh at the relevant time and sustaining its vesting in the Panchayat and the State is contrary to the legal as well as the factual position. Therefore, the impugned judgment and decree cannot be sustained. 22. As a result, this appeal is allowed. 21. Thus, the lower Appellate Court holding the suit land as Shamlat Deh at the relevant time and sustaining its vesting in the Panchayat and the State is contrary to the legal as well as the factual position. Therefore, the impugned judgment and decree cannot be sustained. 22. As a result, this appeal is allowed. The impugned judgment and decree passed by the learned District Judge are set aside and the judgment and decree passed by the learned trial Judge are upheld and restored. There is, however, no order as to costs.