Manushya Swajati Kalyan Dharam Samaj Society v. Gram Panchayat Of Village Khera Sarai Alias Bamni Khera
2004-07-28
NIRMAL SINGH
body2004
DigiLaw.ai
Judgment Nirmal Singh, J. 1. This appeal has been filed by the appellant against the judgment and decree dated 28.7.1980 vide which learned lower appellate court partly accepted the appeal and affirmed the decree under appeal passed by the learned trial Court vide judgment dated 29.11.1979 with the addition that the defendant- Gram Panchayat shall have to manage the suit land and to dispossess the plaintiff (appellant herein) therefrom in exercise of the powers vested in it under Rule 16(ii) of the Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949 in due course of law. 2. Briefly stated, the facts are that the plaintiff-appellant had filed a suit claiming itself to be owner in possession of agricultural land measuring 26 kanals 15 marlas comprised in khewat khatoni No. 466/604 Min and 606 Rect. No. 16 situated with the revenue estate of Village Khera Sarai. The plaintiff had purchased the said land from the previous owners who were Mustarka Jumla Malkan of the said village vide registered sale deed dated 5.10.1972 for a sum of Rs. 6,000/-. The mutation No. 26212 dated 15.5.1974 was also sanctioned in favour of the plaintiff. 3. It was alleged that earlier the defendant-respondent filed a suit against the plaintiff in the year 1975, which was dismissed on 10.6.1976. Even defendant No. 2 ,(Samaj Shksha and Panchayat Officer, Hodal) filed an application against the plaintiff under Section 13-A and Section 7 of the Punjab village common Lands Act, 1961 (for short, "the Act") before the Assistant Collector, 1st Grade, Palwal, and obtained an order dated 31.3.1977 and the said order was against the law and having been passed without jurisdiction, further the plaintiff could not be dispossessed under Sections 13-A and 7 of the Act as the land in dispute never vested in the defendants nor they were owners of the same. It was further averred that the Assistant Collector 1st Grade, Palwal, while passing order dated 31.3.1977, wrongly interpreted judgment of the civil Court dated 10.5.1976. 4. The defendants resisted the suit by pleading that the possession of the plaintiff-appellant in the suit land was illegal and unlawful as the suit land was previously the property of Mushtarka Jumla Malkan, which had now been vested in the Gram Panchayat. Further, as the vendors had no right to sell the suit land, the said deed in favour of the plaintiff was illegal.
Further, as the vendors had no right to sell the suit land, the said deed in favour of the plaintiff was illegal. The order passed by Assistant Collector was legal and valid. The jurisdiction of the Civil Court to try the suit was also challenged and the plaintiff had no locus standi to file the suit. Against this, the plaintiff filed replication controverting the wrong averments. On these pleadings, eight issues were framed. 5. The learned trial Court, after appreciating the evidence on record, decreed the suit in favour of the plaintiff, holding that the order of Assistant Collector, 1st Grade, Palwal, dated 31.3.1977 is illegal and without jurisdiction and does not affect the rights of the plaintiff in the suit land measuring 26 kanals 15 marlas comprised in khewat khatoni No. 466/604 Min and 606 Rect. No. 16 as detailed in Para 1 of the plaint and restrained the defendant from dispossessing the plaintiff society from the suit land, aggrieved by which the defendants filed an appeal, which was partly accepted vide judgment and decree dated 28.7.1980 as mentioned in Para No. l of the order. 6. Dissatisfied with the said judgment and decree dated 28.7.1980 plaintiff-appellant has filed the present Regular Second Appeal. 7. I have heard learned counsel for the parties and perused the record carefully. 8. Sliri Kulbhushan Sharma, learned counsel for the appellant, submitted that the findings recorded by the learned lower Appellate Court are contradictory. He contended that the Appellate Court has given a specific finding that the land in dispute does not vest in the Gram Panchayat. Me further submitted that once there is a specific finding that the land does not vest in the Gram Panchayat, then the application before the Assistant Collector under Section 7 of the Act was not maintainable and the findings recorded by the Collector are void. In that situation, only the civil court was competent to decide the title of the parties. He further submitted that even if the management of the land was with the Gram Panchayat as per the provisions of Section 16-C read with Section 16(ii) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (for short, "Consolidation Act"), then there must have been some proof that the Gram Panchayat was managing the same.
He further submitted that even if the management of the land was with the Gram Panchayat as per the provisions of Section 16-C read with Section 16(ii) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (for short, "Consolidation Act"), then there must have been some proof that the Gram Panchayat was managing the same. He further submitted that in the revenue record i.e. copy of the jamabandi for the year 1972-73 and the Khasra Girdawari for the Kharif 1973 to 1977, the suit land in the revenue record has been recorded as the ownership of Jumla Malkan Wa Deegar Ilaqdara Hasab Kabza Zamin and it has not been recorded in the revenue record as Charagaha or managed by the Panchayat. He also contended that Jumla Malkan were the owners of this property and were competent to alienate the same. The appellant has purchased this property from the proprietary body of the village and proprietor from whom the said land has been purchased by the appellant were within their right to sell the same and they had not sold the land more than their share. 9. After hearing learned counsel for the parties and perusing the record, I am of the considered opinion that there is no infirmity or illegality in the findings recorded by the learned lower Appellate Court. 10. The sole point which is to be determined in this appeal is whether the Gram Panchayat has jurisdiction to manage the property under Section 18(c) of the Consolidation Act read with Section 16(ii) of the said Act.? 11. The Gram Panchayat had earlier filed a civil suit No. 232 of 1.5.1975 against the appellant. The same was decided on 10.5.1976, The suit was filed for permanent injunction restraining the defendants from taking the possession of the land in dispute as the same was an Charagaha under the management of the Gram Panchayat, Kheri Sarai @ Bamni Khera.
11. The Gram Panchayat had earlier filed a civil suit No. 232 of 1.5.1975 against the appellant. The same was decided on 10.5.1976, The suit was filed for permanent injunction restraining the defendants from taking the possession of the land in dispute as the same was an Charagaha under the management of the Gram Panchayat, Kheri Sarai @ Bamni Khera. In the said suit, the following finding was recorded:- "......Thus now the only question to be seen is as to what is the effect of the same and about that I have held above that the suit land has been reserved for charagaha the common purposes of the village as in accordance with the aforesaid provisions of Act of 1948 and the rules of 1949, framed therein and as held above that the ownership rights over the same vest in the entire proprietary body of the village which is to be recorded as Jumla Malkan Wa Digar Hasab and Hasab Kabza Jamin, thus by operation of law its management has been vested with the Gram Panchayat. Therefore, even if some biswedars have sold the same to some other persons it does not mean that the management of the land which has been sold by them to the said persons, has been taken away from the Gram Panchayat. Thus, in the instant case even if biswedars have sold the suit land to defendant No. l, its management still vests with the Gram Panchayat of village Khera Sarai alias Bamni Khera and as held in Rule 16(ii) of the aforesaid rules the gram Panchayat alone is competent to manage the same in a manner which is deemed fit and the income derived therefrom is to be utilised for the benefits of the village people." 12. However, the suit was dismissed on technical ground that Panchayat was not competent to file the suit. The finding recorded in that suit was neither challenged by the appellant. Therefore, the findings recorded in that suit have attained finality. The respondent has examined DWI Bhudi Ram, sarpanch and DW2 Mehar Pal. They have deposed in their statement that the land in dispute was reversed as Charagaha. 13. As per copy of the jamabandi for the year 1972-73, Ex. P3 and Khasra Girdawari, Ex.
Therefore, the findings recorded in that suit have attained finality. The respondent has examined DWI Bhudi Ram, sarpanch and DW2 Mehar Pal. They have deposed in their statement that the land in dispute was reversed as Charagaha. 13. As per copy of the jamabandi for the year 1972-73, Ex. P3 and Khasra Girdawari, Ex. P4 Karif 1973 to Rabbi 1977, the property in dispute was owned by Mushtarka Jumla Malkan Wa Deegar Haqdaran Hasab Kabza Zamin and the possession had also been recorded of Jumla Malkan. The respondent has examined DW1, Bhudi Ram, Sarpanch and DW2 Mehar Pal. They have deposed in their statement that the land in dispute was reserved as Charangaha. The respondent has also placed on record document Ex. DW3/l to prove that the land was reserved for common purposes i.e. Charagaha during consolidation. The appellant has not led any evidence to rebut the evidence produced by the respondent. Once the land is reserved for the common purposes, its management vests in the Gram Panchayat. The consolidation authorities are competent under Section 18 of the Consolidation Act to reserve land for common purposes. The scheme reserving the land for Charangaha under Section 18 of the Consolidation Act has not been challenged by the appellant or its predecessor-in-interest. Any land which has been reserved for common purposes under Section 18 of the Consolidation Act, the management of the same vests with the Gram Panchayat. This fact is evident from Section 2(b) of the Act. Under Section 23-A of the Consolidation Act, the management and control of the land for common purposes are vested in the Gram Panchayat or the State Government, the said section reads as under:- "23-A. Management and control of lands for common purposes to vest in Panchayats or State 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 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 shall vest in the proprietors and non-proprietors to whom it is given under the scheme of consolidation." 14. Similar provisions have been made under Section 2(6) of the Act. 15. The learned Additional District Judge, Gurgaon, has rightly come to the conclusion that the respondent-Gram Panchayat is competent to manage the suit land and to dispossess the plaintiff-appellant in exercise of the powers vested under Rule 16(ii) of the Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949. In view of the above, there is no merit in the appeal and the same is hereby dismissed. However, the parties are left to bear their own costs.