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2005 DIGILAW 233 (PNJ)

Shia Ram v. Shanti Ram

2005-02-09

HEMANT GUPTA

body2005
Judgment Hemant Gupta, J. 1. The plaintiffs are in second appeal aggrieved against the judgment and decree passed by the courts below whereby their suit for declaration challenging mutation No. 559 in favour of defendant in respect of the suit land was dismissed. 2. On 22.12.1959, the plaintiffs sold 16 bighas and 1 biswas of land to the defendant along with proportionate share in the shamlat. Though the controversy before the Courts below was to the effect that whether the proportionate share in shamlat was subject matter of sale yet the controversy which survive in the present second appeal is to the effect that the plaintiffs was owner of any share in shamlat and could sell the said share in shamlat on the date of sale. 3. The argument of the plaintiffs-appellants is based upon the provisions of the Punjab Village Common Lands (Regulations) Act, 1953 wherein the land described in the revenue record as shamlat vested with the Gram Panchayat. However, subsequently, the said Act was repealed by Punjab Village Common Lands (Regulations) Act, 1961 whereby shamlat deh vested in Panchayat as defined under Section 2(g) of the Act with effect from the enactment of 1953 Act. The land described as shamlat deh Hasab rasad arazi khewat was not vested with the Gram Panchayat in terms of definition of Section 2(g) of the Act at that time. Section 2(h) and 3(i) of 1961 Act reads as under:- "Section 2(h) "Shamilat law" means- (i) in relation to land situated in (part of the territory) which immediately before the 1st November 1956, was comprised in the State of Punjab, the Punjab Village Common Lands (Regulation) Act, 1953; or (ii) in relation to land situated in (part of the territory) which immediately before the 1st November, 1956, was comprised in the State of Patiala and East Punjab States Union, the Pepsu Village Common Lands (Regulation) Act, 1954; Section 3(1) The Act shall apply and before the commencement of this Act and Shamat law shall be deemed always to have applied to all lands which are shamlat deh as defined in Clause (g) of Section 2." 4. The argument of the learned counsel for the appellant is that since in the year 1959, the plaintiffs were not owner of shamlat deh as the same vested with the Gram Panchayat by operation of 1953 Act, any stipulation in the sale deed in respect of sale of share of shamlat would not convey any title in favour of the defendant. 5. However, the said argument is not tenable in law. Section 3(1) of 1961 Act defines that the provisions of 1961 Act shall apply and before the commencement of this act the Shamlat Law, shall be deemed always to have applied to all lands which are shamilat deh as defined in Clause (g) of Section 2 of 1961 Act. In another words, the definition of Shamlat deh as contained under Section 2(g) of 1961 Act has been given deemed fiction to all lands which are so described in the year 1961 Act. Therefore, even though Shamlat land was declared to be vested with the Panchayat under 1953 Act but such vesting has been superseded by 1961 Act. The argument that the plaintiffs were not owner of any share in shamlat deh in the year 1959 is not, thus, tenable in law. 6. The learned counsel for the appellants has relied upon the judgment reported as Jumma Maszid, Mercara v. Kodimaniandra Deviah and Ors., A.I.R. 1962 S.C. 847 to contend that since in the year 1959 they have no share in the shamlat land in view of 1953 Act, therefore, the share in shamlat which revived in pursuance of 1961 Act, will not ensure for the benefit of defendant but will ensure for the benefit of plaintiffs alone. The said judgment is clearly distinguishable. It has been found that interest transferred from an heir apparent having spes successionis right cannot protect the sale in his favour on the basis of provisions of Section 43 of the Transfer of Property Act. But the case would fall under Section 6(a) of the Transfer of Property Act. However, the said argument cannot be extended in the present case as it is not a case of heir apparent having spes successions share in the property. The plaintiffs had right in shamalat by operation of 1953 Act, the said right vested with the Panchayat and such right has been restored in favour of proprietor by virtue of subsequent 1961 Act. The plaintiffs had right in shamalat by operation of 1953 Act, the said right vested with the Panchayat and such right has been restored in favour of proprietor by virtue of subsequent 1961 Act. Therefore, it is not open to the plaintiff to claim declaration that the share in shamlat was not conveyed to the defendant vide the aforesaid sale in the year 1959. In view of the above, I do not find any substantial question of law arises for consideration in this second appeal. Dismissed.