Leave granted.
1 The Appellants essay to restore the concurrent views of the
Additional Civil Judge (Senior Division) Rewari, in Civil Suit No.308 of 1997 in terms of the Judgment and Decree dated 27.8.2002, as also
the Judgment and Decree dated 11.12.2008 passed by the Additional
District Judge, Rewari, in Civil Appeal No.50 of 2002. Their views,
however, did not find favour with the High Court in the impugned
Judgment dated 7.9.2012 passed in Regular Second Appeal No.1346
of 2009.
2 The parties are shareholders of Shamilat Patti Sayar of land
comprised in Khewat No.300 Khatoni No.551, Khasra No.622(O-1O),
Gair Mumkin Gatwar, situated in village Dahina, as per the
jamabandi of the year 1970-71. The Plaintiffs/Appellants filed a suit
for declaration, and possession of the suit land against the
Defendants/Respondents. The Plaint does not contain a categorical
stand as to whether the Defendants/Respondents are co-sharers along
with the Plaintiffs/Appellants in respect of the suit land. It has been
pleaded that the Defendants have no concern whatsoever with the suit
land which has not been validly partitioned among the co-sharers.
The Written Statement is also devoid of clarity inasmuch as it is
pleaded that the Plaintiffs are not in possession of the suit land and
have no right to file the suit; but that constructions have been carried out by the Defendants in the presence of the Plaintiffs, as well as other
persons mentioned in Schedule A of the Plaint, which contains the
names of the co-sharers of the suit land. It is then pleaded in the
Written Statement that the suit land was allotted to Hardwari and
Mangal and that their legal heirs had executed an oral transfer of the
land in favour of the Defendants, who became co-sharers to the
extent of 3/192 in the Shamilat Patti Sayar, (obviously along with
other co-sharers, including the Plaintiffs). The Defendants have also
pleaded that the oral transfer took place in 1992 by exchanging the
Defendants’ land with that of the legal heirs of Hardwari and Mangal.
3 Eight Issues were framed of which only the first two, the onus of
which was on the Plaintiffs, were addressed in the evidence led by the
parties. Issue Nos.3 to 7 were to be proved by the Defendants which
they abandoned altogether. Both Issues 1 & 2 were decided in favour
of the Plaintiffs, i.e. the Appellants before us. Keeping in
perspective the evidence to the effect that the Plaintiffs were co-
sharers in the Shamilat Patti Sayar in regard to which the said
Hardwari and Mangal had directly no right, nor were in possession
thereof, it was concluded that the legal heirs of Hardwari and Mangal
had no legal capacity to exchange the suit land. Even in the evidence
led on behalf of the Defendants, it was the admitted case that the suit JUDGMENT
land was in the ownership of Sayar Patti, which are akin to village or
gram sabha lands used for purposes allied to cultivation, on which
land revenue is not imposable, but other levies are. It has also been
conceded in the evidence led on behalf of the Defendants that the
permission of co-sharers had not been obtained prior to the alleged
exchange of land. After reviewing the entire evidence, the Trial
Court as well as the First Appellate Court rightly concluded on facts
that the possession of the Defendants was not lawful. However, their
direction that the Plaintiffs were entitled to take back the possession, it
seems to us, is legally untenable and unsustainable.
4 In the impugned Judgment the High Court has duly noted the fact
that the Defendants’ stand that they were co-sharers ought to have
been established by them consequent upon an Issue being struck in
that regard. Significantly, it was emphasised that the list of co-
sharers attached to the Plaint included the Plaintiffs as well as the
Defendants and that, therefore, a suit for partition ought to have been
filed by the Plaintiffs even in the face of the averments in the Written
Statement that the Defendants had a 3/192 share. Confronted with
the concurrent findings of the Trial Court as well as the First
Appellate Court and keeping in perspective the evidence that was JUDGMENT
recorded, the High Court framed a substantial question of law to the
effect that since the Defendants were co-sharers, could possession of
the land be ordered to be delivered to the Plaintiffs without the
Plaintiffs seeking partition of the entire joint land, including the suit
land. Regrettably, while setting aside the judgment and decree of the
Courts below, the High Court has failed to substantiate it with reasons
for doing so. The High Court has, however, granted liberty to the
Plaintiffs to seek partition of the suit land and other joint land in
accordance with law.
5 Abadi deh refers to cultivable lands which are inhabited by the
villagers. These areas, also called phirni, are usually demarcated on
the revenue maps/sharja in red ink or lal dora, within which a
departure from the prescription of strictly agricultural user is
permitted. As it has been traditionally conceived of, it is only the
cultivators of the adjoining agricultural lands, along with their family
members, who are expected to reside therein. Lands within lal dora
or phirni can be used for purposes related to agriculture, such as
cattle-sheds and storage halls for straw, manure and waste generated
in the village. Other user is legally impermissible. In some instances,
lal dora lands are more or less converted into an ‘urbanised village’ JUDGMENT
where cultivation of the contiguous land has ceased so as to enable
wider user. As the resident population of the village increases, the
demand or need for conversion of agricultural land for residential
purposes is achieved by extending/increasing the lal dora, hence the
term ‘extended lal dora’. In no event can land in the lal dora be
converted to commercial user or, arguably, even for residential
complexes housing persons totally unconnected with the cultivation of
the contiguous lands. This is essential for preserving cultivable rural
lands for agricultural purposes. It is a legal misnomer that merely
because municipal law and building restrictions and regulations
contained therein are not applicable to lal dora, any and every kind of
user or development is permissible. It is this fallacious understanding
of the law that has led to the mushrooming of illegal land
development within the lal dora. ‘Shamilat’ connotes commonality
of possession, in contradistinction to ownership individually or
severally. Shamilat deh are common or village lands. Banjar in
common parlance means fallow or barren or unproductive hence
shamilat banjar – common uncultivable lands and banjar qadim –
common/village lands left fallow for a long period. Patti/Pati has various contextual connotations including a strip of land detached from the original village though dependent on it; it is a subdivision of
land. For facility of reference Section 2(g) of the Punjab Village
Common Lands (Regulations) Act, 1961 as applicable to Haryana is
extracted below:-
2(g) “Shamilat deh” includes -
(1) Land described in the revenue records as Shamilat
deh or Charand 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 or the village
community or a part thereof or for common purposes
of the village; (4) lands used or reserved for the benefit of the village
community including streets, lanes, playgrounds,
schools, drinking wells, or ponds within the sabha
area as defined in clause (mmm) of Section 3 of the
Punjab Gram Panchayat Act, 1952, excluding lands
reserved for the common purposes of a village under
Section 18 of the East Punjab Holdings
(Consolidation and Prevention of Fragmentation) Act,
1948 (East Punjab Act 50 of 1948), the management
and control whereof vests in the State Government
under Section 23-A of the aforesaid Act; and (4a) vacant land situate in abadi deh or gorah deh not
owned by any person; (5) lands in any village described as banjar qadim and
used for common purposes of the village according to
revenue records; Provided that shamilat deh at least to the extent of twentyfive per centum of the total area of the village does not exist in the village;JUDGMENT but does not include land which (i) becomes or has become shamilat deh due to river
action or has been reserved as shamilat in villages
subject to river action except shamilat deh entered
as pasture, pond or playground in the revenue
records; (ii) has been allotted on quasi- permanent basis to
displaced person; (iia) was shamilat deh, but has been allotted to any
person by the Rehabilitation Department of the State
Government, 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 and is so recorded in the jamabandi or is
supported by a valid deed;
(v) is described in the revenue records as shamilat,
taraf, pattis, pannas and thola and not used
according to revenue records for the benefit to 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, house or for cottage
industry immediately before the commencement of
this Act;
(vii) Omitted by Act No. 18 of 1995;
(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 JUDGMENT
26th January, 1950; or
(ix) is used as a place of worship or for purposes
subservient thereto; (6) lands reserved for the common purposes of a village under
Section 18 of the East Punjab Holdings (Consolidation and
Prevention of Fragmentation) Act, 1948 (East Punjab Act
50 of 1948), the management and control whereof vests in
the Gram Panchayat under Section 23-A of the aforesaid
Act.
Explanation.- Lands entered in the column of ownership of
record of rights as ‘Jumla Malkan Wa Digar Haqdaran Arazi
Hassab Rasad’, ‘Jumla Malkan’ or ‘Mushtarka Malkan’ shall
be shamlat deh within the meaning of this section.
6 We shall now return to the facts of the case in hand. The
jamabandi relating to the subject land recites that the owner of the
subject land is Shamilat Patti. Hardwari and Mangal were holding
the land as Gair Marusi having half share each in Gair Mumkin
Gitwar Bila Lagan Bawajay Sayak Keti, which the Trial Court has
rightly explained as land of which possession has been given by the
proprietor, in the present case the Shamilat Patti, to the two named
persons for the specific purpose of repairing agricultural implements.
Since the allotment is intrinsically in the nature of a licence of
common village land for a particular user, it is legally inconceivable
that these two persons could have effected an oral exchange with the JUDGMENT Defendants. The ownership collectively vested at all times with the
Gaon or Shamilat patti. Ergo, none of the litigating parties could
assume ownership or exclusive and proprietary possession thereto.
Gair Mumkin literally means that which is not possible; and in the
present context indicates waste or uncultivable land. Bila Lagan
connotes either rent-free grant or one where the rent has not been
fixed. Sayar/Sayer literally refers to moveables; it also concerns
miscellaneous levies apart from land revenue. As defined in Ganga
Devi vs. State of U.P., AIR 1972 SC 931, it “includes whatever has to
be paid or delivered by a licencee on account of right of gathering
produce, forest rights, fisheries and the use of water for irrigation
from artificial sources”. Sayar or Sayer are variable imposts on
movable property and are thus distinct from land revenue. Khasra
refers to the ‘field book’ or village register recording the possession or
tenure of agricultural land and the cognate term khasra girdawari is
the crop or harvest inspection record pertaining to the land. Khewat
lists the co-sharers and proprietors of village/agricultural lands along
with their respective liabilities to pay the land revenue. Khud-kasht
denotes a proprietor of land who is cultivating it himself.
7 The Trial Court had decreed the suit, holding that the Plaintiffs JUDGMENT
were entitled to the possession of the disputed land. It, therefore,
directed the Defendants to handover the land in its original shape, to
the Plaintiffs and other Co-owners within two months from the date of
the decision. This finding has not been disturbed by the First
Appellate Court. These two Courts failed to keep in mind that the
land was Shamilat deh and hence no person, including the Plaintiffs,
could have laid claims to separate or individual possession thereof.
In second Appeal, however, in terms of the impugned Judgment, the
High Court has correctly dismissed the Plaintiffs’ suit holding that the
Plaintiffs shall be at liberty to seek partition of the suit land and other
joint land in accordance with law.
8 Having considered the matter in all its complexities, we are
persuaded to uphold the directions of the High Court. However, this
is primarily and principally for reasons different to those that have
prevailed upon the learned Single Judge. The land in question is
admittedly Shamilat Patti Sayar, i.e. common village lands the user of
which is not confined strictly to cultivation. The holding of Hardwari
and Mangal is thus in contradistinction to that of khewat i.e.
proprietorship of the land. This is amply evident from the fact that so
far as the grant of Hardwari and Mangal is concerned, it specifically JUDGMENT
envisages the repairing of agricultural implements of the villagers by
them. Hardwari and Mangal were legally incompetent to transfer the
possession by mutual compact with any third person, including co-
sharers. Shamilat deh require to be carefully and assiduously
protected, and this is the avowed purpose of the Punjab Village
Common Lands (Regulation) Act, 1961 as applicable to both the
States of Punjab and Haryana. The three Courts below have failed
altogether in giving effect to Section 7 of the said Act which provides,
inter alia, that the Assistant Collector of First Grade alone can eject
any person who is in wrongful and unauthorized possession of the
shamilat deh of any village and instead put the Panchayat in
possession thereof. The Proviso to sub-section 7(1) empowers the
Assistant Collector (who is a Revenue Official and not a Civil Court)
to even decide a question of title to the land if it happens to be raised.
Section 11 of the Act thereafter enables any person, or even a
Panchayat, to approach the Collector to decide any claim in respect of
the land. It is evident from the reading of these provisions that instead
of approaching the Civil Court, if the Plaintiffs had any grievance
against the Defendants as regards the possession of the suit land, they ought to have ventilated their grievances before the Collector and not before the Civil Court. The provisions of Sections 7 and 11 thereof
have been blatantly violated by the Plaintiffs and ignored by the
Courts below. If any doubt remains as to the correct forum for the
resolution of the dispute pleaded in the Plaint, Section 13 of the Act
makes it clear that the Civil Courts have no jurisdiction to entertain or
adjudicate upon any question pertaining to shamilat deh.
9 It is always a brooding possibility that collusive suits are filed by
co-sharers or other persons in the endeavour that shamilat deh may be
metamorphosed or transformed into privately owned lands, always to
the detriment of the gram sabha and of the villagers collectively. The
three Courts below have not been adequately alive to this very
important aspect. The land in question was, in fact, licenced to the
co-sharers and was not their privately owned properties, individually
or severally or collectively.
10 In the impugned judgment the High Court has dismissed the
suit. It is manifestly evident that the suit as framed and filed was not
maintainable in view of the Punjab Village Common Lands
(Regulations) Act, 1961 and, therefore, deserved to be dismissed. We
hold, accordingly, and, therefore, dismiss this Appeal, leaving the
JUDGMENTparties to bear their respective costs.
(VIKRAMAJIT SEN) New Delhi October 15, 2014