advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Monday, January 5, 2015

CIVIL APPEAL No. 9722 OF 2014 [Arising out of SLP(C) No.13844 of 2013] SARJEET SINGH (D) TH. LRS. ….. APPELLANT(S) vs HARI SINGH & ORS. ….. RESPONDENT(S)

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                       CIVIL APPEAL No. 9722   OF 2014
                  [Arising out of SLP(C) No.13844 of 2013]

SARJEET SINGH (D) TH. LRS.                     ….. APPELLANT(S)

      vs

HARI SINGH & ORS.                                     ….. RESPONDENT(S)


                             J  U D G M  E  N  T


VIKRAMAJIT SEN,J.

        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 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  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’ 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 twenty-five per  centum
of the total area of the village does not exist in the village;
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  26th January,
1950; or
(ix)    is used as a place of worship or for purposes subservient thereto;
 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 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
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  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  parties  to   bear   their
respective costs.

…………………….…….J.
(DIPAK MISRA)



…………………………..J.
(VIKRAMAJIT SEN)
New Delhi
October 15, 2014

-----------------------
13


No comments:

Post a Comment

Note: Only a member of this blog may post a comment.