Daya Krishan Mahajan, J. - (1.) THIS second appeal is directed against "the decision of the Senior Subordinate Judge. Rohtak, reversing on anneal the decision of Subordinate Judge 1st Class, Sonepat, dismissing the Plaintiffs' suit.
(2.) THE Plaintiffs came to Court on the allegation that the land in dispute which, admittedly, excepting 45 kanals 10 marlas is shamilat of panas Baiban, Parmanand. Badro, Bola and Rayan and thullas Kirpa and Jati. According to the wajib -ul -arz the area specified therein was reserved for grazing and it was further provided that the land so reserved would not be broken up or partitioned. As the Defendants who are the proprietors of these respective panas threatened to break up the land the present suit was filed by persons other than the proprietors principally on the basis of wajib -ul -arz for injunction restraining the Defendants from breaking up the land or otherwise interfering with the rights of the Plaintiffs to graze their cattle or to carry fuel wood from the suit land. The Defendants denied that the land in dispute was so reserved for the purpose of grazing cattle by the village people and further averred that part of the suit land had been in actual cultivation of the proprietors for a number of years and as such the suit for injunction was not maintainable. Number of other pleas including the plea of limitation were raised but it is not necessary to notice them because the only question that was debated in the lower appellate Court and before me pertains to the applicability of the Punjab Village Common Lands (Regulation) Act 18 of 1961 to the land in dispute. The lower appellate Court has come to the conclusion that the Act applies and the land in dispute is shamilat land within the meaning of Section 2(g) of the Act and as such the Plaintiffs are entitled to a decree. The Defendants who are the proprietors and are dissatisfied with the judgment of the lower appellate Court have come up in second appeal to this Court. So far the facts go there is no dispute now. Land admittedly is shamilat of the respective panas and thullas as already stated above. It was reserved for grazing purposes in the wajib -ul -arz of the village. With regard to 45 kanals 10 marlas out of the suit land the Plaintiffs no longer lay any claim as the same has been sold by the proprietors to third parties. That most of the land in dispute was cultivated by proprietors jointly from kharif 1952 to rabi 1960, and whatever land is not cultivated is banjar and is either a pond or grazing ground at the time of the institution of the suit.
(3.) THE lower appellate Court has not drawn any distinction between that part of the shamilat land which has been cultivated by the proprietors and held the same to be covered by the definition of shamilat deh as set out in Section 2(g) of the Act.;