- (1.) This second appeal must succeed and the case sent back to the trial Court for fresh determination.
(2.) We briefly record our reasons for this course. According to the finding of the learned Additional District Judge, the appellants have been in continuous possession of the land in dispute for more than a quarter of a century. This finding was recorded as far back as 7th of January, 1961. They were deprived of this land on the basis of Section 3 of the Punjab Village Common Lands (Regulation) Act, 1953 (Act No. 1 of 1954). This Act did not define 'Shamilat Deh'. In the preamble, however, it is stated :- "An Act to regulate the rights in Shamilat Deh and Abadi Deh." "Shamilat Deh" is defined for the first time in the Punjab Village Common Lands (Regulation) Act, 1961 (Act No. 18 of 1961), as follows :- "2. In this Act, unless the context otherwise requires, - x x x (g) 'shamilat deh' includes - (1) lands described in the revenue records as shamilat deh excluding abadi deh; (2) shamilat tikkas; (3) lands described in the revenue records as shamilat, tarafs, patties, pannas and tholas and used according to revenue records for the benefit of the village community or a part thereof or for common purposes of the village; (4) lands used' or reserved for the benefit of village community including streets, lanes, playgrounds, schools, drinking wells, or ponds within abadi deh or gorah deh; and (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 a displaced person (iii) has been partitioned and brought under cultivation by individual landholders 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 co-sharer in the shamilat deh 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 tholas and not used according to, the village community or a part thereof or for common purposes of the village (vi) lies outside the abadi deh and is used as gitwar, bara, manure pit or house or for cottage industry; (vii) is shamilat deh of villages included in the fourteen revenue estates called 'Bhojes' of Naraingarh Tehsil of Ambala District; (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 hereto;" "Shamilat Law" is defined in clause (h) of Section 2 in the following terms :- "(h) 'shamilat law' means - (i) in relation to land situated in 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) x x x".
(3.) Section 3 of the 1961 Act makes the definition of "Shamilat Deh" applicable to the Shamilat law as it prevailed when the 1953 Act was passed.;