- (1.) Four land-owners of village Indri, tehsil Nuh, district Gurgaon had filed a suit under Order 1, Rule 8 of the Code of Civil Procedure on behalf of the entire proprietary body against the Gram Panchayat (the Gram Sabha) of their village for a declaration that the plaintiffs were the owners of the land and that it had not vested in the defendant-Gram Panchayat. The suit had been dismissed by the trial Court and an appeal filed by the plaintiffs had not met with any better results in the lower appellate Court. The plaintiffs have, therefore, come up in second appeal.
(2.) Jamabandis, Exhibits, P. 6 for 1938-39 and P. 5 for 1953-54, show that the land is Shamilat Deh of the village and that the proprietors have shares in it in proportion to their holdings. The land is, however, shown to be in the possession of the Government in 1938-39 and in the possession of the Forest Department in 1953-54. The land is assessed to land revenue and as it is not a part of the Abadi Deh, it would fall within the definition of 'Shamilat Deh' as given in Section 2(g) of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter briefly referred to as 'the Act'). According to Section 4 of the said Act, this land would vest in the defendant-Gram Panchayat unless the appellants could bring their case within any one of the exceptions given under clause (g) of Section 2 of the Act. Shri Jain, the learned counsel for the appellants, wants to bring his case in exception (viii) to clause (g) ibid. Relevant portions of the definition of 'Shamilat Deh' in Section 2 of the Act are as follows :- "2. Definitions. - In this Act, unless the context otherwise requires, xxx xxx xxx (g) 'Shamilat Deh' includes - (1) lands described in the revenue records as Shamilat Deh excluding Abadi Deh; xxx xxx xxx but does not include land which - xxx xxx xxx (viii) was Shamilat Deh and 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 xxx xxx xxx".
(3.) Shri Jain argues that the entire proprietary body were the owners of the land and were in possession through the Forest Department of the Government which was in occupation as a lessee or tenant of the proprietary body of the village. In this connection, he relies on a Division Bench ruling of this Court in Gram Panchayat Sidhbari, Tehsil Kangra v. Sukh Ram Dass,1963 PunLR 1043, wherein it was held that the object of Section 2(g)(viii) of the Act is to protect the possession of a co-sharer or the co-sharers who are actually cultivating the land. It was hardly material whether the possession was of one co-sharer or a number of co-sharers. Reliance is also placed on the following observations of a Single Bench of this Court in Amar Nath and others v. Gram Panchayat etc.,1967 CurLJ 548(Punjab and Haryana) :- "Held, the very idea of excluding from the definition of Shamilat Deh such portion of it, as is in cultivating possession of a co-sharer and which is not in excess of his share, is that if a co-sharer has actually taken possession of some part of the Shamilat Deh before 1950, then he will continue to be in possession thereof, and the Gram Panchayat will have nothing to do with it. The idea apparently is that if a co-sharer is utilising a potion of the Shamilat to the exclusion of all others, then he is not to be disturbed. Would'nt a co-sharer be taken to be utilising the land to the exclusion of all other co-sharers if instead of cultivating the land himself he gets it cultivated through a servant, whom he pays a monthly salary or a share in the actual produce ? There is no reason how a distinction can be made in the possession of a co-sharer in one case or the other. On the same reasoning, his possession will still be exclusive if he gets the land cultivated through a tenant of his choice. "Held, further that there is no reason why part of the Shamilat utilised by a co-sharer to the exclusion of all others by cultivating himself, through a servant or a tenant, should be excluded out of the definition of Shamilat, but a different interpretation should be put when another person had been in possession of another part of Shamilat for more than 12 years without payment of any rent or charges.";