- (1.) The plaintiff-appellants had filed a suit for declaration to the effect that they were the owners in cultivating possession of the suit land and prayed for permanent injunction restraining the Municipal Committee, respondent, from interfering with their possession over the suit land. It is alleged in the plaint that they are in cultivating possession of the suit land and are its owner since the time of the ancestors; that the suit land was wrongly recorded as Shamlat land and that it is neither Shamlat nor is covered by the definition of Shamlat Deh, nor was it ever used for the purposes of shamlat Deh; that they are Biswedars and their share in the Shamlat land is much more than the suit land; that the mutation sanctioned in favour of respondent Municipal Committee is invalid, illegal and unauthorised. Their claim was resisted by the respondent Committee and the allegations made were controverted. Parties went to trial on the following issues :- 1. Whether the plaintiffs are the owner of the suit land ? 2. Whether the plaintiffs were in cultivating possession of the suit land on 26.1.1960 and are entitled to retain possession thereof ? 3. Whether the Punjab State is the necessary party to this proceeding ? If so, to what effect ? 4. Whether the civil Court has no jurisdiction in this case as pleaded in the written statement ? 5. Whether the suit is barred by res judicata ? 6. Whether the plaintiffs are estopped from bringing this suit ? 7. Whether the proceedings of this suit are liable to be stayed as written in the written statement ? 8. Relief.
(2.) Issue Nos. 1 and 2 were decided by the trial Court against the plaintiff-appellants and it was held that the plaintiffs are not the owner of the suit land and that the plaintiffs were not in cultivating possession of the suit land on January 26, 1956 and thus are not entitled to retain the possession. Issue Nos. 3 to 7 were decided in favour of the plaintiffs and due to the findings on issue Nos. 1 and 2 their suit was dismissed. Dissatisfied by the judgment and decree of the trial Court, the plaintiffs filed an appeal before the learned Senior Sub Judge. The findings of the trial Court were affirmed on issue Nos. 1 and 2. There was no contest regarding other issues before the first appellate Court and the appeal was dismissed. Hence this second appeal by the plaintiff.
(3.) The only issues which survive for decision in the appeal are issue Nos. 1 and 2. Mr. Puran Chand, learned counsel for the appellants contended that the Courts below had misinterpreted and misconstrued the provisions of Section 2(g)(viii) of the Punjab Village Common Lands (Regulation) Act 1961, hereinafter called 'this Act'. Section 2(g) of the Act defines Shamlat Deh, and its relevant provision is reproduced below :- "2(g) "Shamlat Deh" includes - (1) to (5) x x x x x Provided that shamlat 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) to (vii) x x x x x (viii) was shamlat 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 shamlat deh on or before the 26th January, 1950, or (ix) x x x x x" A reading of this section shows that the shamlat deh which is under individual cultivating possession of the co-sharers and is not in excess of their respective shares, in such a shamlat deh, shall not include in the definition and is thus excluded from the shamlat-deh. Admittedly the suit land is under individual cultivating possession of the appellants through tenants. The Courts below have misconstrued the words 'individual cultivation'. They have interpreted the 'individual cultivation' as not through tenants, but either actual cultivation by themselves, or through the co-sharer or their servants. This is clearly misinterpreted by the Courts below. The Courts below have relied, in coming to this conclusion on Gram Panchayat Sidhbari, Tehsil Kangra v. Sukh Ram Dass,1963 PunLR 1043. This authority is not applicable as it nowhere lays down that the individual cultivating possession means actual cultivation of the land. In para 15 of the report, their Lordships have observed as under :- "With regard to other contention pertaining to clause (viii) of Section 2(g) of the Act, reference has to be made to the General Clauses Act (Section 11), which is to the effect that where a singular is used in any legislative enactment, it will include a plural and where plural is used it will include a singular. The object of this provision seems to be to protect the possession of the co-sharer or co-sharers actually cultivating the land. It is hardly material whether that possession is of one co-sharer or of a number of co-sharers. There is no justification for the proposition that it must be of all the co-sharers.";