Sukhdev Singh Kang, J. - (1.) THE appellants had filed a suit for declaration to the effect that the land comprised in Khewat No. 292 measuring 150 Kanals 10 Marlas with one well, one Dharamsala and one Johar, is the property of Shri Ram, Ghiklan and Bahbal Thulas and mutation No. 1531 dated 16th May, 1964 attested in favour of the village Panchayat -respondent had no effect on the rights of the share holders of the abovesaid Thuias and that the respondent be restrained from interfering with the peaceful possession of the shareholders of above three Thulas of the land in dispute. The defendant respondent contested the suit alleging that the land had validly vested in the Gram Panchayat by virtue of the provisions of section 2 (3) of the Punjab Village Common Lands (Regulation) Act. 1961 (hereinafter called the Act) and that the Civil Court had no jurisdiction to try the suit and that the suit was not maintainable in the present form. The learned trial Judge framed the following issues arising out of the pleadings of the parties : - - 1. Whether this Court has jurisdiction to try the suit ?
(2.) WHETHER the suit is maintainable in the present form ? Whether the land In suit was ever owned by the plaintiff before the enforcement of the Punjab Village Common Lands (Regulation) Act, 1954 and with what effect ?
(3.) WHETHER the land in suit has not validly vested in the Panchayat ? Issue Nos. 1, 2 and 3 were decided in favour of the plaintiff -appellants. Issue No. 4, however, was decided in favour of the defendant -respondent and against the plaintiff appellants was dismissed. They filed an appeal against the judgment and decree of the trial Court which was dismissed by the learned District Judge, Hissar. Hence this is a second appeal by the appellants. 2. The appellants contended before the Courts below that the suit land could not vest in the respondent Gram Panchayat as the same had been recorded in the revenue record as Shamilat Thula Siri Ram, Ghiklan and Bahabal of village Mundhal Khurd. It was also mentioned there that it was in possession of the owners it was further contended that it was not recorded in the revenue record that the land was being used for the village community or apart thereof or that the same was used for common purposes of the village and that in the absence of this entry the land was to be treated to be the property of the Thulas and did not vest in the Gram Panchayat. It was also contended that the revenue entries clearly excluded the land from the definition of 'Shamilat' as given in Exception 5 to Section 2 (3) of the Act The contention of the appellants was repelled on the basis of a decision of this Court in Co operative Society of Improvement and Stamilat, Patti, Khanni v. Gram Panchayat of village Kohanni, (1962) 64 P.L.R. 730. It was held that as the land in dispute was being used for the part of the village community, therefore, it fell Squarely within the definition of 'Shamilat' and as such it had vested in the Gram Panchayat. 3. Before me, Shri Jang Bahadur Singh, the learned counsel for the appellants has strenuously argued that the judgments of the Courts below are against law. He has argued that the land in dispute does not fall within the definition of 'Shamilat' as given in the Act Clause (g) of Section 2 of the Punjab Village Common Lands (Regulation) Act, 1961, which defines ' Shamilat Deh ' is reproduced below : - - (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 Taraf, Pattis, Pannas and Thola and used according to revenue records for the benefit of the village community or a part thereof for common purposes of the village ; (4) Lands used or reserved for the benefit of village community including streets, lanes, play grounds, schools, drinking wells or ponds within Abadi Deh or Gora Deh ; (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 percent um of the total area of the village does not exist in the village, but does not include land which, - - (i) ... ... ... ... (ii) has been allotted on quasi -permanent basis, to a displaced person; (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 cosharer in the Shamilat Deh is also so recorded in the Jamabandi or is supported by a valid deed and is not is excess of the share of the co -sharer in the Shamilat Deh (v) is described in the revenue record as Shamilat Taraf, Patti, Panna and Thola and is not used according to the revenue records for the benefit of the village community or a part thereof for common purposes of the village; (vi) lies outside the Abadi Deh and was being used as Gitwar, Bara, manure pit, a house or for cottage industry immediately before the commencement of this Act; (vii) is Shamilat Deh of villages included in the fourteen revenue estates called Bhojas of Naraingarh tehsil of Ambala District. (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 (ix) was being used as a place of worship or for purposes subservient there to immediately before the commencement of this Act. The learned counsel has argued that in case the land is described in the revenue record as Shamilat Thola, as in the present case, sub -clause (3) of Section 2(g) of the Act is applicable. He has further argued that under sub -clause (3) of the land will be Shamilat Deh only if it is described in the revenue record as Shamilat Thola and is used for the benefit of the village community or part thereof or for common purposes of the village and this fact is also mentioned in the revenue records In the present case, the appellants have produced the Jamabandi for the year 1959 -60 according to which the land in dispute is in the ownership of Shamilat Thola and in the column of cultivation, it is mentioned that it is in the possession of the owners. In the Jamabandi it is not mentioned that the land is being used for the benefit of the village community or part thereof or for the common purposes of the village. The learned counsel has argued that in the absence of this entry in the revenue records, the land does not fall within the definition of Shamilat Deh. 4. Mr. R.C. Setia, the learned counsel for the respondent Gram Panchayat, has urged that the land is being used for the benefit of the village community because it is entered to be in possession of the owners of the Thola and so it falls within the definition as given in sub -clause (3) of Section 2 (g) of the Act. He has relied on Khanni's case (Supra) as was done before the courts below According to the learned counsel, when the land is used for the benefit of a part of the community, i.e. the proprietors, it shall be deemed to be the Shamilat Deh. Undoubtedly, the decision in that case supports the contention of the learned counsel for the respondent. However, this decision has been overruled by a Full Bench decision in Gram Pancahayat etc, v. Baldev Singh, 1977 P.L.J. 276, wherein their Lordships have held in clear terms that they could not agree with the interpretation of law placed in Khanni's case (Supra). It was held by their Lordships as under : - - Before any land can be held Shamilat Deb under sub -clause (3), it has to be proved that the same is being used for the benefit of the village community as a whole or a part of the village community. It is not disputed that the village community does not comprise of the owners or proprietors of the land alone. There is a considerable section of the population who works as tenants or as landless workers or even engage in other occupations such as artisans, blacksmiths, carpenter etc. or shopkeepers who have nothing to do with the land as such Use for the benefit of the village community must have relation to all sections of the population in the village including those who do not own land. Similarly, benefit to a part of the village community must have reference to benefit to those who do not own land in the Patti concerned. In the present case, the entry in the revenue record is to the effect that the proprietors or the Patti are in possession of the land in proportion to their shares This entry can only be interpreted to mean that the petitioners of the Patti are entered as joint owners of the Shamlat and situated in that Patti....... It is thus clear that it is necessary that the entries in the revenue record should show that actually some benefit was being derived from the use of the suit land by the village community or part thereof. The use for the benefit of the village community must have relation to all sections of population in the village including those, who do not own land, Similarly, the benefit to a part of the village community must have reference to benefit of those who do not own land in the Patti concerned. In the present case, there is no evidence that the person who are not owners are using the suit land for any benefit The present case is fully covered by the ratio of the Full Bench the decision in Khanni's case(Supra), having been specifically overruled, there is no merit in the contentions of the learned counsel for the respondent Gram Panchayat. The suit of the appellants had been dismissed only on the basis of the ratio in this case. Clearly, the land being in the possession of the proprietors and there rising no entry in the revenue record that it was used for the welfare of the village community or part thereof, the suit of the plaintiff -appellants must succeed.;