AMAR SINGH Vs. MADAN LAL AND OTHERS

JUDGEMENT

(1.) THE following substantial questions of law arise for consideration in the second appeal: -

(2.) THE defendant set up title in himself claiming adverse possession to the property. He also contended that property belonged to Gram Panchayat and had been entered in the village records as such. He, therefore, would contend that the property involves position regarding title to the property of Gram Panchayat which was reserved in common and the Civil Court jurisdiction was ousted. The defendant would contend that in any event the plaintiff cannot secure possession without proving title to property and if the plaintiff was himself not the owner, the defendant could not be ejected.

(3.) THE substantial question of law that would require to be answered in appeal was whether the plaintiff could maintain an action for recovery of possession against a defendant without showing any better title. The issue of adverse possession itself would not require to be considered as the defendant could not establish his possession over the statutory period and therefore, the decision of the Court below is not required to be unsettled on that score. If the plaintiff could not prove the existence of a mortgage and also establish that the defendant was a tenant under such mortgagee, the redemption of mortgage cannot extinguish the defendant's right. The reasoning of the Court below that the title to Gram Panchayat as set up by the defendant cannot take away the Civil Court's jurisdiction in suit between two parties is also in my view a correct finding that could not require to be assailed. However, the plaintiff cannot secure a decree without either proving his ownership over the property or establishing a better title. The Court has examined the issue from the context of how in the jamabandi entry for the year 1954 -55 under Ex. P3, the plaintiff had been drawn to be the muafidar under Section 4 of the Punjab Village Common Lands Act. Section 4 of the Punjab Village Common Lands Act deals with vesting of rights of Panchayat and non -proprietors. Clause (1) (a) refers to categories of property like shamlat deh which vests in Panchayat. Clause (2) states that any property vested in Panchayat under shamlat deh shall also be deemed to be vested in the Panchayat. Clause (3) refers to the excepted classes of properties which would not be vested in Gram Panchayat. The sub section would require to be extracted to set out the classes of properties that cannot be vested in Gram Panchayat: -