RAGHBIR SINGH Vs. RAJA RAM AND ORS.

JUDGEMENT

(1.) THE facts giving rise to this second appeal are set out in my order dated the 17th March, 1964. By that order I remitted the case to the trial Court to find out whether the land in dispute is the exclusive property of the Plaintiff or is a part of the village common land as defined in Section 2(g) of the Punjab Village Common Lands (Regulation) Act, 1961. The trial Court was also to determine since when the Defendants have been settled on the land and what is the effect of that vis -a -vis the rights of the Plaintiff as owner of the land. The trial Court has submitted its report dated the 9th June, 1964. The findings of fact given by the trial Court are - -

(2.) IT is in the context of the aforesaid provisions that the conclusion of the trial court holding that the land in dispute vests in the Defendant -Respondents under Section 4(1)(b) of Punjab Act 18 of 1961 has to be examined. It will apparent from the provisions of Section 3 of this Act that the Act applies to all lands which are Shamilat Deh as defined in Section 2(g). The only other land, which is dealt with by this Act, and Abadi Deh. The Act does not deal with lands which are neither Shamilat Deh nor Abadi Deh. Therefore, when one refers to Section 4(1)(b), where it is stated that the land which is, situate within or outside the Abadi Deh of a village, the land, which falls within the expression "within or outside the Abadi Deh" would necessarily be Shamilat Deh and no other land. This is further clarified Section 3(2) the Act which says that this Act does not deal with lands of Village proprietors individually held by them. I put it to Mr. Hoshiarpuri, Learned Counsel for the Defendant -Respondents, a case of an individual proprietor, who was owning a field as an owner in the village paying land -revenue. Later on he carved it out into small plots and leased out those plots for building purposes. The lessees then built houses thereon. Would such lessees become owners of such plots under the Act? Learned Counsel was not able to contend, that they would become owners under the Act and in my view rightly, All that Learned Counsel was able to say was that if the land was at one time Shamilat land, then the non -proprietors thereon would become owners of the houses thereon however, be correct only if the non -proprietors had been settled on the was Shamilat land. In the present case, the land in dispute ceased to be Shamilat land in the year 1931 -32. Having ceased to be Shamilat land, it became an individual holding of the proprietor, after partition, to whose share it fell. The proprietor in the year, 1947, leased oat the land to the Defendant -Respondents for purposes of construction of houses at a nominal rental of Rs. 40 per annum. In this situation it cannot with any show of reason be argued that such lessees would become owners of the land under Section 4(1)(b) of the 1961 Act. I am clearly of the view that this provision has no application to the case of the Defendant -Respondents. The land is recorded in the revenue papers as owned by the Plaintiff -Appellant. He is paying the land -revenue thereon. In the column of tenants, it is mentioned that it is Ghair Mumkin Abadi. It would obviously be Ghair Mumkin Abadi because it was leased out to the Defendants for the purposes of an Abadi. This would not make it as ah Abadi within the meaning of Abadi Deh which, as I have already said, has a technical meaning and is commonly known by the expression "Abadi Lal Lakir" It is also not a part of the Shamilat Deh wherein non -proprietors have been settled. In this state of facts, it appears to me that the trial Court completely missed the point and came to art erroneous decision on a matter which on close examination admits of no doubt.