ABHEY KUMAR Vs. MUNICIPAL COMMITTEE MAHENDARGARH

JUDGEMENT

(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 :-

(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 :-