GRAM PANCHAYAT GARHI BRAHMANA Vs. PURAN SINGH

JUDGEMENT

(1.) The appellants Gram Panchayat and Gram Sabha of Garhi Brahmana, Tehsil Sonepat, have arisen for the fourth round of the bout. The trophy is abadi land measuring 56 kanals situated in the village. The suit was filed for possession of this land by the appellants claiming title to the same by virtue of Section 4 of the Punjab Village Common Lands (Regulation) Act, 1961 as amended for the State of Haryana (referred henceforth for brevity as the Act). The allegation in the plaint was that Respondents 1 and 2 illegally obtained possession of this land from the Consolidation Authorities and transferred some area from out or this land in favour of Respondents 3 to 9. The suit was resisted by respondent Nos. 1 and 2 on the plea that they had been in continuous possession of the land for over fifty years and the remaining respondents had, in fact, constructed their houses on the said land. After due contest the suit of the appellants was decreed by the trial Court with an observation that the Gram Sabha may consider if the respondents can be permitted to retain possession of the sites in their possession on the terms and conditions as envisaged by Rule 4 of the Rules framed under the Act. Not satisfied with this verdict, the respondents carried an appeal and were rewarded with success. The judgment of the trial Court was set aside and the suit of the appellants was dismissed. The parties litigated further in this Court in Regular Second Appeal No. 1156 of 1966. The learned Single Judge of this Court vide judgment dated April 3, 1973 accepted the appeal (filed by the present appellants) partly to the extent that a decree for possession of land measuring 9 bighas and 3 biswas only, from out of the suit land, was granted in favour of the appellants. The suit in respect of the remaining land obviously stood dismissed. The appellants have now approached this Court under Clause X of the letters patent with a view to reassert their right to redeem the remaining land.

(2.) Shri S.P. Jain, learned counsel appearing for the appellants, has made submissions in regard to the two points which were mooted before the learned Single Judge. The first point concerns the abatement of the appeal on account of the death of Jiwan Dass, respondent No. 8, whose legal representatives had not been brought on record although the death had taken place about two years earlier. The learned Single Judge after giving thought to the contentions of the parties on this point, found that the Regular Second Appeal abated only qua the deceased respondent and not in toto. Shri Jain has, however, made a faint attempt to impugn this finding. While doing so, he has made a reference to the authority which has been noticed by the learned Single Judge i.e. Mangal Singh and others v. Shrimati Rattno (dead) by her legal representatives and another, 1967 AIR(SC) 1786. This authority is, however, clearly distinguishable on facts. The case pertained to the death of a mere pro forma respondent who was held to be an unnecessary party as the dispute was confined to the other parties in the suit. The other authority cited by the counsel, viz., Reghunath Keshaya Kharkar v. Ganesh alias Madhukar Balakrishna Kharkar and others, 1964 AIR(SC) 234, is the one which was adopted by the learned Single Judge for basing a conclusion that where the cause of action against the deceased defendant is capable of separation without affecting the rights or liabilities of the other defendants, the proceedings would abate only qua that defendant. This conclusion has not been effectively impugned and the same is affirmed.

(3.) On the merits of the case, the learned counsel has doubted the correctness of the finding of the learned Single Judge as also the first appellate Court to the effect hat the claim of the respondents to the land in dispute was covered by Section 2(g)(5)(viii) and Section 4(3)(ii) of the Act. In this behalf, the learned counsel could only reiterate the arguments which were advanced before the learned Single Judge, these being that the necessary ingredients of sub-clause (viii) had not been satisfied in that neither it was shown that the co-sharers were in possession of the land in accordance with their shares in the shamilat deh nor had it been established that the land was under cultivation. With regard to the possession being in excess of the share, it was for the appellants to establish that this was so. The appellants had put forward a claim to the suit land and it was for them to establish that any co-sharer was holding land in excess of his share, before depriving him of his holding. Similarly, on the question of cultivation, reliance on behalf of the appellants was placed merely on the nature of the entry in the revenue record which was shown as ghair mumkin johar. The argument pressed into service is that the land which forms a part of a johar (pond) could not have been used for cultivation which word is sought to be construed as tilling by agricultural implements such as ploughs etc. There is, however, evidence to show that Sanghara crop was being grown in this land every year by the respondents through the agency of their tenants. The raising of this crop certainly comes under the ambit of the word "cultivation". The claim of the respondents in respect of the land which was described as ghair mumkin johar, therefore fell squarely within the scope of the Exception contained in Section 2(g)(5)(viii) of the Act. In the next limb of the arguments, the learned counsel has referred to Section 4(3)(ii) with a view to urge that the amenity granted under this provision is not available to a co-sharer in view of the fact that for such a person the necessary provision had been made in Section 2(g)(5)(viii). This argument again lacks lustre. The scope of the word "persons" as used in Section 4(3)(ii) cannot be limited to those who are not co-sharers. If the intention of the Legislature was to exclude the co-sharers from the benefit of this provision, there was no difficulty for incorporating the necessary rider in the said provision. The phraseology used in sub-clause (ii) can cover the case of a trespasser and surely a co-sharer cannot be placed in a less advantageous position than a trespasser. The contention of the learned counsel must, therefore, be repelled.