ABDUL REHMAN Vs. RAM CHAND

JUDGEMENT

(1.) This is a defendants second appeal against whom suit for declaration has been decreed by both the Courts below.

(2.) The plaintiffs filed a suit for declaration to the effect that they are the joint owners in the Shamilat Deh along with the defendants and the consent decree dated 26th November, 1971 obtained by the defendants to the effect that they are the exclusive owners was wrong, illegal and not binding on them. The suit was contested iner alia on the ground that it was barred by the principles of res judicata and that the plaintiffs are estopped by their act and conduct from filing the suit. It was also pleaded that defendants nos. 1 and 2 have already been declared as absolute owners to the suit land and that the decree passed in their favour was legal and binding. However, the trial Court found that the plaintiffs are co-sharers in the suit land which is shamilat deh and that the consent decree dated 26th November,1971, obtained by defendants Nos. 1 and 2 does not bind the plaintiffs as the same was obtained against minors without appointing their guardian and was thus a nullity. As a result of this finding, plaintiffs' suit was decreed to the extent that they are entitled to be in joint possession of the suit land as co-sharers. In appeal before the learned Senior Sub Judge, with enhanced appellate powers, the finding of the trial Court with respect to the consent decree dated 26th November, 1971, was not challenged. The only contention raised was that the plaintiffs were not entitled to the decree for joint possession of the suit land passed in their favour by the trial Court. However, this contention was repelled by the learned lower Appellate Court and thus the decree passed by the trial Court was maintained. Dissatisfied with the same, the defendants have filed this Regular Second Appeal in this Court.

(3.) Learned counsel for the appellants submitted that in view of Section 13 of the Punjab Village Common Lands (Regulations) Act, 1961, the suit filed by the plaintiffs was not maintainable as the suit land was alleged to be a shamilat deh. According to the learned counsel, it being a shamilat deh vested in the Gram Panchayat and, therefore, under Section 13 of the Act, the jurisdiction of the Civil Court was barred.