RAM CHANDER Vs. CHANDA

JUDGEMENT

(1.) THIS is unsuccessful defendants' appeal. The defendants have challenged the judgment and decree of the Additional District Judge dated 15. 2. 1980 whereby the judgment and decree of the trial Court was reversed thus decreeing the suit of the plaintiffs as prayed for.

(2.) BRIEFLY put, plaintiffs filed a suit in a representative capacity against the defendants seeking a decree for declaration to the effect that the preliminary decree dated 8. 8. 1969 and final decree dated 15. 7. 1974 in a partition suit titled Inder Singh etc. v. Bhagwana and Ors. , are illegal, wrong, against law, arbitrary, against the scheme, null arid void and has been obtained fraudulently and collusively and so does not affect the rights of the plaintiffs in any manner. It is the case of the plaintiffs that they are proprietors and right-holders of village Jassia, Tehsil and District Rohtak, and so have a right to file the present suit. Since the proprietors are numerous and the persons filing the present suit have common interest with the other proprietors and so they have filed the suit in representative capacity. Preliminary decree as well as final decree has been challenged by the plaintiff, on numerous grounds, namely, (a) that no notice of suit was served upon them, even the proclamation was not made in strict compliance with Order 1, Rule 8 of the Code of Civil Procedure; (b) that the Court while granting preliminary decree ordered the Local Commissioner for partitioning the suit land according to their respective share in the joint land but the same has not been so one by the Local Commissioner appointed by the Court; (c)that as per preliminary decree, pucca/kacha houses of the proprietors in the abadi were not be disturbed; (d) that the Local Commissioner had also included the area under ponds, streets, thorough-fares, schools and gardens in the partition pool; and (e) that the area-of the suit land comprised in Khewat No. 550/554 Khatauni No. 929 as per jamabandi for the year 1963-64 is the ownership of Gram Panchayat, Jassia, and so could not be partitioned. Even the civil court has no jurisdiction to include such a land for the purpose of partition. Thus the judgments impugned are against law, without authority and hence null and void.

(3.) FEELING dissatisfied with the judgment and decree of the trial court, the plaintiffs preferred appeal and assailed its correctness on facts as well as on law. Before the lower appellate Court, counsel for the appellants drew the attention of the Court to para No. 5 (f) of the plaint wherein it was specifically mentioned that the subject matter of adjudication was, in fact, shown to be owned by Gram Panchayat as per entries in the revenue record. With this background, it was urged that since such a land fall within the ambit of shamilat deh, the same vested in the Gram Panchayat and so could not be partitioned and that too by a civil court. In addition thereto, learned counsel for the appellants drew the attention of the court to section 2 (g) (4a) of the Punjab Village Common Lands (Regulation) Act, 1961 (for short 'the Act') for the contention that even a vacant land situate in abadi deh or gora deh not owned by any person too fall within the ambit of 'shamilat deh'. The lower appellate Court examined the contentions raised in the light of facts on record as well as statutory provisions in this regard and finally came to the conclusion that in view of the provisions contained in section 2 (g) (4a)of the Act, the land comes within the purview of shamilat deh and so could not be partitioned. The court further held that no such suit for partitioning of such a land could be filed by any person. This way it was held that the impugned judgment and decree is inexecutable, inoperative and unenforceable.