TARA CHAND Vs. RATTAN

JUDGEMENT

(1.) These four second appeals (Nos. 434, 435, 437 and 440 of 1966) may be disposed of by a common judgment. The appellants are the proprietors of Pana Dudan (excepting Thullah Brahmanan) of village Sanghi. They are the owners of the shamilat land. The defendants who were Brahmins and who were not co-sharers of the land, took forcible possession of the land in July 1960. The plaintiffs, therefore, had to file several suits for possession of the land. It was stated in the plaint that the proprietors of Pana Dudan were the owners of the Shamilat land and that the Brahmins had nothing to do with the shamilat. The defendants contested the suit claiming that they were the owners of the suit-plots of land. The trial Court decreed the suit in favour of the plaintiffs, but the lower appellate Court dismissed the suit.

(2.) In these second appeals, it was contended by Shri Awasthy, learned counsel for the proprietors of Pana Dudan that the Brahmins were Malik Qabza of Thullah Brahmanan of Pana Dudan. That was what the revenue records revealed upto the Jamabandi of the year 1941-42. The defendants were trying to take advantage of a mistake in the copy of Jamabandi for the year 1945-46 obtained from the Patwari and even the lower appellate Court found that it was incorrect. The learned counsel submitted that the finding of the lower appellate Court was wholly based on conjecture. According to the lower appellate Court, the extent of shamilat land of Pana Dudan was found to be 316 Kanals and 4 Marlas after consolidation whereas it was 266 Kanals and 15 Marlas before consolidation. The lower appellate Court therefore, concluded that some land belonging to the Brahmins must have included in the khewats of the shamilat land. The learned counsel argued that this was nothing but conjecture. He submitted that the extent of land before and after consolidation could never be the same and the difference in extent could not justify a conjecture that the land of the Brahmins was included in the khewats of the shamilat land. As urged by Shri D.N. Awasthy, the lower appellate Court found that in all the Jamabandis from 1879 to 1941-42, it was throughout recorded that the shamilat land belonged to the proprietors of Pana Dudan excepting the Khewats of Thullan Brahmanan whose numbers were given. It was conceded by the learned counsel for the Brahmins in the lower appellate Court that these documents clearly showed that the Brahmins had no share in the shamilat of Pana Dudan. For the first time in 1945-46, in the copy of the Jamabandi obtained from the Patwari, it was found that the words "excepting Khewat Nos. 5661 to 673 belonging Thullah Brahmanan" were omitted. But in the copy of the Jamabandi for the same year obtained from the Kanungo, these words were found. It was conceded in the lower appellate Court that the copy supplied by the Kanungo was correct. We must, therefore, take it that throughout it was never shown in the revenue records that the Brahmins had any share in the shamilat of Pana Dudan. The lower appellate Court recorded the finding that right upto 1945-46, the Brahmins never had a share in the shamilat of Pana Dudan and the entry in the copy obtained from the Patwari was wrong. Having found so much, the lower appellate Court noticed that the area of shamilat prior to consolidation was shown as 266 Kanalas and 15 Marlas whereas in the Jamabandi for 1957-58, the area of the shamilat land was shown as 317 Kanals and 4 Marlas. The lower appellate Court conjectured from this circumstance that some of the land of the Brahmins must have been included in the shamilat and that they were made co-sharers of the shamilat. This is nothing but a pure conjecture. There was neither oral nor documentary evidence that any such thing happened. There was no evidence to suggest that at the consolidation the Brahmins obtained less land than that to which they were entitled. The case of the defendants was never that there land came to be included in the shamilat land at the time of consolidation. On the other hand, they were claiming exclusive ownership of the lands in dispute. They were also claiming to be co-sharers of Pana Dudan. Inasmuch as the finding of the lower appellate Court was not based on any evidence it has to be set aside. It is accordingly set aside.

(3.) The lower appellate Court also held that the suits were barred by Section 44 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, which provides that no Civil Court shall entertain any suit instituted to obtain a decision or order in respect of any matter which the State Government or any officer is empowered to determine or decide or dispose of under that Act. The submission of the learned counsel for the respondents was that the plaintiffs were in fact seeking to have the proceedings before the consolidation authorities set aside and, therefore, the suits were barred. There is absolutely no force in the submission. The suits were for the determination of the title of the parties which Civil Courts alone had the jurisdiction to determine and not the consolidation authorities. If authority is necessary, such authority may be found in Kundan v. Sardara, 1959 61 PunLR 208, and Gram Panchayat of village Azizpur Kalan v. Mehar Singh,1962 PunLR 282