SURAJ MAL Vs. DEVI SINGH

JUDGEMENT

(1.) This is defendants' second appeal against whom the suit for partition of the abadi deh land has been decreed by both the Courts below.

(2.) It is not disputed that the suit land is recorded as abadi deh ghair mumkin in the revenue record. The plaintiffs brought the suit for possession by way of partition of the suit land. The suit was instituted under Order 1 rule 8, Code of Civil Procedure. According to the plaintiffs, the suit land vested in the proprietors of the village amongst whom a dispute had arisen and they wanted the suit land to be partitioned except the one where the non-proprietors (ghair biswadars) had raised houses. The suit was contested inter alia on the ground that the Civil Court had no jurisdiction to entertain the suit; the Gram Panchayat had not been made a party which was a necessary party and, therefore, the suit could not proceed. The trial Court found that the suit land did not vest in the Gram Panchayat because the same did not fall within the meaning of shamilat deh as defined in section 2 (g) of the Punjab Village Common Lands (Regulation) Act, 1961 , and was recorded as anadi deh in the copy of the jamabandi for the year 1977-78, Exhibit P 4. It may be stated here that during the pendency of the suit, which was field on June 13, 1980, sub-clause (4a) of the said Act was omitted vide Haryana Act No. 2 of 1981, which came into force with effect from February 12, 1981. Later on by Haryana Act No. 15 of 1983, the said sub-clause (4-e) was re-inserted with effect from February 12, 1981. Thus, the said sub-clause which was once omitted, continued to be there on the statute book because by the Haryana Act No. 15 of 1983, it was re-introduced in the abovesaid Act with retrospective effect. In spite of the reassertion of the said sub-clause by the Haryana Act No. 15 of 1983, the trial Court did not notice the said amendment and decided case on the basis as if sub-clause (4-a) did not exist and, therefore, the suit land being the abadi deh did not vest in the Gram Panchayat. Consequently, the plaintiffs' suit was decreed and a preliminary decree for possession was passed. In appeal, the learned District Judge affirmed the said findings of the trial Court and, thus, maintained the decree decreeing the plaintiffs' suit. Surprisingly enough the District Judge also did not discuss the effect of the re insertion of sub clause (4-a) by the Haryana Act No. 15 of 1983, with effect from February 12, 1981, in the above-mentioned Act.

(3.) The Learned counsel for the appellants submitted that in view of sub-clause (4-a) of section 2 (g), shamilat deh included vacant land situated in abadi deh or gore deh not owned by any person. That being so, argued the learned counsel, the same vested in the Gram Panchayat and, therefore, the Gram Panchayat was a necessary party. Moreover, in view of section 13 of the aforesaid Act, no civil Court shall have the jurisdiction to entertain or adjudicate upon any question whether any land or other immovable property is or is not shamilat deh or any land or other immoveable property or any right, title or interest in such land or other immovable property vests or does not vest in a Panchayat under that Act. Thus, argued the learned counsel, the civil Court had no jurisdiction to try that suit, as the land vested in the Gram Panchayat. In support of the contention, the learned counsel relied upon Gram Panchayat Sadhraur and Gram Panchayat Sadhraur V. Baldev Singh,1983 PunLJ 276; Gram Panchayat Sadhraur V. Baldev Singh,1983 PunLJ 19; Gram Panchayat Village Mau V. Amin Chand, 1983 PunLJ 329 and Bhim Singh V. Gram Panchayat of village Kharkheri, 1982 PunLJ 476. Reference was also made to Order 1 rule 9, Code of Civil Procedure, to contend that the suit was liable to be dismissed for non-joinder of the necessary parties.