RSA No. 4096 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 4096 of 2009 Date of Decision:November 13, 2009 Ram Saran and another .....Appellants versus Bir Singhand others ....... Respondents Coram: HON'BLE MR. JUSTICE AJAY TEWARI Present: Mr.R.S.Tacoria for the appellant. **** Ajay Tewari, J. This appeal has been filed against the judgment of the learned Lower Appellate Court reversing that of the trial court and thereby decreeing the suit filed by the respondents for evicting the appellants from the land in dispute. The case set out in the plaint was that the land in dispute was common land used for common purposes such as Johar, Tirath and Baithak Maveshian etc., and that the appellants had taken unauthorised possession of a portion thereof and had converted the same into agricultural land. The learned trial court dismissed the suit for want of necessary evidence. In appeal the respondents were permitted to lead additional evidence and they placed on record Jamabandies for the last 25 years showing that the land in dispute had been reserved for common purposes. It was only Jamabandi for the year 1999-2000 where the appellants were shown in possession of a portion of the land by way of Najayaz Kabza. Consequently the learned Lower Appellate Court allowed the appeal . The following questions have been proposed:- i) Whether the Gram Panchayat is owner of the land in dispute? RSA No. 4096 of 2009 2 ii) Whether Jumla Mustarka Malkan land being in possession of proprietors as per their share and not used for common purposes is not shamlat deh? iii)Whether the suit in which contradictory pleas have been taken is not maintainable? iv)Whether the suit was not maintainable in civil court being barred? v) Whether issue no.1 has been wrongly decided in favour of the plaintiff-respondent by the learned lower appellate court? The only argument of learned counsel is that as per the revenue record roughly the half land only was the ownership of the Panchayat while the remaining half was Jumla Mushtarka Malkan. It is thus his contention that being a proprietor his possession cannot be termed to be unauthorised and that the only remedy for the other party would be to sue for partition. In my opinion this argument is misconceived. The mere fact that land used for common purposes (which may not vest in the Gram Panchayast or is in the ownership of the joint proprietors) cannot be forcibly taken possession of by one of the proprietors on the specious plea that now the only remedy is by way of partition. Learned counsel has placed reliance on a Division Bench judgment of this Court in Gurjant Singh v. Commissioner, Ferozepur Division reported as 2000(2) RCR(Civil) 437. In that judgment it was held that Bachat land which is not utilised for common purposes would have to be redistributed to the proprietors. In my opinion this judgment is not applicable to the facts of the present case. The land in dispute has been reserved for common purposes and this judgment cannot be said to authorise a person to take forcible possession of common land on the ground that some part is Jumla Mushtarka Malkan. Learned counsel has argued that learned Lower Appellate Court has converted the land into Shamlat Deh. It is clarified that the word 'Shamlat RSA No. 4096 of 2009 3 Deh' used by the lower Appellate Court in the last part of the judgment would not have the effect of vesting of land in the Gram Panchayat. With this clarification, this appeal is dismissed. No costs. (AJAY TEWARI) JUDGE November 13, 2009 sunita