R. S. A. No. 1590 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 1590 of 2007 Date of Decision : October 14, 2010 Gurdawara Shri Kalyan Sir Amritsar, Sirsa .... Appellant Vs. Municipal Committee, Ellenabad, Sirsa and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. S. K. Jain, Advocate for the appellant. Mr. Mahavir Sandhu, Advocate for respondent no. 1. Respondents no.2 and 3 ex-parte. * * * L. N. MITTAL, J. (Oral) : Defendant no.1 – Gurdawara Shri Kalyan Sir Amritsar has filed the instant second appeal. Suit was filed by respondent no.1-plaintiff – Municipal Committee, Ellenabad against appellant and proforma respondents no.2 and 3. Case of plaintiff-respondent no.1 is that it is owner in possession of the suit land. However, defendants no.2 and 3 have suffered judgment and R. S. A. No. 1590 of 2007 2 decree dated 06.12.1989 in favour of defendant no.1 – appellant regarding ownership and possession of the suit land. The said judgment and decree have been challenged in the suit because defendants no.2 and 3 were neither owners nor in possession of the suit land and they could not transfer any title in favour of defendant no.1 – appellant. The plaintiff alleged that 05 kanals land in khasra no.560 vested in Gram Panchayat, Ellenabad. Gram Panchayat sold 16 marlas land out of it to different persons vide different sale deeds. Gram Panchayat was succeeded by plaintiff Municipal Committee and therefore, properties of Gram Panchayat vested in plaintiff Municipal Committee. Accordingly, plaintiff became owner in possession of the suit land, which is comprised of khasra no.560 and is accordingly owned and possessed by the plaintiff. The decree dated 06.12.1989 is collusive among the defendants. The defendants raised various preliminary objections. The defendants denied the plaint allegations. It was pleaded that Gram Panchayat had no concern with suit land. Defendant no.1 has become owner in possession of the suit land by way of civil court decree dated 06.12.1989. Previously, Sardara – father of defendants no.2 and 3 was owner in possession of the suit land and after his death, defendants no.2 and 3 became owners in possession thereof and they suffered the aforesaid decree in favour of defendant no.1. Gram Panchayat had filed a suit against father of defendants no.2 and 3, but the said suit was dismissed by Assistant R. S. A. No. 1590 of 2007 3 Collector Ist Grade on 03.12.1979. Father of defendants no.2 and 3 became owner of the suit land vide civil court decree passed in the year 1974. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Sirsa, vide judgment and decree dated 29.07.1998, dismissed the plaintiff's suit. However, first appeal preferred by the plaintiff has been allowed by learned Additional District Judge, Sirsa, vide judgment and decree dated 01.03.2007 and thereby, suit filed by the plaintiff has been decreed. Feeling aggrieved, defendant no.1 has preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Perusal of jamabandi placed on record reveals that in jamabandi for the year 1962-63 (Ex.P-4 as well as Ex.D-18), Shamlat Patti Mahajan has been recorded to be owner of 05 kanals land of khasra no.560 and suit land is recorded to be in occupation of residents of village being Gair Mumkin Johar. However, in subsequent jamabandis for the years 1967-68 (Ex.P-5), 1977-78 (Ex.P-6) and 1982-83 (Ex.P-7), Gram Panchayat was recorded to be owner of the aforesaid land, although the same continued to be recorded as Johar i.e. pond in possession of residents of the village. In jamabandi for the year 1987-88, Gram Panchayat was recorded to be owner of the aforesaid land, but Pawan Kumar, Ashok Kumar and Leelawati were recorded to be in possession thereof. There are also mutations Exs. P-9, P- R. S. A. No. 1590 of 2007 4 10, P-11, P-12, P-13 to P-17 showing sale of portions of land of khasra no.560 by Gram Panchayat to different persons vide many sale deeds dated 30.08.1976 and two other sale deeds dated 20.04.1977 and 19.03.1982. The remaining land continued to be recorded in the ownership of Gram Panchayat. Now, plaintiff Municipal Committee has succeeded Gram Panchayat and therefore, in view of aforesaid long standing entries in the revenue record, it is established that plaintiff is owner in possession of the suit land. Learned counsel for the appellant vehemently contended that in jamabandi for the year 1962-63, the land was recorded to be in ownership of Shamlat Patti Mahajan and therefore, mere entry in subsequent jamabandis depicting ownership of Gram Panchayat is not sufficient to prove that Gram Panchayat had become owner of the suit land. Reliance in support of this contention has been placed on a judgment of this Court namely Hardev Singh vs. Prem Pal and another reported as (2009-4) The Punjab Law Reporter 405. The contention cannot be accepted. In view of the Punjab Village Common Lands (Regulation) Act, 1961 (as applicable to Haryana) (in short – the Act), Shamlat land vested in Gram Panchayat. Shamlat land, as defined in the Act, included land described in revenue record as Shamlat Patti and used for the benefit of village community or for common purposes of village. In the instant case, even in jamabandi for the year 1962-63, which has been heavily relied on by counsel for the appellant, R. S. A. No. 1590 of 2007 5 the land was recorded to be of Shamlat Patti being used by villagers as pond for common purposes. Consequently, the Gram Panchayat was recorded to be owner of the suit land in subsequent jamabandis as the land vested in Gram Panchayat under the provisions of the Act. If anybody wanted exclusion of any land from the definition of Shamlat Deh and from vesting in the Gram Panchayat under the Act, such person claiming right, title or interest in any such land could file suit in the Court of Collector to claim that any such land does not vest in Gram Panchayat, as provided by Section 13-A of the Act. In the instant case, nobody filed suit to claim that the suit land had not vested in Gram Panchayat under the Act. On the contrary, jurisdiction of Civil Court to determine any such question is barred by Section 13 of the Act. It has to be noticed with significance that learned counsel for the appellant referred to copy of jamabandi for the year 1962-63 (Ex.D-18), wherein names of the proprietors of the Patti had also been mentioned. However, counsel for defendant no.1-appellant is unable to point out that defendants no.2 and 3 or their father or predecessor were proprietors in the said Patti. It is surprising that defendants no.2 and 3 have suffered decree dated 06.12.1989 in favour of defendant no.1 declaring defendant no.1 to be owner in possession of the suit property, but defendants no.2 and 3 themselves were neither owners nor in possession of the suit property and therefore, by way of decree dated 06.12.1989, defendant no.1 could not R. S. A. No. 1590 of 2007 6 become owner or in possession of the suit property. Neither plaintiff Municipal Committee nor its predecessor Gram Panchayat was party to the said decree. It is not explained as to how defendants no.2 and 3 had become owners of the suit property and how defendant no.1 could get title from them. Defendant no.1 relied on judgment and decree dated 10.12.1974 Ex.D-21 and Ex.D-22, but the same are not proved to be relating to the suit land. Khasra no.560 of the suit land has not been mentioned in the said judgment and decree. It may be added that defendant no.1 had instituted plaint Ex.P-3, in which decree dated 06.12.1989 was passed. Defendant no.1 herein claimed in that suit it was in possession of the suit land for more than 50 years and had, therefore, become its owner by way of adverse possession. However, in the suit filed in the year 1972, wherein judgment and decree dated 10.12.1974 Ex.D-21 and Ex.D-22 were passed, Sardara – father of defendants no.2 and 3 had claimed to be in possession of the suit property for more than 40 years. Thus, claim of defendant no.1 in the suit instituted by it against defendants no.2 and 3, based on adverse possession, could not be sustained and the decree dated 06.12.1989 is result of collusion among the defendants themselves. Even otherwise, defendant no.1 could not seek declaration of its ownership by adverse possession because adverse possession can be R. S. A. No. 1590 of 2007 7 pleaded only by way of defence and not by filing suit as held by this Court in two judgments namely Bhim Singh and others vs. Zile Singh and others reported as 2006 (3) Civil Court Cases 479 (P&H) and Dewaki and others vs. Dayawanti and others reported as 2006 (3) Civil Court Cases 615 (P&H). Learned counsel for the appellant also contended that suit land could not vest in Municipal Committee as the Haryana Municipal Common Lands (Regulation) Act, 1974 (in short – the Municipal Lands Act) was held to be unconstitutional by Full Bench of this Court in the case of Rajender Parshad and others vs. State of Haryana and others reported as 1979 P. L. J. 263. The contention is completely misconceived because the plaintiff does not claim that the suit land vested in plaintiff - Municipal Committee under the Municipal Lands Act. On the other hand, suit land had vested in Gram Panchayat under the Act of 1961 and the said Act is constitutionally valid. The plaintiff Municipal Committee became owner of the suit property being successor of Gram Panchayat. Ownership of Gram Panchayat was not merely based on entries in jamabandis, but was based on provisions of the Act of 1961, under which Shamlat Deh land vested in Gram Panchayat. Learned counsel for the appellant contended that defendants no.2 and 3 were earlier in possession of the suit land. The contention cannot be accepted. Receipts of water tax, electricity etc. produced in R. S. A. No. 1590 of 2007 8 evidence have not been linked with the suit property and therefore, have been rightly discarded by the lower appellate court. On the contrary, in the entire long standing revenue record, at no stage, defendant no.1 or its predecessors defendants no.2 and 3 or their father was ever recorded to be in possession of any part of khasra no.560. For the reasons aforesaid, I find no infirmity, much less illegality or perversity in the judgment and decree of the lower appellate court. Plaintiff is proved to be owner in possession of the suit land. Defendant no.1 has no right, title or interest nor defendants no.2 and 3 had any right, title or interest in it. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is devoid of any merit and is accordingly dismissed. October 14, 2010 ( L. N. MITTAL ) monika JUDGE