RSA No.1260 of 1988 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1260 of 1988. Decided on: January 21, 2011. Maksood alias Nazir. .. Appellant VERSUS Union of India and others. .. Respondents * * * CORAM: HON'BLE MR.JUSTICE M.M.S.BEDI 1. Whether reporters of local papers may be allowed to see the judgment? 2. Whether to be referred to the Reporter? 3. Whether the judgment should be reported in the Digest? * * * PRESENT Mr.C.B.Goel, Advocate, Mr.Sanjiv Gupta, Advocate, for the appellant. M.M.S. BEDI, J. (ORAL) The present second appeal was filed in the year 1988. It came up for final arguments on 24.09.2010 when a Coordinate Bench of this Court ordered that the appellant should be issued actual date notice for 12.11.2011. The case has, now, been shown for regular hearing in the regular list at Sr.No.422. The suit of the plaintiff-appellant for permanent . . . 1 RSA No.1260 of 1988 injunction has been decreed holding that he is in possession of the suit land without payment of any rent or batai. He being in possession and Union of India being the owner of the property, the decree has been passed in favour of the plaintiff that the defendant- respondents will not interfere in possession or dispossess him except in due course of law. The defendants-respondents being owner were held to be entitled to auction the land in accordance with law. Briefly stated, the facts of the case of the plaintiff are that he is Biswedar in village Garhi Balhal, Tehsil and District Kurukshetra, having share in the shamilat land. The shamilat land vests in proprietary body of the village. Certain proprietors shifted to Pakistan in the year 1947 and the land belonging to said persons vested in the Central Government. The Biswedar had a share in the shamilat deh and now the Central Government has come to have share in the shamilat deh as co-share with other proprietors. Plaintiff claims that he has been in peaceful and cultivating possession of the land in dispute for the last 30 years prior to the filing of the suit. The defendants-respondents claim that the suit land was an evacuee property. The decision of the Civil Court vacating the stay was also challenged. The defendants-respondents pleaded that the evacuee land was transferred to the State Government by the Central Government in a rural package deal but the plaintiff has not made the State of Haryana a party in the suit, as such, the suit was liable to be dismissed for non-joinder of necessary . . . 2 RSA No.1260 of 1988 parties. Possession of the plaintiff was admitted stating that he is in possession of the suit land and that the land had been rightly proclaimed for auction. Following issues were framed by the trial Court: - 1. Whether the plaintiff is Biswedar of the suit land?OPP 2. Whether this Court has got no jurisdiction to try this suit?OPD 3. Whether the suit is liable to be dismissed for non-compliance of Section 80?OPD 4. Whether the suit is not maintainable for non- joinder of State Government, Haryana? 5. Relief. The trial Court decided issue No.1 against the plaintiff-appellant holding that he has failed to prove his ownership and that the civil Court was not authorised to go into the matter of ownership of the plaintiff-appellant. It has been held that he had not proved that he was Biswedar in the land. Issue No.2 was decided in favour of the plaintiff holding that the title was not being decided by the civil Court. Issue No.3 was decided in favour of the plaintiff- appellant and against the defendants-respondents. Issue No.4 was decided in favour of the plaintiff-appellant. On the basis of finding on all the issues, the suit of the plaintiff-appellant was decreed to the effect that the plaintiff being in possession of the property in dispute could be dispossessed only by due process of law. The judgment and decree passed by the trial Court did not satisfy the plaintiff- . . . 3 RSA No.1260 of 1988 appellant and as such, he filed an appeal to claim that he should be declared owner in possession of the property. He sought the reversal of the judgment of the trial Court on issue No.1. The lower appellate Court held that vide Jamabandi EX.P1, for the year 1981-82, the suit land is shown to be in cultivating possession of the plaintiff but the same vests in the Central Government. The plaintiff-appellant sought to establish his title on the basis of jamabandi EX.P2, for the year 1981-82 wherein the plaintiff-appellant was shown to be in cultivating possession of Rectangle No.166, Killa No.16/5.17 and 24/3. The Court observed that said killas did not form part of the suit land. On the basis of jamabandis EX.D1, EX.D2 & EX,D3, for the years 1966- 67, 1971-72 & 1981-82, the Central Government had been shown to be owner of the property in dispute. The second appeal has been preferred by the plaintiff on the ground that there is sufficient evidence on the record to prove that the appellant is in possession of the property in dispute. It is claimed that the Central Government has not been able to establish its ownership over the property in dispute. Reliance has been placed on judgment in Gram Sabha and Gram Panchayat Daba Vs. The Chief Settlement Commissioner and others, 1973 PLJ 398, wherein it has been held that share of the evacuees in the shamilat land of the villages from which Muslim evacuees had migrated, vested in the Custodian by virtue of Sections 7 & 8 of the Administration of Evacuee Property Act, 1950. The Punjab Village Common Lands (Regulation) Act, . . . 4 RSA No.1260 of 1988 1954, did not divest such share of the evacuees and such share, which had vested in the Custodian, did not get vested in the Panchayats. In the said judgment the notification issued under Section 12 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 vested the property in the Custodian, acquired by the Central Government. In the said case, it was held that the Panchayat cannot claim any right over the share of evacuees in shamilat land. I have considered the facts and circumstances of the present case and gone through the oral as well as documentary evidence produced. A concurrent finding of fact has been arrived at by the Courts below that the plaintiff-appellant is no doubt in possession of the property but the same vests in the Government. As per the revenue record, the Central Government is shown to be the owner of the property as per jamabandis for the year 1966-67 EX.D1, 1971-72 EX.D2 and jamabandi for the year 1981-82 EX.D3. The law point has been sought to be raised to the effect that the entries in favour of Central Government are wrong, as such, should be ignored and that property should be held to be shamilat owned by the proprietors. I have considered the said plea and I do not find force in the same. The revenue entry in favour of Central Government has not been challenged by the plaintiff-appellant. Presuming that the plaintiff claims ownership in a land which is described as shamilat, in that eventuality, the jurisdiction of the civil . . . 5 RSA No.1260 of 1988 Court will be barred under the provisions of the Punjab Village Common Land (Regulations) Act as well as under the East Punjab Evacuees' (Administration of Property) Act, 1947. I have considered the said contention of counsel for the appellant and I am of the opinion that in the case cited by counsel for the appellant, there was a dispute between Gram Panchayat and the Central Government, Rehabilitation Department, regarding land which were though evacuee properties, but were entered in the name of Central Government. In the present case, there is no dispute between Gram Panchayat and Central Government and in case the Gram Panchayat claims the land to be shamilat, it is for the Gram Panchayat to seek the possession of the property from the plaintiff-appellant. Since the Gram Panchayat is not a party and the Civil Court is not vested with jurisdiction to decide the title of the suit land, the Civil Court does not have any jurisdiction to decide whether the land vests in Gram Panchayat or not, the appeal is dismissed, without prejudice to the rights of the Gram Panchayat regarding title in the property. It is made clear that question regarding title of the property has been left open while dismissing this appeal with liberty to the plaintiff-appellant to seek his right against the actual owner of the property in case anyone casts cloud on the right of the plaintiff-appellant. (M.M.S.BEDI) JUDGE January 21, 2011. rka . . . 6