R.S.A. No. 2856 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 2856 of 2008 Date of decision: 20.03.2009 Gram Panchayat Nathupur ....Appellant Versus Sarupa and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Sanjay Vij, Advocate, for the appellant. ***** VINOD K. SHARMA, J (ORAL) This order shall dispose of R.S.A. No. 2855 of 2008 titled Gram Panchayat Nathupur Vs. Chandi Ram and others and R.S.A. No. 2856 of 2008 titled Gram Panchayat Nathupur Vs. Sarupa and others, as two suits have been decided by way of common judgments. For brevity sake, facts are being taken from R.S.A. No. 2856 of 2008. The plaintiff/respondents brought a suit for declaration that they are owners of 1/3rd share and proforma defendants No. 2 to 9 are owners of 1/3rd share, Smt. Ram Phaili is owner of 1/6th share and proforma defendants No. 11 to 18 are owners of 1/6th share and in cultivating possession of agricultural land situated within the revenue estate of village Nathupur, Tehsil and District Gurgaon. Defendant No. 1 was wrongly recorded as owner of the suit land. Plaintiffs and performa defendants were in possession of the suit land throught their R.S.A. No. 2856 of 2008 -2- ancestors who were in cultivating possession since the inception of the village and had acquired ownership rights under Sections 5, 6, 7, 8 and 10 of the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act No. 8 of 1953, the plaintiffs and performa defendants and their predecessors-in-interest became complete owners in possession of the land in dispute. Gram Panchayat Act No. 4 of 1953 was enacted on 26.3.1953 and the Punjab Village Common Lands (Regulation) Act No. 18 of 1961 was enforced on 4.5.1961, whereas Punjab Village Common Lands (Regulation) Act, 1953 was enforced on 9.1.1954. The further case of the plaintiffs was that predecessors-in-interest of the plaintiffs and proforma defendants became owners of the suit land before coming into force of the Act and acquired full ownership rights over the suit land. After having complete rights in the suit land, the plaintiffs claimed that their predecessors in interest should have been recorded as complete owners before 15.6.1952, but due to negligence, mistake and collusion of defendant No. 1 with revenue authorities, they were recorded as co- sharers gair marusi, which entry was meaningless, void and ineffective against the rights of the plaintiffs and performa defendants. It was claimed that on the basis of wrong revenue entry, defendant No. 1 threatened to interfere in their peaceful possession. It is also the case set up by the plaintiffs that they along with performa defendants are in continuous possession of the suit land without paying any rent to anyone and, therefore, had acquired occupancy rights prior to 26.1.1950 and 9.1.1954. Their possession had ripened into occupancy rights much before 1935-36. The suit was contested by defendants No. 2 to 18 by raising R.S.A. No. 2856 of 2008 -3- preliminary objections with regard to name of father of defendants No. 2 to 9, name of defendant No. 17 and that of widow of Toti Ram etc. However, on merit, averments made in the plaint were not disputed. Defendant No. 1 initially appeared, but was proceeded against ex parte. On the basis of pleadings on record, the learned trial Court framed the following issues: - “1. Whether the plaintiffs and performa defendants have become owners by acquiring occupancy rights in respect of the suit land under the provisions of Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act No. 8 of 1953? OPP 2. Whether the civil Court has got no jurisdiction to try the present suit? OPD 3. Relief.” However, on oral prayer made by the learned counsel for defendant No. 1, he was allowed to join proceedings on 1.12.2004. On appreciation of evidence on record, the learned trial Court was pleased to hold that by virtue of passing of Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act No. 8 of 1953, the plaintiffs and performa defendants and their predecessors-in-interest, who were in possession of the suit land having occupancy rights became complete owners in possession of the suit land, and the entries showing them to be co-sharers gair marusi are meaningless and not binding on their rights. Thus issues No. 1 was decided in favour of the plaintiff/appellants. On issue No. 2, the learned trial Court was pleased to hold that in view of Section 4 of the Punjab Village Common Lands (Regulation) R.S.A. No. 2856 of 2008 -4- Act, 1961, the land in dispute should be excluded from the definition of shamlat deh. The learned trial Court also held that the Civil Court had the jurisdiction to entertain and try the suit by recording a finding as referred to hereinafter: - "Section 4 of the Act which deals with vesting of Shamilt Deh in the Panchayat has specifically excluded the suit land from purview of the Act. So there is no dispute regarding vesting of the suit land in Panchayat. In case Amin Lal Versus Financial Commissioner Revenue Haryana, 1971 P.L.R. 674 (DB) it was laid down that section 77 (3) (d) of the Punjab Tenancy Act takes out of the jurisdiction of a civil court only that suit which is instituted to establish a claim to a right of occupancy and not where title to property is to be decided on the determination of occupancy rights which determination was only to substantiate the plea of ownership. In case Dinu Versus Nasib Khan, 1975 PLR 437, it was observed that where the dispute is as to whether the tenant plaintiff has or has not become the owner of the land, the decision of such a question is a matter of title and is to be decided by a Civil Court and not by a Revenue Court and for deciding that question the court will have to see as if the conditions prescribed by the Act of 1953 have been fulfilled by the tenant claiming the ownership of the land. In case Puran Lal Aggarwal Versus the Financial Commissioner, Haryana, 1992 PLJ 574, it was observed that where the question or ownerhip or title to the land is involved the civil court will have jurisdiction to decide the matter and not the revenue court. The civil court alone has jurisdiction to try the suit. Law cited by learned counsel for defendant is of no avail in the fact and circumstances of the case. Issue No. 2 is decided against the defendants." Consequently, the suit was decreed. R.S.A. No. 2856 of 2008 -5- The findings recorded by the learned trial Court were affirmed by the learned lower appellate Court. Mr. Sanjay Vij, learned counsel appearing on behalf of the appellant contends that this appeal raises the following substantial questions of law: - "1. Whether the Civil Court had the jurisdiction to entertain and decide the suit in view of Section 13 of the Punjab Village Common Lands (Regulation) Act, 1961? 2. Whether the learned Courts below could ignore the subsequent entries in the revenue record to hold the plaintiff/respondents to be in possession as occupancy tenants?" In support of the substantial questions of law, the learned counsel for the appellant has referred to the revenue record where the property was shown to be shamlat deh. It was contended that in view of Section 13 of the Punjab Village Common Lands (Regulation) Act, 1961, the jurisdiction of the civil Court was barred and, therefore, the learned Courts below wrongly decided issue No. 2, which deserves to be set aside. On consideration of matter, I find no force in the contention raised by the learned counsel for the appellant. The learned Courts below have rightly held that the civil Court had the jurisdiction to entertain and try the suit to determine title on the basis of occupancy rights under statute, as adjudication of right was not possible under the Punjab Village Common Lands (Regulation) Act, 1961. Furthermore, the learned Courts below were right in holding that in view of Section 4 of the Punjab Village Common Lands R.S.A. No. 2856 of 2008 -6- (Regulation) Act, 1961, the property in dispute stood excluded from shamlat deh. Once by statute itself, the land was excluded from the shamlat deh, there was no possibility of adjudication by the authorities under Section 13 of the Act as contended. No fault can be found with the decision on issue No. 2. Learned counsel for the appellant thereafter contends that the finding of the learned Courts below cannot be sustained, as they have not looked into subsequent revenue entries, wherein the appellant/defendant was shown to be the owner, being shamlat deh. This plea also cannot be accepted, as the learned Courts below rightly held that the change in revenue entries without basis could not be looked into to deny the right of the plaintiff/respondents, which had matured into ownership much prior to the change in the revenue entires. The, substantial questions of law are answered against the appellant, as no fault can be found with the concurrent findings recorded by the learned Courts below. No merit. Dismissed in limine. (Vinod K. Sharma) March 20, 2009 Judge R.S.