R.S.A. No. 77 of 1992 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 77 of 1992 Date of Decision : 18.2.2010 Sarup Singh (dead) & another .......... Appellants Versus Darshan Singh & another ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Vijay Rana, Advocate for the appellants. Mr. Sudeep Mahajan, Advocate for the respondents. **** VINOD K. SHARMA, J. This appeal by the plaintiff / appellants is directed against the judgment and decree dated 7.8.1991, passed by the learned lower appellate Court, vide which suit filed by the plaintiff / appellants for mandatory injunction directing the defendant to remove super-structure and unauthorized construction over the suit property i.e. land measuring 1 Kanal bearing Khewat No. 120, Khatauni No. 216 Khasra No. 188 Min, as entered in the jamabandi for the year 1970-71 within the Municipal Committee limit of Mukerian, as detailed in the head-note of the plaint, was dismissed. The plaintiffs filed a suit on the pleadings, that the land measuring 1 Kanal bearing Khewat No. 120, Khatauni No. 216 Khasra No. 188 Min, as entered in the jamabandi for the year 1970-71 in village R.S.A. No. 77 of 1992 2 Tikhowal is recorded as abadi. The land was said to be joint property of all the proprietors according to their ancestral shares. It was the case of the plaintiffs, that they being proprietors of the village have got a right to use the land as co-sharer. The defendant was said to be having no right or interest in the suit land but he illegally raised construction in this plot without any legal right. The defendant was said to be a trespasser in the suit property, therefore, was required to remove the construction raised by him on this land. The suit was contested. The defendant admitted, that he had no right in the suit land, but it was asserted that the construction in the said plot was not raised by him but the building was constructed by Smt. Narinder Kaur. Therefore, it was pleaded that Smt. Narinder Kaur was necessary party in the case, but as she was not pleaded as a party the suit deserved to be dismissed. He took the additional objection that the suit was bad for non- joinder of necessary party, therefore, special cost of Rs. 1,000/- (Rupees one thousand only) was also claimed. In the replication, averments made in the plaint were reiterated, and those in the written statement were denied. On the pleadings of the parties, the learned trial Court framed the following issues :- “1. Whether the property in suit is the common property of all the proprietors of the village?OPP 2. Whether the defendant has raised the R.S.A. No. 77 of 1992 3 construction illegally over the property in suit?OPP 3. Whether the plaintiffs are entitled to the mandatory injunction prayed for?OPP 4. Whether the suit is bad for non-joinder of the necessary parties?OPD 5. Whether the suit is barred by the principle of res judicata?OPD 6. Relief.” On appreciation of evidence, the learned trial Court held, that the plaintiffs and other proprietors of the village were owners of the suit property. On issue No.2, the learned trial Court was pleased to hold, that Sh. Darshan Singh defendant was recorded in unauthorized possession of the suit property in the jamabandi Ex.P-2, as well as the same was recorded in Khasra / girdawari Ex.P-3. The learned trial Court further held, that the site plan for the purpose of construction over this property was approved by the Committee in the name of Smt. Narinder Kaur w/o Darshan Singh, for that it was said to be a clever act of the defendant. The learned trial Court further held that Smt. Narinder Kaur was wife of Darshan Singh, and there was no evidence that she had any independent income or was living separate from the defendant for any reason. Therefore, the learned trial Court held, that the construction raised by the defendant by creating a Benami transaction in connivance with the Municipal Committee officials and, therefore, no R.S.A. No. 77 of 1992 4 importance could be paid to the Municipal record. The learned trial Court further held, that DW-6 while appearing in the witness box had admitted, that he was in possession of the suit land, but he failed to bring on record the evidence to show as to when and under what circumstances he parted with the possession. It was stated by him that some land was sold by the Government in favour of Smt. Narinder Kaur but no such sale certificate or any other document favouring the title of Smt. Narinder Kaur was produced. The Court, therefore, held, that defendant had raised the construction over the disputed plot, and was liable to remove it. Issue No.3, was also decided in favour of the defendant / appellant, in view of the finding recorded on issues No.1 & 2. On issue No.4, the learned trial Court held, that the suit was not bad for non-joinder of party, in view of the fact, that Smt. Narinder Kaur was wife of Darshan Singh, who never remained in possession of the suit property at any time, whereas Darshan Singh defendant was continuing in possession of the suit land. On issue No.5, it was held by the learned trial Court, that the plaintiffs have legal right to control the land being proprietors and members of the proprietory body and the previous suit was said to not operate as bar to the present suit. Consequently, the suit filed by the plaintiffs was decreed. The defendant / respondent preferred an appeal against the judgment and decree passed by the learned trial Court. Learned lower appellate Court took up issues No. 1, 3 & 5 together, and held that the plaintiffs nowhere alleged in the plaint, that they R.S.A. No. 77 of 1992 5 were proprietors in the village. The learned lower appellate Court held, that in para 2 of the plaint, it was admitted that the suit land was reserved for common purposes for the entire proprietory body of the village, and has been used as such from time immemorial. The learned lower appellate Court referred to Section 2(g) of the Punjab Village Common Lands (Regulation) Act 1961 to hold that the suit land would come within the definition of Shamilat Deh. The learned lower appellate Court further held, that in the previous suit filed by Chanan Singh, Avtar Singh and Labh Singh against the appellant Darshan Singh, the judgment and decree was set aside by holding, that the suit property fell within the definition of Shamilat deh. It was held, that the plaintiff had no locus standi to file the suit. The learned lower appellate Court held, that the suit was barred by the principle of res judicata. The finding of the learned trial Court was reversed. However , finding on issues No.2 & 4 was affirmed and consequently, the appeal was accepted and the suit filed by the plaintiff / appellant was dismissed. The learned counsel for the appellant contended that this appeal raises the following substantial questions of law :- 1. Whether the land reserved for common purpose falling within the Abadi could be termed as Shamitlat Deh when the same stood transferred to Municipal Committee? 2. Whether the previous judgment in a suit for injunction could operate as res R.S.A. No. 77 of 1992 6 judicata? In support of the first substantial question of law, the learned counsel for the appellant referred to Section 2(g) of the Punjab Village Common Lands (Regulation) Act, 1961, which reads as under :- “(g) “Shamilat deh includes. (1) Land described in the revenue records as Shamilat deh excluding Abadi deh. (2) Shamilat Tikkas. (3) Land described in the revenue records as Shamilat, Tarafs, Pattis, Pannas and Tholas and used according to the revenue records for the benefit of the village community or a part thereof or for common purposes of village. (4) Lands used or reserved for the benefit of the village, community including, streets, lanes, playgrounds, school, drinking wells, or ponds within abadi deh or gora deh and (5) Lands in any village described as banjar Qadim and used for common purposes of the village, according to revenue records. But does not include land which : (i) [ ] (ii) has been allotted on quasi permanent basis to a displaced person. (ii-a) was shamlat deh, but has been allotted on quasi-permanent basis to a displaced person, or has been otherwise transferred to any person by sale or by any other manner whatsoever after the commencement of this Act, but on or before the 9th day of July, 1985. (iii) has been partitioned and brought under R.S.A. No. 77 of 1992 7 cultivation by individual landholders before the 26th January, 1950. (iv) havuing been acquired before 26th January, 1950, by a person by purchase or in exchange for proprietory land from a co-sharer in the Shamilat deh and is so recorded in the jamabandi or is supported by a valid deed; and is not in excess of the share of the co-sharer in the Shamilat deh. (v) is described in the revenue records as Shamilat, Taraf, Pattis, Pannas and Thola and not used : according to revenue records for the benefit of the village community or a part thereof or for common purpose of the village. (vi) lies outside the abadi deh and was being used as gitwar, bara manure pit, house or for cottage industry, immediately before the commencement of this act. (vii) [ ] (viii) was shamilat deh, was assessed to land revenue and has been in the individual cultivating possession of co-sharers not being in excess of their respective shares in such shamilat deh on or before the 26th January, 1950, or (ix) was being used as a place of worship or for purposes, subservient thereto, immediately before the commencement of this Act.” The learned counsel for the appellant by referring to the definition, referred to above, vehemently contended, that the land described as “Abadi Deh” is specifically excluded, from the definition of “Shamilat Deh”, it is only land which is used or reserved for the benefit of village R.S.A. No. 77 of 1992 8 including streets, lanes, playgrounds or school, drinking wells or ponds etc. within the Abadi deh or “gora deh” can be included, but the land in dispute was not covered under the Clause 2(g)(4). It is only land described as “banjar qadim” and used for the common purposes of the village, according to the revenue record, as defined under Section 2(g)(4) would fall within the definition of Shamilat Deh. It was also the contention of the learned counsel for the appellants that after the dismissal of the suit for injunction Chanan Singh, Avtar Singh and others had filed a suit for declaration against the Municipal Committee claiming ownership of proprietors of the land in dispute. Gram Panchayat was also party to the suit. The suit filed by Chanan Singh and other was decreed and it was held that the land in dispute belonged to the proprietors of the village. The said suit has attained finality. However, this important aspect was totally ignored by the learned lower appellate Court in holding that the suit filed by the plaintiff / appellants was barred by the principle of res judicata. On consideration, I find force in this contention. Once the disputed property was in Abadi deh, and was under the ownership of proprietors, it could not be said to be shamilat Deh, specially when it was said to have been encroached upon by the defendant for his personal use. Once the suit property was transferred to the Municipal Committee and the suit filed by Chanan Singh and others seeking declaration that the property in dispute belonged to the proprietors of the village was decreed as Section 13 of the Act ceased to have any operation in view of the transfer of land to R.S.A. No. 77 of 1992 9 the Municipal Committee, the property could not be said to be Shamitlat Deh, as held by the learned lower appellate Court. The learned lower appellate Court, therefore, committed an error in reversing the judgment by holding the property to be Shamilat Deh. The finding of the learned lower appellate Court, that the suit was barred by the principle of res judicata, therefore, cannot be sustained, for the reasons that under Section 11 of the Code of Civil Procedure, in order to attract the provisions of res judicata, it has to be proved, that in the previous suit, the issue raised has been heard and finally decided by the Court having jurisdiction to try the suit. The previous suit was dismissed without adjudicating, the case on merit on the ground, that the Civil Court had no jurisdiction to entertain and try the suit. The findings were outcome of misinterpretation of the provisions of Section 2(g) of the Punjab Village Common Lands (Regulation) Act, 1961. The issue raised in the present suit was not finally decided by the Court of competent jurisdiction in the previous suit, to attract the principle of res judicata. The finding of the learned lower appellate Court holding, that the suit was barred by the principle of res judicata, therefore, is also not sustainable in law. The substantial questions of law, therefore, deserve to be answered in favour of the appellants. The land which is reserved for R.S.A. No. 77 of 1992 10 common purposes falling within the Abadi could not be termed as Shamilat Deh, especially when the land stood vested in the Municipal Committee and a decree was passed in favour of Chanan Singh and others holding that the property in dispute was under the ownership of the proprietors of the village. For the reasons stated above, it is also held that the suit filed by the plaintiff / appellants was not barred by the principle of res judicata. The second substantial question of law is also decided in favour of the appellants and against the respondents. This appeal is accordingly allowed. The judgment and decree passed by the learned trial Court is set aside, and the case is remanded back to the learned lower appellate Court to adjudicate the dispute on merit in accordance with law. The parties through their counsel are directed to appear before the learned lower appellate Court on 29.3.2010. No costs. 18.2.2010 ( VINOD K. SHARMA ) 'sp' JUDGE