Abdul Rehman and anr. vs Ram Chand and ors.

J.V. Gupta, J.

This is a defendants second appeal against whom suit for declaration has been decreed by both the Courts below.

The plaintiffs filed a suit for declaration to the effect that they are the joint owners in the Shamilat Deh along with the defendants and the consent decree dated 26th November, 1971 obtained by the defendants to the effect that they are the exclusive owners was wrong, illegal and not binding on them. The suit was contested iner alia on the ground that it was barred by the principles of res judicata and that the plaintiffs are estopped by their act and conduct from filing the suit. It was also pleaded that defendants nos. 1 and 2 have already been declared as absolute owners to the suit land and that the decree passed in their favour was legal and binding. However, the trial Court found that the plaintiffs are cosharers in the suit land which is shamilat deh and that the consent decree dated 26th November,1971, obtained by defendants Nos. 1 and 2 does not bind the plaintiffs as the same was obtained against minors without appointing their guardian and was thus a nullity. As a result of this finding, plaintiffs'' suit was decreed to the extent that they are entitled to be in joint possession of the suit land as cosharers. In appeal before the learned Senior Sub Judge, with enhanced appellate powers, the finding of the trial Court with respect to the consent decree dated 26th November, 1971, was not challenged. The only contention raised was that the plaintiffs were not entitled to the decree for joint possession of the suit land passed in their favour by the trial Court. However, this contention was repelled by the learned lower Appellate Court and thus the decree passed by the trial Court was maintained. Dissatisfied with the same, the defendants have filed this Regular Second Appeal in this Court.

Learned counsel for the appellants submitted that in view of Section 13 of the Punjab Village Common Lands (Regulations) Act, 1961, the suit filed by the plaintiffs was not maintainable as the suit land was alleged to be a shamilat deh. According to the learned counsel, it being a shamilat deh vested in the Gram Panchayat and, therefore, under Section 13 of the Act, the jurisdiction of the Civil Court was barred.

It was next contended that the plaintiff was only entitled to the decree for declaration and not for joint possession, as passed by the Courts below.

After hearing the learned counsel for the parties and going through the records, I find that the plaintiffs, filed a suit for declaration only and thus they were entitled only to the relief of declaration to the effect that they are joint owners in the suit land, which is a shamilat deh and that the decree dated 26th November, 1971, obtained earlier by the defendants was a nullity and was not binding on the plaintiffs. Thus, on the pleedings of the parties, the question of passing a decree for joint possession, as such, did not arise. It has been categorically found by the trial Court at that "I observe that the defendants are in possession of the suit land from the time of their forefathers as revealed by the jamabandi. The possession of the defendants Nos. 1 and 2 is in the capacity of cosharers only and not as exclusive owners. Shamilat deh is recorded to be owner as revealed by jamabandi Exhibit P 23, for the year 195657. The defendants are also Biswedars and plaintiffs by this suit, being cosharers be put in joint possession with the defendants Nos. 1 and 2." It has been further found that "the plaintiffs being cosharers have a right to get declaration that they are joint Biswedars and they be put into joint possession in the land in suit." As observed earlier, the plaintiffs filed a suit for declaration only and the passing of the decree for joint possession, as such, did not arise. The plaintiffs will be entitled to seek possession by partition being the cosharers.

However, it may be observed that according to the plaintiffs themselves the suitland is a shamilat deh and that being so, under the Punjab Village Common Lands (Regulation) Act, it vests in the Gram Panchayat. Thus, this decree will not be binding on the Gram Panchayat as such and it will be open to the Gram Panchayat to show that the land vests in it.

With these observations and modifications, the appeal fails and is dismissed, with no order as to costs.