Gram Panchayat of Village Azizpur Kalan vs Mehar Singh

P.C. Pandit, J.—The land in dispute was entered as shamilat deh in the revenue papers. In 1953 consolidation proceedings took place in this village. The Consolidation Officer, acting u/s 18 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act (Act 50 of 1948), allotted this land to the Gram Panchayat of this village for common purposes. On 9th January 1954 the Punjab Village Common Lands (Regulation) Act (1 of 1954) came into force and by virtue of section 3 of this Act, this land vested in the said Panchayat. In December 1954 mutation was also effected in favour of the Panchayat and it wanted to get possession of the suit land. This led to the present two suits (Nos. 148 and 523 of 1958) by the plaintiffs for a declaration that they were in possession of the land in dispute as full owners and for issue of a perpetual injunction restraining the defendant-Panchayat from interfering with their possession.

The allegations of the plaintiffs were that they and their predecessors-in-interest had been in continuous possession of the suit land as full owners since 1852, although in the revenue records the land in dispute had been wrongly entered as shamilat deh.

The suits were contested by the defendant Gram Panchayat, which pleaded that the plaintiffs were not the owners of the suit land; that the sane was shamilat deh and it was allotted to them by the Consolidation Officer for common purposes; that it had vested in the Panchayat; and that the Civil Court had no jurisdiction to entertain the present suits.

On the pleadings of the parties, the following preliminary issue was framed-

Whether this Court has no jurisdiction to entertain these suits?

The trial Judge held that he had no jurisdiction to entertain these suits and, consequently, rejected the plaints with costs.

In appeal, before the Senior Subordinate Judge, Ambala, by the plaintiffs the decisions of the trial Court were reversed. It was held that the civil Courts had jurisdiction to try these suits. The appeals were accepted, decrees of the trial Court were set aside, and the suits were remanded to it under Order XLI, rule 23, Civil Procedure Code, for trial on merits, after framing necessary issues arising out of the pleadings of the parties. It is against these decisions that the present two appeals (S.A.O''s. 66 and 67 of 1059) have been filed by the defendant-Gram Panchayat.

As the points involved in both the appeals are the same, they will be disposed of by one judgment.

Learned counsel for the appellant, in the first instance, contended that the land in suit, admittedly, having been entered as shamilat deh in the revenue papers, the Consolidation Officer was well within his rights in allotting the same to the appellant for common purposes u/s 18(a) of Act 50 of 1943, and u/s 44 of this Act, the civil Courts were debarred from entertaining these suits as they related to matters arising under this Act. The case of the plaintiffs, however, is that the entries in the revenue records, showing the land in dispute as shamilat deh, are incorrect and they are the owners of this land and are in continuous possession of the same since 1652. There is no doubt that if the land be shamilat deh, then the Consolidation Officer could allot it to the Panchayat tor common purposes. But the point for decision in these cases is whether it is really shamilat deh or the plaintiffs are its exclusive owners. Thus, the dispute involved in these cases is regarding the title to the land in suit. Such a dispute cannot be decided by the Consolidation Officer under Act No. 50 of 1948, but the same can only be decided by the civil Courts.

Learned counsel for the appellant then submitted that by virtue of the provisions of section 23-A inserted in Act No. 80 of 1948, by the East Punjab Holdings (Consolidation and Prevention of Fragmentation) (Second Amendment and Validation) Act (No. 27 of 1960), the rights of the plaintiffs, even if they are held to be the owners of this land, stood extinguished and vested in the Panchayat. Section 23-A is in the following terms-

As soon as a scheme comes into force, the management and control of all lands assigned or reserved for common purposes of the village u/s 18 shall vest in the Panchayat of that village, which shall also be entitled to appropriate the income accruing therefrom for the benefit of the village community, and the rights and interest of the owners of such lands shall stand modified and extinguished accordingly.

A perusal of this section would show that it would be applicable only when it is proved that the land in dispute had been validly assigned or reserved for common purposes of the village u/s 18 of the Act. In the present cases, this very matter is in dispute between the parties and it would depend upon the question whether the land in suit was shamilat deh or the private property of the plaintiffs. The question of the applicability of the provisions of section 23A of the Act would arise only after this matter has been decided by the civil Courts.

In view of what I have said above, I would dismiss these appeals. But in the circumstances of, these cases, however I will leave the parties to bear their own costs in this Court.