Gram Panchayat of Village Mundhal Khurd vs Amar Singh (Dead) by Lrs. and Others

M.M. Punchhi and; Sujata V. Manohar, JJ.-A learned Single Judge of the Punjab and Haryana High Court reversed in second appeal the two

decisions of the courts below on the strength of a Full Bench decision of that Court in Gram Panchayat, Sadhraur v. Baldev Singh1 to hold that the

suit land being shown in revenue records to be owned by the shareholders of the three tholas belonged to those shareholders and not to the village

community, or a part thereof, as the concept is known to the Punjab Village Common Lands (Regulation) Act, 1961 (for short ""the Act""). The

instant appeal is to challenge that view.

The suit land is described in the revenue papers to be ""in possession of the proprietors"" of tholas. Three persons of those tholas joined together

to institute a suit for declaration to the effect that the suit land was owned and possessed by the plaintiffs and other shareholders of the tholas which

was being used in the interest of the tholas and not for the common purpose of the village community, and hence not ""shamlat deh"" in order to vest

in the Gram Panchayat. The suit ex facie was in a representative character and was instituted against the Gram Panchayat, asserting title to it

challenging the purported vesting under the provisions of the Act. The trial court as well as the first appellate court relying on a Single Bench

decision of that Court in Coop. Society of Improvement of Shamilat Patti Harnam Singh Lambardar of Village Khanni v. Gram Panchayat of

Village Khanni2 non-suited the plaintiffs on the ground that the joint possession of the proprietors of a patti, thola, panna or taraf, forming part of

the village community, would all the same put such possessed lands within the ambit of ""shamlat deh"". Since this view was upset by the Full Bench

of the High Court in the abovementioned case, the High Court in the instant matter reversed the decision of the two courts below primarily being

cognizant of the views of the Full Bench extracted hereafter:

There is no evidence on the record to show that the owners of the patti much less those who are not the owners are using the suit land for any

benefit. The expression ''benefit of the village community or a part thereof'' cannot be given by any stretch a restricted meaning so as to confine the

benefit to only the owners of the land. Besides, it is also necessary that the entries in the revenue records must show that actually some benefit was

being derived from the use of such land by the village community or a part thereof. Thus, in our considered opinion, the interpretation of sub-clause

(3) in Coop. Society of Improvement of Shamilat Patti Harnam Singh case2, cannot bear scrutiny and does not lay down a correct view of law.

The learned Single Judge, bound as he was, had to follow the judgment of the Full Bench. Even otherwise, the definition of ""shamilat deh"" given

in Section 2(g) of the Act as extracted in the judgment under appeal, clearly reveals the legislative mandate that shamlat deh would not include

lands which are described in the revenue records as shamlat, taraf, patti, panna and thola which are not used according to the revenue records, for

the benefit of the village community, or a part thereof, for common purpose of the village. It has been noticed earlier that here the lands are

described to be ""in possession of the proprietors of the tholas"" and in their cultivating possession and use. There is no commonality of purpose

disclosed in the revenue entries nor any indication that non-proprietors share the benefit of the land in a common way. The suit lands obviously

would not fall within the ambit of ""shamlat deh"" so as to get vested in the Gram Panchayat. The High Court therefore was right in decreeing the suit

of the respondent-plaintiffs.

It has been claimed by the appellant Gram Panchayat that the suit stood abated before the High Court inasmuch as two out of the three plaintiffs

had expired and no steps had been taken to bring on record their legal representatives. Here before us, those legal representatives have, on

permission, been arrayed and joined as parties in the appeal but subject to legal objection. It has been maintained on behalf of the appellant that on

the death of those two plaintiffs-appellant before the High Court, the appeal thereat abated and on that basis, it is claimed that the judgment and

order of the High Court be upset. We are not impressed by this argument. The nature of the suit is the determining factor. The suit was filed by the

plaintiffs not only for themselves but as the representatives of the proprietal community owning those thola lands. Their shares were undefined and

thus the suit could in any event be pursued by other co-sharers. Instantly, one plaintiff survived and was there to prosecute, and now to defend, the

common interest at the present stage of the litigation. No occasion would thus arise of any inconsistent decrees following even on the names of the

two deceased plaintiffs being scored off from the array of parties. The objection as such is overruled.

For the foregoing reasons, this appeal fails and is hereby dismissed. No costs.