Joginder vs Nirmal Gir (Deceased) and Others

Sat Pal, J.—This appeal is directed against the judgment dated 9th May, 1979, passed by the Additional District Judge, Ambala by which he had accepted the appeal filed by the defendants and had dismissed the suit of the plaintiffs.

Briefly stated, the facts of the case are that Ram Singh and Joginder Singh, who are residents of village Garhi Gasain, Tehsil Jagadhri, filed suit No. 52/1974 in representative capacity under Order 1 Rule 8 of the CPC (hereinafter referred to as the Code) against Nirmal Gir and six others, seeking mandatory injunction directing the defendants to restore land measuring 44 bighas 1 biswa situated in the village mentioned herein (details of which were given in the heading of the plaint) to its original position and restraining them from appropriating any land for their cultivation. It was alleged in the plaint that there is Shamlat Deh in the said village measuring 99 bighas 4 biswas and the same was utilised from time immemorial for the grazing of the cattle of the entire village including the non-proprietors who also had a right to graze their cattle there without making any payment. The defendants contested the suit. In the written statement, filed by the defendants, it was averred that the plaintiffs were neither proprietors nor representatives of the alleged proprietors and their suit land was in actual cultivating possession of about 20 proprietors including the defendants for the last 20 years and this land was never used for grazing the cattle. It was further stated by the defendants that they had become owners of the suit land by adverse possession. The learned trial Court vide judgment dated 10th June, 1975, decreed the suit of the plaintiffs and directed the defendants to restore an area measuring 44 bighas 1 biswa in Khasra Nos. 267, 268, 269, 270, 274, 275, 277, 278, 279, 282 and 285 Khewat Khatauni No. 153/226, according to Jamabandi for the year 1969-70, situated at village Garhi Gosain, to its original condition, The defendants were also restrained from appropriating any part of the suit land for their cultivation. It was held by the learned trial Court that the suit land was reserved for grazing purposes and it was being used as such by the proprietary body as well as the non-proprietors of the village and even the non-proprietors had aright to graze their cattle there. It was also held by the learned trial Court that the suit land was being cultivated by the defendants for the last only two years and as such the defendants had not become owners of the suit land. It was further held that the suit land was Shamlat Deh land and did not vest individually in any person.

Aggrieved by the judgment of the trial Court, the defendants filed appeal bearing No. 73/12. The said appeal was accepted and the suit of the plaintiffs was dismissed by the learned Additional District Judge, Ambala, vide his judgment dated 9th May, 1979. The learned Additional District Judge observed that the total Shamlat Deh land was measuring 99 bighas 4 biswas and the suit related only to 44 bighas 1 biswa and it had not been explained as to what was the position of the remaining land which was not in possession of the defendants. It was further observed that the plaintiffs had not placed on record any evidence that there was no land left for non-proprietors for the purpose of grazing their cattle. The learned Additional District judge, therefore, held that the defendants being proprietors were entitled to a share in the Shamlat Deh land particularly when they had a decree in their favour about their portion in the land in question. The present appeal has been filed by the plaintiff against the aforesaid judgment passed by the learned Additional District Judge Ambala.

Mr. Jaswal, learned counsel appearing on behalf of the appellants submitted that admittedly the suit land was Shamlat Deh and such land was not only for the benefit of the landowners-proprietors but was for the benefit of all sections of the population in the village including those who did not own land. He further submitted that the learned trial Court had given a clear finding that the defendants had started cultivation on the suit land recently and not for the last 20 years as alleged by the defendants, He, therefore, contended-that there was no ground for the learned Additional District Judge to reverse the findings of the learned trial Court. In support of his submissions, the learned counsel placed reliance on the judgment rendered by a Full Bench of this Court in Gram Panchayat Sadhraur v. Baldev Singh and Ors. 1977 PLJ 276.

Mr. Grewal, learned Senior counsel appearing on behalf of the respondents, however, submitted that total Shamlat Deh land in the village was 99 bighas 4 biswas and the suit land was only 44 bighas 1 Biswa out of the said total land. He further submitted that the plaintiffs were supposed to know that besides the land in occupation of the owners, no other land was left for grazing of the non proprietors but in the present case, admittedly, the plaintiffs had not brought on record any evidence that no other land was left for grazing of the cattle of the non-proprietors. He, therefore, contended that in fact, the balance land measuring 55 bighas 3 biswas was till available for the purpose of grazing of the cattle of the non-proprietors including the plaintiff." and as such there was no merit in the appeal. In support of his submission, he placed reliance on a judgment of Lahore High Court in Court of Wards v. Bakhtawar Khan AIR 1933 Lah 370.

I have given my thoughtful consideration to the submissions made by the learned counsel for the parties and have perused the record. As held by the Full Bench in the case of Gram Panchayat Sadhraur (supra), the Shamlat Deh land is meant for the use and benefit of the village community including those persons who do not own land. It is the admitted case of the parties that the total Shamlat Deh land in the village is 99 bighas 4 biswas. It is also an admitted fact that the suit land which is in occupation of the defendants is 44 bighas 1 biswa. Thus, the balance land came to 55 bighas 3 biswas. The plaintiffs have not brought on record any evidence whatsoever to the effect that the aforesaid balance Shamlat Deh land measuring 55 bighas 3 biswas is not available for grazing of the cattle of the village community including non-proprietors. In the case of Bakhtawar Khan (supra), it was held that the grazing rights are merely in the nature of Bartan or user and all that the persons having such rights can claim is reasonable area for their requirements. It was further held that such persons cannot claim more, so long as there is a reasonable area left for their reasonable personal requirements. As stated hereinabove, the area of Shamlat Deh land for cultivation of the defendants is 44 bighas 1 biswa and the plaintiffs did not bring on record any evidence to show that the said balance area of 55 bighas 3 biswas of Shamlat Deh land was not available to them for the purpose of grazing of their cattle. The plaintiffs, therefore, can use the said balance area of Shamlat Deh land for grazing of their cattle.

In view of the above discussion, I do not find any merit in this appeal and the same is accordingly dismissed, with no order as to costs.