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CIVIL APPEAL No. 9722 OF 2014 [Arising out of SLP(C) No.13844 of 2013] SARJEET SINGH (D) TH. LRS. ….. APPELLANT(S) vs HARI SINGH & ORS. ….. RESPONDENT(S)

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 9722 OF 2014
[Arising out of SLP(C) No.13844 of 2013]

SARJEET SINGH (D) TH. LRS. ….. APPELLANT(S)

vs

HARI SINGH & ORS. ….. RESPONDENT(S)
J U D G M E N T
VIKRAMAJIT SEN,J.

Leave granted.

1 The Appellants essay to restore the concurrent views of the
Additional Civil Judge (Senior Division) Rewari, in Civil Suit No.308 of
1997 in terms of the Judgment and Decree dated 27.8.2002, as also the
Judgment and Decree dated 11.12.2008 passed by the Additional District
Judge, Rewari, in Civil Appeal No.50 of 2002. Their views, however, did
not find favour with the High Court in the impugned Judgment dated 7.9.2012
passed in Regular Second Appeal No.1346 of 2009.

2 The parties are shareholders of Shamilat Patti Sayar of land
comprised in Khewat No.300 Khatoni No.551, Khasra No.622(O-1O), Gair Mumkin
Gatwar, situated in village Dahina, as per the jamabandi of the year 1970-
71. The Plaintiffs/Appellants filed a suit for declaration, and possession
of the suit land against the Defendants/Respondents. The Plaint does not
contain a categorical stand as to whether the Defendants/Respondents are co-
sharers along with the Plaintiffs/Appellants in respect of the suit land.
It has been pleaded that the Defendants have no concern whatsoever with the
suit land which has not been validly partitioned among the co-sharers.
The Written Statement is also devoid of clarity inasmuch as it is pleaded
that the Plaintiffs are not in possession of the suit land and have no
right to file the suit; but that constructions have been carried out by the
Defendants in the presence of the Plaintiffs, as well as other persons
mentioned in Schedule A of the Plaint, which contains the names of the co-
sharers of the suit land. It is then pleaded in the Written Statement
that the suit land was allotted to Hardwari and Mangal and that their legal
heirs had executed an oral transfer of the land in favour of the
Defendants, who became co-sharers to the extent of 3/192 in the Shamilat
Patti Sayar, (obviously along with other co-sharers, including the
Plaintiffs). The Defendants have also pleaded that the oral transfer took
place in 1992 by exchanging the Defendants’ land with that of the legal
heirs of Hardwari and Mangal.

3 Eight Issues were framed of which only the first two, the onus of
which was on the Plaintiffs, were addressed in the evidence led by the
parties. Issue Nos.3 to 7 were to be proved by the Defendants which they
abandoned altogether. Both Issues 1 & 2 were decided in favour of the
Plaintiffs, i.e. the Appellants before us. Keeping in perspective the
evidence to the effect that the Plaintiffs were co-sharers in the Shamilat
Patti Sayar in regard to which the said Hardwari and Mangal had directly no
right, nor were in possession thereof, it was concluded that the legal
heirs of Hardwari and Mangal had no legal capacity to exchange the suit
land. Even in the evidence led on behalf of the Defendants, it was the
admitted case that the suit land was in the ownership of Sayar Patti, which
are akin to village or gram sabha lands used for purposes allied to
cultivation, on which land revenue is not imposable, but other levies are.
It has also been conceded in the evidence led on behalf of the Defendants
that the permission of co-sharers had not been obtained prior to the
alleged exchange of land. After reviewing the entire evidence, the Trial
Court as well as the First Appellate Court rightly concluded on facts that
the possession of the Defendants was not lawful. However, their direction
that the Plaintiffs were entitled to take back the possession, it seems to
us, is legally untenable and unsustainable.

4 In the impugned Judgment the High Court has duly noted the fact that
the Defendants’ stand that they were co-sharers ought to have been
established by them consequent upon an Issue being struck in that regard.
Significantly, it was emphasised that the list of co-sharers attached to
the Plaint included the Plaintiffs as well as the Defendants and that,
therefore, a suit for partition ought to have been filed by the Plaintiffs
even in the face of the averments in the Written Statement that the
Defendants had a 3/192 share. Confronted with the concurrent findings of
the Trial Court as well as the First Appellate Court and keeping in
perspective the evidence that was recorded, the High Court framed a
substantial question of law to the effect that since the Defendants were co-
sharers, could possession of the land be ordered to be delivered to the
Plaintiffs without the Plaintiffs seeking partition of the entire joint
land, including the suit land. Regrettably, while setting aside the
judgment and decree of the Courts below, the High Court has failed to
substantiate it with reasons for doing so. The High Court has, however,
granted liberty to the Plaintiffs to seek partition of the suit land and
other joint land in accordance with law.

5 Abadi deh refers to cultivable lands which are inhabited by the
villagers. These areas, also called phirni, are usually demarcated on the
revenue maps/sharja in red ink or lal dora, within which a departure from
the prescription of strictly agricultural user is permitted. As it has been
traditionally conceived of, it is only the cultivators of the adjoining
agricultural lands, along with their family members, who are expected to
reside therein. Lands within lal dora or phirni can be used for purposes
related to agriculture, such as cattle-sheds and storage halls for straw,
manure and waste generated in the village. Other user is legally
impermissible. In some instances, lal dora lands are more or less
converted into an ‘urbanised village’ where cultivation of the contiguous
land has ceased so as to enable wider user. As the resident population of
the village increases, the demand or need for conversion of agricultural
land for residential purposes is achieved by extending/increasing the lal
dora, hence the term ‘extended lal dora’. In no event can land in the lal
dora be converted to commercial user or, arguably, even for residential
complexes housing persons totally unconnected with the cultivation of the
contiguous lands. This is essential for preserving cultivable rural lands
for agricultural purposes. It is a legal misnomer that merely because
municipal law and building restrictions and regulations contained therein
are not applicable to lal dora, any and every kind of user or development
is permissible. It is this fallacious understanding of the law that has
led to the mushrooming of illegal land development within the lal dora.
‘Shamilat’ connotes commonality of possession, in contradistinction to
ownership individually or severally. Shamilat deh are common or village
lands. Banjar in common parlance means fallow or barren or unproductive
hence shamilat banjar – common uncultivable lands and banjar qadim –
common/village lands left fallow for a long period. Patti/Pati has
various contextual connotations including a strip of land detached from the
original village though dependent on it; it is a subdivision of land. For
facility of reference Section 2(g) of the Punjab Village Common Lands
(Regulations) Act, 1961 as applicable to Haryana is extracted below:-
2(g)     “Shamilat deh” includes –
(1)   Land described in the revenue records as Shamilat deh or Charand
excluding  abadi deh;
(2)   shamilat tikkas;
(3)   lands described in the revenue records as shamilat, tarafs,
pattis, pannas and tholas and used according to revenue records for the
benefit or the village community or a part thereof or for common purposes
of the village;
(4)   lands used or reserved for the benefit of the village community
including streets, lanes, playgrounds, schools, drinking wells, or ponds
within the sabha area as defined in clause (mmm) of Section 3 of the Punjab
Gram Panchayat Act, 1952, excluding lands reserved for the common purposes
of a village under Section 18 of the East Punjab Holdings (Consolidation
and Prevention of Fragmentation) Act, 1948 (East Punjab Act 50 of 1948),
the management and control whereof vests in the State Government under
Section 23-A of the aforesaid Act; and
(4a) vacant land situate in abadi deh or gorah deh not owned by any
person;
(5)   lands in any village described as banjar qadim and used for common
purposes of the village according to revenue records;
Provided that shamilat deh at least to the extent of twenty-five per centum
of the total area of the village does not exist in the village;
but does not include land which –
(i) becomes or has become shamilat deh due to river action or has been
reserved as shamilat in villages subject to river action except shamilat
deh entered as pasture, pond or playground in the revenue records;
(ii)     has been allotted on quasi- permanent  basis to displaced person;
(iia) was shamilat deh, but has been allotted to any person by the
Rehabilitation Department of the State Government, after the commencement
of this Act, but on or before the 9th day of July, 1985;

(iii)    has been partitioned and brought under cultivation by individual
land-holders before the 26th January,1950;

(iv)    having been acquired before the 26th January, 1950, by a person by
purchase or in exchange  for proprietary land from a co-sharer in
the shamilat deh and is so recorded in the jamabandi or is supported by a
valid deed;
(v)     is described in the revenue records as shamilat, taraf, pattis,
pannas and thola and not used according to revenue records for the benefit
to the village community or a part thereof or for common purposes 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) Omitted by Act No. 18 of 1995;
(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)    is used as a place of worship or for purposes subservient thereto;
lands reserved for the common purposes of a village under Section 18 of
the East Punjab Holdings (Consolidation and Prevention of Fragmentation)
Act, 1948 (East Punjab Act 50 of 1948), the management and control whereof
vests in the Gram Panchayat under Section 23-A of the aforesaid Act.

Explanation.- Lands entered in the column of ownership of record of rights
as ‘Jumla Malkan Wa Digar Haqdaran Arazi Hassab Rasad’, ‘Jumla Malkan’ or
‘Mushtarka Malkan’ shall be shamlat deh within the meaning of this section.

6 We shall now return to the facts of the case in hand. The jamabandi
relating to the subject land recites that the owner of the subject land is
Shamilat Patti. Hardwari and Mangal were holding the land as Gair Marusi
having half share each in Gair Mumkin Gitwar Bila Lagan Bawajay Sayak Keti,
which the Trial Court has rightly explained as land of which possession has
been given by the proprietor, in the present case the Shamilat Patti, to
the two named persons for the specific purpose of repairing agricultural
implements. Since the allotment is intrinsically in the nature of a
licence of common village land for a particular user, it is legally
inconceivable that these two persons could have effected an oral exchange
with the Defendants. The ownership collectively vested at all times with
the Gaon or Shamilat patti. Ergo, none of the litigating parties could
assume ownership or exclusive and proprietary possession thereto. Gair
Mumkin literally means that which is not possible; and in the present
context indicates waste or uncultivable land. Bila Lagan connotes either
rent-free grant or one where the rent has not been fixed. Sayar/Sayer
literally refers to moveables; it also concerns miscellaneous levies apart
from land revenue. As defined in Ganga Devi vs. State of U.P., AIR
1972 SC 931, it “includes whatever has to be paid or delivered by a
licencee on account of right of gathering produce, forest rights, fisheries
and the use of water for irrigation from artificial sources”. Sayar or
Sayer are variable imposts on movable property and are thus distinct from
land revenue. Khasra refers to the ‘field book’ or village register
recording the possession or tenure of agricultural land and the cognate
term khasra girdawari is the crop or harvest inspection record pertaining
to the land. Khewat lists the co-sharers and proprietors of
village/agricultural lands along with their respective liabilities to pay
the land revenue. Khud-kasht denotes a proprietor of land who is
cultivating it himself.

7 The Trial Court had decreed the suit, holding that the Plaintiffs
were entitled to the possession of the disputed land. It, therefore,
directed the Defendants to handover the land in its original shape, to the
Plaintiffs and other Co-owners within two months from the date of the
decision. This finding has not been disturbed by the First Appellate
Court. These two Courts failed to keep in mind that the land was Shamilat
deh and hence no person, including the Plaintiffs, could have laid claims
to separate or individual possession thereof. In second Appeal, however,
in terms of the impugned Judgment, the High Court has correctly dismissed
the Plaintiffs’ suit holding that the Plaintiffs shall be at liberty to
seek partition of the suit land and other joint land in accordance with
law.

8 Having considered the matter in all its complexities, we are
persuaded to uphold the directions of the High Court. However, this is
primarily and principally for reasons different to those that have
prevailed upon the learned Single Judge. The land in question is
admittedly Shamilat Patti Sayar, i.e. common village lands the user of
which is not confined strictly to cultivation. The holding of Hardwari and
Mangal is thus in contradistinction to that of khewat i.e. proprietorship
of the land. This is amply evident from the fact that so far as the grant
of Hardwari and Mangal is concerned, it specifically envisages the
repairing of agricultural implements of the villagers by them. Hardwari
and Mangal were legally incompetent to transfer the possession by mutual
compact with any third person, including co-sharers. Shamilat deh require
to be carefully and assiduously protected, and this is the avowed purpose
of the Punjab Village Common Lands (Regulation) Act, 1961 as applicable to
both the States of Punjab and Haryana. The three Courts below have failed
altogether in giving effect to Section 7 of the said Act which provides,
inter alia, that the Assistant Collector of First Grade alone can eject any
person who is in wrongful and unauthorized possession of the shamilat deh
of any village and instead put the Panchayat in possession thereof. The
Proviso to sub-section 7(1) empowers the Assistant Collector (who is a
Revenue Official and not a Civil Court) to even decide a question of title
to the land if it happens to be raised. Section 11 of the Act thereafter
enables any person, or even a Panchayat, to approach the Collector to
decide any claim in respect of the land. It is evident from the reading of
these provisions that instead of approaching the Civil Court, if the
Plaintiffs had any grievance against the Defendants as regards the
possession of the suit land, they ought to have ventilated their grievances
before the Collector and not before the Civil Court. The provisions of
Sections 7 and 11 thereof have been blatantly violated by the Plaintiffs
and ignored by the Courts below. If any doubt remains as to the correct
forum for the resolution of the dispute pleaded in the Plaint, Section 13
of the Act makes it clear that the Civil Courts have no jurisdiction to
entertain or adjudicate upon any question pertaining to shamilat deh.

9 It is always a brooding possibility that collusive suits are filed by
co-sharers or other persons in the endeavour that shamilat deh may be
metamorphosed or transformed into privately owned lands, always to the
detriment of the gram sabha and of the villagers collectively. The three
Courts below have not been adequately alive to this very important aspect.
The land in question was, in fact, licenced to the co-sharers and was not
their privately owned properties, individually or severally or
collectively.

10 In the impugned judgment the High Court has dismissed the suit.
It is manifestly evident that the suit as framed and filed was not
maintainable in view of the Punjab Village Common Lands (Regulations) Act,
1961 and, therefore, deserved to be dismissed. We hold, accordingly, and,
therefore, dismiss this Appeal, leaving the parties to bear their
respective costs.

…………………….…….J.
(DIPAK MISRA)

…………………………..J.
(VIKRAMAJIT SEN)
New Delhi
October 15, 2014

———————–
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