1. This appeal has been filed by the plaintiffs against the judgment and decree of the Subordinate Judge, First Class, Sangrur, dated May 1, 1969.
2. Briefly, the facts of the case are that the plaintiffs are joint owners and in possession of the land in dispute. The Naib Tahsildar, Malerkotla, mutated the land in dispute in favour of Nagar Panchayat Narike vide mutation No. 78, on the ground that it was shamlat deh and vested in the Nagar Panchayat by virtue of the Pepsu Village Common Lands (Regulation) Act, 1954(hereinafter referred to as 'the Pepsu Act'). In fact, the land was not used for common purposes of the residents of the village and was not a shamlat deh. The plaintiffs who were earlier in possession of the land continued to be in possession thereof as owners even now. Shiv Charan Singh and Baljit Singh, plaintiffs, filed an application, dated March 23, 1962, before the Gram Panchayat, stating that the land in dispute has been wrongly shown as shamlat deh and that the Gram Panchayat had no right to give it on lease. Thereafter, the Gram Panchayat sought the advice of Block Development Officer, Malerkotla, on that matter. He wrote to it that the provisions of Punjab Village Common Lands (Regulation) Act, 1961(hereinafter referred to as 'the Act') were applicable and that the Gram Panchayat should apply to the Collector for obtaining possession of the land. Land measuring 27 Bighas and 6 Biswas bearing Khasra Nos. 463, 464, 466 and 468, out of the land in dispute is under cultivation of Devinder Kumar, plaintiff No. 17. The Gram Panchayat, Narike, defendant No. 1(hereinafter referred to as 'The Panchayat') wanted to take forcible possession of the property in suit. The plaintiffs filed the suit for declaration to the effect that the property in dispute is jointly owned and possessed by the plaintiffs and defendant No. 2 and that the same is no a shamlat deh. They also prayed for grant of permanent injunction prayed for grant of permanent injunction restraining the Panchayat from interfering with their possession or leasing out or transferring the same in any way. The suit was contested by the Panchayat which inter alia pleaded that the mutation had been rightly and lawfully sanctioned in its favour as the same was shamlat deh, that it was owned and possessed by it, that the civil Court had no jurisdiction to try the suit, that the suit was bad for non-joined of parties, that it was not within jurisdiction and that it was properly valued for the purposes of court-fee and jurisdiction. On the pleadings of the parties, the following issues were framed by the trial Court:--
'1. Whether the plaintiff is the owner and in possession of the suit land and the same is not shamlat and as such Gram Panchayat defendant has no concern with it
2. Whether this Court has no jurisdiction to hear the suit
3. Whether suit is within limitation
4. Whether the suit is bad of non-joinder of parties
5. Whether the suit has been undervalued for purposes of court-fees, if so, its effect
3. The trial Court held that the property in dispute is shamlat deh and the same has been lawfully vested in the Gram Panchayat and that the suit was within limitation. Issues Nos. 2, 4 and 5 were not pressed by the defendants. Consequently, it dismissed the suit of the plaintiffs. They having felt aggrieved have come up in appeal against the judgment and decree of the trial Court to this Court.
4. The learned counsel for the appellants have contended that the land in dispute is the ownership property of the plaintiffs-appellants and not a shamlat deh. He further submits that the trial Court has misinterpreted the entry in column No. 4 of Jamabandi relating to ownership. In order to appreciate the contention of the learned counsel for the appellants, it is necessary to refer to some of the documents and statements of the witnesses. Before coming into force of the Pepsu Act. Jamabandi relating to year 1954-55, Exhibit P-4, was in force. According to that Jamabandi the land in dispute is shown to be owned by shamlat deh, hasab hisas zail; Shiv Charan Singh etc., according to Khata No. 1 one-sixth share; Balwant Singh according to Khata No. 2, one-sixth share; Dial Singh etc, according to Khata No. 4 one-sixth share; Lachhmi Chand etc., according to Khata No. 6, one-sixth share; Balbir Singh etc, according to Khata No 7 one-sixth share and Hari Chand etc, according to Khata No.9 one-sixth share. The land is shown in possession of the residents of the village. In column No. 3, patti shamlat has been mentioned. This column relates to the name of taraf or patti or thulla. Exhibit P-8 is Jamabandi of the village relating to Sambat 2007-2008(1950-51 A. D.). According to this Jamabandi, the land is shown to be owned by shamlat deh in the aforementioned shares. In column No. 3, the entry is patti shamlat mazqur. The copies of other khatas have not been produced by the appellants. They have also produced Jamabandi relating to Sambat 2003-2004(1946-47 A. D.). Exhibit P-7. In that Jamabandi the land in dispute stands in the name of shamlat deh. In column No. 3, patti shamlat mazqur has been mentioned. The earlier entries of the said Jamabandi have also not been produced by the appellants. In the Jamabandis in column No. 3, name of patti taraf or panna in which the land is situated, is given and in column No. 4, names of owners are given. For finding out as to who is the owner of the land in dispute, reference has not to be made to column No. 3 but to column No. 4 of the Jamabandi. The learned counsel for the appellants has laid great emphasis on the fact that in column No. 3, patti shamlat has been mentioned and an inference should be drawn that the property in dispute belongs to shamlat patti and not shamlat deh.
I regret my inability to accept the contention of the learned counsel for the appellants. For determining as to who is the owner of the property, reference has to be made to column No. 4 only and not to column No. 3. In column No. 4, the property has been shown to be owned by shamlat deh. If land is owned by shamlat deh then by virtue of clause (1) of sub-section (g) of Section 2 of the Punjab Act, it becomes shamlat deh and vests in the Gram Panchayat. The relevant parts of sub-section (g) of Section 2 are as follows:--
'2. (G) 'Shamlat deh' includes.
(1) Lands described in the relevant records as shamlat deh excluding abadi deh;
(2) Shamilat, tikkas;
(3) Lands described in the revenue records as shamilat tarafs, pattis, pannas, and thola and used according to revenue records for the benefit of the village community or a part thereof or 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 abadi deh or gora deh and
(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 cent of the total area of the village does not exist in the village; but does not include land which:--
(i) xx xx(ii) xx xx(iii) xx xx(iv) xx xx (v) is described in the revenue records as shamilat taraf, patti, panna and thola and not used according to revenue records for the benefit of the village community or a part thereof or for common purposes of the village;
(vi) xx xx(vii) xx xx (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'.
5. In sub-clause (1) of sub-section (g) of Section 2 of the Act, it is specifically mentioned that lands described in the revenue records as shamlat deh excluding abadi deh fall within the definition of shamlat deh. Article 224 of Digest of Customary Law by Rattigan, Fourteenth Edition, says that as a general rule, only proprietors of village (Malikan Deh) as distinguished from proprietors of their own holdings (Malikan Makbuza Khud) are entitled to share in the shamlat deh. The proprietors of the village are normally entitled to share in the shamlat deh. In the present case, the shares of the proprietors have been mentioned in column No. 4 of the Jamabandi. In case, the shares of the landowners are given under the shamlat deh, in column 4 of the Jamabandi it will not show that the property does not belong to shamlat deh. This only shows that at the time of partition of shamlat deh, the proprietors will be entitled to that land in the shares given thereunder. Mr. J. N. Kaushal cannot derive any benefit from the fact that the names and shares of the proprietors are mentioned under shamlat deh in column No. 4 of the aforesaid Jamabandis.
Mr. Kaushal has vehemently urged that in fact the land does not belong to shamlat deh but to shamlat patti and in such a case it is for the Panchayat to prove that the land was being used for the benefit of the village community or a part thereof or for common purposes of the village. He has relied on clause (3) of sub-section (g) of Section 2 of the Act. I have already observed above that the land does not belong to shamlat taraf, patti panna or thola, as in the column of ownership, it is not shown as such. In introductory remarks under Chapter X in Digest of Customary Law by Rattigan, it is stated by him that it is not unusual to find certain portions of waste reserved for the common use of proprietors of each patti and other portions for common village purposes. The former is designated as shamlat patti and the latter shamlat deh. The two terminologies are different and used in different contexts. Shamlat patti is held reserved for proprietors of patti of the village whereas shamlat deh is land reserved for proprietors of whole of the village. It is admitted by P.W. 7 Balbir Singh. Tahsildar, and a resident of the village that in village Chandigarh, there are two pattis, namely, Patti Parbhu Dyal and Patti Devi Chand. He further stated that there is no other patti in village Chandigarh. It is not stated that the land in dispute is shamlat of a particular patti. In view of the aforesaid facts, it cannot be held that the land belong to shamlat patti and falls within clause (2) of Section 2(g).
6. The learned counsel for the appellants has further submitted that the land in dispute has been described as banjar qadim in the revenue papers. He also referred to some other land owned by shamlat deh which is shown in records to be used for the common purposes of the village like schools, latrines, Panchayat Ghars etc. He contends that by comparison of entries, it is clear that the land in dispute is not being used for common purposes of the village. In the circumstances he urges that the land cannot vest in the Panchayat. This contention has also no substance. If the land is shown in revenue records as shamlat deh, it is not necessary to prove that it is being used for the common purposes of the village or for the benefit of the village community. The shamlat land automatically vests in the Gram Panchayat. For the aforesaid reasons, in my view, the land has vested in the Gram Panchayat and the mutation has been correctly arrested in its name.
7. The next contention of the learned counsel for the appellants is that the appellants are in possession of the land in dispute. He referred to the oral statements of the witnesses. It is admitted by both the parties that the village Chandigarh is a bai charaq mauza which means that the village is uninhabited. The land in the revenue records has been shown to be in possession of the residents of the village. The entry appears to be prima facie incorrect. The land is not being cultivated and is shown to be banjar qadim. The appellants have led oral evidence to prove that they have been using the land for the purposes of grazing their cattle and are in possession thereof. In view of the fact that the plaintiff-appellants are not shown to be in possession of the land in dispute in revenue records, their statements cannot be believed that they are in possession thereof. Normally in the case of banjar lands, the possession goes with title. Definition of shamlat deh in the Act clearly shows that for determining whether the land falls within the definition of shamlat deh or not, we have to refer to the entries in the revenue records. No oral evidence can be taken into consideration for that purpose. He has also referred to an application, dated March 23, 1962, Exhibit P-2, given by Shiv Charan Singh and Baljit Singh, proprietors, to be Panchayat in which they alleged possession o the proprietors on the land in dispute and a resolution of the Panchayat dated March 24, 1962, in which a reference has been made that the possession of the land in dispute has not been obtained by the Panchayat. The documents are not relevant for the purposes of decision of this case. I have already observed that the property in dispute has vested in the Gram Panchayat. The plaintiffs have instituted the suit on the basis of title. In case, they fail to prove their title, they are not entitled to the relief of injunction. Even if it may be held that the appellants are in possession of the land in dispute, they can retain it if they show that their case falls under Section 2(g)(5)(viii). In order to do that, they have to show that order to do that, they have to show that the land in dispute was assessed to land. Revenue and had been in individual cultivating possession of the co-sharers, not being in excess of their respective shares in such shamlat deh on or before January 26, 1950. None of the aforesaid ingredients has been proved by the appellants. In Jamabandis, it has not been shown that any land revenue is paid on the land in dispute. In the circumstances, I do not find any force in the contention of the learned counsel for the appellants.
8. The learned counsel for the appellants has lastly urged that Devinder Kumar appellant has been shown to be in possession of four khasra numbers, namely, 463, 464, 466 and 468. He further submits that the land in his possession will not vest in the Gram Panchayat and that he is entitled to remain in possession of that land. I am not inclined to accept this contention of the learned counsel for the appellants also. The land has vested in the Gram Panchayat under Section 2(g)(1). It was for Devinder Kumar to have proved that he is entitled to retain possession of the land under Section 2(g)(5)(viii). He has not led any evidence to show that he was in possession of the land on January 26, 1950, and that he was not in excess of his share in shamlat deh. He was bound to prove that his chase falls within the aforesaid sub-clause in order to retain the property. In case, he fails to do so, he is not entitled to remain in possession of that land. In the abovesaid circumstances, I though for different reasons than those on which the suit was dismissed by the trial Court.
9. For the reasons recorded above, I dismiss this appeal with costs, Counsel's fee Rs. 150/-.
10. Appeal dismissed.