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Lachhman Singh Vs. Gulzari and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 776 of 1974
Judge
Reported inAIR1984P& H149
ActsPunjab Village Common Lands (Regulation) Act, 1961 - Sections 2, 3(1) and 4(1)
AppellantLachhman Singh
RespondentGulzari and ors.
Cases Referred and Ajaib Singh v. Sub
Excerpt:
.....sponsored: 1 of 1954) (hereinafter called as the 1953. act) closely followed by the pepsu village common lands (regulation) act, 1954 (hereinafter called the 1954 pepsu act). even earlier, it was well recognised that the settling of a body of agricultural artisans such as the village carpenters, blacksmiths, tanners, barbers, washermen etc. at present the position is that all the shamilat is the property of the proprietary body of a village and the rights of non-proprietors are in the shape of grants for certain purposes, though the non-proprietors classes also presumably settled in villages with the founders thereof and have been rendering essential services to the proprietary body in matters relating to farm operations, they do not enjoy equal rights in the shamilat lands and they are.....s.s. sandhawalia, c.j.1. whether the provisions of section 4(1)(b) of the punjab village common lands (regulation) act, 1961 are applicable to land situated within the abadi deh (irrespective of the fact that it falls within the definition of shamilat deh under s. 2(g) of the said act or not), which is under a house owned by a non-proprietor on or before the commencement of the shamilat law, as defined in section 2(h) of the said act--is the significant question necessitating this reference to the full bench.2. the facts pertaining to the issue aforesaid may be noticed with relative brevity. lachhman singh plaintiff-appellant had brought the suit for possession as an owner averring that way back on the 30th of april 1935, his father had leased the site to one giani teli, a.....
Judgment:

S.S. Sandhawalia, C.J.

1. Whether the provisions of Section 4(1)(b) of the Punjab Village Common Lands (Regulation) Act, 1961 are applicable to land situated within the abadi deh (irrespective of the fact that it falls within the definition of shamilat deh under S. 2(g) of the said Act or not), which is under a house owned by a non-proprietor on or before the commencement of the shamilat law, as defined in Section 2(h) of the said Act--is the significant question necessitating this reference to the Full Bench.

2. The facts pertaining to the issue aforesaid may be noticed with relative brevity. Lachhman Singh plaintiff-appellant had brought the suit for possession as an owner averring that way back on the 30th of April 1935, his father had leased the site to one Giani Teli, a predecessor-in-interest of defendants Nos. 1 to 4 at the rate of Rs. 2/- per annum and the said Giani Teli had constructed a house thereon. On the l2th.Oct. 1965, the said Giani Teli sold a part of the--site in dispute in favour of respondent No. 5 and delivered its possession to him and hereafter both of them started claiming themselves to be the owners of the whole of the site in dispute. The claim was for a decree of possession of the suit land after removing theconstruction (malba) thereon.

3. In contesting the suit the plea of the defendants was that Giani Teli aforesaid, who was the father of defendant No. 1 was the owner in possession of the suit land and had validly sold a part thereof to defendant No. 5. The execution of any rent note or lease deed was denied. It was further pleaded that de No. 5 had spent a sum of Rs. 15,000/- on the construction of a building on a portion of the suit land sold to him. It was claimed that there had been no partition of the land in the abadi deh of village Butana among the proprietors, and Giani Teli aforesaid (and before him even his ancestors) had been occupying the site in dispute as a non-proprietor for a very long time. He thus had become the owner of the site in dispute under his residential house in view of the provisions of Section 4(1)(b of the Punjab Village Common Lands (Regulation) Act, 1961.

4. On the pleadings of the parties the trial Court framed eight issues, the material one being issue No. 6 in the following terms:--

'Whether Giani Teli had become owner of the house under the Village Common Lands (Regulation) Act?'

The trial Court dismissed the suit and its finding on issue No. 6 was that Giani Teli had become the owner of the site in dispute under the provisions of the Punjab Village Common Lands (Regulation) Act. In appeal this finding of the trial Court was maintained. The appellant has come up by way of this Regular Second Appeal.

5. This appeal originally came up before a learned single Judge. Before him, it was sought to be argued on behalf of the appellant that Section 3(1) of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter called the 1961 Act) controls and limits the somewhat widely couched provisions of Section 4(1)(b) and consequently the latter section is either not applicable at all to land within the abadi deh or in any case is attracted only if the same comes within the definition of shamilat deh under Section 2(g) thereof. Nothing the significance of the question and an apparent conflict of authority within this Court on the point, the matter was directed to be placed before a Division Bench for an authoritative decision. For somewhat similar reasons, the Division Bench has referred the matter For decision by a still larger Bench.

6. Before us, Mr. S. C. Kapoor, the learned counsel for the appellant, pinned on Section 3(1) literally to contend that the Act could apply only to those lands which were shamilat deh as defined in clause (g) of Section 2 of the Act. On this premise, it was argued that the threshold test first is--Does the land come within the definition of shamilat deh as spelled out in Section 2(g)? If it does, then only would the present Act be applicable to it and not otherwise. Consequently, it was argued that here the land was within the abadi deh and was in the individual proprietorship of the appellant or his predecessors-in-interest and thus being outside t6e definition under Section 2(g), the provisions of Section 4(1) were not at all attracted to the situation. In a nutshell, the argument was that Section. 4(1)(b) was subservient to and governed by the primary provision of sub-section (1) of Section 3 In support of his stand, the counsel relied heavily on Raghbir Singh v. Raja Ram, 1965 Cur LJ 154; Tara Chand v. Punjab State 1971 Punjab LJ 808; and Ajaib Singh v. Sub-Divisional Officer, Civil, Kharar, 1976 Pun LJ 489.

7. To appraise the aforesaid argument in all its facets, it inevitably becomes necessary to resort to the legislative history of the provisions. It is well settled that the objects and reasons of an Act can be used for the purpose of ascertaining the provisions prevailing at the time the Bill was introduced and the purpose for which it was sponsored: However, it seems unnecessary to delve far beyond the statutory codification of the shamilat law within this region, beginning first with the Punjab Village Common Lands (Regulation) Act, 1953 (Act No. 1 of 1954) (hereinafter called as the 1953. Act) closely followed by the Pepsu Village Common Lands (Regulation) Act, 1954 (hereinafter called the 1954 Pepsu Act). Even earlier, it was well recognised that the settling of a body of agricultural artisans such as the village carpenters, blacksmiths, tanners, barbers, washermen etc. was an integral part of the rural economy. Nevertheless, prior to the enactment of the aforesaid statutes, there was contentious litigation with regard to shamilat and common lands in the village estates. Therein not unoften the proprietary body of the village or the individual landholders were ranged, in somewhat hostility, against the non-proprietors. Apart from individual merits, such cases turned upon the entries in the revenue record of each village estate as also upon the peculiar prevailing customs governing the rights inter se of the proprietors as against the non-proprietors. It was to remedy this gravely unsatisfactory state of affairs and, in particular, to provide some modicum of shelter over their heads to the non-proprietors in the village abadi that the Legislature was compelled to step in by first enacting the somewhat brief (of 10 sections) Punjab Village Common Lands (Regulation) Act, 1953 (Act No. 1 of 1954). The objects and reasons for the enactment are instructive and deserve notice in extenso:--

'When the villages were original founded it is believed that the shamilat was really meant for the use of all the inhabitants of the village. At present the position is that all the shamilat is the property of the proprietary body of a village and the rights of non-proprietors are in the shape of grants for certain purposes, Though the non-proprietors classes also presumably settled in villages with the founders thereof and have been rendering essential services to the proprietary body in matters relating to farm operations, they do not enjoy equal rights in the shamilat lands and they are not the proprietors of the sites under their houses even in the abadis.

It seems that in the course of time conditions to the detriment of Harijans and other similar non-proprietary classes have come vogue, They feel their position insecure in so far as enjoyment of essential rights in the shamilat lands is concerned. They should have proprietary rights in the sites of their residential houses Discontentment over this matter has been expressed by the members of these classes. Government consider that these conditions should no longer exist. It is with a view to giving these classes of residents in villages an opportunity to live with security and self-respect that the proposed legislation is being under-taken. (Vide Statement of Objects and Reasons published in the Punjab Gazette, Extraordinary, dated Apri1 6, 1953).'

As a matter of history, it calls for notice that later the pepsu Village Common Lands (Regulation) Act, 1954, was enforced with effect from March 11, 1955. The said statute was in pari materia with the sister statute of Punjab and even the statement of objects and reasons therefor was but a carbon copy of the former. On the lst of Nov. 1956, by virtue of the States Reorganisation Act, the States of Punjab and Pepsu were merged but the two sister statutes continued to remain in force in the areas of erstwhile Punjab and Pepsu respectively. Meanwhile. the Punjab Village Common Lands (Regulation) Amendment Bill, 1956 was passed by the State Legislature of the erstwhile Punjab but was not assented to by the President of India. It would appear that certain defects and omissions were experienced from time during the administration of the shamilat laws and further the Legislature desired to adopt a uniform legislation for the whole of the new State of Punjab, incorporating the provisions of the earlier Punjab and Pepsu statutes, For these reasons, the present Punjab Village Common Lands (Regulation) Act, 1961, was brought on the statute book and, inter alia, the statement of objects and reasons therefor stated as under:

'A comprehensive definition of 'Shamilat deh' with retrospective effect has been provided. The Bill also seeks to utilize the Shamilat. area in excess of 25 per cent of the total area of a village for the settlement of tenants ejected or to he ejected and for increasing the size of small holdings there; to make arrears of rent of shamilar lands recoverable a arrears of Land Revenue and to authorise summary removal of encroachments on shamilat' lands'

8. From the above, it would clearly emerge that prior to the enactment shamilat laws in 1954, the existing law was found to be in an extremely unsatisfactory state. There existed no definition of shamilat deh nor any uniform law applicable thereto. During the course of time, the rights of the non-proprietors vis-a-vis the proprietary body or the individual landholders had come to be completely eroded to their detriment. Inter alia, it was the situation that despite the services rendered by the non-proprietary classes, they were no: even proprietors. of the sites under their houses within the abadi deb and thus felt totally insecure even with regard to a shelter over their. heads. On this specific point, the rationale for the remedies sought to be provided by the statute was that in umbrella of shelter and protection should exist for non-proprietors who, from times immemorial, had rendered services to the proprietary body for which they had been extended the concession or the right of erecting houses on the common lands within the abadi deh. The particular remedy provided by the Legislature was to recognize in terms this long standing possession and to vesting of such lands under the houses of non-proprietors in them

9. The stage is now set for adverting to the particular provisions of the 1961 Act which fall for construction, Thereby, Shamilat law for construction. Thereby, shamilat law for the purpose of the Act was precisely defined as under:--

'2 (h)--'shamilat law' means-

(i) in relation to land situated in the territory which immediately before the 1st November, 1956, was comprised in the State of Punjab, the Punjab Village Common Lands (Regulation) Act, 1953; or

(ii) in relation to land situated in the territory which immediately before the Ist November, 1956, was comprised in the State of Patiala and East Punjab States Union. the Pepsu Village Common Lands (Regulation) Act, 1954.'

10. Again, in order to appreciate truly the import of Section 4(1)(b) of the 1961 Act, it is instructive and indeed necessary to juxtapose it against Section 3(b) of the 1953 Act (Punjab Act No. 1 of 1954):--

1953 Act 3. Vesting of rights in Panchayats and in non-proprietors.--Notwithstanding anything to the contrary contained in any other law for the time being in force, and notwithstanding any agreement, instrument, custom or usage or any decree or order of any Court or other authority, all rights, title and interest whatever in the land-- (a) * * * * * * * ** (b) which is situated in the Abadi Deh of a village and which is under the house owned by a non-proprietor, shall at the commencement of this Act vest in the said non-proprietor. 1961 Act 4. Vesting of rights in Panchayats and non-proprietors. (1) Notwithstanding anything to the contrary contained in any other law for the time being in force or in any agreement, instrument, custom or usage or any decree a order of any court or other authority; all rights, title and interests whatever in the land-- (a) * * * * * * * * (b) which is situated within or outside the abadi deh of a village and which is under the house owned by a non-proprietor, shall on the commencement of the shamilat law, be deemed to have deep vested in such non-proprietor.

11. At the very outset, it calls for pointing notice that even in the 1953 Act there was no definition of shamilat deh. It was only by virtue of Section 2 (g) of the 1961 Act that a precise and comprehensive definition of the same was enacted. Equally, in the 1953 Act, there was no provision equivalent to the present Section 3 of the 1961 Act. It is obvious that certain provisions had to be introduced in the 1961 Act in view of the fact that it was to substitute the earlier shamilat law which was to be repealed on its enforcement.

12. Now before construing the aforequoted provisions it deserves highlighting that the vesting of the land under the houses owned by non-proprietors in them, is directly related to the cut-off date of January 9, 1954 under the 1953 Punjab Act. Both clauses (a) and (b) of Section 4 fixed the outer limit to the commencement of the shamilat law as defined in Section 2 (h). As has already been noticed, the very rationale of the statute was the recognition on that particular date of the long standing fact of non-proprietors having been earlier given sites for housing them in lieu of services rendered to the proprietary body, which the legislature wanted to protect and to vest the land under such houses in them. However, it is not as if even after this cut-off date also the proprietors of the land would continue to be divested of ownership by any or every non-proprietor and trespasser who may choose to erect a house unauthorisedly on another's land The provisions of Section 4(1)(a) and (b) of the 1961 Act have consequently to be construed within this basic parameter of the cut-off date which is the commencement of the shamilat law.

13. Now viewed in the aforesaid perspective of the definition of shamilat law under Section 2(h) and the categories cut-off date of 9th January, 1954. the language of Section 4(1)(b) is itself plain. The salient consideration therein is the erection of a house on the land and the factum of its ownership by a non-proprietor. The legislative intent clearly is to give statutory shelter those non-proprietors who had by their labour erected a shelter over their heads, even though the land on which it stood belonged to the proprietary body or was vested in an individual owner. However, this necessarily had to be prior to the commencement of the shamilat law as now defined in the Act by Section 2(h).

14. It remains to advert to the decisions relied upon by the learned counsel for the appellant. In Tara Chand's case (1971 Pun LJ 808) (supra), which was a Regular Second Appeal of 1961, the matter was merely remanded back to the trial Court for fresh determination because of the change of law brought by the enactment of the 1961 Act during the pendency of the second appeal in the High Court. The case turned primarily on this ground and the passing observation in paragraph 4 is neither the ratio nor any warrant for the proposition that Section 4(1)(b) of the 1961 Act is not applicable to lands within the abadi deh. Indeed, not the remotest reference to this specific section was made by the Division Bench at all. The said case is thus distinguishable.

15. Again, a reference to the single Bench judgment in Ajaib Singh's case (1976 Pun LJ 489) (supra) would show that the primary question therein was with regard to the vesting in the Panchayat of land located within the abadi deh under clause (a) of Section 4(1) of the 1961 Act. It was not at all a case of the vesting of land under the house of a non-proprietor under clause (b) thereof. The latter provision did not hence come in for construction at all. A passing observation in. paragraph-5 of the report was, however, made that abadi deh land does no vest either in the Panchayat or in he non-proprietors. As regards the land under the house of a non-proprietor, this observation was in the nature of an obiter dictum. But in case it is to be read as a warrant for the proposition that clause (b) of Section 4(1) is not applicable at all to land within the abadi deh, then with respect, it is not good law for the reasons recorded earlier and is hereby overruled.

16. As already noticed, firm reliance on behalf of the appellant was primarily on the observations of the learned single Judge in Raghbir Singh's case (1965 Cur LJ 154) (supra). The observations therein undoubtedly lend support to the stand taken on behalf of the appellant. However, it is plain that the matter was not adequately canvassed before the Bench. The legislative history of the provision and the contextual construction which it requires was not even remotely adverted to. The factum of the cut-off date being the commencement of the shamilat law in 1954 was not noticed nor was noticed the rationale of the recognition of long standing consensual possession of non-proprietors over the lands on which they had erected their houses to which, indeed, the legislature intended to grant statutory protection. With the greatest deference and humility, I am of the view that the observations in this context in Raghbir Singh's case (supra) do not lay down the law correctly and I hereby overrule the same.

17. To finally conclude the answer to the question posed at the outset is rendered in the affirmative. It is held that the provisions of Section 4(1)(a) of the Act are applicable to land situated within the abadi deh (irrespective of the fact that they fall within the definition of shamilat deh under Section 2(g) of the said Act or not), which is under a house owned by a non-proprietor on or before the commencement of the shamilat law, as defined in Section 2(h) of the said Act.

18. Now, once it is held as above, then the learned counsel for the appellant was himself very fair in conceding that the matter would be concluded against him and no other point survived for determination. The appeal is consequently dismissed and the judgments of the courts below are hereby affirmed. In view of the intricacy of the issue involved, we leave the parties to bear their own costs.

Premchand Jain, J.

19. I agree.

S.C. Mital, J.

20. I agree.

21. Appeal dismissed.


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