SARJEET SINGH (D) TH. LRS.versusHARI SINGH & ORS.

•                       [2014] 11 S.C.R. 65


                  SARJEET SINGH (D) TH. LRS.
                                 v.
                                                                     A

                         HARi SINGH & ORS.
                  (Civil Appeal No. 9722 of 2014)
                        OCTOBER 15, 2014
                                                                     B
          [DIPAK MISRA AND VIKRAMAJIT SEN, JJ.]

      Punjab Village Common Lands (Regulations) Act, 1961
- Suit for declaration and possession of suit land - Decreed
by trial court as well as first appellate court - High Court in      C
second appeal set aside the decree and granted liberty to
plaintiff to seek partition of the land - On appeal, held : The
suit land was 'Shami/at Patti Sayar' i.e. common village land,
Jicenced to the co-sharers - Hence no one including plaintiffs
could have laid claims to separate or individual possession          D
thereof.

        ss. 7, 11 and 13 - Suit for possession of Shami/at deh
    land - Maintainability - Held: Civil court has no jurisdiction
    to adjudicate upon the question pertaining to Shami/at deh -     E
    Appropriate forum for redressal of such grievances, was
    Collector - The suit was not maintainable.

        Dismissing the appeal, the Court

       HELD:1. The land in question is admittedly Shami/at           F
. Patti Sayar, i.e. common village lands, the user of which
  is not confined strictly to cultivation and hence no
  person, including the Plaintiffs, could have laid claims to
  separate or individual possession thereof. The land in
  question was, in fact, licenced to the co-sharers and was          G
  not their privately owned properties, individually or
 severally or collectively. Shami/at deh require to be
  carefully and assiduously protected, and this is the


                                  65                                 H
    66      SUPREME COURT REPORTS               [2014] 11 S.C.R.


A avowed purpose of the Punjab Village Common Lands
                                                                     •
  (Regulation) Act, 1961. [Paras 7, 8 and 9] [74-A-D; 75-B]

       2. The suit as framed and filed was not maintainable
  in view of the Act. The provisions of Sections 7 and 11
  of the Act hav.e been blatantly violated by the Plaintiffs
8
  and ignored by the Courts below. It is evident from the
  reading of the provisions u/s. 7 and 11 of the Act that
  instead of approaching the Civil Court, if the Plaintiffs
  had any grievance against the defendants as regards the
C possession of the suit land, they ought to have ventilated
  their grievances before the Collector and not before the
  Civil Court. 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. [Paras 9
  and 10] [74-F-H; 75-C]
D
       CIVIL APPELLATE JURISDICTION : Civil Appeal No.
  9722 of 2014.

       From the Judgment & Order dated 7.09.2012 of the High
E Court of Punjab & Haryana at Chandigarh in R.S.A. No. 1346
  of 2009.

         Shish P., N.P. Midha, S.K. Gupta, Balbir Singh Gupta for
    the Appellant.

F        Raja! Sharma, Dinesh Verma, Shbhasish Bhowmick for
    the Respondent.

         The Judgment of the ,Court was delivered by

         VIKRAMAJIT SEN, J. Leave granted.
G
       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
  d'3ted 27.8.2002, as also the Judgment and Decree dated
H 11.12.2008 passed by the Additional District Judge, Rewari,
•       SARJEET SINGH (D} TH. LRS. v. HARi SINGH                     67
                  [VIKRAMAJIT SEN, J.]
    in Civil Appeal No.50 of 2002. Their views, however, did not           A
    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 Shami/at Patti Sayar
    of land comprised in Khewat No.300 Khatoni No.551, Khasra
                                                                           B
    No.622(0-10), 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        C
    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       D
    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        E
    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 31
     192 in the Shami/at Patti Sayar, (obviously along with other co-
    sharers, including the Plaintiffs). The Defendants have also           F
    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             G
    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
                                                                           H
A
    68       SUPREME COURT REPORTS                    [2014] 11 S.C.R.


  the effect that the Plaintiffs were co-sharers in the Shami/at 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
B 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
c 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
D 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
E   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
F   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,
G   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
H   Court has, however, granted liberty to the Plaintiffs to seek
•       SARJEET SINGH (D) TH. LRS. v. HARi SINGH                   69
                  [VIKRAMAJIT SEN, J.]
    partition of the suit land and other joint land in accordance with   A
    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 /a/ dora, B
    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 /a/ dora or phirni can be used for C
    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,
    /al 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 D
    village increases, the demand or need for conversion of
    agricultural land for residential purposes is achieved by
    extendinglincreasing the /a/ dora, hence the term 'extended la/
    dora'. In no event can land in the /a/ dora be converted to
    commercial user or, arguably, even for residential complexes E
     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 /a/ dora, any F
    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 /al dora.
     'Shami/at' connotes commonality of possession, in
     contradistinction to ownership individually or severally. Shami/at G
    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 H
A
    70          SUPREME COURT REPORTS              [2014] 11 S.C.R.
                                                                    •
    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) "Shami/at deh" includes -
B
          (1)    Land described in the revenue records
                 as Shami/at deh or Charand excluding abadi deh;

          (2)    shamilat tikkas;
c         (3)    lands described in the revenue records
                 as shami/at, tarafs, pattis, pannas and tho/as and
                 used according to revenue record~. for the benefit
                 or the village community or a part thereof or for
                 common purposes of the village;
D
          (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
E                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
F                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;
G
          (5)    lands in any village described as banjar qadim and
                 used for common purposes of the village according
                 to revenue records;

H        Provided that shamilat deh at least to the extent of twenty-
•   SARJEET SINGH (D) TH. LRS. v. HARi SINGH
              [VIKRAMAJIT SEN, J.]
                                                                71

    five per centum of the total area of the village does not exist   A
    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      B
             subject to river action except shami/at deh entered
             as pasture, pond or playground in the revenue
             records;

     (ii)    has been allotted on quasi- permanent basis to           c
             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;           D

     (iii)   has been partitioned and brought under cultivation
             by individual land-holders before the
             26th January, 1950;
                                                                      E
     (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;
                                                                      F
     (v)     is described in the revenue records as shamilat,
             taraf, pattis, pannas and tho/a 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;                                 G

     (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;                                               H
A
    72

          (vii)
                SUPREME COURT REPORTS


                  Omitted by Act No. 18 of 1995;
                                                   [2014] 11 S.C.R.
                                                                        •
          (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 s.uch shamilat deh on or
B
                 before the 26th January, 1950; or

          (ix)    is used as a place of worship or for purposes
                  subservient thereto;

c         (6)     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
0                 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 Ma/kan Wa Digar Haqdaran
         Arazi Hassab Rasad', 'Jumla Malkan' or 'Mushtarka
E        Malkan' shall be sham/at 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
F of the subject land is Shami/at 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 Shami/at
G 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
H Defendants. The ownership collectively vested at all times with
•        SARJEET SINGH (D) TH. LRS. v. HARi SINGH.
                   [VIKRAMAJIT SEN, J.]
    the Gaon or Shami/at patti. Ergo, none of the litigating parties
    could assume ownership or exclusive and proprietary
                                                                       73


                                                                             A

    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            B
    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   c
    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           D
     pertaining to the land. Khewat lists the co-sharers and
     proprietors of village/agricultural land.s along with their
     respective liabilities to pay the land re~enue. Khud-kasht
    denotes a proprietor of land who is cultivating it himself.

          7. The Trial Court had decreed the suit, holding that the          E
    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            F
    failed to keep in mind that the land was Shami/at 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            G
    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.
                                                                             H
A
    74       SUPREME COURT REPORTS                  [2014] 11 S.C.R.

    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 Shami/at 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
B   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
c   possession by mutual compact with any third person, including
    co-sharers. Shami/at 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
0
    7 of the said Act which provides, inter a/ia, 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
E   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
F   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 sL1it land, they
    ought to have ventilated their grievances before the Collector
    and not before the Civil Court. The provisions of Sections 7 and
G   11 thereof have been blatantly violated by the Plaintiffs and
    ignored by the Courts below. If any doybt 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
H   pertaining to shamitat deh.
•    SARJEET SINGH (D) TH. LRS. v. HARi SINGH
               [VIKRAMAJIT SEN, J.]
                                                                   75

       9. It is always a brooding possibility that collusive suits are   A
 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.           B
 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   C
  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.                                                      D

 Kalpana K. Tripathy                                Appeal dismissed.