Page 1

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.     

1

Page 2

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  

2

Page 3

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  

3

Page 4

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  

4

Page 5

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  

5

Page 6

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;

6

Page 7

(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  

7

Page 8

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;

(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 in  the Gram Panchayat under Section 23-A of the aforesaid  Act.

8

Page 9

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  

9

Page 10

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,  

1

Page 11

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  

1

Page 12

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.

1

Page 13

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

1

Page 14

1