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PETITIONER: HARI PARKASH & ORS.

       Vs.

RESPONDENT: LAKSHMI NARAIN & ORS.

DATE OF JUDGMENT29/08/1995

BENCH: SINGH N.P. (J) BENCH: SINGH N.P. (J) VERMA, JAGDISH SARAN (J)

CITATION:  1996 AIR  105            1995 SCC  Supl.  (3) 523  JT 1995 (6)   240        1995 SCALE  (5)54

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T N.P. SINGH. J      This appeal  has been  filed against  the order  of the High Court  by which  the appeal  filed  on  behalf  of  the plaintiffs -  respondents (hereinafter  referred to  as  the ’respondents’) was  allowed. The  High Court  set aside  the judgment of  the Court  of Appeal,  and restored that of the Trial Court.      The  respondents   filed  the   suit  in  question  for partition of  the land specified in the plaint on 10.4.1974. A petition  under Order  1 Rule  8  of  the  Code  of  Civil Procedure  was   also  filed.  The  preliminary  decree  for partition was  passed on 1.6.1974. During the preparation of the final  decree certain objections were filed, one of them being that  the land  having vested  in the  Gram  Panchayat under the  provisions of  the Punjab  Village  Common  Lands (Regulations) Act,  1961 (hereinafter  referred  to  as  the ’Act’) no  preliminary decree  could have  been  passed  for partition of  the same.  The Trial  Court  passed  order  on 14.4.1978 saying that as the suit lands which were sought to be partitioned  had vested  in the  Gram  Panchayat  of  the village, they  could not be partitioned; in that view of the matter no  further steps for preparation of the final decree was required  to be  taken. The  respondents filed an appeal which was  dismissed holding that in view of Section 13-B of the Act  the suit  was not  maintainable  before  the  Civil Court. On  second appeal (SAO No. 48 of 1979) being filed on behalf of  the respondents  before the High Court, the order passed by  the Trial  Court as  well as  the Court of Appeal were set  aside on 10.11.1983 and direction was given by the High Court  to the Trial Court to proceed with the case from the stage,  "prior to  passing of  judgment and decree dated 14.4.1978"  meaning   thereby   that   further   steps   for preparation of  the final  decree be  taken. The  appellants filed their  objections on 4.11.1986 after about three years

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of the  direction given  by the  High  Court.  There  is  no dispute that  they never  appeared or filed any objection at any stage  earlier. Their objection was rejected on 5.2.1987 and the  final decree  was signed  by  the  Trial  Court  on 5.2.1987 itself.  An appeal  was  filed  on  behalf  of  the appellants agains  the order  rejecting their objection. The Additional  District  Judge  allowed  the  said  appeal  and directed fresh trial in accordance with law. Thereafter, the respondents  filed   second  appeal  (SAO  No.  7  of  1989) aforesaid before  the High Court making a grievance that the Additional District  Judge could  not  have  gone  into  the question as  to whether  the provisions of Order 1 Rule 8 of the Code  had been  complied with  or not,  as a preliminary decree had already been passed. It was also pointed out that said preliminary  decree had  been challenged  on  the  same ground and the matter came up to the High Court and the High Court  directed   the  Trial   Court  to  proceed  with  the preparation of  the final decree. The second appeal filed on behalf of  the  respondents  as  already  stated  above  was allowed by  High Court and the order passed by the Appellate Court was set aside and that of the Trial Court was restored which is under challenge in the present appeal.      Section 2(g) of the Act defines ’shamilat deh’. In view of clause (4a) of Section 2(g) it shall include ’Vacant land situate in  abadi deh  or gora deh not owned by any person’. This clause  (4a) was  introduced in Section 2(g) of the Act on 23.6.1973  and was  deleted on 12.2.1981. It appears that it has  been reintroduced  on 25.11.1983  w.e.f.  12.2.1981. According to  the appellants  in view  of Section 2(g) (4a), and Section  4(1)   the land  in dispute  shall be deemed to ’shamilat deh’ and as such it shall be deemed to have vested in the Gram Panchayat.      If the concerned Gram Panchayat was before us, we would have examined  this aspect  of the  matter in detail. But we are not  inclined to  examine the  question aforesaid at the instance of  the appellants  who were neither parties to the suit nor  appeared before the preliminary decree was passed. They file  the objection  as late  as on  4.11.1986 about 12 years after  the  passing  of  the  preliminary  decree.  As already mentioned  above some  persons had  filed  objection during the  preparation of  the final  decree  and  in  that connection the  matter  came  up  to  the  High  Court.  The contention similar  to that  raised by  the  appellants  was rejected by  the High  Court and  direction was given to the Trial Court  to proceed  with the  preparation of  the final decree. That  judgment of  the High  Court became  final  as early as  in the  year 1983. The appellants filed objections for the first time on 4.11.1986. In such a situation, we are left with no option but to dismiss this appeal.      The appeal  is accordingly  dismissed. However,  in the circumstances of  the case  there shall  be no  order as  to costs. We  make  it  clear  that  this  judgment  shall  not prejudice the  Gram Panchayat  in any manner if they want to pursue any remedy available to them in law.