IMPORTANT POINT
No one can claim absolute possession of common village land.

JUDGMENT

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.

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 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 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 Defendant