Mr. K. Kannan, J.: (Oral) - I. Questions of law

1. The following substantial questions of law arise for consideration in this second appeal:-

i) Whether the lower appellate Court not having disturbed the trial Court’s finding regarding ownership of the share claimed by the plaintiffs justified in holding that the civil court had no jurisdiction to grant the relief by virtue of the provisions of East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948?

ii) Whether a property described as “mustarka malkan” in the revenue record and the description of the plaintiff as a proprietor not sufficient to discredit the contention that the property vested with the gram panchayat as contended by the defendant-panchayat?

II. The basis for plaintiffs’ claim

2. The plaintiffs are the appellants before this Court. The suit had been filed against the defendants for possession by way of declaration that the plaintiffs were the owners of 66 kanals 6 marlas representing 61346/223176 share of the agricultural land measuring 238 kanals 16 marlas comprised in Khewat No.210, Khatauni Nos.273 to 279. The plaintiffs’ contention was that at the time of consolidation, a cut had been imposed on the land of the proprietors according to the holdings in the common land in the village and after making provision for the common purposes, an area measuring 238 kanals 16 marlas had been left that was undistributed amongst the proprietors. The plaintiffs as owners were, therefore, entitled to the share that belonged to them and they were entitled to put in possession. The plaintiffs would complain that the property had been left in the possession of defendants 7 to 23 who the plaintiffs would complain as in unlawful possession.

III. Defence by Gram Panchayat

3. The principal defence was entered by the gram panchayat contending that the property had been left for common purposes and for the enjoyment of the gram panchayat. The gram panchayat would assert that since the time of consolidation, the property was being leased out and the income was realized by the gram panchayat. The trial Court held that by the fact that the property has been entered as “mustarka malkan”, the ownership of the property vested with the plaintiffs as proprietors, but, however, since it was left for common purposes, the plaintiffs could not secure the relief of recovery of possession. The appellate Court did not upset the finding regarding the plaintiffs’ proprietorship as found by the trial Court, but it proceeded to hold that the suit itself was not competent for the relief claimed and it was barred under Section 44 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (for short, the 1948 Act).

IV. Justification for additional evidence- scheme of consolidation

4. At the time of appeal, the gram panchayat has filed an application under Order 41 Rule 27 CPC giving the certified copy of the scheme which was published in the village in consolidation in Urdu with translation in Hindu and English. The application has been directed to be considered along with the appeal. The two courts have held that since the entries in the jamabandis made reference to the “mustarka malkan” as in the column of ownership and hence, the plaintiffs were the proprietors. The gram panchayat has contended all along in its statement and attempted to show at the trial as well that the property had been in its management by way of leases. The plaintiffs themselves were complaining of the private respondents as being in ‘unlawful possession’ from Gram Panchayat, meaning thereby that the plaintiffs themselves had not inducted them in possession, on the other hand, their possession was referable to the gram panchayat’s act of lease in their favour. There has been a contention that the manner of use of the property by the gram panchayat was not specifically brought out by the terms of the scheme. There is perhaps no proper justification for non-production of th