Amin Lal and Others vs Assistant Collector, Ist Grade and Another

T.H.B. Chalapathi, J.—These Writ petitions are filed for the issuance of a Writ of Certiorari to quash the orders of respondent No. 1 dated September 20, 1976, and dated August 19, 1980.

Gram Panchayat Suhasra village filed an application u/s 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as the Act) for ejecting the petitioner from the land in Killa No. 7/2 (5-12), 8(8-0), 9min (5-2), 10(7-18), 11/1(2-13), 12(7-18), 13(8-0), 17 min (3-0), 18(7-18), 19/1(12-13) measuring 58 kanals 14 marlas situated in village Suhasra, on the ground that the land belonged to Gram Panchayat.

The petitioner filed an application u/s 13-B of the Act to declare him as owner of the above-mentioned lands and restrain the Gram Panchayat from evicting him from the said lands.

By his order dated September 20, 1976, the Assistant Collector directed the eviction of the petitioner. The petitioner filed a suit u/s 13-B of the Act before the Assistant Collector, who dismissed it vide his order dated August 19, 1980. Aggrieved by the same, the petitioner filed this writ petition.

As both the writ petitions relate to the same property and the evidence and points to be considered are the same, these can be disposed of together.

The petitioner claims that he has been the owner and possessor of 58 kanals 14 marlas of land in village Sehasra comprising in Khewat No. 275/249 Rectangle No. 174 and Killa Nos 7/2 (5/12), 8(8-0), 9min South, (5-2), 10(7-18), 11/1(2-13), 12(7-18), 13(8-0), 17 min (3-0), 18(7-18), 19/1(2-13). There is no dispute that the petitioner produced the jamabandi records for the year 1943-44. According to the petitioner, he has been in possession of the land prior to January 26, 1950, and his possession is for more than twelve years and, therefore, the land does not fall within the definition of Shamlat Deh as contained in Section 2(g) of the Act. According to respondent No. 1, the land was originally Shamlat Deh and though the petitioner was shown to be in possession of the property since 1943-44, he has not been in possession of the same for about twelve years and, therefore, the petitioner cannot claim the land u/s 2 (g) 5(viii) of the Act. Shamlat Deh does not include the land which was Shamlat 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 Shamlat Deh on or before the 26th January, 1950. In Clause (iii) also, it has been mentioned that Shamlat Deh does not include the land which has been partitioned and brought under cultivation by individual land holders before the 26th January, 1950. Therefore, it is to be seen whether the land continued to be Shamlat Deh or whether the petitioner has brought the same under cultivation prior to January 26, 1950, in which case the land ceases to be Shamlat Deh. The Jamabandi records for the year 1943-44 shows that the land in dispute was earlier Shamlat Deh. From the statement of the patwari, who has been examined as P. W. 1, it is clear that the petitioner has been in possession of the land as share-holder since 1922. It was - only in the year 1954 that the land was mutated in the name of Gram Panchayat as per Mutation No. 511. The petitioner produced before respondent No. 1, the Jamabandi for the year 1943-44 which clearly shows that the petitioner has been cultivating the land. Respondent No. 1 relied upon Section 4 (3) (ii) of the Act and observed that for exclusion of the land, the following conditions are required:-

(i) that he should be in possession and cultivation of the land on the date of enforcement of the Act.

(ii) This possession should be of twelve years prior to 1953 or earlier to that.

(iii) This possession should be without rent or the applicant should not be paying rent more than the land revenue or the ceases.

There is no dispute that the petitioner has been in possession of the land even prior to January 26, 1950, as can be seen from the Jamabandi records for the year 1943-44, 50-51 and 54-55 and the Jamabandi therefore, which clearly shows that the petitioner was shown as the cultivator. Thus, it is clear that the petitioner continued to be in possession at least from 1943-44 till 1954-55. The petitioner also filed jamabandi records from 1943-44 to 1954-55 where he has been shown as cultivator of the land bearing Khewat No. 254.

Respondent No. 1 rejected the claim of the petitioner on the ground that the petitioner could not prove his possession for twelve years prior to 1953 though he accepted the petitioner''s possession. It is useful to extract the observations of respondent No. 1 in his order: -

"The Patwari in his statement has stated that according to the Missal Haqiat of the year 1922 the plaintiffs father is shown in possession of the land in dispute. Regarding the period from 1922 to 1943-44 the Patwari has stated that the accords are not available. The Jamabandi for the year 1943-44 shows only that position which existed at the time of preparation of the Jamabandi. It certainly does not show that the position in the preceding four years was also the same. From the above record, it is clear that the possession of the plaintiff has not been proved earlier to 1943-44. Statement of the Patwari that the record from 1922 to 1943-44 is not available is not sufficient. In this connection on the plaintiff should have obtained copies of the record of this period from the District Revenue Record Branch. In case this record was not available there also, they should have obtained a report from there. In this way, they could not prove the possession of 12 years prior to 1953."

Thus, according to respondent No. 1, the petitioner proved his possession from 1943 to 1953 i.e., for a period often years and the petitioner could not prove his possession earlier to 1943. The record clearly shows that the petitioner had been in possession of the land in dispute from 1943-53. In these circumstances, I am of the opinion that presumption of possession prior to 1943 also can be drawn. In this context, it is useful to refer to Supreme Court decision in Ambika Prasad Thakur and Ors. v. Ram Ekbal Rai (dead) by his legal representatives and Ors, AIR 1966 S.C. 605 wherein it is observed as follows:

"If a thing or a state of things is shown to exist, an inference of its continuity within a reasonably proximate time both forwards and backwards may sometimes be drawn. The presumption of future continuance is noticed in illus. (d) to Section 114. In appropriate cases, an inference of the continuity of a thing or state of things backwards may be drawn under this section, though on this point the section does not give a separate illustration. The rule that the presumption of continuance may operate retrospectively has been recognised both in India and England."

I am, therefore, of the view that the petitioner was shown to have been in possession of the property for about ten years. It can safely be presumed that the possession of the property even prior to 1943 was with him.

Thus, the petitioner proved that he has brought the land into cultivation even prior to January 26, 1950, and that the land continued to be in his possession for about twelve years prior to 1953. Therefore, the petitioner established his right to be in possession of the disputed land by virtue of the definition as contained in Section 2(g) of the Act. The land ceases to be Shamlat Deh as the same has been in possession of the petitioner and his family long prior to January 26, 1950, and continued to be in his possession thereafter. Therefore, it cannot be said that the land continued to be Shamlat Deh and so vested in the Gram Panchayat. In my view the land ceased to be Shamlat Deh and, so it is not vested in Gram Panchayat. The orders of respondent No. 1 both u/s 7 and Section 13-B of the Act are, therefore, liable to be set aside.

Accordingly, I allow this writ petition quash the orders of respondent No. 1, dated_September 20, 1976, and August 19, 1980 (Annexures P-5 and P-7). No order as to costs.