Dharambir and another vs Financial Commissioner, Haryana and others

Paramjeet Singh, J.—The instant Letter Patent Appeal has been filed against order dated 01.08.2011 passed by the learned Single Judge, whereby the writ petition filed by the Appellants for quashing order dated 21.10.2008 passed by the Collector, Order dated 26.05.2009 passed by the Commissioner and order dated 27.04.2011 passed by the Financial Commissioner, respectively, dismissing the title suit of the Appellants u/s 13A of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter to be referred in short as "the Act"), appeal and revision has been dismissed .

We have heard learned Counsel for the Appellants and have gone through the impugned order of learned Single Judge, as well as, the orders passed by the Collector, Commissioner and the Financial Commissioner.

In this petition, the Appellants claimed ownership of the land measuring 86 Bighas 5 Biswas situated in village Killazafargarh, Tehsil Julana, District Jind. It is the case of the Appellants that their ancestors were proprietors and permanent residents of the village. It is the case of the Appellants that they are in possession of the land in question since 1927-28 i.e much prior to 26.01.1950, therefore, in view of the Clause (viii) of Section 2(g)(5) of the Act, the land in question does not vest in the Gram Panchayat and it was wrongly mutated in the name of the Gram Panchayat.

All the revenue authorities after considering the claim of the Appellants in the light of the evidence led by them, as well as, the Gram Panchayat have recorded a finding of fact to the effect that the Appellants had failed to prove their individual cultivating possession on the land in question being co-sharer on or before 26.01.1950. In the jamabandi for the year 1959-60 (Annexure P/4 in the writ petition), the land is recorded in the ownership column as "Shamlat Panna Sehrawat Hasab Rasad Rakba Khewat", in the cultivation column as "Makbuja Malkan" and the kind of land has been described as "Banjar Kadim" (uncultivable) and "Gair Mumkin Johar" (Pond). Individual possession of the Appellants is not reflected in the revenue record. The mutation was sanctioned in favour of the Gram Panchayat way back in 1964 while title suit was filed in 2006. The entries in the jamabandies after 1964 are continuing in the name of gram panchayat as owner in possession. Taking into consideration the revenue record, the Authorities under the Act have come to the conclusion that the Appellants have failed to prove their ownership with regard to the land in dispute.

In the writ petition, learned Counsel for the Appellants raised an argument that although part of the property is recorded as "johar" and "banjar kadim", however, since the Appellants are in possession of the property in dispute much prior to the appointed day i.e. January 26, 1950, therefore, any mutation made in favour of Gram Panchayat in the year 1964 shall not take away rights and title of the Appellants. He has further argued that the mutation does not confer any title. Learned Single Judge has held that the entries made in record-of-rights in accordance with law for the time being in force shall be presumed to be true until contrary is proved and presumption of truth attaches to the jamabandi. The mutation was sanctioned in favour of the Gram Panchayat way back in 1964. It is also held by the learned Singh Judge that the Appellants did not challenge any entry for a long i.e. for more than 46 years and now they shall be debarred from challenging the same in view of principle of waiver, acquiescence and estoppel.

The learned Counsel for the Appellants also raised an argument that there is no delay and latches in challenging the entries in revenue record. Admittedly, the challenge to the entries in the jamabandis is being made after about 46 year of sanction of mutation on 19.08.1964 which stands incorporated in subsequent jamabandies. The entries in the jamabandi i.e record of right can be challenged u/s 45 of the Punjab Land Revenue Act, 1887. We are unable to accept the contention of the Appellants that there is no delay and latches in the filing of title suit.

The land in the revenue record is recorded as "Banjar Kadim" and "Johar", and is reserved for the common purposes, which certainly vests in panchayat u/s 2(g) of the Act. The Appellants are only alleging that baras and houses are there. The same does not prove the possession of the Appellants.

There is no iota of evidence on record from which possession of the Appellants on or before 26.01.1950 and their ancestors could be proved. The concurrent findings of fact have been recorded by the revenue authorities. The learned Single Judge affirmed the findings of revenue authorities that the Appellants are not owner in possession of the land in question nor they can challenge entries in the revenue record after long delay.

Thus, in our opinion, in the facts and circumstances of the case, the order passed by the learned Single Judge does not require any interference in the appeal.

No merits.

Dismissed.