Mange Ram (Dead) vs State of Haryana and Others

Jawahar Lal Gupta, J.—On may 12, 1973, Respondent Kalli Ram filed a petition u/s 7 of the Punjab Village Common Lands (Regulation) Act, 1961 with the prayer that Mange Ram etc. being in illegal possession of the land in dispute be called upon to vacate it. The Assistant Collector, 1st Grade, Bahadurgarh, accepted this petition vide order dated April 5, 1978. A copy of this order is on record as Annexure P.1. The appeal filed by Mange Ram etc. having been dismissed by the Collector, Rohtak on December 18, 1978, the petitioners approached this court through Civil Writ Petition No. 1208 of 1979. This writ petition was allowed on the ground that the Collector had not passed a speaking order. The case was, accordingly, remanded to the Collector for a fresh decision. On October 22,1979, the Collector dismissed the appeal. Hence this petition.

It appears that this case had come up for hearing before G.R. Mjithia, J. on November 25, 1992. The Registry was directed to "summon the original record of Case No. 52 of 12.5.1970 (Kali Ram v. Mange Ram etc.) decided by Shri I.D. Kaushik, Assistant Collector, 1st Grade, Bahadurgarh on April 5, 1978." Thereafter, when the case was listed for hearing in the year 1996, learned counsel for the petitioners had pointed out that the record had not been summoned. Consequently, vide order dated October 28, 1996, directions for summoning the record immediately were given. It was also ordered that the case shall be listed for hearing on December 9, 1996. When the case was put up for hearing on December 9, 1996, Mr. Gur Rattan Pal Singh had pointed out that the file "which had been received by the High Court does not have all the documents on record...... Learned counsel had prayed for an adjournment to give the particulars of the record which had to be summoned. Thereafter, C.M. No. 1460 of 1997 was filed by the counsel in which it was averred that "after the inspection of the summoned file it stood revealed, that .... the file is not at all complete." A prayer was made that the Assistant Collector, 1st Grade, Bahadurgarh be directed to assist the court "in procuring the file ... in its entirety." Notice of this application was given to the Advocate General, Haryana. Notice was also ordered to be given to the counsel for respondent No. 4. On Feburary 6, 1997, N.K. Sodhi, J. had directed that this application shall be taken up with the main case. Today at hearing, Ms. Ritu Bahri states that no instructions have been received by the Advocate General to appear on behalf of respondents No. 1 to 3. Only Mr. Mahavir Sandhu has appeared on behalf of respondents No. 4 and 5.

Mr. Gur Rattan Pal Singh, counsel for the petitioners has contended that the documentary and oral evidence on record clearly proves that they have been in occupation of the land since the year 1941. Counsel points out that factually, the revenue record shows the possession of the petitioners since the year 1907. However, neither the Assistant Collector nor the Collector have examined the evidence and have illegally held the petitioners to be in unauthorised occupation of the land in dispute.

Admittedly, Kalli Ram-respondent No. 5 had filed the petition u/s 7. The onus of proving that the land belonged to the Gram Panchayat and that the present petitioners were in unauthorised occupation, was on him. Mr. Mahavir Sandhu, Counsel for the respondents No. 4 and 5 is unable to refer to any evidence on record to show that Kalli Ram had actually discharged the onus.

Still further, it appears from a perusal of the order passed by the Assistant Collector that the present petitioners had produced :-

(i) Copies of the Khasra Girdawaris Exhibits RW6/1 to RW6/8 for the period from 1941 to 1970 to show that they have been cultivating the land continuously.

(ii) The Patwari had appeared as RW 5 and stated that "the respondents" (the present petitioners) do not possess more area than what is due to them......

(iii) Petitioner No, 2-Randhir Singh had appeared as RW 6 and stated that "he has been in possession of the land as the co-sharer and they have no more land in their possession than what is due to them."

The Assistant Collector appears to have rejected the evidence on the ground that:-

(i) The possession from 1941 to 1957 is not proved as "the old Khasra numbers had not been tallied with the latest khasra numbers."

(ii) The statement of the petitioners has been rejected on the ground that "there is nothing on the record to show that the land in the village was partitioned......"

In view of the above, the learned Assistant Collector concluded that the possession of the present petitioners "on the land in dispute can be of non occupancy tenants but this kind of possession is illegal in the light of the provisions of the Act...... Thus, he ordered their eviction and awarded Rs. 1000/- as damages'' per hectare per annum starting from kharif 1957. These findings have been affirmed by the Collector.

After hearing counsel for the parties, it appears that the impugned orders have been passed without really considering the matter in detail. A perusal of the Order of the Assistant Collector shows that prima facie, the possession of the petitioners on certain land from the year 1941 is proved by the documentary evidence on the record. However, the claim has been rejected only on the ground that "the old khasra numbers had not been tallied with the latest khasra numbers". This ground cannot be sustained. Firstly, it is not disputed that the land in possession of the petitioners had continued to be the same. If that be so, then the change in numbers was really of no consequence. Secondly, the Assistant Collector was in possession of the revenue record. He could have easily compared the entries in the record and found out as to whether or not the old khasra numbers tallied with the latest khasra numbers. Thirdly, it was admitted by the Patwari that the petitioners were in possession of the area according to their share. The fact that the land had not been partitioned did not mean that the possession was unauthorised. If a co-sharer is in possession of area equal to his share, the possession cannot be described as illegal or unauthorised. In fact, the evidence on record clearly raised a question as to whether or not the land actually vested in the Gram Panchayat. It appears that the authorities did not consider this is matter and ordered the eviction of the petitioners and also burdened them with damages.

Still further, a specific plea was raised before the Collector that the ancestors of the present petitioners had been occupying the land in dispute as share-holders. The land was not shamlat deh. It did not vest in the Panchayat. As such, they could not be dispossessed in proceedings u/s 7. The petitioners having claimed ownership of the land, the summary procedure envisaged u/s 7 could not be resorted to. The question of title should have been decided in proceedings u/s 13-A. The Collector notices this plea, but really fails to consider it. He recorded a finding that the possession of the petitioners could not be said to be continuing since 1941 without really considering the evidence on record.

Mr. Gur Rattan Pal Singh submits that the documents which were produced before the Assistant Collector appear to have been intentionally removed from the file. Be that as it may, a perusal of the file which has been received in this court indicates that only the papers relating to the execution proceedings have been forwarded to this court. The file on which the matter had been considered by the Assistant Collector or the Collector has not been forwarded. In this situation, the matter has been considered only in the light of the writ paper book filed by the petitioners. Since the matter has been considered on the basis of the pleadings contained in the writ paper book, it may also be mentioned that the, petitioners have raised a categorical plea that the land does not belong to the Panchayat. It does not constitute a part of the Shamlat deh. There is no evidence on the record to show that the land in question is shamlat deh. No writen statement has been filed on behalf of the respondents to controvert the plea raised by the petitioners. In this situation, it appears difficult to uphold the conclusions recorded by the two authorities.

Mr. Mahavir Sandhu submits that the pleas raised by the petitioners were self-contradictory inasmuch as their claim as the co-shares as well as owners by adverse possession.

This contention is untenable. Firstly, it is the admitted position that the petitioners are landholders in the village. Consequently, they have a share in the shamlat land which vests in the proprietary body. On that basis, they have claimed to be in occupation as co-shares. Secondly, it appears that an alternative plea was raised that even if they are treated as occupancy tenants, they had become owners by adverse possession as they were not paying any rent to the Gram Panchayat which was wrongly recorded as the owner. It is open to a party to take alternative pleas.

In the circumstances of the present case, the impugned orders cannot be sustained. These are, consequently, set aside. The case is remanded to the Assistant Collector, 1st Grade, Bahadurgarh for a fresh decision in accordance with law. It would be open to both the parties to produce such evidence as they may wish to. The matter shall then be considered. In the meantime, the respondents shall not interfere with the possession of the petitioners on the land in dispute. Mr. Mahavir Sandhu prays that a date for appearance of the parties may be fixed. It is directed that the parties may appear before the Assistant Collector, 1st Grade Bahadurgarh on May 19,1997. No costs.