Randhir Singh and Another vs State of Punjab and others <BR> Maya Devi Vs Gram Panchayat Bishangarh and others

Hemant Gupta, J.—This order shall dispose of CWP No. 1182, 9498 and 9499 of 2012 in respect of land situated in village Bishangarh, Tehsil and District Patiala on identical facts arising out of a petition u/s 11 of the Punjab Village Common Lands (Regulation) Act, 1961 (for short ''the Act'') filed by the petitioners herein. For the facility of reference the name of the petitioners in each case, the date of order passed by the Collector u/s 11 of the Act and that of the Commissioner is extracted below in tabulated form:-

This order shall also dispose of LPA Nos. 241, 257 and 296 of 2014 directed against the order passed by the learned Single Bench of this Court on 10.09.2002 along with an application for condonation of delay of 4061 days, challenging the orders passed by the Collector and the Commissioner on an application u/s 7 of the Act filed by the Panchayat. The writ petitions were dismissed. The name of the appellants and the date of orders are again extracted in the following table:-

The Gram Panchayat filed an application u/s 7 of the Act on or about 20.11.1981 against Nikka Singh son of Narain Singh, the said proceedings are now subject matter of LPA No. 241 of 2014; against Durga son of Tulsi which is subject matter of LPA No. 257 of 2014 and against Dharam Singh son of Nikka Singh, which is subject matter of LPA No. 296 of 2014. The Panchayat in these proceedings asserted that Gram Panchayat is owner of the land in dispute which is shamilat and that this land was given on lease to the present appellants and that the occupants are in illegal possession of the same. The occupants denied the vesting of the land in Gram Panchayat and that it does not fall under the definition of shamilat. The land is shown as shamilat patti nungran hasab rasad zar khewat and that they are in possession since long. After giving opportunity to the parties to lead evidence, the learned Collector found that in the column of ownership the land is shown as shamilat patti nungran. As per Jamabandi for the year 1958-59 (Ex. A4) the land is described as Charand and thus is shamilat as per Section 2(g) of the Act. It also found that the occupants have not produced any proof of ownership nor produced any proof of possession on the land before 26.01.1950. Such order was affirmed in appeal as well.

The learned first Appellate Court found that from the Jamabandi for the year 1958-59, 1962-63, 1967-68, 1972-73, 1977-78, the land is described as shamilat deh patti nungran and that in Jamabandi for the year 1954-55 the land is shown as Charand. It was found that land in dispute is being used for grazing which falls within Section 2(g) of the Act. Learned Commissioner also found that the possession of the occupants is on 23 kanal 5 marlas of land since 1958-59. In the Jamabandi for the year 1967-68, the possession of the land was increased to 47 kanal 11 marlas but again decreased to 6 bigha 5 biswas in the Jamabandi for the year 1972-73.

The three writ petitions i.e. CWP No. 10696 of 1990, 10697 of 1990 and 10680 of 1990 were dismissed by learned Single Bench of this Court on 10.09.2002 primarily relying upon an order passed in CWP No. 16694 of 1995 titled as ''Dharam Singh and others Vs. Gram Panchayat, Bishangarh and others'' decided on 19.11.1996 arising out of separate proceedings u/s 11 of the Act by Dharam Singh, who is a writ petitioner in LPA No. 296 of 2014 in CWP No. 10696 of 1990. It also transpires that the separate petitions u/s 11 of the Act was filed by the petitioners subsequent to the proceedings u/s 7 of the Act which have been decided as per the details mentioned in table mentioned in Para 1.

The assertion of the petitioners claiming title over the land is that the petitioners are the right holders of village Bishangarh and are in possession before 26.01.1950. Reference is made to the Jamabandi for the year 1958-59 (Ex. A4) to assert that the land is entered in the name of as shamilat patti nungran hasab rasad zar khewat. In the column of possession the land is shown to be in possession of forefathers of the petitioners who were the Khewatdars of the village. It is also alleged that land was partitioned by the proprietors before 26.01.1950 and that land was never used for common purpose. Therefore, Gram Panchayat has no right, title or interest in the same.

In such proceedings, the learned Collector returned a finding after giving opportunity to the parties to lead evidence that shamilat patti katakheri hasab rasad zar khewat is entered in the column of ownership. As per the Draft Consolidation Scheme (Ex. P6) the land has been kept for gora deh Charand i.e. for grazing of cattle. Therefore, the land is kept reserved for common purposes. The possession of the petitioners on the land in question prior to 26.01.1950 is not proved. Neither the petitioners have produced any document that they are the proprietors of the village and that how much cut was applied while carving out the land in question. The Gram Panchayat has also produced the payment of Chakota vide receipts Ex. R1 to R3. Therefore, it was found that the Gram Panchayat has been giving this land on lease apart from the fact that the petitioners have failed to prove their continuous cultivating possession since 26.01.1950.

In appeal, the learned Director Panchayats exercising the powers of the Commissioner under the Act found that shamilat patti nungran hasab rasad zar khewat is recorded in the column of ownership in the Jamabandi for the year 1950-51 and 1954-55, shown to be in possession of the proprietors. In the Jamabandi for the year 1958-59, 1959-60, 1962-63, 1967-68, 1972-73, 1977-78, 1983-84, 1988-89, 1993-94, 1998-99 and 2003-04, shamilat patti katakheri hasab rasad zar khewat is recorded as owner but in the column of possession, Ranjit Singh son of Hukam Singh etc. are shown to be in possession but without Lagaan. The learned Commission found that the land was being leased to different persons by open auction, therefore, the petitioners cannot claim ownership on the said land because they are not proved to be in possession prior to 26.01.1950.

Before this Court, learned counsel for the petitioners referred to Jamabandi (Annexure P-6) for the year 1950-51 wherein shamilat patti nungran hasab rasad zar khewat is recorded in the ownership column whereas in the column of possession it is self-cultivation but also the name of Ranjit Singh, predecessor-in-interest of the petitioners have been find mention. It is thus contended that the learned Collector and the Commissioner have misread the documents to hold that the land is not recorded to be in cultivating possession of the petitioners prior to 26.01.1950. On the other hand, learned counsel for the respondent has argued that translated copy of Annexure P-6 is misleading in as much as the Khasra numbers have not been mentioned. A photocopy of the said Jamabandi shows that Ranjit Singh etc. are shown to be in possession of Khasra Nos. 327, 338. But in the Jamabandi for the year 2003-04 (Annexure P-7), the predecessor-in-interest of the petitioner is shown to be in possession of Khasra No. 44 but there is no proof that Khasra No. 44 is the new number of old Khasra No. 327, 338 said to be in possession of the petitioners. Still further, as per the consolidation scheme, the land in question is reserved for grazing purposes. Therefore, it is a shamilat deh within the meaning of Section 2(g) of the Act over which Panchayat exercises right and control. It is in exercise of such power Panchayat has been leasing out the land and therefore, the petitioners have been rightly ordered to be evicted from the land in question.

A perusal of the record of CWP No. 16694 of 1995 shows that Dharam Singh and Joginder Singh sons of Nikka Singh as well as Durga son of Tulsi, the predecessor of petitioners, in CWP No. 9499 of 2011 at Sr. No. 3 of the table in Para 1, challenged the order dated 15.01.1990 and 28.06.1995 passed in proceedings u/s 11 of the Act initiated by them. Dharam Singh etc. claimed to be in possession since the year 1946-47 and that the land is not a shamilat deh. Such writ petition was dismissed on 19.11.1996 when the following order was passed:-

The petition of the petitioners u/s 11 of the Punjab Village Common Lands (Regulation) Act for declaration of their title was dismissed by the Collector vide order dated 15.1.1990. It has been found by the Collector that the petitioners have not been able to prove their possession on the land in dispute before 26.1.1950 and that they have not been able to connect the land in their possession with the land before consolidation. In other words, the khasra numbers were not connected with the old khasra numbers before the consolidation. It has further been found that the land in dispute was used for charand and for common purposes of the village and the same is shamilat land. The appeal filed by the petitioners was dismissed after recording the following findings:-

After hearing both the parties at length and record produced was thoroughly examined. As per jamabandi year 1950-51, 1955-56 the land is shown patti-nungran and there is self cultivation and kind of the land is charand. This charand land is used for common purposes of the village. The khasra numbers of this land 31, 10, 23 and 3/16. From reading of Naksha Haqdaran Khatoni consolidation, it is clear that the present land has no concern with the previous land of patti-nungran shown before consolidation. There is no comparison between old land and present land. It is not all wrong to say that present appellants have been in possession on the land in dispute before the year 1950-51. Actually, this land is shown after consolidation in revenue record as shamilat patti-nungran. Actually, this land has come in possession of the appellant in the year 1956-57 and their possession will be taken from that year. The appellants have not been able to prove that they have been in continuous possession of the land in dispute since before 1950-51, and they have personal possession on the land. In fact, this land falls u/s 2(G) Sub Clause-3 of the Punjab Village Common Lands (Regulation) Act, 1961 and this land is shamilat. Gram Panchayat is owner of this land. The appeal has no merits.

This appeal is rejected.

The findings recorded by the authorities below are based upon facts. We are in agreement with the findings recorded by the authorities below. Finding no merit in the petition, the same is dismissed in limine.

Still further, Gram Panchayat filed a CWP No. 9020 of 2007 titled as ''Gram Panchayat of village Bishangarh Vs. State of Punjab and others'', decided on 20.12.2011 before this Court seeking quashing of the order dated 15.02.2007 passed by the Commissioner declaring Sadhu Singh and Gurmail Singh sons of Bishna and Kuldeep Kaur widow of Babu Singh as owner of the land situated in village Bishangarh in proceedings u/s 11 of the Act wherein Collector dismissed their suit but the Commissioner allowed the appeal. A perusal of the order shows that Gram Panchayat earlier filed an application before the Collector u/s 7 of the Act against Sadhu Singh on 20.11.1981. The said application was allowed by the Collector holding that the land is shamilat patti nungran and is being used for Charand i.e. for common purposes. The appeal against the said order was dismissed on 17.02.1984. The Division Bench of this Court in the aforesaid judgment observed as under:-

In the revenue record, i.e., Jamabandi for the year 1950-51, the land in dispute bearing Khatoni No. 101, Khasra Nos. 1, 125 and 126 (Kitte 3) has been shown as shamilat Patti in the column of cultivation being used as a Charand. Subsequently, in the Jamabandi for the year 1954-55, again the land bearing Khatoni No. 101, Khasra Nos. 1, 125 and 126 (Kitte 3) was shown to be shamilat Patti Nungran and was being used as a Charand. It has not been disputed that against those Khasra numbers the land in dispute measuring 44 Kanals 6 Marlas was allotted in the consolidation. In the consolidation proceedings, which were taken in the year 1956-57, as per Khatoni Pamaish, the land in dispute was reserved as Charand, but while preparing the Jamabandi for the year 1958-59, immediately after the consolidation Rakha and Bishna were shown to be in possession of this land. The ownership entry remained the same, i.e. shamilat Patti Nungran. By taking benefit of the said mistake in the Jamabandi, which may be as a result of fraud, respondents No. 2 to 4 claimed that they were in possession of the land in dispute and contended that since the land in dispute is in their possession and is being not used for common purposes of the village, therefore, such shamilat Patti land does not vest in the Gram Panchayat.

The Collector, after taking into consideration all these factors and ignoring the entry in the column of subsequent Jamabandi, has rightly come to the conclusion that the land in dispute was of shamilat Patti and was being used as a Charand, a common purpose of the village, therefore, in view of Section 2(g)(3) of the Act, such land vests in the Gram Panchayat. However, the learned Commissioner, after misreading the Jamabandi for the year 1950-51, has wrongly observed that in the said Jamabandi the land in dispute was recorded in possession of Makbooza Malkan. It has been observed that "there is no document to prove that the land was ever in the possession of the Gram Panchayat or was being used for common purpose at any point of time." It has been further observed that the names of Rakha and Bishna appeared in the cultivation column of the revenue record, therefore, the Collector had committed illegality while dismissing the title suit of respondents No. 2 to 4.

In our view, the aforesaid observations made by the learned Commissioner are total contrary to the revenue record. In the Jamabandis for the years 1950-51 and 1954-55 the land in dispute has been described in column No. 4 as shamilat Patti Nungran and in the column of cultivation as Charand, and in column No. 8 as Banjar Kadim. According to Section 2(g)(3) of the Act, such lands fall under the definition of Shamilat Deh. Section 2(g)(3) of the Act provides that "shamilat deh" includes lands described in the revenue records as Shamilat, Tarafs, Pattis, Pannas and Tholas and used according to revenue records for the benefit of the village community or a part thereof or for common purposes of the village. Even in the consolidation proceedings the nature of the land in dispute was described as a Charand. Merely, because in the Jamabandi for the year 1958-59, the names of Rakha and Bishna came in the column of cultivation, does not mean that the land was never used for common purposes of the village. When the shamilat law came into force i.e. 9.1.1954 (i.e. Punjab Village Common Lands (Regulation) Act, 1953), the land in question was described as land of shamilat Patti and is being used as a Charand. Such land, in view of Section 2(g)(3) of the Act, vests in the Gram Panchayat.

The issue about the nature of the land stands concluded by the Division Bench of this Court in CWP No. 9020 of 2007 titled as ''Gram Panchayat of village Bishangarh Vs. State of Punjab and others'', decided on 20.12.2011. Even in the present case also, it has been found as a matter of fact that the land is reserved for common purpose i.e. grazing of cattle and thus it would vest with Panchayat in terms of Section 2(g) of the Act. The relevant Section 2(g) of the Act is reproduced as under:-

Definitions.- In this Act unless the context otherwise requires,-

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(g) "shamilat deh" includes-

(1) lands described in the (1) lands revenue records as excluding abadi deh;

(2) shamilat tikkas;

(3) lands described in the revenue records as shamilat, tarafs, patties, pannas and tholas and used according to revenue records for the benefit of the village community or a part thereof or for common purposes of the village;

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but does not include land which-

(iv) having been acquired before the 26th January, 1950, by a person by purchase or in exchange for proprietary land from a co-sharer in the shamilat deh is so recorded in the jamabandi or is supported by a valid deed;

(v) is described in the revenue records as shamilat tarafs, patties, pannas and thola and not used according to revenue records for the benefit of the village community or a part thereof or for common purposes of the village;

(viii) was shamilat 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 shamilat deh on or before the 26th January, 1950;

A perusal of the above shows that the land described in the revenue record as shamilat patti and used according to revenue record for the benefit of village community falls within the definition of shamilat deh. Since the land in question is described as shamilat patti and has been proved to be used for common purposes i.e. for grazing, therefore, it falls within the definition of shamilat deh as contained in Section 2(g)(3) of the Act. Such is the finding recorded by this Court in the earlier writ petitions filed by the Gram Panchayat pertaining to the land in the same village in respect of the petitions filed by some of the occupants similarly situated than the occupants in the present writ petitions and the appeals.

Not only that the land falls within shamilat deh but also the same cannot be excluded from being shamilat deh for the reason that the occupants are not proved to be in possession prior to 26.01.1950 nor they have proved their holding in the village or that the land was reserved for common purposes after applying pro-rata cut during consolidation process.

In view of the above, the Letters Patent Appeals challenging the orders passed in proceedings u/s 7 of the Act, though barred by limitation, are without merit as well. Consequently, all the Letters Patent Appeals are dismissed. The writ petitions challenging the orders passed in proceedings u/s 11 of the Act. Since earlier proceedings have been decided in respect of other occupants of the same village against the occupants holding that the land vest in the Panchayat, for the reasons recorded therein, writ petitions are also dismissed.