Rattan Singh vs Commissioner, Ambala Division, Ambala

G.C. Garg, J.—Petitioners herein filed a suit for declaration against the Gram Panchayat Bhurawas in the Court of Sub Judge, Jhajjar, claiming that they were owners in possession of land measuring 86 Kanals 19 Marlas being cosharers. The land was not Shamlat Deh and the mutation sanctioned in favour of the Gram Panchayat was not binding on them and was liable to be set aside. The case of the defendant was that the land was Shamlat Deh and the mutuation had been correctly sanctioned in favour of the Gram Panchayat. The suit was dismissed but on appeal the decree passed by the trial Court was set aside and the case was remanded to the trial Court for fresh decision. In the meantime, the Punjab Village Common Lands (Regulation) Act, 1961 (for short called ''the Act'') was amended and the suit was transferred to the Court of Assistant Collector, Jhajjar for disposal.

The Assistant Collector Ist Grade granted a decree for declaration in favour of the petitioners by holding that they were the owners in possession of the land in question as cosharers and the mutation had been wrongly sanctioned in favour of the Gram Panchayat.

The Gram Panchayat took the matter in appeal and the Collector after considering the matter allowed the appeal, set aside the decree passed by the Assistant Collector Ist Grade and dismissed the suit. It was found by the Collector that the land was recorded as Banjar Qadim Makbuja Malkan in the revenue record for the year 195354 but the user thereof had not been mentioned therein, however, it was being used for grazing the cattle of the whole village as per the Sharat Wajbulraj. The possession of the petitioners was held to be proved only from 1963. The revision petitions were dismissed by the Financial Commissioner after recording a finding that the land was Banjar Qadim and was being used for grazing without discrimination between the proprietors and nonproprietors. Feeling dissatisfied, the present writ petition has been filed.

Learned counsel for the petitioners contended that the land in dispute was not Shamlat Deh as defined in Section 2(g)(5) of the Act. According to the learned counsel the land was never used for the common purpose of the village as per the revenue record and the same was in possession of the petitioners on January 9, 1954. It could only vest in the Gram Panchayat if the same was being used for the benefit of the village community according to the revenue record. The entry ''Makbuja Malkan'' appearing in the Jamabandi for the year 195455 did not mean that it was being used for common purposes of the village. The land was Banjar Qadim on January 9, 1954 and was owned and possessed by the Biswedars of Panna Bhuchan. The counsel in support of his submission, placed strong reliance on Gram Panchayat Sadhraur (formerly Dhumma) and Gram Sabha, Sadhupur v. Baldev Singh, 1977 P.L.J. 276 (Full Bench) and Des Raj v. The Gram Sabha of village Ladhot, 1981 P.L.J. 300.

I have heard the learned counsel for the parties and regret my inability to accept the contentions raised by the counsel for the petitioners. The case as set up by the petitioners in their plaint was that they were in possession of the land in dispute as owners prior to the enforcement of the Act being cosharers and thus, the land did not vest in the Gram Panchayat and the mutation sanctioned in favour of the Gram Panchayat on March 26, 1954 was illegal. The petitioners have miserably failed to prove that they were in possession of the disputed land on January 9, 1954, the date of enforcement of the Act. It has been found as a fact by the authorities that the land was brought under cultivation after the appointed date. The entries about cultivation were made in the jamabandi in favour of the petitioners as cosharers of Panna Bhuchan only in the year 1963, when they got into possession. The petitioners were thus, not in cultivating possession of the land in dispute on the relevant date.

Section 2(g)(5) of the Act reads as under :

"2(g) ''shamilat deh'' includes.....

.......

(5) lands in any village described as banjar qadim and used for common purposes of the village according to revenue records" :

On the relevant date, viz January 9, 1954, the land in dispute was described in the revenue record as ''Banjar Qadim Makbuja Malkan''. The user of the land was not recorded in the jamabandi for the year 195354. It has been found, as already noticed, that the land was not in the cultivating possession of cosharers on the relevant date. It was recorded as Banjar Qadim in possession of the Malkan. The fact that the land was brought under cultivation by the cosharers after January 9, 1954 would not in any way help them as this act of theirs cannot take away the land out of the definition of Shamilat Deh. The provisions of Section 2(g)(5) reproduced above are couched in clear language. The land described as Banjar Qadim and used for the common purposes of the village will fall in the definition of Shamilat Deh.

The only question that remains to be determined is whether the land was being used for the common purposes of the village as per the revenue record. The respondents in order to prove this fact have brought on record a copy of the WazibulArz for the year 190910. Annexure P4 is the transliterated copy thereof, on the record. The relevant portion of Annexure P4 reads as under :

"In the area of Shamilat there is no land worth grazing cattle. 4/11 is Banjar Qadim Shamlat and Bragis are settled therein and they graze their cattle without paying anything, or having any right. All the owners of all the three Panas graze their cattle in their Shamlat Banjars. The cattles of nonproprietors graze lands of all the three pannas without any payment, right and any distinction. None is prohibited."

It has been held in Jari and others v. Gram Panchayat, Bichhapari, 1979 P.L.J. 595, that Sharat Wajibularz is a part of record of rights and a presumption of truth is attached to it under Section 44 of the Punjab Land Revenue Act and even if the entries in the Wazibularz are not repeated in the later settlement, its evidentiary value remains the same. A reading of the entry in the Wazibularz reproduced above in the context of this case clearly shows that the land in dispute which was recorded as Banjar Qadim Makbuza Malkan, was being used by the village community for common purposes i.e. for grazing the cattle. The cattle of the proprietors and the nonproprietors had thus a right to graze in the land. User of the land for common purposes, though not recorded in Jamabandi for the year 195354, yet the entry in the Wazibularz would continue to show that the land was being used for common purposes of the village unless this entry was later altered. It was so done somewhere in the year 1963, but that would not make any difference, the relevant date being January 9, 1954. The land thus in my view has rightly been held fall in the definition of Shamilat Deh.

In Gram Panchayat Sadhupur''s case (supra), the provisions of Section 2(g)(3) of the Act fell for consideration. It was held therein that the interpretation placed on subclause (3) of clause (g) of Section 2 of the Act given in Cooperative Society of Improvement of Shamilat Patti Harnam Singh Lambardar of village Khanni v. Gram Panchayat Khanni, 1962 P.L.R. 730 cannot bear scrutiny and does not lay down a correct law. It was further observed that the expression "benefit of the village community or a part thereof" cannot be given by any stretch of imagination a restricted meaning so as to confine the benefit to only the owners of the land. In the present case, the entry reproduced above clearly shows that the benefit was not confined to the owners of the land only. The nonproprietors had also a right to graze their cattle.

In Des Raj''s case (supra), it had not been specifically proved by leading evidence that the land described as Makbuza Malkan was used according to the revenue record for the benefit of the village community or for common purposes of the village. Such being the position, it renders no help to the petitioners.

As a consequence of the above discussion, the writ petition fails and is hereby dismissed. No costs.