JUDGMENT Mr. Rakesh Kumar Jain, J.: - The Gram Panchayat has challenged the validity of orders dated 5.10.2006 (Annexure P-1) and 13.3.2009 (Annexure P-2), passed by the Collector/Divisional Deputy Director, Rural Development and Panchayat, Patiala and Director, Rural Development and Panchayat Department, Punjab (exercising the powers of Commissioners under the Punjab Village Common Lands (Regulation) Act, 1961 (for short ‘the 1961 Act’), respectively, by which an application filed by respondent No.2 under Section 11 of the Act for declaring their title over the land bearing Khewat/Khatoni No.300/660 and 663, Khasra No.521(3-8), 519(3-13), has been allowed on the ground that respondents No.2 to 4 were recorded in possession through their predecessor-in-interest in the jamabandi for the year 1945-46, i.e., prior to 26.1.1950 and the Panchayat has failed to prove that disputed land had ever been used for common purposes. 2. Respondents No.2 & 3, examined Gurmukh Singh son of Sh. Santokh Singh as PW1 and Harsimran Singh son of Rabinder Singh as PW2 and produced Jamabandi for the year 1945-46 (Ex.P-1), Jamabandi for the year 1949-50 (Ex.P-2), Jamabandi for the year 1952-53 (Ex.P-3), Intkal No.325 (Ex.P-4), Khatauni Consolidation (Ex.P-5), Misal Haquiat (Ex.P-5/a), action taken (Ex.P-6), Map of Haqdarwar (Ex.P-7), Drafts Scheme (Ex.P-8), Jamabandi for the year 1956-57 (Ex.P-9), Jamabandi for the year 1960-61 (Ex.P-10), Jamabandi for the year 1965-66 (Ex.P-11), Jamabandi for the year 1970-71 (Ex.P-12), Jamabandi for the year 1975-76 (Ex.P-13), Jamabandi for the year 1980-81 (Ex.P-14), Jamabandi for the year 1995-96 (Ex.P-15), Jamabandi for the year 2000-2001 (Ex.P-16), Khasra Girdawari for the year 2001-04 (Ex.P-17). The Panchayat examined Balvinder Singh Sarpanch and tendered the affidavit as Ex.R-1, besides producing resolution dated 19.5.2005 as Ex.R-1 and jamabandi for the year 2000-01 as Ex.R-2. 3. The Collector, while allowing the application of respondents No.2 to 4, observed that the land in dispute is in the name of the petitioners through their predecessor-in-interest from the very beginning on Chakota/Batai and Panchayat could not prove that it is used for the common purposes and welfare of the village. It was also observed that the land in dispute was Banjar Qadim on 9.1.1954 and has remained in possession of the petitioners through their predecessor-in-interest prior to 26.1.1950. It was also observed that the land in dispute was Banjar Qadim on 9.1.1954 and has remained in possession of the petitioners through their predecessor-in-interest prior to 26.1.1950. The Commissioner, while dismissing the appeal of the Panchayat, has observed that the predecessor-in-interest of respondents No.2 & 3 were continuously in possession over the land in dispute since 1945-46 till 1975-1976, it was never in possession of the Panchayat or used for common purposes and, as such, it does not come within the definition of Shamilat deh. 4. Counsel for the petitioner/Gram Panchayat has submitted that even as per jamabandi for the year 1945-46 attached as Annexure R2/1 with the reply filed by respondent No.2, the land in dispute, is recorded as “Shamilat Deh Hasab Rasad Araji Khewat” and is shown in possession of Mohan Singh son of Sunder Singh (predecessor-in-interest of respondents No.2 and 3) but the nature of the land is recorded as Banjar Qadim, which has been further shown in the jamabandi for the year 1949-50 (Ex.R2/2). Banjar Qadim is uncultivated land and in order to seek exclusion of land from Shamilat deh on the ground that it was in possession of respondents No.2 and 3, through their predecessor-in-interest, they are required to bring their case within the four corner of Section 2(g)(iii) or 2(g)(viii), which excludes land in “cultivating possession” and not in mere “possession”. It is further submitted that as the land in dispute has been repeatedly recorded as Banjar Qadim in jamabandis for the years 1945-46 and 1949-50, Sections 2 (g)(iii) and 2(g)(viii) are of no help to respondents No.2 and 3 to exclude it from Shamilat deh. He has also submitted that as per jamabandi for the year 1960-61 (Ex.P4/T), land in dispute has been shown as ‘Chahi’ but the revenue authorities have erred in not appreciating the fact that it would not suffice to hold that the land has been recorded as Banjar Qadim and was not used, as per revenue record, for common purposes of village, as on 9.1.1954. The authorities were required to consider whether the land was Banjar Qadim on the date of enactment of the 1961 Act. In this regard, he has relied upon a decision of this Court in CWP No.6727 of 2007 titled as “Gram Panchayat, Kalwa Vs. The Joint Development Commissioner (IRD), Punjab, Chandigarh and others”, [2012(4) Law Herald (P&H) 2987 (DB)] : decided on 30.3.2012. In this regard, he has relied upon a decision of this Court in CWP No.6727 of 2007 titled as “Gram Panchayat, Kalwa Vs. The Joint Development Commissioner (IRD), Punjab, Chandigarh and others”, [2012(4) Law Herald (P&H) 2987 (DB)] : decided on 30.3.2012. 5. On the other hand, learned counsel for the private respondents has vehemently argued that although the land in dispute has been recorded as “Shamilat Deh Hasab Rasad Araji Khewat” in jamabandis for the year 1945-46 (Ex.R2/1), 1949-50 (Ex.R2/2) and its nature has been recorded as Banjar Qadim, it is incumbent upon the Gram Panchayat to prove that the said land has been used for common purposes because Section 2(g)(5) of the 1961 Act provides that Shamilat deh would include the land in any village described as Banjar Qadim provided it is used for common purposes, according to the revenue records, meaning thereby, that if the land in dispute is recorded as Banjar Qadim and is not used for common purposes of the village, according to the revenue record, then it cannot be brought within the definition of Shamilat deh and would impliedly be excluded. He has also laid stress upon the entry of possession of the predecessor-in-interest of respondents No.2 and 3 over the land in dispute in terms of jamabandis for the year 1945-46 (Ex.R2/1), 1949-50 (Ex.R2/2) and has submitted that the Court has to see the possession before 26.1.1950 to bring the case of the respondents No.2 and 3 within the exclusion clause of Sections 2(g)(iii) and 2(g)(viii) of the 1961 Act. 6. We have heard learned counsel for the parties and perused the record. 7. Respondents No.2 and 3, have placed on record jamabandis for the year 1945-46 (Ex.R2/1), 1949-50 (Ex.R2/2), in which the land in dispute in the column of ownership is recorded as “Shamilat Deh Hasab Rasad Araji Khewat” and has been shown in possession of their predecessor-in-interest but the nature of land is recorded as Banjar Qadim as well as Gair Mumkin Rasta and cremation ground etc. In the jamabandi for the year 1960-61 (Ex.P4/T), the land in dispute has been recorded as Chahi in the ownership of Nagar Panchayat Majkoor. In the jamabandi for the year 1960-61 (Ex.P4/T), the land in dispute has been recorded as Chahi in the ownership of Nagar Panchayat Majkoor. The question thus arises, is whether land, which is recorded in revenue record as “Shamilat Deh Hasab Rasad Araji Khewat” before 26.1.1950 and is shown to be in possession of proprietors, deserves to be excluded from the definition of Shamilat deh, in terms of Sections 2(g)(iii) and 2(g)(viii) of the 1961 Act, even if the nature of the land is Banjar Qadim. In this regard, it would be relevant to refer to Sections 2(g) (iii) and 2(g)(viii) of the 1961 Act: - “ 2(g) “Shamilat deh” includes (iii) has been partitioned and brought under cultivation by individual landholders before the 26th January,1950. (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.” 8. According to the aforesaid provisions, it is “cultivating possession” before 26.1.1950, which is recognized by legislature, sufficient to exclude land from the definition of ‘Shamilat deh’ and not mere possession. In the present case, admittedly, the land in dispute, before 26.1.1950, is recorded as Banjar Qadim, which denotes that the land has remained fallow for eight harvests and, therefore, cannot be considered in cultivating possession, by any stretch of imagination. Thus, respondents No.2 & 3, have failed to prove “Cultivating possession” before 26.1.1950, so as to invoke the exclusion clauses of Section 2(g)(iii) or 2(g)(viii) and revenue authorities have committed a patent error in this regard by holding that as the petitioners, through their predecessor-in-interest, were in possession before 26.1.1950, the land in dispute is excluded from the definition of Shamilat deh. The authorities under the Act failed to discern that the key to clauses 2(g)(iii) and 2(g)(viii) is “cultivating possession” and not mere “possession”. 9. Insofar as, the plea that as the land in dispute is Banjar Qadim on 9.1.1954 and not used for common purposes, it is excluded from Shamilat deh, is concerned, it has been held in the case of Gram Panchayat, Kalwa (supra) that: - “The private respondents claim that the land is excluded from “Shamilat Deh” as it was “Banjar Qadim” and not used as per the revenue record for common purposes of the village. The Appellate Authority has accepted this plea by holding that as the land was “Banjar Qadim” and not used as per the revenue record for common purposes of the village on 09.01.1954, it is excluded from “Shamilat Deh”. The learned Commissioner lost sight of the fact that Section 2(g)(5) of the 1961 Act, which provides for exclusion of “Banjar Qadim” from “Shamilat Deh” unlike some other subsections, does not prescribe the date on which the land would have to be proved to be “Banjar Qadim”. A person claiming exclusion of his land under Section 2(g)(5) of the 1961 Act, would have to prove that the land was “Banjar Qadim” and not used for common purposes of the village, according to the revenue record as on 04.05.1961 (the coming into force of the 1961 Act). The learned Commissioner has committed an error by holding that as the land was “Banjar Qadim” on 09.01.1954, the date of enactment of the 1954 Act, it is excluded from “Shamilat Deh”. 10. According to the aforesaid decision, it was incumbent upon respondents No.2 and 3 to prove that the land in dispute was Banjar Qadim at the time of commencement of the 1961 Act, whereas as per the jamabandi for the year 1960-61 (Ex.P4/T), the land is recorded as ‘Chahi’ (Cultivated). The authorities under this Act committed an error by treating the relevant year to be 1954 instead of 1961. 11. In view of the aforesaid discussion, we are of the considered view that the impugned orders dated 5.10.2006 (Annexure P-1) and 13.3.2009 (Annexure P-2) are without jurisdiction. Hence, the writ petition is allowed and the impugned orders are hereby quashed, however, without any order as to costs. ---------0.B.S.0------------