K.Kannan, J. (Oral);— CM Nos.9230-31-C of 2009 in RSA No.1249 of 2006 Counsel for the applicant seeks for permission to withdraw the applications. Dismissed as withdrawn. Regular Second Appeal Nos.1249, 1303 and 3903 of 2006 1. All the appeals are connected and they are being disposed of by a common order. 2. The following substantial question of law arises for consideration in the appeals:- Whether the plaintiffs, who claimed to be the proprietors of the Village, could have objections to a mutation in the name of a Municipal Council in relation to shamilat deh by the alleged fact that they were proprietors of the property set apart as common land and hence, retain the ownership in relation to the common land? 3. The plaintiffs are appellants before this Court. The plaintiffs' suit was for a declaration of the property in the representative capacity that they are proprietors of the Village Madhopur, Tehsil Rajpura, Distict Patiala, being owners of land measuring 113 bighas 09 biswas and that the entry in the name of the Municipal Committee was wrong and illegal. The trial Court decreed the suit to the extent that the entry in the revenue record in the name of the first defendant was wrong and illegal and was liable to be corrected, but dismissed the suit regarding the claim of the plaintiffs for title and possession and for injunction. The defendants preferred an appeal to the Additional District Court which set aside the decree of the trial Court and dismissed the suit in toto. 4. The learned counsel for the plaintiffs would start with a contention that they are not aggrieved as much about the dismissal of the suit for declaration as with the denial of the relief which was granted by the trial Court setting aside the mutation which was made in the name of the Municipal Committee on 08.04.1975. When I pointed out that the two reliefs were consequential to one another, the counsel would qualify the statement and contend that the objection to the decree of dismissal by the trial Court in relation to the prayer for declaration was no less important but the fact that the appellate Court modified the decree granted by the trial Court setting aside the mutation made in the name of the Municipal Committee was grossly erroneous. 5. 5. The counsel wants to place reliance on some jamabandi entries for the year 1971-72 that showed the names of Ramji Dass and Nand Lal as owners and against the cultivators' column, it is described that it is held under self-cultivation as Makbuja Malkan. The counsel would argue that they are proprietors in the village, notwithstanding setting apart of the property as common land and treated as shamilat deh in consolidation, they would never lose right to the shamilat deh. The declaration sought must have been granted and the suit decreed in toto. The learned counsel would also rely on the judgment of the Division Bench of this Court in Gurjant Singh Versus Commissioner, Ferozepore Division-AIR 2000 (Punjab) 161 which was dealing with a bunch of 163 petitions which came to be disposed of by a common judgment, upholding the vires of Section 7 of the Punjab Village Common Lands (Regulation) Act (for short, the 1961 Act). The point raised before the Division Bench was whether a bachat land, that is the land found as surplus after putting the land of the proprietors, as contributed by them, would vest with the gram panchayat or continued to be owned by the proprietors of the village. The Division Bench held that consistent with the previous decisions of this Court and the Supreme Court that bachat land which remained unutilized after utilizing the common land for common purposes would not vest with the gram panchayat. I cannot understand as to the relevance of this judgment to the facts of the case, for, we are not dealing with a case of an unutilized common land and treated as bachat. We are now dealing with the situation of a property referred in the consolidation as shamilat deh and an objection brought by the erstwhile proprietors, who had contributed to the common land and who pleaded that notwithstanding the consolidation treating the property as shamilat deh, they must still be treated as proprietors and entry cannot be made in the name of the Municipal Committee in lieu of their names. 6. I am of the view that the entire argument is flawed by the failure to understand the effect and nature of vesting which is contemplated under the 1961 Act. 6. I am of the view that the entire argument is flawed by the failure to understand the effect and nature of vesting which is contemplated under the 1961 Act. Shamilat deh is defined under Section 2(g) and it is an inclusive definition that brings within its ambit the land described in the records as shamilat deh. What is excluded under Section 2(g) is set out in the said Section itself. Abadi deh is a property which stands excluded from shamilat deh. Shamilat tikkas, various other abadi or property reserved for common benefits of village community and property described as banjar qadim, all of them partake the shamilat deh character. The exclusion from the said Section 2(g) are brought out through clauses (i) to (ix) as under:- “(i) (property) becomes or has become shamilat deh due to river action or has been reserved as shamilat in village subject to river action except shamilat deh entered as pasture, pond or playground in the revenue records; ii) has been allotted on quasi permanent basis to a displaced person; (ii-a) was shamilat deh, but has been allotted to any person by the Rehabilitation Department of the State Government, after the commencement of this Act, but on or before the 9th day of July, 1985; (iii) has been partitioned and brought under cultivation by individual landholders before the 26th January,1950; (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 and is so recorded in the jamabandi or is supported by a valid deed; (v) is described in the revenue records as shamilat, taraf, patti panna an thola and not used according to revenue records for the benefit to the village community or a part thereof or for common purposes of the village; (vi) lies outside the abadi deh and was being used as gitwar, bara manure pit, house or for cottage industry, immediately before the commencement of this Act; (vii) {Omitted by Act No.18 of 1995;} (viii) was Shamilat deh was assessed to land revenue and has been in the individual cultivating possession of co-shares not being in excess of their respective shares in such shamilat deh on or before the 26th January, 1950, or; (ix) is used as a place of worship or for purposes, subservient thereto.” 7. In all this, it will be noticed where the property is partitioned and brought for cultivation before 1950 or was shamilat deh assessed as revenue land and held in individual cultivation and co-sharer in excess of the share before 26.01.1950 could be excluded. What is necessary, therefore, is that a property held by a proprietor must have continued in possession before 26.01.1950. The additional document which is sought to be filed is a document for the year 1970-71 and it has no bearing to the requirement for consideration of exclusion from the definition of shamilat deh in the manner contemplated under Section 2 (g). A property, which the proprietors had to suffer for contribution to a common benefit and to be treated as shamilat deh, stood vested in panchayat by virtue of Section 4 of the 1961 Act. The vesting provision would require to be reproduced as follows:- “Vesting of rights in Panchayat and nonproprietors.- (1) Notwithstanding anything to the contrary contained in any other law for the time being in force or in any agreement, instrument, custom or usage or any decree or order of any court or other authority, all rights, title and interest whatever in the land:- (a) Which is included in the Shamilat deh of any village and which has not vested in a Panchayat under the Shamilat law shall, at the commencement of this Act, vest in a Panchayat constituted for such village, and where no such Panchayat has been constituted for such village, and where no such Panchayat has been constituted for such village, vest in the Panchayat on such date as a Panchayat having jurisdiction over that village is constituted ; (b) Which is situated within or outside the abadi deh of a village and which is under the house owned by a non-proprietor, shall, on the commencement of Shamilat law, be deemed to have been vested in such non-proprietor. (2) Any land which is vested in a Panchayat under the Shamilat law shall be deemed to have been vested in the Panchayat under this Act. (2) Any land which is vested in a Panchayat under the Shamilat law shall be deemed to have been vested in the Panchayat under this Act. (3) Nothing contained in clause (a) of sub-section (1) and in sub-section (2) shall affect or shall be deemed ever to have affected the ;- (i) existing rights, title or interests of persons who, though not entered as occupancy tenants in the revenue records are accorded a similar status by custom or otherwise, such as Dholidars, Bhondedars, Butimars, Basikhopohus, Saunjidars, Muqarrirdars; (ii) rights of persons in cultivating possession of Shamilat deh, on the date of the commencement of the Punjab Village Common Lands (Regulation) Act, 1953, or the Pepsu Village Common Lands (Regulation) Act, 1954, and were in such cultivating possession for more than twelve years on such commencement without payment of rent or by payment of charges not exceeding the land revenue and cesses payable thereon. (iii) rights of a mortgagee to whom such land is mortgaged with possession before the 26th January, 1950. 8. Section 4 begins with a non-obstante clause and if a person, who had been the owner under a decree or any agreement or an instrument, he still will have no claim to the property that is vested under Section 4. The vesting shall not take place only in 3 circumstances (i) the rights claimed by persons such as Dholidars, Bhondedars, Butimars etc.; (ii) persons in cultivating possession for more than 12 years prior to the commencement of the Act; (iii) right of mortgagee to whom such land is mortgaged with possession before 26th January, 1950. 9. The plaintiffs cannot have declaratory relief unless they are able to show their continuance of possession for 12 years before the Act and their continuance thereon as cultivating tenants. There had been no such attempt made at the trial and when the court had been dismissing the prayer for declaration, it was recognizing the nature of vesting contemplated under the 1961 Act through Section 4. If the plaintiffs could not be declared to be the owners, a fortiori the question of taking objection for the mutation in the name of gram panchayat and still later the Municipal Committee which has displaced it does not arise. If the plaintiffs could not be declared to be the owners, a fortiori the question of taking objection for the mutation in the name of gram panchayat and still later the Municipal Committee which has displaced it does not arise. The suit ought to have been dismissed in toto, consistent with the declaratory decree being declined for declaration by the trial Court and that was correctly modified by the lower appellate Court. 9. I find, therefore, no reason for setting aside the decision of the lower appellate Court and I answer the substantial question of law raised against the plaintiff in the light of the observations made above. All the appeals are dismissed.