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2013 DIGILAW 1219 (PNJ)

Surjit Singh v. Additional Director Panchayats

2013-09-11

AJAY K.MITTAL, JASPAL SINGH

body2013
JUDGMENT AJAY KUMAR MITTAL, J. 1. The petitioners have approached this Court by way of instant writ petition under Articles 226/227 of the Constitution of India for quashing the order dated 11.9.1991 (Annexure P3) passed by respondent No.1 whereby the application of the Gram Panchayat filed under Section 11 of the Punjab Village Common Lands (Regulation) Act, 1961 (in short “the Act”) was allowed and the Gram Panchayat had been held to be the owner of the property. 2. A few facts necessary for adjudication of the present petition as narrated therein may be noticed. The petitioners were in possession as owners of the land comprised in khewat khatauni No. 65/103 khasra No. 36(65) situated within the revenue estate of village Barkatpur, Tehsil and District Patiala before 26.1.1950. The Gram Panchayat respondent No.2 while claiming its right over the land in dispute on the basis of jamabandi for the year 196364 filed an application under Section 7 of the Act before the Assistant Collector Ist Grade, Patiala. According to the jamabandi, the name of the Gram Panchayat was shown in the column of ownership. Shri Chuhar Singh, predecessor in interest of the petitioners was shown in possession of the land as cosharer and owner. The Assistant Collector Ist Grade vide order dated 22.2.1966 rejected the said application holding that the predecessor in interest of the petitioners was in possession of the land before 26.1.1950 and that order had become final. On the basis of the said order, mutation No. 171 was sanctioned on 22.3.1966 and the name of the Gram Panchayat was removed from the column of the ownership of jamabandi. According to jamabandi for the year 196364, Shri Chuhar Singh, predecessor I ninterest was in possession of the land as cosharer/coowner without payment of any rent. His possession was found to be before 26.1.1950 and therefore, the name of the Gram Panchayat was excluded from the column of ownership. The Gram Panchayat did not file any appeal against the mutation order or against the order of the Assistant Collector Ist Grade. Said Chuhar Singh remained in possession as cosharer/coowner till his death and thereafter the petitioners were in possession of the land as owners. The Sarpanch of the Gram Panchayat filed an application under Section 11 of the Act on 21.1.1981. Said Chuhar Singh remained in possession as cosharer/coowner till his death and thereafter the petitioners were in possession of the land as owners. The Sarpanch of the Gram Panchayat filed an application under Section 11 of the Act on 21.1.1981. The said application was dismissed by the Collector vide order dated 23.11.1982 (Annexure P1) holding the petitioners to be the owners of the land. Feeling aggrieved, the Gram Panchayat filed an appeal before the Commissioner who remanded the case to the Collector. After remand, the Collector vide order dated 5.6.1987 (Annexure P2) rejected the application. Thereafter, the Gram Panchayat took the matter in appeal before respondent No.1 who vide order dated 11.9.1991 (Annexure P3) allowed the appeal and declared the Gram Panchayat as owner of the land in dispute. Hence, the present writ petition. 3. We have heard learned counsel for the parties and perused the record. 4. Respondent No.1 while hearing the appeal concluded that the land comprising in khewat khatauni No. 65/103 khasra No. 36(65) was owned by the Gram Panchayat and the petitioners were in unauthorized possession over it. The claim of the Gram Panchayat was controverted by the petitioners, however, the case was not accepted. Respondent No.1 while allowing the appeal had recorded as under: “According to Jamabandis 195152, 195859 and 197980 the land is described as Shamilat Deh and the Gram Panchayat is owner of the land according to Section 4 of the Punjab Village Common Land (Regulation) Act, 1961. The ownership of the Gram Panchayat is challenged by the present respondents on the basis of their old possession. The lower court also dismissed the suit of the Gram Panchayat on the basis that the possession of the present respondents was proved to be very old. The exceptions under Section 2(g) of the Punjab Village Common Land (Regulation) Act 1961 are very clear and accordingly amongst other conditions it has also been proved that the possession should be before 26.1.1950. The respondents can derive no benefits on account of their old possession. There can be no second opinion that the Gram Panchayat is the owner of the land. If the respondents want to keep their possession on the basis of Section 4(3)(ii) they can raise this plea when the Gram Panchayat files an application under Section 7 of the Act for their ejectment. There can be no second opinion that the Gram Panchayat is the owner of the land. If the respondents want to keep their possession on the basis of Section 4(3)(ii) they can raise this plea when the Gram Panchayat files an application under Section 7 of the Act for their ejectment. The order passed by the Lower Court is not based upon the record produced in the case. This appeal is therefore accepted and the order dated 5.6.1987 of the Collector (District Development and Panchayat Officer) Patiala is set aside. The gram panchayat is owner of the land in dispute.” 5. The similar issue came up for consideration before this Court in CWP No. 2193 of 1992 (Rur Singh and others v. Additional Director Panchayats, Punjab, Chandigarh and another) on which reliance had been placed by the learned counsel for the petitioners at the time of motion hearing. After considering the provisions of the Act, this Court concluded as under: “The petitiones are not in a position to refer to any order or revenue document to prove partition of the land, in dispute, amongst proprietors, before 26.01.1950 much less cultivation by individual land owners. Another provision of the Act pressed into service, by the petitioners in support of their contentions is Section 2(g)(viii). In order to establish exclusion of land from “Shamilat Deh”, under Section 2 (g)(viii), the petitioners would be required to prove that: (a) the land was “Shamilat Deh”; (b) was assessed to land revenue' (c) has been in the individual cultivating possession as a cosharer; (d) the possession is not in excess of his share as a cosharer in “Shamilat Deh”; (e) and that all these facts were in existence before 26.01.1950. A perusal of the impugned orders or the paper book reveals that the land is “Shamilat Deh”. The petitioners have not placed any material before us to prove that the land was assessed to land revenue and was in individual cultivating possession of cosharers or petitioner no.1, not in excess of his share, before 26.01.1950. We would like to clarify that where land is owned by cosharers, revenue authorities assign a single khewat and khatauni number to reflect joint ownership and joint possession, respectively. If, however, cosharers are in individual cultivating possession of a parcel of joint land, they are assigned a single khewat number but separate khatauni numbers, to reflect their separate possession. We would like to clarify that where land is owned by cosharers, revenue authorities assign a single khewat and khatauni number to reflect joint ownership and joint possession, respectively. If, however, cosharers are in individual cultivating possession of a parcel of joint land, they are assigned a single khewat number but separate khatauni numbers, to reflect their separate possession. The expression “individual cultivating possession of cosharers” in Section 2(g)(viii) has to be proved by reference to a separate “khatauni number”, recording separate cultivating possession of a cosharer. We find no pleadings or evidence on record to hold that the petitioners were in the individual cultivating possession before 26.01.1950 as required by Section 2(g)(viii) of the 1961 Act. We would also like to add that it is no mere possession, before 26.01.1950, that excludes land from “Shamilat Deh” but partition and cultivating by individual land holders, before 26.01.1950.” 6. In the present case as well, learned counsel for the petitioners was unable to show that the petitioners were ever in cultivating possession on or before 26.1.1950. Thus, the land in dispute falls within the definition of ShamilatDehand vest in the Gram Panchayat. Respondent No.1 had rightly allowed the appeal filed by the Gram Panchayat. 7. In view of the above, we do not find any merit in this petition and consequently, the same is hereby dismissed.