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2013 DIGILAW 1546 (PNJ)

Varinder Pal Singh v. State of Punjab

2013-11-22

RAJIVE BHALLA, REKHA MITTAL

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JUDGMENT Mr. Rajive Bhalla, J.: - By way of this judgment, we shall dispose of Civil Writ Petition Nos. 7003, 10170, 11669, 11670, 14572 and 14799 of 2011, 1028, 1030, 4553, 4556, 4569, 4572, 4573, 4593, 4598, 4599, 4604, 4608, 4609, 4612, 4613, 4614, 4615, 4616, 4617, 4618, 4619, 4620, 4621, 4624, 4628, 4666,4667, 4669, 4671, 4672, 4698, 5058, 5068, 5070, 5073, 5125, 5161, 5235, 5240, 5381, 5393 and 5463 of 2012 6514, 6515, 6516, 6517, 6518, 6519, 6520, 6521 and 6523 of 2013. as counsel for the parties agree that these petitions involve adjudication of common questions of law and the fact and whether filed under Section 11 or Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as the “1961 Act”), have to be decided together. 2. Counsel for the petitioners submit that the petitioners are, admittedly, proprietors and residents of village Bankharpur, Tehsil Derabassi, District SAS Nagar, Mohali. The land in dispute is “Shamilat Patti” and as it is not used as per revenue record for the benefit of the village community or a part thereof or for common purposes of the village, it is excluded from “Shamilat Deh”. The Gram Panchayat sought to interfere in the petitioners’ possession by asserting its title, compelling the petitioners to file a petition under Section 11 of the 1961 Act for a declaration that the land is not “Shamilat Deh” and does not vest in the Gram Panchayat. The jamabandi for the year 1944-45 records that the land, in dispute, is the ownership of “Shamilat Zail Partap Singh Lambardar Bar, 21 Hal, Hasab, Hisas,Jaddi”. The jamabandi for the year 1952-53 records the same entry, though the khewat has changed from khewat no.54 to khewat no.56. The jamabandi for the year 1960-61, the first jamabandi, prepared after consolidation, records that the land, in dispute, bears khewat no.103 and is owned by “Shamilat Zail” Harcharan Singh Lambardar Bar 21 Hal”, in possession of “Makbuja Malkan”, i.e., members of the Patti, thereby proving that the land, in dispute, belongs to a Patti. The entries in the other cases are similar. The entries in the other cases are similar. Section 2(g)(3) and 2(g)(v) of the 1961, when read together, reveals that land belonging to a “Patti” shall be included in the “Shamilat Deh” of a village only if it is used as per the revenue record for the benefit of the village community or a part thereof or for common purposes of the village. The Gram Panchayat has not produced any evidence to prove that the land, in dispute, was used for common purposes of the village, as required by Section 2(g)(3) of the 1961 Act. The land is, therefore, neither “Shamilat Deh” nor does it vest in the Gram Panchayat. Counsel for the petitioners, however, state that the petitioners do not claim any right, title or interest in any land that was earmarked or reserved for a public purpose, namely, graveyard, cremation ground, toilets, civil hospital, panchayat ghar, school, playground etc. nor do they claim title with respect to any part of land that was or is a part of the river Ghaggar and confine their claim to 735 Kanals-05 Marlas of land. 3. Counsel for the petitioners further argues that a perusal of the “Sharat Wazib-ul-Arz”, reveals that land belonging to the “Shamilat Patti” shall be managed by proprietors of the Patti, who shall derive income therefrom and shall be entitled to exclude all else from grazing their cattle. The entry proves that the land, in dispute, is not reserved or earmarked for common purposes of the village community etc. Counsel for the petitioners place reliance upon a Full Bench judgment of this Court in Gram Panchayat Sadhraur versus Baldev Singh and others, 1977 PLJ, 277, to contend that controversy in the present petition is squarely covered in favour of the petitioners. 4. Counsel for the petitioners further submits that a list of proprietors (a suchi malkan) prepared in the year 1960, appended with the writ petition as Annexure P-6 and adduced in evidence before the Collector clearly proves that the petitioners are proprietors (right holders)/khewatdars in their respective Pattis. The findings recorded by the Collector and the Appellate Authority to the contrary, are incorrect. The findings recorded by the Collector and the Appellate Authority to the contrary, are incorrect. It is also contended that the finding that the petitioners have not been able to tally khasra numbers recorded in jamabandi prior to 26.1.1950 with khasra numbers in subsequent jamabandis, is factually incorrect as the petitioners have produced consolidation documents to prove identity of the land and even otherwise, the Gram Panchayat has not denied the identity of the land or asserted that the petitioners are not proprietors of the concerned pattis. The reliance by the Collector as well as by the Appellate Authority upon a civil court judgment is entirely misplaced as the judgment relates to a dispute between the Gram Panchayat and the State of Punjab, regarding vesting of rights of minor minerals. The proprietors were neither a party nor were their rights, flowing from Section 2(g)(3) and (v) of the 1961 Act, adjudicated. The mere fact that an incidental finding of ownership was recorded in favour of the Gram Panchayat, would not oust the jurisdiction of the Collector to examine the matter. It is further submitted that report dated 02.4.2012 prepared by the Joint Development Commissioner, Punjab, during pendency of these petitions supports the petitioners’ contention and should, therefore, be accepted. The finding recorded in the report, after examining the entire revenue record and consolidation documents that the land is “Shamilat Patti” and does not vest in the Gram Panchayat, does not suffer from any error. 5. It is further argued that the Collector as well as the Appellate Authority have decided the case on issues, like, physical cultivating possession, prior to 26.1.1950 etc. that do not arise in the present cases. The present cases pertain to vesting or non vesting of land that is admittedly “Shamilat Patti”. It is further submitted that as the petitioners are owners in possession of the land, in dispute, the writ petitions may be allowed, the impugned orders, whether passed under Section 11 or 7 of the 1961 Act, may be set aside, petitions filed under section 11 of the 1961 Act may be allowed and the petitions filed under Section 7 of the 1961 Act may be dismissed. 6. Counsel for the respondents and the Gram Panchayat submit that the land, in dispute, is “Shamilat Deh” and not “Shamilat Patti. 6. Counsel for the respondents and the Gram Panchayat submit that the land, in dispute, is “Shamilat Deh” and not “Shamilat Patti. The absence of the word “Patti”, in the relevant jamabandis, clearly proves that the land is “Shamilat Deh” that came to vest in the Gram Panchayat, under the Pepsu Village Common lands (Regulation) Act, 1954 (hereinafter referred to as the “1954 Act”) and it is not excluded from “Shamilat Deh” by any provision of the 1961 Act. The land, in dispute, vests in the Gram Panchayat under Sections 3 and 4 of the 1961 Act. It is further argued that as the petitioners have failed to prove that the land is “Shamilat Patti”, the Collector as well as the Appellate authority have rightly held against the petitioners. It is also contended that in the absence of any evidence that the petitioners are proprietors and their failure to tally post and pre consolidation numbers, particularly khasra numbers relating to jamabandi for the year 1944-45, the petitioners have failed to prove their basic pleas. It is further submitted that as a civil court has already held that the land, in dispute, vests in the Gram Panchayat, though while considering a dispute between the Gram Panchayat and the State of Punjab relating to vesting of minor minerals, the said judgment has been rightly considered by the Collector and the appellate authority while deciding against the Gram Panchayat. It is further submitted that as the “Sharat Wazib-Ul-Arz” for the year 1960-61 clearly records that residents of the village shall be entitled to graze their cattle upon the land of “Shamilat Patti” of the Village, it is proved that the land, in dispute, even if it is “Shamilat Patti”, vests in the Gram panchayat leaving no ambiguity as to its nature and ownership, namely, that the land vests in the Gram Panchayat being “Shamilat Deh”. It is further argued that the report submitted by the Joint Director, is legally incorrect as he has not referred to the share holdings of the petitioners and has wrongly interpreted revenue entries in favour of the petitioners. 7. We have heard counsel for the parties, perused relevant revenue record, report prepared by the Joint Director, Panchayats and all other relevant material. 8. 7. We have heard counsel for the parties, perused relevant revenue record, report prepared by the Joint Director, Panchayats and all other relevant material. 8. The dispute in the present case is - whether the land, in dispute, is “Shamilat Deh” as defined under Section 2(g) of the 1961 Act or is excluded from “Shamilat Deh” by Section 2(g)(3) and 2(g)(v) of the 1961 Act. 9. Before we deal with the questions posed, it would be appropriate to set out in detail the nature of proprietary and possessory rights in land recorded, as “Shamilat Patti”. “Shamilat Deh” is a colloquial expression that denotes the common land of a village. The “Shamilat Deh” of a village, broadly speaking, consisted of two varieties of land, namely, “Shamilat Deh” and “Shamilat Patti/Taraf/Thola/Pana” etc. The “Shamilat Deh” of a village was jointly owned and possessed by all proprietors, in accordance with their private proprietary share holdings, the land revenue paid or the number of ploughs in a village etc. A “Shamilat Patti” of a village was entirely distinct from “Shamilat Deh”. 10. A “Shamilat Patti”, existed in villages called “Pattidari villages” and was the sole and exclusive ownership of members of a particular “Patti” owned and possessed jointly by them. A “pattidari” village was founded by a common ancestor of the existing proprietors and the primary division into “Pattis” represented merely the main branches of his family. In case of the original founder, left behind three sons and a village was subsequently divided, the division would, where ancestral shares’ were still fully recognised, ordinarily be made into three pattis, named after the sons of the original founder and each patti, would be held by descendants of the son or head of the branch of the family, whose name it bears (reference may be made to paras 136, 137 of the Customary Law by Sir W.H. Rattigans). However, over a period of time, pattis have come to be recorded in the name of castes and communities. In a pattidari village, the common land would be held by the patti for the exclusive and common use of the pattidari share holders. The nature of proprietary interest in a patti, excluded all else, whether ordinary proprietors, proprietors of other pattis or non proprietors, from participating in user of patti land. In a pattidari village, the common land would be held by the patti for the exclusive and common use of the pattidari share holders. The nature of proprietary interest in a patti, excluded all else, whether ordinary proprietors, proprietors of other pattis or non proprietors, from participating in user of patti land. The proprietary and possessory rights of members of a Patti, in “Shamilat Patti” lands were recognised in various settlements of land holdings carried out in the 19th century and in the early part of the 20th century by recording an entry in the record of rights that the land is “Shamilat Patti”. The method of recording land owned by a “Shamilat Patti” is prescribed by Chapter 7.41 of the Punjab Land Record Manual, which sets out the columns of a jamabandi and issues instructions to revenue authorities as to the mode and manner of recording entries in these columns. Column no.3 of a jamabandi bears the title “Name of Patti” or “Taraf” with name of a lambardar and revenue.” The instructions, relating to column no.3 of a Jamabandi, read as follows:- “7.41 (1) Column 1.- XX XX XX (2) Column 2.- XX XX XX (3) Column 3.- Enter the pattis or tarafs in the order in which they appear in the shajra nasab. If there is any common land belonging to all the owners of the patti or taraf, enter it as a separate khewat number after the khewat numbers of the individual owners. Either the total for each patti or taraf after the last of the khewat numbers contained in it.” 11. A perusal of the instructions, read along with the title of column no.3 reveals that the name of a Patti, shall be recorded, after assigning a separate khewat number to a patti and shall be followed by the name of the lambardar and the revenue paid. An illustration of an entry to be recorded in column no.3 is “Patti Ram Singh, Harcharan Singh, Lambardar”. The revenue paid is, however, recorded at the end of the entry. Column no.4 of a jamabandi requires a revenue officer to record the name of the owner. If the land belongs to a “Patti”, column no.4 must reflect the word “Patti” along with name of the “Patti” and the manner of calculating share holdings in the “Patti”. The revenue paid is, however, recorded at the end of the entry. Column no.4 of a jamabandi requires a revenue officer to record the name of the owner. If the land belongs to a “Patti”, column no.4 must reflect the word “Patti” along with name of the “Patti” and the manner of calculating share holdings in the “Patti”. The word “Patti” may be used with or without the word “Shamilat”, but the word “Patti” must appear in Column No. 3 or 4 of a jamabandi so as to raise an inference that the land is the common land of a Patti. The absence of the word “Patti” in column nos. 3 and 4, would raise an inference that the land is not “Shamilat Patti” but is “Shamilat Deh”. 12. At this stage, it would be appropriate to point out that though column no.8 of a jamabandi records the classification of the land, i.e., whether it is cultivated or not, the document that records the use to which the common land of a patti may be put, is the “Sharat Wazib-Ul-Arz”, which, like a Jamabandi, is a part of the record of rights. The “Sharat Wazib Ul-Arz”, is the village administration paper and records the customs, rules and regulations of a village. The “Sharat Wazib Ul-Arz” generally contains a column setting out in detail, the use to which land in the Shamilat Patti, of a village shall be put and whether its user shall be confined to members of the patti or may be used by all inhabitants of the village irrespective of their status as proprietors or non-proprietors. The proprietors of a Patti are generally entitled to enjoy the fruits of the common land, in accordance with the terms and conditions set out in “Sharat Wazib-Ul-Arz”. 13. Thus, in order to determine whether a particular parcel of land is “Shamilat Patti” one has to look to column nos.3 and 4 of a jamabandi, to ascertain its quality to column no.8 and for the use to which land in “Shamilat Patti” is to be put entries in the “Sharat Wazib-Ul-Arz”. 14. Section 3 of the Pepsu Village Common Lands (Regulation) Act, 1954, declared that “Shamilat Deh” of a village, shall vest in a Gram Panchayat. The 1954 Act was, however, repealed and replaced by the 1961 Act, which provides a detailed definition of “Shamilat Deh”. 14. Section 3 of the Pepsu Village Common Lands (Regulation) Act, 1954, declared that “Shamilat Deh” of a village, shall vest in a Gram Panchayat. The 1954 Act was, however, repealed and replaced by the 1961 Act, which provides a detailed definition of “Shamilat Deh”. Section 2(g)(1) defines “Shamilat Deh” to include land referred to in clauses (1) to (5) and exclude land referred to in clauses (i) to (ix). Thus, if the Shamilat land of a village falls under clauses (1) to (5), it shall be included in “Shamilat Deh, whereas if it falls under clauses (i) to (ix), it shall be excluded from “Shamilat Deh”. Section 3 of the 1961 Act provides that the 1961 Act shall apply to all lands that were declared “Shamilat Deh” under the “Shamilat Law” ( the Pepsu Act”) and shall be deemed always to have applied to all lands which are “Shamilat Deh” as defined in Section 2(g) of the 1961 Act. Sub-section (2) of Section 3 of the 1961 Act provides that land which is excluded from “Shamilat Deh” by Section 2(g) of the 1961 Act shall cease to be “Shamilat Deh” and all rights, title and interest therein shall vest in a person or persons in whom they vested immediately before the commencement of the “Shamilat Law” (Pepsu Act). Section 4 of the 1961 Act provides that 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 or any court or other authority, all rights, title and interests whatever in the land, which is included in “Shamilat Deh” of any village which has not vested in a panchayat under the “Shamilat Law”. Sections 2(g), 3 and 4 of the 1961 Act read as follows:- “2(g) “Shamilat deh” includes------ (1) lands described in the revenue records as shamilat deh excluding abadi deh; (2) shamilat tikkas; (3) 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; (4) lands used or reserved for the benefit of the village community including streets, lanes, playgrounds, school, drinking wells, or ponds within abadi deh or gorah deh; and (5) lands in any village described as banjar qadim and used for common purposes of the village, according to revenue records; but does not include land which— (i) [-------------] (ii) has been allotted on quasi-permanent basis to a displaced person; (ii-a) was shamilat deh, but, has been allotted on quasipermanent basis to a displaced person, or, has been otherwise transferred to any person by sale or by any other manner whatsoever 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 [and is not in excess of the share of the co sharer in the shamilat deh]; (v) is described in the revenue records as Shamilat, Taraf, Pattis, 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; (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) [----------] (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; (ix) was being used as a place of worship or for purposes, subservient thereto, immediately before the commencement of this Act;] (h) “shamilat law” means-- (i) in relation to land situated in the territory which immediately before the 1st November, 1956, was comprised in State of Punjab, the Punjab Village Common Lands (Regulation) Act, 1953; or (ii) in relation to land situated in territory which immediately before the 1st November, 1956, was comprised in State of Patiala and East Punjab States Union; the Pepsu Village Common Lands (Regulation) Act, 1954; “3.Land to which this Act applies.—(1) This Act shall apply and before the commencement of this Act the Shamilat Law shall be deemed always to have applied to all lands which are shamilat deh as defined in clause (g) of Section 2. (2) Notwithstanding anything contained in sub-section (1) of section 4,— (i) where any land has vested in a Panchayat under the shamilat law, but such land has been excluded from shamilat deh under clause (g) of section 2 other than the land so excluded under sub-clause (ii-a) of that clause, all rights, title and interest of the Panchayat in such land as from the commencement of the Punjab Village Common Lands (Regulation) Amendment Act, 1995, shall cease and all such rights, title and interest shall vest in the person or persons in whom they were vested, immediately before the commencement of the shamilat law; (ii) where any land has vested in a Panchayat under this Act, but such land has been excluded from shamilat deh under sub-clause (ii-a) of clause (g) of section 2, all rights, title and interest of the Panchayat in such land, as from the commencement of the Punjab Village Common Lands (Regulation) Amendment Act, 1995, shall, cease, and all such rights,title and interest shall on or before the 9th day of July, 1985, revest in the person or persons to whom the land so excluded has been allotted or otherwise transferred by sale or by any other manner whatsoever, subject to the condition that-- (a) any sum of money realised by the Rehabilitation Department of the Government of Punjab as a result of allotment or transfer of such land shall along with interest at the rate of three per cent payable from the date of such allotment or transfer, or (b) where no money was realisable by the Rehabilitation Department of the Government of Punjab as a result of allotment or transfer of such land, the amount of compensation in respect of such land as determined by the Collector of the District in which such a land is situated along with interest at the rate of three percent payable from the date of allotment or transfer, as the case may be; shall be paid by the Rehabilitation Department of the Government of Punjab to the Department of Rural Development and Panchayats for onward disbursement to the Panchayat to which such shamilat deh belonged. (3) As soon as may be, on the commencement of the Punjab Village Common Lands (Regulation) Amendment Act, 1995 the Department of Rural Development and Panchayats shall make a reference to the Collector of the District to determine the amount of compensation under sub-clause (b) of clause (ii) of sub-section (2) and the Collector of the District shall, keeping in view the market value of the shamilat deh at the time it was allotted or transferred determine the amount of compensation.” “4 Vesting of rights in Panchayat and non-proprietors (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 interests 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, 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. (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 interest 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, Basikhuopahus, Saunjidars, Muqarrirdars; (ii) rights of persons in cultivating possession of shamilat deh, for more than twelve years [immediately preceding the commencement of this Act] 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.” 15. A combined reading of these statutory provisions, particularly Sections 2(g)(3) and 2(g)(v) of the 1961 Act, reveals that if the land is “Shamilat Patti”, it shall be included in Shamilat Deh” and shall vest in a Gram Panchayat, under Sections 3 and 4 of the 1961 Act, only if it is used according to the revenue records for the benefit of the village community or a part thereof or for common purposes of the village and if not so used shall be excluded from “Shamilat Deh” and would vest in members of the Patti. 16. A person claiming benefit of Sections 2(g)(3) or (v) of the 1961 Act, is required to prove by reference to entries in column nos.3 and 4 of a jamabandi that the land is “Shamilat Patti”, by reference to column no.8 of a jamabandi the quality of land and by reference to entries in “Sharat Wazib-Ul-Arz” that the land is not used according to the revenue record for benefit of the village community or a part thereof or for common purposes of the village. It would be appropriate to once again point out by reference to para 137 of Rattigans Digest of Customary law that Pattis represent the main branches of the name of the common ancestor of the existing proprietors and where an ancestor had more than one son, the names of these sons or the community to which members of the Patti belong. Column no.3 of a jamabandi must, therefore, bear the name of a Patti and thereafter the name of the lambardar of the Patti, who is responsible to the share holders of the Patti for day-to-day management and control of the Patti. The word “Patti” must appear in column nos. 3 or 4 before the name of Patti and only thereafter by reference to the Sharat Wazib-Ul-Arz, would a person be able to prove whether the land was reserved for any common purpose or not so reserved by reference to Sections 2(g)(3) and 2(g)(v) of the 1961 Act. 17. The scope and ambit of Sections 2(g)(3) and 2(g)(v) of the 1961 Act, that provide for inclusion and exclusion of “Shamilat Patti” from “Shamilat Deh”, came up for consideration before a Full Bench in Gram Panchayat Sadhraur’s case (supra). 17. The scope and ambit of Sections 2(g)(3) and 2(g)(v) of the 1961 Act, that provide for inclusion and exclusion of “Shamilat Patti” from “Shamilat Deh”, came up for consideration before a Full Bench in Gram Panchayat Sadhraur’s case (supra). One of the questions posed before the Full Bench was Whether the view of law taken in 1962 P.L.R. 730 proceeds on a correct interpretation of the expression “for the benefit of the village community or a part thereof or for common purposes of the village” occurring in sub-clause (3) of clause (g) of Section 2?” The reference was occasioned by a judgment in Co-operative Society of Improvement of Shamilat Patti Harnam Singh Lambardar of Village Khanni and another versus Gram Panchayat of Village Khanni, 1962 PLR 730, holding that the words “used according to the revenue record for the benefit of the village community or a part thereof or for common purposes of the village”, would include land in “Shamilat Patti” as the land by members of the “Shamilat Patti” is used for benefit of a part of the village community. 18. After considering the said judgment and Sections 2(g)(3) and 2(g)(v) of the 1961 Act, it was held as follows:- “So far as the third question is concerned, it is not possible for us to persuade ourselves to agree with the interpretation of Mahajan, J., in Co-operative Society of Improvement of Shamilat Patti Harnam Singh’s case (supra). According to the ratio of that decision, if land is described as Shamlat Patti and is in possession of the owners thereof, the benefit is not confined to anyone of the owners of the Shamlat individually and the same is enjoyed jointly by all the owners of the Patti, and such a land can be held to be used for the benefit of a part of the village community and thus falls within the definition of Shamlat Deh. In Sehaj Ram’s case (supra), the correctness of the decision in Co-operative Society of Improvement of Shamilat Patti Harnam Singh’s case (supra), was challenged. The contentions in this respect were taken due notice of, but Pandit, J.,thought that it was not necessary to decide the matter in view of the other findings. In Sehaj Ram’s case (supra), the correctness of the decision in Co-operative Society of Improvement of Shamilat Patti Harnam Singh’s case (supra), was challenged. The contentions in this respect were taken due notice of, but Pandit, J.,thought that it was not necessary to decide the matter in view of the other findings. Before any land can be held Shamlat Deh under sub-clause (3), it has to be proved that the same is being used for the benefit of the village community as a whole or a part of the village community. It is not disputed that the village community does not comprise of the owners or proprietors of the land alone. There is a considerable section of the population who work as tenants or as landless workers or even engage in other occupations such as artisans, blacksmiths, carpenter etc. or shopkeepers who have nothing to do with the land as such. Use for the benefit of the village community must have relation to all sections of the population in the village including those who do not own land. Similarly, benefit to a part of the Village community must have reference to benefit to those who do not own land in the Patti concerned. In the present case, the entry in the revenue record is to the effect that the proprietors of the Patti are in possession of the land in proportion to their shares. This entry can only be interpreted to mean that the proprietors of the Patti are entered as joint owners of the Shamlat land situated in that Patti. There is no evidence on the record to show that the owners of the Patti much less those who are not the owners are using the suit land for any benefit. The expression “benefit of the village community or a part thereof” cannot be given by any stretch a restricted meaning so as to confine the benefit to only the owners of the land. Besides, it is also necessary that the entries in the revenue records must show that actually some benefit was being derived from the use of such land by the village community or a part thereof. Thus, in our considered opinion, the interpretation of sub-clause (3) in Co-operative Society of Improvement of Shamilat Patti Harnam Singh’s case (supra), cannot bear scrutiny and does not lay down a correct view of law. 8 XX XX XX 9. Thus, in our considered opinion, the interpretation of sub-clause (3) in Co-operative Society of Improvement of Shamilat Patti Harnam Singh’s case (supra), cannot bear scrutiny and does not lay down a correct view of law. 8 XX XX XX 9. The consequence of these new provisions in the 1961 Act is that the landowners would be deprived of some lands in Shamlat Pattis etc. which under the old Act belonged to them. Thus, according to the accepted principles of interpretation, such a provision adversely affecting the owners of the property should be construed strictly and no attempt should be made to travel beyond the plain meaning of the statute. It cannot be denied that all lands described as Shamlat, Tarafs, Pattis etc. are shown in the revenue records in the ownership of the proprietors of the Pattis or Tarafs concerned in accordance with their shares. If the ratio of the decision in Co-operative Society of Improvement of Shamilat Patti Harnam Singh’s case (supra), is upheld, then all such lands would have to be held Shamlat Deh, irrespective of the fact whether the same were being used for common purposes of the village or benefit of the village community or a part thereof or not. That would be doing violence to the clear provisions of the Act. Such an interpretation is neither warranted by the clear language of the provisions nor by the intention of the legislature. 10. XX XX XX 11 XX XX XX 1. XX XX XX 2. In Co-operative Society of Improvement of Shamilat Patti Harnam Singh’s case (supra), the expression “for the benefit of the village community or a part thereof”, has not been correctly interpreted. According to the correct interpretation , the benefit must include in its ambit not only the owners of the land of the Patti or Taraf concerned, but also the village community as a whole or a part thereof which would include all sections of population of the village including the landowners.” 19. A perusal of the above extract reveals that the expression “benefit of the village community or a part thereof”, cannot be given a restrictive meaning so as to infer that benefit being derived by owners of a patti, would be included in the expression “.... a part thereof....”. A perusal of the above extract reveals that the expression “benefit of the village community or a part thereof”, cannot be given a restrictive meaning so as to infer that benefit being derived by owners of a patti, would be included in the expression “.... a part thereof....”. It is necessary that entries in the “revenue record” record that some actual benefit was being derived from use of the land by the village community or a part thereof other than members of the Patti. The fact that proprietors of “Shamilat Patti”, who are also members of the village community, are using the land for their benefit, would not raise an inference that the land was being used for a part of the village community, so as to include the land within the definition of “Shamilat Deh”. 20. The above judgment came up for consideration before the Hon’ble Supreme Court in Gram Panchayat of Village Mundhal Khurd versus Amar Singh (dead) by LRs and others, 2000(10) SCC 644 . The land in this case was a “Thola” which is a sub-division of a Patti; or a Taraf and is also referred to in Section 2(g)(3) and (v) of the 1961 Act for inclusion and exclusion from “Shamilat Deh’, in the same terms as land of a “Patti”. The Full Bench judgment was affirmed by holding as follows:- “2 The suit land is described in the revenue papers to be “in possession of the proprietors” of tholas. Three persons of those tholas joined together to institute a suit for declaration to the effect that the suit land was owned and possessed by the plaintiffs and other shareholders of the tholas which was being used in the interest of the tholas and not for the common purpose of the village community, and hence not “shamilat deh” in order to vest in the Gram Panchayat. The suit ex facie was in a representative character and was instituted against the Gram panchayat, asserting title to it challenging the purported vesting under the provisions of the Act. The trial court as well as the first appellate court relying on a Single Bench decision of that Court in Coop. The suit ex facie was in a representative character and was instituted against the Gram panchayat, asserting title to it challenging the purported vesting under the provisions of the Act. The trial court as well as the first appellate court relying on a Single Bench decision of that Court in Coop. Society of Improvement of Shamilat Patti Harnam Singh Lambardar of village Khanni v. Gram Panchayat of Village Khanni non-suited the plaintiffs on the ground that the joint possession of the proprietors of a patti, thola, panna, or taraf, forming part of the village community, would all the same put such possessed lands within the ambit of “shamilat deh”. Since this view was upset by the Full Bench of the High Court in the abovementioned case, the High Court in the instant matter reversed the decision of the two courts below primarily being cognizant of the views of the Full Bench extracted hereafter: “There is no evidence on the record to show that the owners of the patti much less those who are not the owners are using the suit land for any benefit. The expression ‘benefit of the Village community or a part thereof’ can not be given by any stretch a restricted meaning so as to confine the benefit to only the owners of the land. Besides, it is also necessary that the entries in the revenue records must show that actually some benefit was being derived from the use of such land by the village community or a part thereof. Thus, in our considered opinion, the interpretation of sub-clause (3) in Co-operative Society of Improvement of Shamilat Patti Harnam Singh’s case (supra), cannot bear scrutiny and does not lay down a correct view of law. 3. The learned Single Judge, bound as he was, had to follow the judgment of the Full Bench. Even otherwise, the definition of “shamilat deh” given in Section 2(g) of the Act as extracted in the judgment under appeal, clearly reveals the legislative mandate that shamlat deh would not include lands which are described in the revenue records as shamlat, taraf, patti, panna and thola which are not used according to the revenue records, for the benefit of the village community, or a part thereof, for common purpose of the village. It has been noticed earlier that here the lands are described to be “in possession of the proprietors of the tholas” and in their cultivating possession and use. There is no commonality of purpose disclosed in the revenue entries nor any indication that non-proprietors share the benefit of the land in a common way. The suit lands obviously would not fall within the ambit of “shmilat deh” so as to get vested in the Gram Panchayat. The High Court therefore was right in decreeing the suit of the respondent-plaintiffs.” 21. The sum and substance of the above discussion is that a person claiming benefit of Section 2(g)(3) or 2(g)(v) of the 1961 Act, would be required to prove that land is “Shamilat Patti” by reference to column nos. 3 and 4 of the jamabandi or such other relevant material and thereafter prove that the land is not used as per the revenue record by persons other than members/proprietors of the patti. The term “revenue record”, used in Section 2(g)(3) or 2(g)(v) of the 1961 Act, would include a jamabandi, a Sharat Wazib-ul-Arz or any other revenue record that may be relevant to prove that the land was not used for common purposes as provided by sections 2 (g)(3) or 2(g)(v) of the 1961 Act. Column no.3 or 4 of a jamabandi must record the word “Patti” along with the name of the Patti and the name of the lambardar. The absence of the word “Patti”, in column no.3 or 4, would raise a rebuttable inference that the land is not “Shamilat Patti”. Column no.4 of a jamabandi should after recording the name of the “Patti” record the share holdings of proprietors. The nature of the land has to be inferred from column no.8 of a jamabandi and its user by reference to the “Sharat Wazib-Ul-Arz”. 22. A perusal of the orders passed by Collector and the Appellate Authority reveal that they have dismissed the petition, and the appeal without addressing the above issues and decided the matter on irrelevant points, like, difference in khasra numbers, failure to connect pre and post consolidation numbers, judgment and decree passed by a Civil Court, failure of the petitioners to prove that they are proprietors etc. The Collector and the Appellate Authority did not refer to the evidence in detail, ignored the revenue record and documents prepared during consolidation. The Collector and the Appellate Authority did not refer to the evidence in detail, ignored the revenue record and documents prepared during consolidation. We were, therefore, faced with the dilemma, whether to remand the matter, thereby adding to the already prevailing confusion and to the allegations and counterallegations relating to sale of land to builders, land Mafia etc. With consent of counsel for the parties, order dated 19.1.2012, was passed, directing the Joint Development Commissioner, Punjab (the appellate authority) to appraise jamabandis from 1940 onwards, the scheme of consolidation, the khatauni Istemal, Naksha Haqdarwar,Register karwai, the khatauni paimaish, the missal haquiat (documents prepared during consolidation), the relevant “Sharat Wazib-Ul-Arz” and all other relevant documents, evidence and, thereafter, record a positive findings as to the nature of land. The order dated 19.1.2012 reads as follows:- “The writ petitions pertains to land in village Bhankarpur, Tehsil Derabassi, District Mohali. The dispute herein is whether this land vests or does not vest in the Gram Panchayat as “Shamilat Deh”. A perusal of the revenue record, appended with various writ petitions, prima facie reveals that the land is described as “Shamilat Deh”, Shamilat Patti Ranjit Singh, Shamilat Patti Harcharan Singh, Shamilat Patti Suba Singh and Shamilat Patti Hari Singh. The petitioners, who claim to be proprietors of these Pattis, filed applications, under Section 11 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as “the act”) claiming that as these lands were not reserved for common purposes, as per the revenue record, they do not vest in the Gram Panchayat. A perusal of the impugned order reveals that this point has not been decided by the Collector or the Appellate Authority and may, therefore, require the matter to be remitted to the Collector or the Appellate Authority. Counsel for the parties state that as this would lead to further delay and unnecessary uncertainty in the matter, the Joint Development Commissioner, exercising the powers of the Commissioner, under the Act, may be directed to consider the jamabandies from 1940 onwards, the scheme of consolidation, the khatauni Ishtemal, the Naksha Hakdarwar, Register Karwai, the Khatauni Paimaish, the missal haquiat Sharat Wazib-Ul-Arz and all other relevant documents and evidence and submit a report as to the nature of land. We would, in normal circumstances, have set side the impugned orders and remitted the matter to the Collector or the Appellate Authority to reconsider the matter but in view of the request made by counsel for the parties and as remitting the matter would only cause further delay, direct the Joint Development Commissioner, to consider the jamabandies from 1940 onwards, the scheme of consolidation, the Khatauni Ishtemal, the Naksha Hakdarwar, Register Karwai, the Khatauni Paimaish, the Missal Haquiat, Sharat Wazib-Ul-Arz and all other relevant documents and evidence and thereafter record a positive finding as to the nature of land and submit a report before the next date of hearing. Adjourned to 17.04.2012. Parties shall maintain status quo with respect to possession, the nature of land and shall not create any third party rights in the land, in dispute, in any manner whatsoever, during pendency of these writ petitions. Parties are directed to appear before the Joint Development Commissioner, on 09.02.2012.” 23. The Joint Development Commissioner,Punjab, examined the matter in its entirety, particularly documents, referred to above and after grant of an opportunity to parties to lead evidence and place on record relevant documents, has recorded a finding that land in all writ petitions is “Shamilat Patti” and as it is not used as per revenue record for common purposes of the village, is not “Shamilat Deh” and does not vest in the Gram Panchayat. A relevant extract from the aforesaid report, reads as follows:- “That I have heard arguments of the Ld. counsels for the parties and have also gone through the relevant revenue record. In order to ascertain the fact with regard to the objection raised by the counsel for the respondents No.5 to 7 that the old Khewat Numbers do not tally with the new Khewat Numbers, a report was sought by me from the revenue officials with regard to the above said land in dispute and it was brought to my notice that the Khewat Numbers in the Jamabandi for the year 1944-45 does not tally with the Khewat Numbers in the Jamabandi for the year 1952-53 as is objected by the Ld. counsel for the Respondent No. 5 to 7 only due to the reason that after the year 1944-45 another Jamabandi after a period of four years for the year 1948-49 was prepared regarding which no records are available in the record room may be because of circumstances arising out of partition of the country and then after a period of four years the next Jamabandi for the year 1952-53 was prepared and due to this missing Jamabandi of 1948-49, the Khewat Numbers are not tallying with the Jamabandi of 1952-53. With regard to the change in area of each Jamabandi, it was stated by the revenue officials in their report that due to Buradi-Baramdi by river Ghaggar the area has either increased or decreased because whenever an area out of 21 Hal comes under river action (Buradi), then that area was included as “Shamilat Deh Bar 84 Hal” and whenever some area comes out of river action (Baramadi), then that area is included in that very Patti/Khewat from which it was earlier taken out and due to this reason there is an increase and decrease in the area of the Khewats. So in this regard, I am satisfied to the extent that the revenue record with regard to the above said lands in dispute is prepared and is well maintained by the revenue officials. That after hearing the arguments of the parties have come to the conclusion that the Ld. counsel for the Gram panchayat and the Ld. counsel for the Respondents No.5 to 7 have failed to specify even a single documentary evidence or even a single entry in any document to the effect that the present land in dispute has ever been reserved or used for any common purposes of the village. They have also failed to specify that the land to be used for common purposes was ever reserved out of the present land in dispute and also failed to specify even a single Khasra Number which has ever been used for any common purpose of the village. The written as well as oral arguments submitted by the Ld. They have also failed to specify that the land to be used for common purposes was ever reserved out of the present land in dispute and also failed to specify even a single Khasra Number which has ever been used for any common purpose of the village. The written as well as oral arguments submitted by the Ld. Counsels for the Gram Panchayat and Respondent No. 5 to 7 are totally concerned with the land described in revenue records as “Shamilat Deh 84 Hal, Zail Partap Singh Nambardar 21 Hal, Zail Ranjit Singh Nambardar 21 Hal, Zail Kirpal Singh Nambardar 21 Hal, Zail Hari Singh Nambardar 21 Hal” and this land in dispute is not the subject matter of the above said 6 Writ Petitions filed by the Khewatdars and 2 Writ Petitions filed by the M/s. Spectators Global Company Limited. Moreover, the Naksha Haqdarwar was also perused and considered and it was found that though the specific entries were made with regard to the shares of the Khewatdars, but, however, the same has not been finalized. The Khatauni Paimaish was prepared after consolidation with regard to the present land in dispute and the measurement of the land was changed from Bigha/Biswas to kanal/Marlas in this Khatauni Paimaish and thereafter, the same continued in the subsequent Jamabandies. That the revenue record, i.e., Jamabandi from the year 1940-41 onwards clearly shows that the land in dispute is under the possession of the Khewatdars from the very beginning and has never been managed or used by the Gram Panchayat. Moreover, this land in dispute has never been reserved or used for any common purposes of the village and this fact is very much clear from the scheme of consolidation which clearly says that the present land in dispute is being managed by the Nambardars of the village and is under the possession of the Khewatdars of the village and the register karwai also clearly shows that the possession of this land is with the Khewatdars of the village and the same is being managed by them. Moreover, Wazib Ul Arz as described above also clearly shows that this land in dispute is under the possession of the Khewatdars of the village from the very beginning. Moreover, Wazib Ul Arz as described above also clearly shows that this land in dispute is under the possession of the Khewatdars of the village from the very beginning. This clearly shows that the area has never been reserved or used for any such common purposes of the village and does not vest in the Gram Panchayat and is covered in the provision of Section 2(g) Sub Clause (v) of the Punjab Village Common Lands (Regulation) Act, 1961 which says that the land in dispute does not include in Shamlat Deh as the same is not used according to the revenue record for the benefit of the village community or a part thereof for common purposes of the village. Report is submitted before the Hon’ble High Court in compliance of the order dated 19/1/2012.” 24. A perusal of the above extract reveals that not only does the report give reasons for inability to tally the relevant Khasra numbers, but also records a finding that as per revenue record, the land is “Shamilat Patti” and is not used for common purposes of the village as required by Section 2(g)(3) of the 1961 Act. 25. The land in these writ petitions can broadly be divided into six sets:- (1) “Shamilat Zail Partap Singh Nambardar Bar 21 Hal (ploughs),(Harcharan Singh Nambardar); (2) Shamilat Zail Ranjit Singh Nambardar Bar 21 Hal; (3) Shamilat Zail Suba Singh Nambardar Bar 21 Hal; (4) Shamilat Patti Kamboyan Hari Singh Nambardar Bar 21 Hal; (5) Mushtarka Har Char Nambardar Bar 84 Hal, Zail Harcharan Singh Nambardar 21 Hal, Zail Ranjit Singh Nambardar 21 Hal, Zail Suba Singh Nambardar 21 Hal, Zail Gurbachan Singh Nambardar 21 Hal; and (6) Shamilat Patti Sainian Bar 63 Hal, Zail Harcharan Singh Nambardar 21 Hal, Zail Ranjit Singh Nambardar 21 Hal, Zail Suba Singh Nambardar 21 Hal. 26. The type of land is recorded as Aabi Barani (cultivated land) Gair Mumkin, (land that is not capable of cultivation) and Banjar Qadim. The jamabandis for the year 1952-53 and thereafter record the same entry in column no.3, except for a change in the name of the lambardar in some of the entries. 26. The type of land is recorded as Aabi Barani (cultivated land) Gair Mumkin, (land that is not capable of cultivation) and Banjar Qadim. The jamabandis for the year 1952-53 and thereafter record the same entry in column no.3, except for a change in the name of the lambardar in some of the entries. The jamabandi for the year 1960-61 (Missal Haquiat), which has been recorded after consolidation and existed at the time of coming into force of the 1961 Act, reads as follows:- ---------------------------------------------------------------------------------------------------------------------------------------- S. No. Name of owner Old Khewat New Total area Type of land No. Khewat No. (Kanal/Marla ---------------------------------------------------------------------------------------------------------------------------------------- 1 Shamlat Zail 56 103 735-05 Aabi/Barani/ Partap Singh Gair Nambardar ---------------------------------------------------------------------------------------------------------------------------------------- Bar 21Hal Mumkin (Harcharan Singh Nambardar) ---------------------------------------------------------------------------------------------------------------------------------------- 2 Shamlat Zail 147/1 208 631-14 Aabi/Barani/ Ranjit Singh Gair Mumkin Nambardar Bar 21 Hal ---------------------------------------------------------------------------------------------------------------------------------------- 3 Shamlat Zail 221 391 712-10 Aabi/Barani/ Suba Singh Gair Mumkin Nambardar Bar 21 Hal ---------------------------------------------------------------------------------------------------------------------------------------- 4 Shamlat Patti 292 477 640-19 Aabi/Barani/ Kamboyan Hari Gair Mumkin Singh Nambardar Bar 21 Hal ---------------------------------------------------------------------------------------------------------------------------------------- 5 Mushtarka Har 293 min 479 435-18 Aabi/Barani/ Char Zail Bar 84 Gair Mumkin Hal, Zail Harcharan Singh Nambardar 21 Hal, Zail Ranjit Singh Nambardar 21 Hal, Zail Suba Singh Nambardar 21 Hal, Zail Gurbachan Singh Nambardar 21 Hal ---------------------------------------------------------------------------------------------------------------------------------------- 6 Shamlat Patti 224 min 395 14-12 Aabi/Barani/ Sainian Bar 63 Gair Mumkin Hal, Zail Harcharan Singh Nambardar 21 Hal, Zail Ranjit Singh Nambardar 21 Hal, Zail Suba Singh Nambardar 21 Hal. ---------------------------------------------------------------------------------------------------------------------------------------- 27. A perusal of these entries reveals that land at serial numbers 4 and 6, is recorded as “Shamilat Patti”. The other entries record the land as “Shamilat Zail” with the name of the lambardar while the quality of the land is recorded as `Aabi Barani’ and `Gair Mumkin’. As held in the preceding paragraphs, by reference to Chapter 7.41 of the Punjab Land Record Manual, for a parcel of land to be categorised as “Shamilat Patti”, the word “Patti” must be recorded in column nos. 3 and 4. A perusal of column nos.3 and 4, of the jamabandis reveal that in all, but two jamabandis, the word “Patti” is missing and the words used are “Shamilat Zail” followed by the name of a lambardar. The word “Zail” is an Urdu term which means “as under” and nothing more. The word “21 Hal” refers to mode and manner of calculating the share holding of proprietors. The word “Zail” is an Urdu term which means “as under” and nothing more. The word “21 Hal” refers to mode and manner of calculating the share holding of proprietors. In the absence of the word “Patti”, whether in column nos. 3 or 4, and the presence of the word “Zail” after the words “Shamilat”, would indicate that land is not “Shamilat Patti” and, therefore, does not vest in proprietors of a Patti. The land is “Shamilat Deh”, owned, prior to the 1954 and 1961 Acts, by proprietors, in accordance with their share holdings, to be determined by 21 ploughs. On the coming into force of the 1954 Act, the land being “Shamilat Deh” vested in a Gram Panchayat as it is not excluded by any provision of the 1961 Act. The writ petitions in which land is described as “Shamilat Patti, are, CWP Nos.10170, 11669, 11670, 14572 and 14799 of 2011. The land, in the other writ petitions, is not “Shamilat Patti”. The report prepared by the Joint Development Commissioner (the appellate authority) holding that land, in all writ petitions, is “Shamilat Patti”, is, therefore, rejected and it is held that land, subject matter of Civil Writ Petition No.10170 of 2011 is, “Shamilat Patti”. 28. Having crossed the first hurdle, it would now be appropriate to refer to the revenue record so as to consider whether this land recorded as ownership of a Patti was ever used according to the revenue record for the benefit of the village community or a part thereof or for common purposes of the village. At this stage, it would be appropriate to reiterate that if the land is used by proprietors of a ‘Patti’ to the exclusion of all else, including proprietors of other ‘Pattis’ and non-proprietors, land shall be excluded from “Shamilat Deh”, as held by a Full Bench in Gram Panchayat Sadhraur versus Baldev Singh and others (supra). 29. It would, therefore, be necessary to peruse entries in the relevant “Sharat Wazib-Ul-Arz”. The Joint Director, in his report, has referred to an incomplete copy of the “Sharat Wazib-Ul-Arz”. The official respondents were, therefore, directed to produce the original record. The entries in the `Sharat Wazib-Ul-Arz, relating to common land, read as follows:- ---------------------------------------------------------------------------------------------------------------------------------------- Sr. No. Detail regarding entries of Wajiz-Ul-Arz ---------------------------------------------------------------------------------------------------------------------------------------- 1 Entire area of Shamilat Deh has been reserved for common purposes. No cultivable area is left. The official respondents were, therefore, directed to produce the original record. The entries in the `Sharat Wazib-Ul-Arz, relating to common land, read as follows:- ---------------------------------------------------------------------------------------------------------------------------------------- Sr. No. Detail regarding entries of Wajiz-Ul-Arz ---------------------------------------------------------------------------------------------------------------------------------------- 1 Entire area of Shamilat Deh has been reserved for common purposes. No cultivable area is left. However, the area of Shamlat Pattiyat is under the possession of owners or cultivation of co-sharers and those who are in possession of it, shall enjoy the benefit of its produce and manage the same till its partition. The Numberdar is responsible for the management of remaining cultivable land of any extent which is under cultivation of Muzaran Gair Marausi (Non occupancy tenant) or which is Banjar and its produce shall be divided amongst all the co-sharers of Pattiyat according to the area of holding (Hasab Rasad Khewat). 2 All residents of the village, including Kaminan, i.e., non proprietors etc. are entitled to graze cattle in the “Shamilat Deh”, of the village without any objection from any person whatsoever and no fee will be charged. The uncultivable and uncultivated land is “Shamilat Patti”. The right to graze cattle on the non-cultivated or uncultivated land on “Shamilat Patti”,shall vest in proprietors and cultivators of the Patti, shall vest exclusively in proprietors etc. of the Patti. 3 There is no such income in our village 4 To be treated as omitted. 5 Only Toba Ram Talai is left in our village. Remaining Tobas have been partitioned. There is only one Kaul (small canal) in this Village which is connected with Ghaggar River by way of making a Bandh near Mauza Gharali. There are 84 Halls of four Tholas which are known as Tholla Partap Singh – 21 Halls, Thola Hamel Singh-21 Halls, Thola Ram Singh-21 Halls and Thola Sahib ditta – 21 Halls. The turn of water is fixed accordingly. Turn of 24 hours i.e., a day and night has been fixed for one Thola. The inner partition of Thola is not based on any specific scale. During the hours of turn, water continuously flows in the canal and the owners of Thola of 21 Halls irrigate the fields as per their requirement.” ---------------------------------------------------------------------------------------------------------------------------------------- 30. Turn of 24 hours i.e., a day and night has been fixed for one Thola. The inner partition of Thola is not based on any specific scale. During the hours of turn, water continuously flows in the canal and the owners of Thola of 21 Halls irrigate the fields as per their requirement.” ---------------------------------------------------------------------------------------------------------------------------------------- 30. The first paragraph of the “Sharat Wazib-Ul-Arz” records that land in “Shamilat Patti” is in possession of owners or in cultivation of co-sharers who are in possession and they shall enjoy benefits of its produce and manage the same till its partition. It is further recorded that the lambardar is responsible for management of the cultivable land which is in occupation of non-occupancy tenants or which is banjar and its produce shall be divided amongst co-sharers of the Patti according to the area of their holding. A perusal of the first paragraph reveals that the rights in “Shamilat Patti” are exclusively reserved for proprietors of the Patti, who shall be entitled to derive benefit from the income of the Patti according to their share holdings. 31. The second paragraph of the “Sharat Wazib-Ul-Arz” relates to grazing rights in “Shamilat Deh” and “Shamilat Patti” and records that owners and `cultivators’ of the concerned `Patti’ alone can graze their cattle in the land of “Shamilat Patti. A perusal of the “Sharat Wazib-Ul-Arz” clearly reveals that “ Shamilat Patti” is to be managed by a lambardar for and on behalf of members of the Patti, i.e., persons who hold proprietary interest in land belonging to the Patti and they alone shall have a right to graze their cattle over this land without any objection. The “Sharat Wazib-Ul-Arz” does not confer any right upon any other members of the village community to graze their cattle on the land belonging to “Shamilat Patti”. It is, therefore, apparent that where land is recorded as “Shamilat Patti”, proprietors of the Patti alone, shall be entitled to use the land for cultivation and grazing of cattle, to the exclusion of all else, including inhabitants of the village. It is, therefore, apparent that where land is recorded as “Shamilat Patti”, proprietors of the Patti alone, shall be entitled to use the land for cultivation and grazing of cattle, to the exclusion of all else, including inhabitants of the village. Thus, where land is recorded as “Shamilat Patti”, it would not vest in the Gram Panchayat under Section 2(g)(3) of the 1961 Act and would be excluded under Section 2(g)(v) of the 1961 Act, as it is not used for the benefit of the village community or a part thereof or for common purposes of the village. 32. As regards the findings that proprietors have failed to tally the khasra numbers, the Joint Development Commissioner has, in his report, explained the difference in khasra numbers in the jamabandis for the years 1944-45 and 1952-53 and has referred to relevant documents of consolidation so as to tally the post and pre consolidation khasra numbers. The land has increased, over a period of time, as it was converted from bighas/biswas to kanals and marlas and on account of consolidation. The civil court decree, pressed into service, relates to vesting of mineral rights in a Gram Panchayat and even otherwise, as proprietors were not a party, cannot be invoked against them. 33. In view of what has been stated hereinabove, we hold as under:- The land described as “Shamilat Patti” in column no. 3 or 4, shall not vest in a Gram Panchayat if it is used as per the revenue record, namely, the “Sharat Wazib-Ul-Arz” for benefit of the village community or a part thereof or for common purposes of the village. The land described as “Shamilat Zail”, shall vest in the Gram Panchayat as “Shamilat Deh”, firstly under Section 3 of the 1954 Act and then under section 2(g)(1) of the 1961 Act. Where the land, in dispute, is described as “Shamilat Patti”, i.e. Civil Writ Petition Nos. Nos.7003, 10170, 11669, 11670, 14572 and 14799 of 2011, the writ petitions are allowed by holding that the land does not vest in the Gram Panchayat by setting aside the impugned orders and allowing the petitions filed under Section 11 of the 1961 Act. Where the land, in dispute, is described as “Shamilat Patti”, i.e. Civil Writ Petition Nos. Nos.7003, 10170, 11669, 11670, 14572 and 14799 of 2011, the writ petitions are allowed by holding that the land does not vest in the Gram Panchayat by setting aside the impugned orders and allowing the petitions filed under Section 11 of the 1961 Act. Where the land is described as “Shamilat Zail”, i.e. Civil Writ Petition nos.1028, 1030, 4553, 4556, 4569, 4572, 4573, 4593, 4598, 4599, 4604, 4608, 4609, 4612, 4613, 4614, 4615, 4616, 4617, 4618, 4619, 4620, 4621, 4624, 4628, 4666, 4667, 4669, 4671, 4672, 4698, 5058, 5068, 5070, 5073, 5125, 5161, 5235, 5240, 5381, 5393 and 5463 of 2012, 6514, 6515, 6516, 6517, 6518, 6519, 6520, 6521 and 6523 of 2013, the writ petitions are dismissed by holding that the land is “Shamilat Deh” and vests in the Gram Panchayat, thereby affirming the impugned orders. No order as to costs. ---------0.B.S.0------------ —————————