JUDGMENT Mr. Rajive Bhalla, J.: (Oral) - CM No.6082 of 2012 Allowed, as prayed for. CM No.6083 of 2012 Prayer in this application is to place documents P-5 to P- 27 on record as they were adduced in evidence before the Assistant Collector 1st Grade, Karnal. Heard. Allowed as prayed for. Annexures P-5 to P-27 are taken on record. Civil Writ Petition No. 2100 of 1992 The petitioners pray for issuance of a writ in the nature of certiorari, quashing orders, dated 16.2.1989, 12.6.1990 and 18.7.1991 (Annexures P-2 to P-4), passed by the Assistant Collector 1st Grade, Karnal, the Collector, Karnal, and the Commissioner, Rohtak Division, Rohtak, respectively. 2. The question that calls for an answer is whether the land, in dispute, is or is not the “shamilat deh” of the village and, therefore, vests or does not vest in the Gram Panchayat? 3. Counsel for the petitioners submits that the jamabandi for the year 1945-46, the “khatoni istemal”, the “khatoni paimaish” and other documents prepared during consolidation, record that the land, in dispute, is the ownership of “shamilat deh hasb rasad zare khewat” and in possession of proprietors. The land is, therefore, excluded from “shamilat deh” as defined by Section 2(g) of the of the Punjab Village Common Lands (Regulation) Act, 1961(hereinafter referred to as the “1961 Act”). The land, in dispute, was partitioned amongst proprietors before 1950 and though the quality of land was “banjar qadim” ( land that has remained fallow for eight or more harvests), as co-sharers are recorded in possession, an inference arises in fact and in law that the land was partitioned amongst proprietors, prior to enactment of the Punjab Village Common Lands (Regulation) Act, 1953 (Shamilat law). It is further argued that even if a part of the land, in dispute, is recorded as “charand” (a grazing ground), it is excluded from “shamilat deh” as the word “charand” was included in Section 2(g)(1) of the 1961, by Amending Act no.2 of 1981. A part of the land is cultivated land and is recorded in possession of proprietors. Counsel for the petitioners further contends that the proviso to section 2(g)(5) of the Act, provides that the “shamilat deh” of a village shall not exceed 25% of the total area of a village. A part of the land is cultivated land and is recorded in possession of proprietors. Counsel for the petitioners further contends that the proviso to section 2(g)(5) of the Act, provides that the “shamilat deh” of a village shall not exceed 25% of the total area of a village. The total land of the village is 8041 Kanals-16 Marlas, of which, 29.2 Kanals 14 Marlas is occupied by “abadi deh”, 30K-15M, belongs to Mangal Patti and 1517 Kanals-7 Marlas, to Saharpatti. The “shamilat deh” land is, far in excess of 25% of the total land of the village. Counsel for the petitioners also submits that the “wazib-ul-arz” (Annexure P-25), recorded during consolidation, proves that land is not used for common purposes of the village thereby rendering the impugned orders, null and void. 4. Counsel for the Gram Panchayat submits that a perusal of the revenue record reveals that the land, in dispute, was “shamilat deh”, before and prior to 1950, was “shamilat deh” on the date of enactment of the “Shamilat Law” and as it is not excluded from “shamilat deh” under any of the exclusion clauses enacted by Section 2(g) of the Act, continues to be the “Shamilat Deh” of the village. Counsel for the Gram Panchayat further submits that the petitioners have not produced any evidence to prove that the land was partitioned before 1950, much less have they produced any evidence that the petitioners were in “individual cultivating possession”, as required by Section 2(g) (iii) or (viii) of the Act. PW1 Ramesh Kumar, Patwari, who has deposed on behalf of the petitioners, has, in fact, admitted that the land in dispute was reserved for “charand” (a grazing ground). A perusal of the “wazib-ularz”, appended as Annexure P-25, reveals that the land, in dispute, is used as a grazing ground, by the entire village community thereby leaving no ambiguity that the land vests in the Gram Panchayat. The inclusion of word “charand” by Act no.2 of 1981, does exclude “charand” from “shamilat deh” before 1981. The land was already “shamilat deh” as it was used as a grazing ground by inhabitants of the village and was already included in the “shamilat deh” of the village under section 2(g)(5) of the Act. The inclusion of word “charand” by Act no.2 of 1981, does exclude “charand” from “shamilat deh” before 1981. The land was already “shamilat deh” as it was used as a grazing ground by inhabitants of the village and was already included in the “shamilat deh” of the village under section 2(g)(5) of the Act. The other argument, namely, that shamilat deh of a village cannot be in excess of 25% of the total land to a village, is irrelevant as the proviso to Section 2(g)(5) of the Act has since been deleted. 5. We have heard counsel for the parties, perused the impugned orders, as well as documents appended with the writ petition, including documents taken on record, vide order of even date but are not inclined to differ with the concurrent findings recorded by the Assistant Collector of the 1st Grade, the Collector and the Commissioner that the land, in dispute, is a “banjar qadim”, grazing ground that is included in the “shamilat deh” of the village, and, therefore, vests in the Gram Panchayat. 6. At the outset, it would be appropriate to deal with the plea of a partition of the shamilat land, before 1950. The land in dispute is, admittedly, recorded “Shamilat Deh Hasab Rasad Zare Khewat”, in jamabandis for years 1941-42 and 1945-46. The quality of the land is recorded as “banjar qadim”, i.e. land that has remained fallow for eight or more harvests. The shamilat land of a village vested in proprietors, in accordance with their share holding, calculated in accordance with the expression “Hasab Rasad Zare Khewat” or other similar expressions that followed the word “shamilat deh”. The expressions “Hasab Rasad Zare Khewat” etc. merely denote the manner of calculating the share holding of proprietors. Thus, as per documents, produced by the petitioners, the land in dispute was Banjar Qadim and was the “shamilat deh” of the village, even before 1950. 7. After enactment of the “Shamilat Law”, i.e., the Punjab Village Common Lands (Regulation) Act, 1953, the “shamilat deh” of a village came to statutorily vest in a Gram Panchayat. The “Shamilat Law” was repealed by the 1961 Act. The 1961 Act provides, by Section 2(g) of the 1961 Act a detailed definition of the words “shamilat deh”. 7. After enactment of the “Shamilat Law”, i.e., the Punjab Village Common Lands (Regulation) Act, 1953, the “shamilat deh” of a village came to statutorily vest in a Gram Panchayat. The “Shamilat Law” was repealed by the 1961 Act. The 1961 Act provides, by Section 2(g) of the 1961 Act a detailed definition of the words “shamilat deh”. Sections 2(g)(1) to 2(g)(5) of the 1961 Act provide the circumstances in which the “shamilat deh” of a village shall be included and by way of sub-sections 2(g)(i) to (g)(ix), the circumstances in which it shall be excluded from the “shamilat deh”, as defined under Section 2(g) of the 1961 Act. 8. The petitioners, in order to succeed, are required to prove that the land, in dispute, is excluded from the “shamilat deh” of a village by reference to any of the exclusion clauses enacted by Section 2(g) of the Act. 9. The petitioners claim for exclusion of the land in dispute, from “shamilat deh” is primarily based on a plea that the land was partitioned amongst proprietors, prior to 1950 and was in their individual possession. The petitioners, therefore, invoke Section 2(g) (iii) of the 1961 Act, in support of their plea of exclusion from “shamilat deh”. 9. The petitioners claim for exclusion of the land in dispute, from “shamilat deh” is primarily based on a plea that the land was partitioned amongst proprietors, prior to 1950 and was in their individual possession. The petitioners, therefore, invoke Section 2(g) (iii) of the 1961 Act, in support of their plea of exclusion from “shamilat deh”. Section 2(g) of the 1961 Act, reads as follows:- “2(g) “Shamilat deh” includes— (1) Lands described in the revenue records as Shamilat deh or Charand 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 situated within the sabha area as defined in clause (mmm) of section 3 of the Punjab Gram Panchayat Act, 1952, excluding lands reserved for the common purposes of a village under section 18 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (East Punjab Act 50 of 1948), the management and control whereof vests in the State Government under Section 23-A of the aforesaid Act; (4a) vacant land situate in abadi deh or gorah deh not owned by any person; (5) lands in any village described as banjar qadim and used for common purposes of the village, according to revenue records; Provided that shamilat Deh at least to the extent of twenty five per centum of the total area of the village does not exist in the village. ( Note:- The proviso was deleted by Act no.9 of 1992). ( Note:- The proviso was deleted by Act no.9 of 1992). but does not include land which- (i) becomes or has become shamilat deh due to river action or has been reserved as shamilat in villages 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, 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; or [(ix) is used as a place of worship or for purposes, subservient thereto; (6) lands reserved for the common purposes of a village under section 18 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (East Punjab Act 50 of 1948), the management and control whereof vests in the State Government under Section 23-A of the aforesaid Act. Explanation:- Lands entered in the column of ownership of record of rights as “Jumla Malkan Wa Digar Haqdaran Arazi Hassab Rasad”, “Jumla Malkan” or “Mushtarka Malkan” shall be shamilat deh within the meaning of this section. 10. Section 2(g)(iii) of the Act provides that land that was “partitioned” and brought under cultivation by individual landlords, before 26.1.1950, shall be excluded from “shamilat deh”. 10. Section 2(g)(iii) of the Act provides that land that was “partitioned” and brought under cultivation by individual landlords, before 26.1.1950, shall be excluded from “shamilat deh”. The petitioners assert a private partition amongst proprietors and their individual possession before 1950. A perusal of the evidence on record, however, reveals that apart from oral depositions about a partition, the petitioners have not adduced any other evidence. The jamabandis produced by the petitioners do not record a partition of the `shamilat khewat’, much less the “cultivating possession” of individual landlords. A partition, inhers the severance of the joint status of co-sharers with each co-sharer becoming absolute owner of the parcel of land allotted to him during partition. The severance of the joint status would though be recorded in the jamabandi by allotting a separate khewat number, to each erstwhile proprietor and by recording his name in the revenue record, as absolute owner. A partition of agricultural land is normally carried out by revenue authorities,exercising power under the Punjab Land Revenue Act, 1887 (hereinafter referred to as “the 1887 Act”) and is proved by an entry in the revenue record allotting a separate khewat number (ownership number) to each erstwhile co-sharer, as proof of a partition. However, parties are not prohibited from entering into a private partition but the private partition has to be reported to revenue authorities under Section 123 of the 1887 Act. A perusal of the record, however, reveals that the “shamilat khewat” continues to be joint without any individual landlord being recorded as a separate owner. The land also continues to be recorded as “Shamilat Deh Hasab Rasad Zare Khewat”, i.e., the joint ownership of proprietors. If the land had, indeed, been partitioned, it would no longer be recorded as “Shamilat Deh Hasab Rasad Zare Khewat” but in the individual name of a landlord. The fact that the land continues to be recorded as “Shamilat Deh Hasab Rasad Zare Khewat”, i.e., the joint ownership of proprietors and continues to retain one khewat number, proves that the petitioners’ plea of a private oral partition before 1950, has not been proved. 11. Apart from the fact that the petitioners have failed to prove a partition, the petitioners were also required to prove, under Section 2(g)(iii) of the Act, that after partition, the land was in individual cultivating of landlords. 11. Apart from the fact that the petitioners have failed to prove a partition, the petitioners were also required to prove, under Section 2(g)(iii) of the Act, that after partition, the land was in individual cultivating of landlords. The evidence on record is devoid of any evidence of the cultivating possession of individual landlords, whether after partition or before partition. The land, as already noticed, was recorded in pre and post consolidation jamabandis as “Banjar Qadim” charand, i.e., an uncultivated grazing ground. If the land had been cultivated it would have been recorded as “Barani, Nehri and Chahi” etc. but is recorded as “Banjar Jadid and Banjar Qadim”, i.e. lands, that have remained fallow for four and less than 08 harvests (Banjar Jadid) and land that has remained fallow for eight or more consecutive harvests (Banjar Qadim). 12. A grazing ground, is generally recorded as “Banjar Qadim” or as charand or “Banjar Qadim charand”. The land, being “Banjar Qadim” (fallow land) could not be in the separate possession, much less the “cultivating possession” of any individual landlord. The petitioners have, thus, failed to prove, as required by Section 2(g)(iii) of the 1961 Act, a partition amongst proprietors or their individual cultivating possession, prior to 1950. 13. The next argument is that as the land is “banjar qadim”, it would only be included in “shamilat deh” if it is used for a common purpose, as required by Section 2(g)(5) of the Act. The argument, in our considered opinion, is misconceived and contrary to the evidence on record. The land, in dispute, is “banjar qadim” and as per the deposition by PW1 Ramesh Kumar, Patwari, the land was used as a “charand”, i.e., a grazing ground, a common purpose. This apart, the “sharat wazib-ul-arz”, of the village, appended with the documents filed by the petitioners, records the mode and manner in which the grazing grounds of the village shall be used and reads as follows:- Wazib-ul-Arz (Administration paper)of village Albli,HAD BAST NO.25,TEHSIL AND DISTRICT KARNAL. Subject of Section. Sr.No. Details of entries of Wazib-ul-arz 1 (Alf) Nature of rights:- XX XX XX 2 Right of grazing on common land : Besides area reserved for common purposes, the area as owned by Shamlat Deh in the village,shall be used as charand. In this area animals-sheep,goat etc. Subject of Section. Sr.No. Details of entries of Wazib-ul-arz 1 (Alf) Nature of rights:- XX XX XX 2 Right of grazing on common land : Besides area reserved for common purposes, the area as owned by Shamlat Deh in the village,shall be used as charand. In this area animals-sheep,goat etc. of all inhabitants of village without any distinction of proprietor and non proprietor shall have right to graze without payment of any compensation although inhabitants of other adjoining villages shall have to take permission to graze their cattle. 14. A perusal of the extract from the “wazib-ul-arz” reveals that the shamilat “charand” ( grazing ground) of the village may be used by all inhabitants, without any distinction between proprietors and non-proprietors and without payment of any fee or compensation. The “wazib-ul-arz” also records that inhabitants of adjoining villages shall have to take permission before grazing their cattle. 15. The entries in the “sharat wazib-ul-arz” leave no ambiguity that the “banjar qadim” grazing ground, was used for the common purposes of the village, namely, for grazing of cattle and goats by inhabitants of the village without any distinction between proprietors and non-proprietors, thereby fulfilling with certainty ingredients of Section 2(g)(5) of the Act. 16. The argument that the “shamilat deh” of a village cannot exceed 25% of the total land of the village, is no longer available as the proviso to Section 2(g)(5) of the Act has since been deleted. This apart, in our considered opinion, a reading of the proviso, reveals that it has to be read as laying down that the “shamilat deh” of a village shall “at least” be 25% of the total area of a village” thereby clarifying that the “shamilat deh” of a village may be more than 25% of the total land of the village, but shall not be less than 25% of the total area of the village. 17. Consequently, finding no error of jurisdiction or of law in the concurrent findings that as the land, in dispute, is “shamilat deh” and vests in the Gram Panchayat, the impugned orders are affirmed and the writ petition is dismissed. --------------------