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2015 DIGILAW 2043 (PNJ)

Harbir Singh @ Harbinder Singh v. State of Punjab

2015-11-05

P.B.BAJANTHRI, SURYA KANT

body2015
JUDGMENT Mr. Surya Kant, J.: (Oral) - The petitioners assail the orders dated 30.10.2012 (P-8) and 09.01.2014 (P-10) passed by the Divisional Deputy Director-cum-Collector, Patiala, whereby their declaratory petition under Section 11 of the Punjab Village Common Lands (Regulation) Act, 1961 (for short, ‘the Act’) was dismissed, as also the order dismissing their statutory appeal. 2. The facts may be noticed briefly. 3. The case set-up by the petitioners in their petition under Section 11 of the Act was that they are owners in possession of the land measuring 48 bighas in khewat No.144, khatauni No.288 and land measuring 10 kanal 12 marlas comprising khatauni No.325 and khewat No.147 within the revenue estate of village Badshahpur Kaleki, Tehsil Samana, District Patiala and that the Gram Panchayat of their village has no concern whatsoever with the said land. 4. The question that arose for determination by the authorities was whether the petitioners or their predecessorin- interest were in individual cultivating possession of the subject land as on 26.01.1950 and if so, whether the subject land stood excluded from ‘abadi deh’ as defined under Section 2(9) of the Act? 5. The petitioners produced the revenue record and other material documents, Exhibits P-1 to P-39 besides copy of the order dated 05.01.1995 which was not exhibited and was merely marked ‘A’. In addition, they led oral evidence as well. 6. The aforementioned documentary evidence also comprised the jamabandies for the years 1949-50 (Exhibit P37) 1950-51 (Exhibit P-39). 7. One of the said jamabandi (1950-51) has been appended with the writ petition (P-12) and it may be seen from its column No.4 & 5 that while shamlat deh Majkoor (proprietory body) is recorded as the owner, Ganda Singh son of Atar Singh is shown to be in individual cultivating possession of specific khasra numbers mentioned in column No.7 in his capacity as a co-sharer. We are informed that similar entries are there in the previous jamabandi for the year 1949-50 also. 8. The petitioners herein are sons of Gurbachan Singh and grand-sons of Ganda Singh. It is equally pertinent to mention that earlier the Gram Panchayat of their village had filed a petition under Sections 7 read with Section 11 of the Act against Gurbachan Singh-father of the petitioners, which was allowed by the Collector vide order dated 16.06.1990. 8. The petitioners herein are sons of Gurbachan Singh and grand-sons of Ganda Singh. It is equally pertinent to mention that earlier the Gram Panchayat of their village had filed a petition under Sections 7 read with Section 11 of the Act against Gurbachan Singh-father of the petitioners, which was allowed by the Collector vide order dated 16.06.1990. Gurbachan Singh assailed that order before the Appellate Authority who vide order dated 05.07.1995 (Mark ‘A’) (appended as Annexure P-7 with the writ petition) allowed his appeal and returned a categorical finding to the following effect:- “.... After hearing the learned counsel for the parties, I find that the land in dispute is in possession of the appellant before 1950. It is evident from the Ex.D-2 and D-3, i.e., jamabandis for the year 1954-55 and 1950-51. The land is shown in these documents under the possession of the father of the appellant. The only document relied upon by the respondent is Ex.P-4. Here, again cultivating is that of Gurbachan Singh, the appellant, without any rent. Therefore, his possession is proved to be continuous........” (emphasis applied) 9. The above-stated order inter se parties has attained finality. It was passed by the Court of competent jurisdiction. It thus holds the field and is binding with full force on the Gram Panchayat. The only dispute can possibly be regarding identity of the land which was subject-matter of dispute in these proceedings. Such a dispute can be easily resolved from the Jamabandies (Exhibits D-2 & D-3), for the years 1954-55 and 1950-51 which were relied upon by the Appellate Authority while accepting the claim of Gurbachan Singh vide the above-mentioned order. 10. Unfortunately, the Collector as well as the Appellate Authority have while passing the impugned orders failed to consider the above-mentioned documentary evidence led by the petitioners. 11. Since the petitioners are said to have led the evidence consisting revenue record which carries rebuttable presumption of truth to establish their possession on the subject land as on 26.01.1950, it was imperative upon the Collector and the Appellate Authority to consider such evidence and then only return their findings. 12. Such a recourse having not been followed, we are of the considered view that the impugned orders cannot sustain. The writ petition is accordingly allowed. 12. Such a recourse having not been followed, we are of the considered view that the impugned orders cannot sustain. The writ petition is accordingly allowed. The orders dated 30.10.2012 (P-8) and 09.01.2014 (P-10) are set-aside and the matter is remitted to the Collector, Patiala to decide the petitioners’ petition afresh and in accordance with law. 13. The parties are directed to appear before the Collector, Patiala, on 21.12.2015. 14. Dasti. ---------0.B.S.0------------