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2023 DIGILAW 951 (PNJ)

Bakshish Singh v. State of Punjab

2023-03-03

KULDEEP TIWARI, SURESHWAR THAKUR

body2023
JUDGMENT Kuldeep Tiwari. J. - By placing reliance upon the revenue record i.e. jamabandi for the year 1890-91 (Annexure P-5), jamabandi for the year 1936-37 (Annexure P-6), and, jamabandi for the year 1940-41 (Annexure P-7), the petitioner claimed to be owner in possession of the land which is recorded as 'Shamlat Deh Hasab Rasad Khewat' on the ground that the petitioner through his predecessor-in-interest is in possession of the suit land, prior to the year 1950 as share holder. A perusal of the above jamabandis shows that in the column of owner 'Shamlat Deh Hasab Rasad Khewat' is recorded, and, whereas, in the column of cultivator, Fauza Singh is recorded as Hisedar, and, the nature of the land is recorded as either barani or, and, some as gair mumkin. On the strength of the above documents, the petitioner filed a suit for declaration under Section 11 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as 'the Act' for declaring the petitioner as cosharer to the extent of half share of land measuring 23 kanal 7 marla bearing khasra No.2//18(4-9), 19(3-19), 20(9-2), 22(2-7), 23(3-10), in accordance with Jamabandi for the year 2006-07 situated in the area of village Muggo Sohi, Tehsil and District Amritsar. The petitioner contended that he is in continuous possession over the disputed suit land from past 100 years. One Lal Singh son of Fauza Singh was having three sons, namely, Teja Singh, Tara Singh, and, Karam Singh, who were recorded in the land revenue record as Hisedar in the 'Shamlat Deh'. Bakshish Singh present petitioner is the younger son of Karam Singh. He stated that in the jamabandis for the years 1936-37, and 1940-41, the names of Teja Singh, Tara Singh, and, Karam Singh have been recorded as cultivators, and, from the revenue record, it is clear that his fore-fathers were owners in possession of the suit land in dispute prior to commencement of the Act of 1961. 2. The respondent-Gram Panchayat contested the suit, and, pleaded therein that the land recorded as 'Shamlat Deh' is owned by the Gram Panchayat, and, the petitioner has been recorded as gair marusi. To strengthen its plea, the respondent-Gram Panchayat placed reliance upon the jamabandis for the years 1966-67 to 2006-07 continuously. 2. The respondent-Gram Panchayat contested the suit, and, pleaded therein that the land recorded as 'Shamlat Deh' is owned by the Gram Panchayat, and, the petitioner has been recorded as gair marusi. To strengthen its plea, the respondent-Gram Panchayat placed reliance upon the jamabandis for the years 1966-67 to 2006-07 continuously. It was further pleaded that there is no revenue document on record which can connect the suit land with the khasra numbers recorded in the jamabandi for the year 1940-41. 3. After considering the case of both the parties, the learned Collector vide order dated 13.7.2016 dismissed the petition. The petitioner successfully challenged the dismissal order (Supra) by filing statutory appeal before the competent statutory authority. The appeal was accepted, and, the learned Appellate Authority vide order dated 4.10.2019 remanded the lis to the learned Collector concerned, to decide the issue afresh after perusing the record, and, by granting full opportunity to the petitioner to establish his claim. After the remand, the petitioner submitted jamabandi for the year 1890-91, and, the Shazara Nisab to establish the pedigree table, and, also to establish that he is in possession of the suit land prior to 1950 in accordance with his share. After considering the entire record, the learned Collector held that the petitioner could not establish any connection with the entry contained in the jamabandi for the year 1890-91, and, the suit land. The petitioner did not place on record any document prior to jamabandi for the year 196667 to prove his continuous possession prior to 26.1.1950 over the land in dispute, whereas, as per the jamabandi for the year 1966-67, and, till 2011-12, the land in dispute falls under the ownership of the Gram Panchayat, and, the petitioner has been in possession of the land as gair marusi. The application was dismissed vide impugned order dated 13.7.2016 Annexure P-15. The petitioner unsuccessfully challenged that order by filing statutory appeal before the learned Director-cum-Joint Secretary, Rural Development and Panchayats, Department, Punjab (respondent No.2), which was dismissed vide impugned order dated 4.10.2019 (Annexure P-17). 4. Being aggrieved by the dismissal order (Supra), the petitioner approached this Court by filing the present writ petition seeking quashing of the impugned orders. We have examined the entire records placed by the petitioner before the authorities below. 5. 4. Being aggrieved by the dismissal order (Supra), the petitioner approached this Court by filing the present writ petition seeking quashing of the impugned orders. We have examined the entire records placed by the petitioner before the authorities below. 5. Learned counsel for the petitioner laid foundation of his claim on the ground that the land which is recorded as 'Shamlat Deh' was brought into individual cultivable possession being co-sharer by the predecessor-in-interest of the petitioner not being in excess of their respective share before 26.1.1950, and, he is in continuous possession of this land. Therefore, the suit land falls in the exclusionary clause of the definition of 'Shamlat Deh' defined under clause 2(g)(viii) of the Act. He further stated that by virtue of provisions of Section 4(3)(ii) of the Act, the suit land does not vest in the Panchayat. Therefore, the authorities below did not appreciate the evidence placed on record by the petitioner in its right perspective which clearly brings the suit land out of the purview of the 'Shamlat Deh'. 6. Before we adjudicate upon the submissions made by the learned counsel for the petitioner, it is apt to first deal with the statutory provisions which are relevant in order to decide the present lis. Section 2(g)(viii) of the Act reads as under:- (g) 'shamilat deh' includes- (viii) was shamilat deh, was assessed to land revenue and has been in the individual cultivating . possession of cosharers not being in excess of their respective shares in such shamilat deh on or before the 26th January, 1950; or' xx Section 4(3)(ii) of the Act reads as under:- '4. possession of cosharers not being in excess of their respective shares in such shamilat deh on or before the 26th January, 1950; or' xx Section 4(3)(ii) of the Act reads as under:- '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 interests of persons, who though not entered as occupancy tenants in the revenue records are accorded a similar status by custom or otherwise, such as Dholidars, Bhondedars, Butimars, Basikhuopahus, Saunjidars, Muqarrirdars; (ii) rights of persons in cultivating possession of shamilat deh, for more than twelve years 1[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;." 7. On perusal of the revenue records, it clearly transpires that in the column of ownership 'Shamlat Deh Hasab Rasad Khewat' is recorded, whereas, in the column of cultivation, the predecessor-in-interest of the petitioner is recorded as Hisedar, whereas, the nature of the land is recorded as either gair marusi or the barani. On perusal of the revenue records, it clearly transpires that in the column of ownership 'Shamlat Deh Hasab Rasad Khewat' is recorded, whereas, in the column of cultivation, the predecessor-in-interest of the petitioner is recorded as Hisedar, whereas, the nature of the land is recorded as either gair marusi or the barani. The fact that in the revenue record, the suit land is recorded as 'Shamlat Deh Hasab Rasad Khewat' would not save it from the vestment in the Panchayat, as Section 2(g)(i) of the Act clearly postulates that the land described in the revenue record as 'Shamlat Deh' shall cover in the inclusionary clause. The expression 'Hasab Rasad Khewat' only reflects the share holding of proprietors before enactment of the Act, 1961. The contention of the learned counsel for the petitioner that he is in continuous possession since 1891 is belied from the fact that the nature of the land in the jamabandis for the year 1890-91, 1936-37, and, 1940-41 is recorded as gair mumkin (non-cultivable) or barani i.e. (the land that has remained fallow for eight years or more harvest). Therefore, the contention of the the learned counsel for the petitioner that he, through his successor-in-interest, was in cultivating possession is belied by these entries in the revenue record. Reliance in this regard can be placed upon the judgment of this Court in the case of Ravinder Kumar and others Vs. State of Punjab and others, CWP No.23868 of 2012, decided on 4.12.2012, wherein it was held as under:- 'The Gram Panchayat filed a petition under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as the 1961 Act'). The Collector, vide order dated 18.09.2009, has ordered the petitioners' eviction. The appeal filed by the petitioners has been dismissed. The Collector as well as the appellate authority, recorded a prima-facie opinion that the land, in dispute, vests in the Gram Panchayat. The petitioners, thereafter, filed a petition under Section 11 of the 1961 Act, raising a question of title. The Collector as well as the appellate authority, have rejected this contention. The petitioners' plea of ownership is based upon entries in the jamabandies for the years 1938-39 and 1942-43. The petitioners contend that the land is recorded in the name of Mela Ram etc. as shareholders and in cultivating possession of Chuhra. The Collector as well as the appellate authority, have rejected this contention. The petitioners' plea of ownership is based upon entries in the jamabandies for the years 1938-39 and 1942-43. The petitioners contend that the land is recorded in the name of Mela Ram etc. as shareholders and in cultivating possession of Chuhra. The land is, therefore, excluded from Shamilat Deh, under Section 2(g)(viii) of the 1961 Act. A perusal of the aforesaid jamabandies reveals that the land, in dispute, is recorded as 'Shamlat Deh Hasab Rasad Zar Khewat' and, therefore, came to vest in the Gram Panchayat under the Punjab Village Common Lands (Regulation) Act, 1953 Act and thereafter under the 1961 Act. The petitioners were required to prove that the land is excluded from Shamilat Deh under any of the exclusion clauses enacted by Section 2(g) of the 1961 Act. The petitioners' contention that the land, in dispute, was in cultivating possession of their predecessors, is falsified by entries in the relevant jamabandies, which clearly record that the land, in dispute, was Banjar Qadim, i.e., land that has remained fallow for eight or more harvests. The land, in dispute, therefore, could not be cultivated by the proprietors or by Chuhra son of Ganju. The petitioners' plea that their predecessors were in cultivating possession of the land, in dispute, prior to 1950, stands falsified and rebutted. A plea raised by the petitioners that as the petitioners have purchased the land, in dispute, they are entitled to retain the land, cannot be accepted as even if a sale deed was executed in their favour, their vendors were not owners of the land, in dispute, and could not pass valid title to the petitioners." 8. Further, in Khatauni Istemal (first jamabandi for consolidation which mentions old khasra numbers and new khasra numbers), attached with the revenue record shows that in the column of owner, the suit land was recorded as the Gram Panchayat, and, the predecessor-in-interest of the petitioner was recorded as in possession 'not as a tenant'. In Khatauni Paimaish (new record of right of land after Bandobast/Chakbandi measurements), the Gram Panchayat is recorded as owner, whereas, the predecessor-in-interest of the petitioner is recorded as gair maroosian, and, the nature of the land is recorded as gair mumkin kalar. In Khatauni Paimaish (new record of right of land after Bandobast/Chakbandi measurements), the Gram Panchayat is recorded as owner, whereas, the predecessor-in-interest of the petitioner is recorded as gair maroosian, and, the nature of the land is recorded as gair mumkin kalar. Further perusal of the subsequent revenue record i.e. jamabandi for the year 1966-67, the owner of the suit land is recorded as Gram Panchayat, whereas, in the column of cultivator, the predecessor-in-interest of the petitioner is recorded as gair maroosian, and, the nature of the land is recorded as gair mumkin or barani. The documents which relates to the present suit land are the Khatauni Istemal, and, Khatauni Paimaish. In both these documents, the Gram Panchayat is recorded as owner, whereas, the predecessor-in-interest of the petitioner is recorded as gair maroosian. The subsequent jamabandi depicts the same entries. These entries clearly depicts that the suit land belongs to the Gram Panchayat, and, the petitioner is occupying the land as a gair marusi (non-occupant tenant). 9. Therefore, a non-occupant tenant cannot acquire the status and rights of Marusi and claim ownership. This Court, in CWP No.20563 of 2008, titled Jaleb Khan and others V/s Commissioner, Gurgaon Division, Gurugaon and others, has held as under:- 'After giving my thoughtful consideration to the contentions of the learned counsel for the petitioners and perusing the record, I find no merit in the same. The Gram Panchayat, Agon (respondent No.3) filed a petition under Section 7 of the Act seeking eviction of the petitioners. As per Jamabandis for the years 1962-63, 1967-68 and 1997-98 (Annexures P-7, P-8 and P-9) respectively the ownership of the land in question is recorded in the name of Gram Panchayat. In the column of cultivation, Kallu son of Kale Khan son of Chhota Khan is recorded as 'Gair Marusi' in the three afore-referred Jamabandis. Therefore, the predecessor-in-interest of the petitioners having been recorded as 'Gair Marusi' he cannot possibly acquire the status and rights of 'Marusi' (occupancy tenant) as contended by the learned counsel for the petitioners. The fact that the petitioners acquired rights of ownership being an occupancy tenant is clearly misconceived." 10. Consequently, the present writ petition is dismissed, and, the impugned order dated 13.7.2016 (Annexure P-15), and, order dated 4.10.2019 (Annexure P-17) passed by the authorities below are upheld. All the pending applications stand disposed of.