IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. L.P.A. No.86 of 2006 (O&M) Date of decision: 6.8.2009 Tulsi Ram. -----Appellant Vs. Gram Panchayat & others. -----Respondents CORAM:- HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present:- Mr. S.D. Sharma, Sr. Advocate with Mr. K.G. Chaudhary, Advocate for the appellant. Mr. Arun Jindal, Advocate for respondent No.1. Mr. Ravinder Jain, Advocate for respondent No.2. Mr. Suvir Sehgal, Addl.A.G., Punjab for respondents No.3 and 4. ----- ADARSH KUMAR GOEL, J. 1. This appeal has been preferred against judgment of the learned Single Judge setting aside the order of the Appellate Authority under the provisions of Punjab Village Common Lands (Regulation) Act, 1961 (for short, “the 1961 Act”), by which claim of the appellant to be declared owner of the land in dispute was accepted. LPA No.86 of 2006 2. The appellant filed an application before the Collector under Section 11 of the 1961 Act, seeking declaration of his ownership. Claim of the appellant is that he was in possession of the shamlat land as proprietor and the said land was never used for common purposes and therefore, did not vest in the Panchayat. The application was contested by the Panchayat, inter-alia, on the ground that the land was being used for common purposes and was vested in the Panchayat and had also been given on lease to the appellant. The Collector dismissed the application, inter-alia, relying upon Ex.R-1 and Ex.R-3 produced by the Panchayat to show that the appellant was a lessee. 3. The appellant, thereafter, preferred an appeal and apart from relying on evidence, recording that the land was in possession of the proprietors as on 26.1.1950, disputed that same was ever given on lease to the appellant. The Appellate Authority accepted the appeal, holding that receipt and proceedings relied upon by the Panchayat to show giving of land on lease to the appellant could not be relied upon while entries in the revenue record for the year 1949-50 showed that possession was of the proprietors. 4. Against the order of the Appellate Authority, the Panchayat raised the issue in the writ petition and sought restoration of the order of the Collector. The learned Single Judge allowed the writ petition by referring to Jamabandi for the year 1953-54, showing that the land was recorded as Shamlat 2 LPA No.86 of 2006 Deh in cultivating possession of the proprietors. Thereafter, in the year 1954-55, mutation was sanctioned in favour of the Panchayat. There was nothing to show that the land was not used for common purposes. The land had been given on lease to the appellant, as per entries in the Patta Register dated 15.3.1992, receipt dated 15.5.1992 and Patta Register dated 7.6.1993 and other similar documents. 5. We have heard learned counsel for the parties. 6. Learned counsel for the appellant submitted that in view of Section 3(2)(i) of the 1961 Act, if the land was excluded from Shamlat Deh under Section 2(g) of the 1961 Act, such land will not vest in the Panchayat. Section 2(g) excludes land which was in cultivating possession of the co-sharers on 26.1.1950 from “Shamlat Deh”. He further submitted that the documents in support of the lease do not contain the name of the appellant and thus, there is nothing to show that the appellant was ever a lessee. He was in possession only as proprietor and land was never used for common purposes. 7. Learned counsel for the Panchayat supports the findings recorded by the learned Single Judge. 8. We find that the effect of Section 3(2)(i) read with Section 2(g) of the 1961 Act has not been gone into and the effect of the said provision is that if the land owner shows that he was in possession as proprietor as on 26.1.1950 and the land was not used for common purposes, the same will not vest in the 3 LPA No.86 of 2006 Panchayat. We also find that there is a dispute about reading of the documents, purporting to create lease in favour of the appellant. It is not clear whether any lease was created in favour of the appellant and whether the land was ever used for common purposes. Learned counsel for the Panchayat is not able to show any record to substantiate finding in the order of the learned Single Judge. In these circumstances, we are of the view that the matter should be decided afresh by the Appellate Authority. 9. Accordingly, we set aside the impugned judgment and remand the matter to the Appellate Authority for fresh decision in accordance with law. The parties may appear before the Appellate Authority for further proceedings on 8.10.2009. 10. The appeal is disposed of. (ADARSH KUMAR GOEL) JUDGE August 06, 2009 ( DAYA CHAUDHARY ) ashwani JUDGE 4