IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.484 of 1989 Date of decision: 29.04.2010 Subedar son of Samay Singh, resident of Village Punhana, Tehsil Ferozepur Jhirka, District Gurgaon. ….Petitioner versus Deputy Collector, Gurgaon and others …Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ------ Present: Mr. C.B. Goel, Advocate, for the petitioner. None for the respondents. ----- 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the reporters or not? 3. Whether the judgment should be reported in the digest? ---- K.Kannan, J (Oral) 1. The order that is challenged is an order passed by the 1st respondent dismissing an appeal against the order passed by the 2nd respondent allowing an application filed under Section 7 of the Punjab Village Common Lands Act of 1961 (hereinafter called 'the Act'). The application had been filed under Section 7 of the said Act contending that the writ petitioner was in possession of a property measuring 38 kanals, 8 marlas of agricultural land comprised in Khasra No.78. 2. The contention of the learned counsel appearing for the petitioner is that he had never claimed his right to possession with reference to any agricultural land or to any property termed as shamlat Civil Writ Petition No.484 of 1989 - 2 - deh but he was claiming to be an owner of the land and construction put thereon measuring 6 marlas within the specified boundaries. The learned counsel would refer to the fact that he had filed a suit in respect of the property which he claimed as his own and the suit had been decreed vide judgment dated 28.08.1981 and affirmed also in the appeal filed by a third party, before the District Judge, Gurgaon. An attempt had been made to circumvent the effect of the judgment by a fresh suit before a Senior Sub Judge, Gurgaon, seeking for the relief of injunction or in the alternative for the possession of the property against the petitioner and yet another person. The suit had been dismissed finding that the petitioner's claim had already been upheld and the effect of the judgment could not be scuttled by a fresh suit. According to the learned counsel for the petitioner, it has been the 3rd attempt when application had been filed under Section 7 of the Act for ejectment as though the property in his possession was comprised in shamlet deh. 3. The only point urged by the learned counsel is that the character of the property shamlet deh was disputed by him at all times and he was setting up an issue of title. He would refer to a judgment of the Civil Court where on a specific issue framed of whether the petitioner was the owner of the property, it had been held that he was and a decree for possession had been granted. The learned counsel would urge that the summary proceedings under Section 7 for ejectment cannot be carried through, whenever a dispute was raised relating to title of property and in this case, the Collector was bound to adjudicate on title by converting the proceedings under Section 13 of the Act. He would Civil Writ Petition No.484 of 1989 - 3 - also contend that the identity of the property with reference to survey number as found in the Civil Court judgment and what was stated in the proceedings before the Collector, would have to be done only on the basis of evidence and a serious mistake has come about, by the Collector merely seeing that they had referred to two different survey numbers. According to the learned counsel, the survey number kept changing and the petitioner was making his claim only in respect of 6 marlas of land over which he had put a construction and where he had been residing. 4. I uphold the contentions raised by the petitioner on a singular consideration that when a person against whom an action for ejectment is made raises the issue of title as in this case, when he was grounding it on a Civil Court decree that had upheld his claim to title, the Collector was bound to make an adjudication with regard to title under Section 13 of the Act and could not have directed a summary ejectment. The Collector also ought to have noticed that the petitioner was not making any claim in respect of 38 kanals and 8 marlas of agricultural land which the petitioner before him was contending for as being in unlawful possession of the property, when the writ petitioner was contending that he was in possession of merely 6 marlas in respect of an abadi property. The Collector was also therefore bound to make an adjudication on the particular item of property which the writ petitioner was claiming before me. 5. The impugned order of the Assistant Collector as stood confirmed by the Collector is set aside and the matter will stand remitted to the 2nd respondent for a fresh consideration by converting the Civil Writ Petition No.484 of 1989 - 4 - proceedings under Section 13 of the Act in accordance with law. 6. The writ petition is allowed on the above terms. There shall be however no directions as to costs. (K.KANNAN) JUDGE 29.04.2010 sanjeev