IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH L.P.A. No. 2318 of 2011 ( O&M ) DATE OF DECISION : 20.12.2011 Balbir Kaur alias Godhan and others .... APPELLANTS Versus Gram Panchayat Jhorarh Rohi, Tehsil and District Sirsa and others ..... RESPONDENTS L.P.A. No. 2319 of 2011 ( O&M ) DATE OF DECISION : 20.12.2011 Jarnail Singh .... APPELLANT Versus Gram Panchayat Jhorarh Rohi, Tehsil and District Sirsa and others ..... RESPONDENTS L.P.A. No. 2320 of 2011 ( O&M ) DATE OF DECISION : 20.12.2011 Bhagwan Kaur and others .... APPELLANTS Versus Gram Panchayat Jhorarh Rohi, Tehsil and District Sirsa and others ..... RESPONDENTS L.P.A. No. 2321 of 2011 ( O&M ) DATE OF DECISION : 20.12.2011 Amar Singh .... APPELLANT Versus Gram Panchayat Jhorarh Rohi, Tehsil and District Sirsa and others ..... RESPONDENTS L.P.A. No. 2322 of 2011 ( O&M ) DATE OF DECISION : 20.12.2011 Harpal Singh .... APPELLANT Versus Gram Panchayat Jhorarh Rohi, Tehsil and District Sirsa and others ..... RESPONDENTS LPA No. 2318 of 2011 -2- CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR Present: Mr. S.K. Jain and Mr. Deepak Kr. Jain, Advocates, for the appellants. * * * SATISH KUMAR MITTAL, J. This order shall dispose of five appeals, i.e. Letters Patent Appeals No. 2318 to 2322 of 2011, as the same are arising out of the common order dated 28.9.2011, passed by the learned Single Judge, whereby five separate writ petitions (CWPs No. 16091 of 1990, 411, 412, 492 and 493 of 1991), filed by the appellants/predecessors of the appellants against the separate orders dated 25.7.1989 and 30.1.1990 (Annexures P-1 and P-2), passed by the Assistant Collector Ist Grade, Sirsa and the Collector, Sirsa, respectively, as well as the common order dated 12.10.1990, passed by the Commissioner, Hisar Division, Hisar, have been dismissed. LPA No. 2318 of 2011 In this case, Gram Panchayat, Village Jhorarh Rohi (respondent No.1 herein) filed application under Section 7 (2) of the Punjab Village Common Lands (Regulation) Act, 1961 (As Applicable to Haryana) (hereinafter referred to as `the Act') before the Assistant Collector Ist Grade, for eviction of Gujjar Singh (predecessor of the appellants) from 267 Kanals 7 Marlas of land, situated in village Jhorarh Rohi, claiming that the said land is shamilat deh under Section 2 (g) of the Act and has vested in the LPA No. 2318 of 2011 -3- Gram Panchayat under Section 4 of the Act and the same is in his illegal occupation. Gujjar Singh contested the said application, claiming that he was in cultivating possession of the said land prior to coming into force of the Act, without payment of any rent, therefore, in view of clause (ii) of Section 4 (3) of the Act, the said land is exempted from vesting in the Gram Panchayat. The Assistant Collector Ist Grade vide order dated 25.7.1989 (Annexure P-1), after re-considering the matter on remand by the Collector, came to the conclusion that predecessor of the appellants has proved his possession more than twelve years prior to the commencement of the Act only with regard to 11 Bighas 13 Biswas, which on being converted came to be 58 Kanals 5 Marlas. It was further held that predecessor of the appellants failed to prove his possession more than twelve years prior to the commencement of the Act with regard to 209 Kanals 2 Marlas of land. In this regard, the Assistant Collector Ist Grade observed as under : “As per evidence produced by respondent Gujjar respondent was cultivating Khasra No. 366 min measuring 55 Bighas 5 Biswas, vide Ex.D-2, copy of Khasra Girdawari Bishan father of the respondent Gujjar Singh was in possession of Shamlat land since 1930-31 comprised in Khewat No. 363 (3B-8B), 366 min (2B-0B) 370 min (1-0) total measuring 6 Bighas 8 Biswas. Since 1933-34 this entry is in the name of Gujjar Singh, respondent and the area of Khasra No. 366 was changed from 2 Bighas to 3 Bigha 11 Biswas and that of Khasra No. 370 min from 1 Bigha to 0 Bigha 3 Biswas. In the year 1937-38 according to Ex.D-3 the area of Khasra No. 366 became 4 Bighas 2 Biswas, vide Ex.D-4 in the year of 1938-39 Gujjar Singh's cultivation was on Khasra No. 363 (3-0), 366 min (3- LPA No. 2318 of 2011 -4- 12), 368 (0-15) and 851/370 (2-18), 363 (3-8) total 11 Bighas 13 Biswas and he continued cultivating to exemption under 4 (3) (ii) Punjab Village Common Lands (Regulation) Act to only this such area. Afterwards, he was occupied more area and in the year 1955-56 when consolidation took place he was in possession of 55 Bighas as per Ex.D-1 and during consolidation in lieu of this 55 Bighas 5 Biswas, he was allotted land measuring 279 Kanals 13 Marlas. As per above facts, respondent is entitled to exemption under Section 4 (3) (ii) for being in possession more than 12 years prior to commencement of Punjab Village Common Lands (Regulation) Act the land comprised in Khasra No. 366 min (4-12), 368 (0- 15), 851/370 min (2-18), 363 (3-8), total measuring 11 Bighas 13 Biswas vide Ex.D-5 which on being converted come to 59 Kanals 5 Marlas while he is in possession of 273 Kanals 13 Marlas land of Gram Panchayat. But the Gram Panchayat has moved this application for eviction from 267 Kanals 7 Marlas, therefore, he is in unauthorised possession of 209 Kanals 2 Marlas of land. He is given a choice to choose 58 Kanals 5 Marlas land of his choice but he says that the court may select the numbers itself so in lieu of his land measuring 58 Kanals 8 Marlas, out of the land in his possession land comprised in Rect. No. 81 Killa No.3 min East (5-0), 8/2 (2-7), 9/1 (4-18), Rect. No. 91 Killa No. 23/2 (4-8), 24 (8-0), 25 (8-0), Rect. No. 95 Killa No. (7-7), 10/1 (6-18), 11/2 min (1-0) is exempted under Section 4 (3) (ii) of Punjab Village Common Lands (Regulation) Act and from the remaining area owned by the Gram Panchayat the respondent is in unauthorised possession, he is ordered to be evicted from the area. Panchayat will be entitled to recover Rs. 26,000/- from respondent on account of previous unauthorised possession.” Feeling aggrieved against the said order, Gujjar Singh LPA No. 2318 of 2011 -5- (predecessor of the appellants) as well as the Gram Panchayat filed two separate appeals. Both the appeals were dismissed by the Collector vide order dated 30.1.1990 (Annexure P-2) and order of the Assistant Collector Ist Grade was affirmed, while making the following observations : “I have heard both the parties in both the appeals and have also gone through the file. In both the appeals each of the appellants have not raised any point or produced any ruling from which it could be concluded that Gujjar Singh could not have been evicted from the land from which he has been ordered to be evicted. Similarly on behalf of the Panchayat the law officer has failed to convince me that Gujjar Singh was not entitled for exemption under Section 4 (3) (ii) of the Punjab Village Common Lands (Regulation) Act which has been granted to him vide order passed by Lower Court. From the documents available on the file it is evident that Gujjar Singh was entitled to exemption under Section 4 (3) (ii) only with regard to land measuring 58K-9M and this much exemption has been granted to him by the order under appeal. With regard to remaining land he has failed to prove his claim and therefore, the order of the eviction passed against him is legally correct. In these circumstances I find no force in both the appeals and hereby dismiss the same. A copy of the judgment be placed on the each file.” Both the aforesaid orders were upheld by the Commissioner vide order dated 12.10.1990 (Annexure P-3) and the revision petition filed by Gujjar Singh was dismissed for want of jurisdiction. Gujjar Singh challenged the aforesaid orders by filing CWP No. 16091 of 1990. Before the learned Single Judge, counsel for the appellants argued that predecessor of the appellants, namely Gujjar Singh, was in LPA No. 2318 of 2011 -6- possession of the entire land as co-sharer, much prior to 26th January, 1950, therefore, the authorities under the Act have committed grave illegality while ordering eviction of the predecessor of the appellants from the land in dispute. It was also argued that the Assistant Collector Ist Grade has committed grave procedural illegality while not converting the proceedings under Section 7 of the Act in title suit, as a question of title was raised before him, which should have been adjudicated by converting the ejectment proceedings in the title suit. The learned Single Judge, after considering the submissions made by learned counsel for the predecessor of the appellants, dismissed the writ petition and upheld the orders, passed by the authorities under the Act. It has been found that the predecessor of the appellants has proved his individual cultivating possession prior to 26th January, 1950 with regard to the land measuring 11 Bighas 13 Biswas, equivalent to 58 Kanals 5 Marlas. The said land has been exempted from vesting in the Gram Panchayat. On the remaining land i.e. 209 Kanals 2 Marlas of land, the predecessor of the appellants had failed to prove his possession for more than twelve years prior to commencement of the Act, therefore, he was ordered to be evicted from the same, as that land was not liable to be exempted under Section 4 (3) (ii) of the Act. Regarding the contention that since a question of title was involved in the proceedings, therefore, the Collector should have converted the proceedings in the title suit, it has been observed that it is not mandatory for the Assistant Collector Ist Grade to convert every proceeding under Section 7 of the Act into the title suit, only on being raised a question of LPA No. 2318 of 2011 -7- title. If from the material placed before the Assistant Collector, he finds that a question of title is involved, only then he is required to convert the eviction proceedings into the title suit. It has been observed that the Assistant Collector Ist Grade, while considering the documents available on record, came to the conclusion that claim of the predecessor of the appellants with regard to the remaining land was not supported by any documentary evidence, therefore, qua that land, there was no need to convert the eviction proceedings into the title suit. Learned counsel for the appellants argued that authorities under the Act have committed grave illegality while ordering eviction of the predecessor of the appellants from the land measuring 209 Kanals 2 Marlas, while ignoring the fact that he was in individual cultivating possession of the remaining land prior to 26th January, 1950. He argued that the authorities below have not considered the claim of the predecessor of the appellants, while keeping in view the exemption clauses (v) and (viii) of Section 2 (g) (5) of the Act. He further argued that if the Assistant Collector would have converted the eviction proceedings under Section 7 of the Act into the title suit, then the appellants would have proved their case in a better manner. Therefore, the procedure adopted by the Assistant Collector in evicting the predecessor of the appellants from the land in dispute was illegal and it caused serious prejudice to his rights. After hearing learned counsel for the appellants, we do not find any illegality or perversity in the orders, passed by the authorities under the Act as well as the impugned order passed by the learned Single Judge. LPA No. 2318 of 2011 -8- Undisputedly, the land in dispute is recorded under the ownership of the Gram Panchayat and Gujjar Singh, predecessor of the appellants, has been shown to be in possession of the disputed land under the Gram Panchayat. Mutation of this land was sanctioned in favour of the Gram Panchayat, even before the commencement of the Act. It is the case of the appellants that they are in cultivating possession of the land as co- sharers without payment of any rent for more than twelve years prior to the commencement of the Act, therefore, this land is not to be vested in the Gram Panchayat, in view clause (ii) of Section 4 (3) of the Act, which reads as under : “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 rights of persons who were in cultivating possession of shamilat deh on the date of the commencement of the Punjab Village Common Lands (Regulation) Act, 1953 or the Pepsu Village Common Lands (Regulation) Act, 1954, and were in such cultivating possession for more than twelve years on such commencement without payment of rent or by payment of charges not exceeding the land revenue and cesses payable thereon.” In order to prove that the Panchayat has no right to evict the appellants in view of the aforesaid exemption provided in clause (ii) of Section 4 (3) of the Act, the appellants have produced on record the revenue record (Ex.D1 to Ex.D9) from 1930-31, to claim that the land in dispute does not vest in the Panchayat. The revenue authorities, after considering these revenue records, came to the conclusion that the predecessor of the appellants was LPA No. 2318 of 2011 -9- in cultivating possession of only 11 Bighas 13 Biswas of land out of total 66 Bighas 18 Biswas of land. However, after consolidation, which took place in the year 1955-56, predecessor of the appellants took possession of another 55 Bighas 5 Biswas of land. In lieu of that excess land, he was allotted 279 Kanals 13 Marlas of land. Keeping in view these facts, predecessor of the appellants was rightly held to be entitled to exemption of only 11 Bighas 13 Biswas of land in view of clause (ii) of sub-section (3) of Section 4 of the Act. To that extent, his possession was held to be legal. Regarding the remaining land measuring 55 Bighas 5 Biswas equivalent to 209 Kanals 2 Marlas of land, the predecessor of the appellants failed to prove his individual cultivating possession for more than twelve years prior to the commencement of the Act, as on that land, the predecessor of the appellants came into possession only in the year 1955-56. Thus, the said land has been held to be not exempted under Section 4 (3) (ii) of the Act. So far as contention of learned counsel for the appellants that the authorities under the Act have not considered the claim of the appellants with regard to remaining land, while taking into consideration the exemption clauses (v) and (viii) of Section 2 (g) (5) of the Act, is concerned, case of the appellants does not fall under these clauses, which read as under : 2 (g) (5) lands in any village described as banjar qadim and used for common purposes of the village according to revenue records; but does not include land which - (i) to (iv) x x x (v) is described in the revenue records as shamilat, taraf, pattis, LPA No. 2318 of 2011 -10- 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) & (vii) x x x (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; Since with regard to 209 Kanals 2 Marlas of land, the appellants have failed to prove their individual cultivating possession prior to 26th January, 1950, therefore, both these clauses are not applicable. Thus, we do not find any illegality in the order of eviction passed against the appellants. Since the revenue authorities have considered each and every revenue record produced by the predecessor of the appellants before coming to the aforesaid conclusion, therefore, we are of the opinion that no prejudice is caused to the appellants, if the Assistant Collector Ist Grade had not converted the eviction proceedings into the title suit. The appellants could not have led any other evidence. The entire revenue record pertaining to the land in dispute was already before the authorities below, which has been considered by them in accordance with law. Keeping in view the said record, the Assistant Collector was prima facie of the view that no question of title was involved, therefore, he did not accede to the request of the predecessor of the appellants to convert the ejectment proceedings into the title suit. Thus, we also do not find any merit in this contention of learned counsel for the appellants. LPA No. 2318 of 2011 -11- LPA No. 2319 of 2011 This appeal has been filed by Jarnail Singh against the order dated 25.7.1989 (Annexure P-1) passed by the Assistant Collector Ist Grade, Sirsa, which has been upheld by the Collector, Commissioner and the learned Single Judge, whereby on an application filed by the Gram Panchayat, he was ordered to be evicted from 42 Kanals 2 Marlas of land. In this case, as per Jamabandi for the year 1954-55 (Ex.D1), father of the appellant was recorded as Gairmarosi under the Panchayat, therefore, his possession on the disputed land was after the commencement of the Act. Thus, he was held to be not entitled for the benefit of exemption under Section 4 (3) (ii) of the Act. In view of this finding, it was held that father of the appellant was not in possession of any part of shamilat deh prior to 26th January, 1950 and he took possession of the same in the year 1954-55, therefore, the appellant was ordered to be evicted from the land in dispute. LPA No. 2320 of 2011 This appeal has been filed by Bhagwan Kaur and predecessors of Gurcharan Singh against the order dated 25.7.1989 (Annexure P-1) passed by the Assistant Collector Ist Grade, Sirsa, which has been upheld by the Collector, Commissioner and the learned Single Judge, whereby on an application filed by the Gram Panchayat, the Assistant Collector came to the conclusion that as per the revenue record available on record, Hazura Singh (husband of Bhagwan Kaur and father of Gurcharan Singh) was cultivating land measuring 13 Bighas 3 Biswas (equivalent to 65 Kanals 10 Marlas) since 1938-39 and remained in cultivation of the same upto the year 1953- LPA No. 2318 of 2011 -12- 54. In view of this fact, regarding this land, Bhagwan Kaur and Gurcharan Singh were granted exemption under Section 4 (3) (ii) of the Act. However, since they failed to prove their possession more than twelve years prior to the commencement of the Act over the remaining land, i.e. land measuring 51 Kanals 7 Marlas, therefore, they were ordered to be evicted from the same. LPA No. 2321 of 2011 This appeal has been filed by Amar Singh against the order dated 25.7.1989 (Annexure P-1) passed by the Assistant Collector Ist Grade, Sirsa, which has been upheld by the Collector, Commissioner and the learned Single Judge, whereby on an application filed by the Gram Panchayat, he was ordered to be evicted from 100 Kanals 17 Marlas of land, as he admitted that he was not in possession of this land before 1963. Thus, admittedly, he was not in cultivating possession of the disputed land for more than twelve years prior to the commencement of the Act. In view of this matter, the appellant was not entitled to exemption under Section 4 (3) (ii) of the Act. LPA No. 2322 of 2011 This appeal has been filed by Harpal Singh against the order dated 25.7.1989 (Annexure P-1) passed by the Assistant Collector Ist Grade, Sirsa, which has been upheld by the Collector, Commissioner and the learned Single Judge, whereby on an application filed by the Gram Panchayat, he was ordered to be evicted from 15 Kanals 2 Marlas of land, while holding that he is in unauthorised possession of the same and his LPA No. 2318 of 2011 -13- possession on the disputed land was not for more than twelve years prior to the commencement of the Act. Thus, for the reasons recorded above, while dealing with LPA No. 2318 of 2011, we do not find any illegality or perversity in the orders passed by the authorities under the Act as well as the impugned order, passed by the learned Single Judge. Consequently, all these appeals are dismissed being without any merit. ( SATISH KUMAR MITTAL ) JUDGE December 20, 2011 ( MEHINDER SINGH SULLAR ) ndj JUDGE