IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: December 06, 2011 C.W.P. No. 11624 of 2009 Sunder … Petitioner Versus State of Punjab and others. … Respondents C.W.P. No. 11625 of 2009 Sardara Singh and others … Petitioners Versus State of Punjab and others. … Respondents C.W.P. No. 11626 of 2009 Jasmer Kaur & others … Petitioners Versus State of Punjab and others. … Respondents C.W.P. No. 15173 of 2008 Sunder … Petitioner Versus State of Punjab and others. … Respondents C.W.P. No. 15182 of 2008 Sardara Singh & Others … Petitioners Versus State of Punjab and others. … Respondents C.W.P. No. 15188 of 2008 Jasmer Kaur & others … Petitioners Versus State of Punjab and others. … Respondents CWP No. 11624 of 2009 CORAM: HON’BLE MR. JUSTICE SATISH KUMAR MITTAL, HON’BLE MR. JUSTICE PARAMJEET SINGH. Present: Mr. Sanjay Majithia, Sr. Advocate with Mr. G.S. Sandhu, Advocate, for the petitioner(s). Mr. Manohar Lall, Addl. A.G., Punjab, for respondent Nos. 1 to 3. Mr. N.P.S. Mann, Advocate, for respondent No.4. Paramjeet Singh, J. The above mentioned six Civil Writ Petitions bearing CWP No. 11624 of 2009, 11625 of 2009, 11626 of 2009, 15173 of 2008, 15182 of 2008 and 15188 of 2008 have been listed together for hearing. The identical questions of law and facts have been raised in these writ petitions. In all the writ petitions, the land in question is the same and belongs to the same village. All the above mentioned six Civil Writ Petitions are being disposed of by this common judgment. We may first advert to the facts of two sets of writ petitions. In the first set of Civil Writ Petition Nos. 11624 of 2009, 11625 of 2009 and 11626 of 2009, the petitioners are seeking quashing of order dated 18.04.2006 (Annexure P/3) passed by the Collector, whereby petition under Section 11 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as the Act) filed by the petitioner has been dismissed and also for quashing of order dated 23.04.2008 (Annexure P/5) passed by the Commissioner, whereby appeal filed by the petitioner has been dismissed. 2 CWP No. 11624 of 2009 In the second set of Civil Writ Petition Nos. 15173 of 2008, 15182 of 2008 and 15188 of 2008, the petitioners are seeking quashing of order dated 18.04.2006 (Annexure P/3) passed by the Collector, whereby application under Section 7 of the Act, filed by the Gram Panchayat has been allowed and the petitioner had been ordered to be evicted and also for quashing of order dated 23.04.2008 (Annexure P/5) passed by the Commissioner, whereby appeal filed by the petitioner has been dismissed. For brevity sake the brief facts as set out in CWP No. 11624 of 2009 are that the petitioner filed petition under Section 11 of the Act claiming ownership right on the ground that he is in possession of the land measuring 89 kanals 19 marlas, described in the petition, situated in Village Mardanheri, Tehsil and District Patiala, for the last more than 50 years through his ancestors. The petitioner has become owner of the property in dispute. The land in question had been Banjar Qadim before the year 1953-54 and it has never been used for any common purposes. The Gram Panchayat submitted its reply and stated that the land in dispute is “Shamlat Deh Hasab Rasad Jar Khewat” as described in the jamabandi for the year 1949-50. In the jamabandi for the year 1959-60 (Annexure P/9), Gram Panchayat is shown in possession. The land is reserved for the benefits of the villagers and is a common purpose land. The Gram Panchayat is owner of the land in question. The petition filed by the petitioner under Section 11 of the Act was dismissed by the Collector by recording a finding of fact that the petitioner is unauthorized occupant and he has failed to prove his possession prior to 26.01.1950. The possession 3 CWP No. 11624 of 2009 of the petitioner is without payment of rent. As per the jamabandi for the year 1959-60, in the column of ownership, the name of the Gram Panchayat appears as owner and in cultivation column, Panchayat is in possession. The appeal preferred by the petitioner against the order of the Collector had also been dismissed on the ground that the petitioner had failed to prove the old possession over the land prior to cut off date or ownership of the land. Hence, this writ petition. In the second set of petitions, the Gram Panchayat has sought eviction which was allowed by the Collector vide order dated 18.04.2006 and affirmed by the Commissioner vide order dated 23.04.2008. Hence, the impugned orders in question have been challenged in these writ petitions. We have heard learned counsel for the parties and have perused the record. Learned counsel for the petitioners has contended that in the jamabandi for the year 1949-50 (Annexure P/6), the land has been described as “Shamlat Deh Hasab Rasad Zare Khewat” and the nature of the land is “Banjar Qadim”. In the cultivation column, the possession has been shown as of owners. The Gram Panchayat has been recorded as owner in pursuance to mutation sanctioned on 22.08.1956 (Annexure P/8). Thereafter, in the jamabandi for the year 1959-60 (Annexure P/9), the Nagar Panchayat has been shown in the column of ownership and self- cultivation of Maqbuja Nagar Panchayat has been shown in the cultivation column. In the subsequent jamabandies, the possession has been shown to be of the petitioners. The case of the petitioners is that the ownership is of the proprietory body. The petitioners 4 CWP No. 11624 of 2009 being the proprietors and khewatdars of the village are entitled to claim ownership of the land in dispute. It is the case of the petitioners that the Gram Panchayat has no right and title over the land and cannot evict the petitioners. It is also submitted that the land is a Banjar Qadim, it has never been used for common purposes. It cannot vest in the Panchayat under the provisions of the Act. The petitioners’ predecessors-in-interest have been in continuous possession of the same for the last 50 years. The contention of the learned counsel for the petitioners is not sustainable for the reason that entry of ownership has come in the name of Gram Panchayat for the year 1956 and prior to the enactment of Act of 1961, the Gram Panchayat has been shown as owner in possession of the land in question. The same is clear from Jamabandi for the year 1959-60 (Annexure P/9). Neither the mutation nor the entries in the subsequent jamabandis have never been challenged by any of the proprietors or the petitioners in any competent Court of law. They can be only successful if they establish their case under Section 4(3)(ii) of the Act. There is no iota of evidence to the effect that the petitioner is in cultivating possession of shamilat deh, for more than twelve years immediately preceding the commencement of this Act. Furthermore, the petitioners have failed to show independent possession prior to 26.01.1950. It is also important to note here that as per Section 2(g)(1) of the Act, the land described in the revenue records as shamilat deh excluding abadi deh falls in the definition of “shamilat deh”. The land which is described as “Banjar Qadim” and used for common purposes of the villagers according to the revenue record is also included in the “shamilat 5 CWP No. 11624 of 2009 deh”. The case of the petitioners does not fall in any of the exceptions described under 2(g) of the Act. The contention of the learned counsel for the petitioners is that the land which is Banjar Qadim and is not used for common purposes according to the revenue record would not vest in the Gram Panchayat even if it is recorded in the revenue record as a shamilat deh. The said contention of the learned counsel for the petitioners is not sustainable in view of a Division Bench judgment in the matter of Shiv Charan Singh versus Gram Panchayat Narike and another, 1977 P.L.J. 453. Once the land is shamilat deh, it vests in the Gram Panchayat by virtue of Section 4(1) of the Act. In the face of the revenue record, the petitioners’ contention to exclude the Banjar Qadim from vesting in the gram panchayat cannot be accepted. The contention of the learned counsel for the petitioners is rejected. Learned counsel for the petitioner while relying upon a Full Bench judgment of this Court in the matter of Gram Sabha Sadhraur vs. Baldev Singh and others reported in 1977 P.L.J., 277 has contended that such land does not vest in the Gram Panchayat. This judgment is not applicable in the facts of the present case. In that case, the land was Shamilat Patti not Hasab Rasad Zar Khewat, rather, shamilat land which was shamilat prior to commencement of the Act was governed by the Shamilat Law. Such shamilat land in view of Section 4 of the Act vests in the Gram Panchayat. Another fact which debars the petitioners from claiming ownership is that the possession of the petitioners has been shown as “gair marusi”. The same is clear from the jamabandies for the 6 CWP No. 11624 of 2009 years 1966-67 (Annexure P/11), 1971-72 (Annexure P/12) and some of the gair marusi tenants without payment of rent. As such, the petitioners cannot claim ownership of the land in question. It is settled principle of law that a tenant cannot deny the title of his landlord. The entries in regard to the land in question in the jamabandis for the years 1961-62 to 2001-02 clearly indicate the ownership of the Gram Panchayat. As such, the petitioners have no right or title qua the land in question. The Collector and the Commissioner have concurrently recorded the finding that the land in question is the ownership of the Gram Panchayat and does not vest in the petitioners. The petitions qua the title over the land of the petitioners have been dismissed. As a consequence of this, eviction orders passed by the Collector against the petitioners in CWP Nos. 15173 of 2008, 15182 of 2008 and 15188 of 2008 are upheld. Therefore, in our opinion, both the authorities had rightly dismissed the claim of the petitioners. No ground for interference in the impugned orders is made out. Writ petitions are devoid of merits. Dismissed. ( PARAMJEET SINGH ) JUDGE December 06, 2011 (SATISH KUMAR MITTAL) vkd JUDGE 7