CWP No.15466 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.15466 of 2008 Date of decision:09.07.2010 Surjeet and others ...... Petitioners VERSUS The State of Haryana through the Commissioner-cum Secretary, Revenue Department, Haryana, Chandigarh.and others ......Respondents CORAM: HON'BLE MR.JUSTICE RAJIVE BHALLA. Present: Mr.Vinod Bhardwaj, Advocate for the petitioners. Mr.Deepak Girotra, AAG, Haryana for respondents no.1 to 6. Mr.Vikram Singh, Advocate for respondent no.7. ***** RAJIVE BHALLA.J (Oral) The petitioners pray for issuance of a writ in the nature of certiorari for quashing the order dated, 18.08.2004, 26.09.2005, 02.05.2007 and 06.08.2008, passed by the Assistant Collector, Ist Grade Guhla, the Collector, Kaithal, the Commissioner, Ambala Division Ambala and the Financial Commissioner, Haryana respectively, holding that the petitioners have no right, title or interest in the land in dispute. After the order of ejectment, passed under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as the Act) attained finality, the petitioners filed a petition under Section 13(A) of the Act, praying for a declaration that the land in dispute does not vest in the Gram Panchayat as it is recorded in the individual cultivating possession of the petitioners prior to 26.01.1950. In support of this plea, the petitioners placed reliance upon the jamabandi for the year 1945-46 CWP No.15466 of 2008 -2- (Annexure P-1) and the documents prepared during consolidation allotting new khasra numbers etc. The respondents controverted the pleadings by asserting that as the order of ejectment has attained finality, the petition should be dismissed. It was further asserted that even as per Annexure P-1, petitioners' predecessors were not in cultivating possession. The Collector, dismissed the application by holding that the petitioners have failed to establish their claim. The appeal and revision filed by the petitioners were dismissed by the Commissioner and the Financial Commissioner, respectively. Counsel for the petitioners submits that the jamabandi for the year 1945-46 (Annexue P-1) records that Mehar Singh, Sher Singh and Gurdial Singh are in cultivating possession of Shamilat Deh Hasab Rasad Iraji in equal shares. Sher Singh is the father of petitioners no.1 and 2 and the grand-father of petitioners no.3 and 4. As the jamabandi (Annexure P-1) clearly proves the cultivating possession of the petitioners' predecessors, prior to 26.01.1950, the land is excluded from Shamilat deh by operation of the proviso (viii) to Section 2(g) of the Act. The orders passed by the Assistant Collector, the Collector, the Commissioner and the Financial Commissioner, rejecting the entry in the jamabandi are therefore, a nullity. It is further argued that the Courts below have ignored the khatoni paimish and the khatoni aks-shazra while holding that the petitioners have failed to connect the land referred to in Annexure P-1 with the land in dispute. It is submitted that a perusal of these documents clearly establishes that the land referred to in Annexure P-1 was allotted to the petitioners during consolidation. It is prayed that in view of the errors committed by the authorities below, the writ petition be allowed and a declaration be issued CWP No.15466 of 2008 -3- that the land in dispute does not vest in the Gram Panchayat. Counsel for the respondents, on the other hand, submits that the finding recorded by the authorities below, that the petitioners have failed to connect the land in dispute with the land referred to in the jamabandi for the year 1945-46, does not suffer from any error. It is further submitted that jamabandi for the year 1945-46, records that a part of the land is a passage whereas the other land is Gair Mumkin, thereby putting paid to the petitioners argument that their predecessors were in self-cultivation of the land in dispute. It is argued that as the petitioners have failed to prove the ingredients of proviso(viii) to sub Section 2(g) of the Act, the writ petition should be dismissed. The dispute in the present case is whether the land in dispute was in the cultivating possession of the petitioners' predecessors prior to 26.01.1950 so as to exclude it from Shamilat deh as postulated by proviso (viii) to Section 2(g) of the Act, which reads as follows: - Section 2(g) (1 to 6)xxx (i) to (vi)xxxx (vii) “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” An applicant claiming the benefit of proviso (viii) would be required to prove, that (a) the land in dispute is Shamilat deh, (b) in individual cultivating possession prior to 26.01.1950 (c) not in excess of his share and (d) was assessed to land revenue. CWP No.15466 of 2008 -4- The jamabandi for the year 1944-45 (Annexure P-1) describes the land as shamilat deh thereby establishing the first ingredient. The jamabandi further records that the land is in the self-cultivation of Mehar Singh, Sher Singh and Gurdial Singh, in equal shares. Sher Singh is admittedly the father of the petitioners no.1 and 2 and the grand-father of respondents no.3 and 4. If true this entry would entitle the petitioners to claim that they have fulfilled the second ingredient. A perusal of columns no.7 and 8 of the jamabandi however, negate the entry of “self-cultivation”. Column no.7 of the jamabandi describes khasra no.301, as “Min passage”. Column no.8 describes the land as Gair Mumkin i.e. land that cannot be cultivated. It therefore, belies comprehension as to how the petitioners' predecessors could be in "self- cultivation" of a passage and of land described as Gair Mumkin. The entry in column no.5 of the jamabandi, recording the self-cultivation of Sher Singh is an error or a manipulation. When faced with the words “Min passage” and “Gair Mumkin” in column nos.7 and 8 of the jamabandi, counsel for the petitioners expresses his inability to explain these entries. It is thus beyond doubt that the petitioners' predecessors were not in cultivation possession of the land referred to in Annexure P-1. The second ingredient of provision(vii) has therefore, not been established. The third and fourth ingredients have not been established as the petitioners have failed to prove, that their predecessors were in possession according to their share and the land was assessed to land revenue as column no.11 of the jamabandi is silent. The petitioners having failed to prove the ingredients of proviso (viii) to Section 2(g) of the Act, cannot be heard to urge that the land in CWP No.15466 of 2008 -5- dispute is not Shamilat deh. In view of what has been stated hereinabove, the writ petition is dismissed with no order as to costs. 09.07.2010 [RAJIVE BHALLA] shamsher JUDGE