IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.8162 of 2006 Date of decision : 19.11.2009 Piara Ram and others … Petitioners Versus State of Punjab and others …Respondents Present: Mr.SD Sharma, Senior Advocate with Mr.Surinder Sharma, Advocate for the petitioners. Mr.S.S.Rangi, Advocate for respondent No.5-Gram Panchayat. Mr.Vijay Lath, Advocate and Mr.Naveen Sharma, Advocate for respondent No.6. S.S.Saron, J. This petition has been filed under Articles 226/227 of the Constitution of India seeking quashing of the order dated 17.2.1992 (Annexure P-4) passed by Assistant Collector IInd Grade cum Naib Tehsildar, Samrala (respondent No.4), the order dated 7.9.1998 (Annexure P- 6) passed by Commissioner, Patiala Division, Patiala (respondent No.3) and the order dated 19.4.2004 (Annexure P-7) passed by the Financial Commissioner Taxation, Punjab, Chandigarh (respondent No.2). Claim of the petitioners is that they are in possession of land measuring 6 kanals 15 marlas, comprised in Retc.No.10, khasra Nos.8(3-14), 12/1 (3-1) of village Garhi Sainian Tehsil Samrala, District Ludhiana. The consolidation operations in the village were carried out in the year 1951-52 and the said land was mutated in the name of Gram Panchayat village Garhi Sainian (respondent No.5). The case of the petitioners is that they have continued in possession of the land in dispute as they are right holders in the village. It is stated that the land in dispute is recorded in the names of the petitioners as is evident from the khasra girdawari for the year 1996-97 CWP No.8162 of 2006 (Annexure P.1) and Jamabandi for the year 2001-02 (Annexure P-2). It is further submitted that in the year 1994, the Gram Panchayat (respondent No.5) threatened to dispossess the petitioners from the land in dispute and they filed a suit for permanent injunction in the court of Sub Judge 1st Class, Samrala, which was decreed in favour of the petitioners vide judgment dated 9.8.1994 (Annexure P-3), holding them to be in possession of the land. It is submitted that one Kishan Dev (respondent No.6) though figures nowhere and neither resides in the village nor has any concern with the land in dispute, however, got the khasra girdawari entered in his name with the connivance of the village patwari. The petitioners, therefore, filed an application before the Assistant Collector Grade II cum Naib Tehsildar, Samrala (respondent No.4) for correction of the Khasra Girdawri. The said application of the petitioners has been rejected vide order dated 17.2.1992 (Annexure P-4) passed by respondent No.4. The petitioners challenged the said order before the Collector, Samrala who vide order dated 16.9.1992 (Annexure P-5) allowed the appeal of the petitioners and ordered the correction of Khasra Girdawri in favour of the petitioners. Kishan Dev (respondent No.6) aggrieved against the order of Collector, Samrala, filed an appeal before the Commissioner Patiala Division, Patiala (respondent No.3) who vide order dated 7.9.1998 (Annexure P-6) allowed the appeal and ordered correction of Khasra Girdawri in favour of Kishan Dev (respondent No.6). The petitioner aggrieved against the same filed a revision petition before the Financial Commissioner, Taxation Punjab, Chandigarh (respondent No.2) who vide order dated 19.4.2004 (Annexure P-7) dismissed the revision petition. Aggrieved against the same, the petitioners have filed the present writ petition. 2 CWP No.8162 of 2006 After hearing learned counsel for the parties and perusing the record, it may be noticed that the land in dispute in the revenue records that have been produced is recorded as Banjar Qadim. This is evident from the khasra girdawari for the year 1996-97 (Annexure P.1) and Jamabandi for the year 2001-02 (Annexure P-2) filed by the petitioners. The land in dispute in the said revenue records (Annexures P.1 and P.2) is recorded as ‘Banjar Qadim’. This would mean that the land is uncultivable. Besides, in the jamabandi for the year 1971-72 (Annexure R-6/1), the land in question is recorded as ‘Rosli’ which would also mean that the land is not cultivable. Land which remains fallow for continuous six crops is recorded in the revenue records as ‘Banjar Qadim’ and is not cultivable. The Commissioner Patiala Division, Patiala (respondent No.2) in his order dated 7.9.1998 (Annexure P-6) observed that Khasra Girdawri cannot be recorded on the basis of possession and it is to be recorded on the basis of cultivation. Therefore, the same was not liable to be recorded in favour of Kishan Dev (respondent No.6). Even otherwise, it is well known that possession of land follows the title, if the land is vacant or uncultivable and the owner of the land is to be taken in possession of the same. Therefore, where the land is uncultivable and is recorded as ‘Banjar Qadim’ or ‘Rosli’, it would be presumed that the owner is in possession of the same. As such, it is the Gram Panchayat Village Garhi Sainian, Tehsil Samrala, District Ludhiana (respondent No.5) which is consistently recorded as owner of the land. Therefore, it is deemed to be in possession of the same. Learned counsel for the petitioners has however, submitted that the petitioners were held to be in possession of the land in dispute vide judgment dated 9.8.1994 (Annexure P-3) passed by the learned Sub Judge, 1st Class, Samrala. A perusal of the said judgment dated 9.8.1994 (Annexure P- 3 CWP No.8162 of 2006 3) shows that the Gram Panchayat Garhi Sainian, Tehsil Samrala, District Ludhiana (respondent No.5) was not a party to the suit. Further perusal of the said judgment (Annexure P-3) shows that it relates to plots which are marked as ABCDEFGHIJ shown as red in the site plan attached with the plaint of the said suit. The same does not show that it relates to land measuring 6 kanals 15 marlas comprised in Retc.No.10, khasra No.8(3-14), 12/1 (3-1) which is in dispute. In any case, a person who is aggrieved by an entry in the revenue record, is to seek his remedy by way of a declaratory decree in terms of Section 45 of the Punjab Land Revenue Act, 1887 which provides for suit for declaratory decree by persons aggrieved by an entry in a revenue record. It is provided therein that if any person considers himself aggrieved as to any right of which he is in the possession by an entry in a records of rights or in an annual record, he may institute a suit for declaration of his right under Chapter VI of the Specific Relief Act 1887 (now Chapter VI of the Specific Relief Act, 1963). Therefore, the petitioner may, if so advised, seek his remedy under the said Act by filing an appropriate suit for declaration. The writ petition is accordingly, disposed of. [ S.S.Saron ] Judge 19.11.2009 sd 4