IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.199 of 1987 (O&M) Date of decision:5.11.2009 Ranjodh Singh and others -----Appellants Vs. Shivdev Singh and another ----Respondents CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL Present:- Mr. Hemant Sarin, Advocate for the appellants. Mr. Munishwar Puri, Advocate for the respondents. Adarsh Kumar Goel,J. 1. This appeal has been preferred by the defendant against decree for possession granted against him in favour of the respondent-plaintiff. RSA No.199 of 1987 (O&M) 2. Respondent-plaintiff filed suit for possession on the basis of title claiming that he acquired title by means of exchange of his land with the Panchayat which was duly approved by the competent authority. The appellant contested the suit by disputing validity of exchange. The matter was considered by the courts below with reference to Issue No.1, which related to the title of the plaintiff. 3. The trial court dismissed the suit by holding that exchange between plaintiff and the Panchayat was void for non compliance of Rule 5 of the Punjab Village Common Lands (Regulation) Rules, 1964 (in short, ‘the Ruels’) framed under the provisions of the Punjab Village Common Lands (Regulation) Act, 1961, for want of approval of the competent authority. Reliance was placed on DB judgment of this Court in Dhaja Ram and another v. Gram sabha of Manana and others, 1971 PLJ 751. 4. The lower appellate court reversed the finding of the trial court by holding that exchange was duly approved by the Director of Panchayats vide letter dated June 28, 1982 Mark ‘A’ and mutation Ex.P9 was sanctioned on that basis, which was also reflected in revenue record being 2 RSA No.199 of 1987 (O&M) Jamabandi for the year 1976-77 Ex.P3 and other record being Exs. P6 to P.8. The defendant was in unauthorized possession and thus, the plaintiff on the basis of his proved title could recover possession. It was further observed that exchange was duly admitted by DW2 Jagjit Singh, Patwari and DW4 Balbir Singh, Kanungo. It was further held that Panchayat got land without encumbrance in lieu of land in illegal possession of the defendant and thus, exchange was for the benefit of the Panchayat and inhabitants of the village. 5. Finding of the lower appellate court is reproduced below:- “Ex.P1 is the sale deed dated August 19, 1980. Vide this deed Shivdev Singh plaintiff purchased land comprising rectangle No.51 killa nos.7 and 14 from Janak Raj. The sale deed has been proved by PW1 Girdhari Lal as well as by the plaintiff who appeared as PW2. The plaintiff also stated that he exchanged the purchased land with that of the Gram Panchayat. He delivered possession of his land to the panchayat. He got demarcation of the suit land effected. He came to know that the defendants had constructed houses 3 RSA No.199 of 1987 (O&M) thereon. The exchange was approved by Director Panchayats and mutation was sanctioned. Copy of the mutation is Ex.P9. The letter of the Director dated June 28, 1982 is Mark A. Copy of the jamabandi for the year 1976-77 is Ex.P3 and P6 and copies of jamabandis are Exs.P7 and P8. From the above evidence,it is sought to be established that after the exchange a mutation was sanctioned and the entries were recorded in the jamabandis. A demarcation was also taken. However, on some portion of the exchanged land defendants had already constructed houses, meaning thereby that the plaintiff did not obtain physical possession of portion of land exchanged, over which the defendants had constructed houses. On behalf of the defendants, several witnesses were produced. They also relied upon documentary evidence. Ex.D1 is the application for review of mutation. Ex.D4 is the entry from the Roznamcha. Ex.D5 is the mutation. Ex.D6 is the report of the local commissioner. Exs D7 and D8 are the copies of Aks Shajra. Exs. D9 and D10 are the copies of the jamabandis. Exs. D11 to D13 are the copies of the Khasra girdawaris. 4 RSA No.199 of 1987 (O&M) DW2 Jagjit Singh admitted that there was exchange of land between the plaintiff and the panchayat which was approved by Director Panchayat. DW4 Balbir Singh Qanungo stated about the mutation on being sanctioned regarding the exchange which was approved by the Commissioner Development and Secretary to Government, Punjab vide letter dated June 28, 1982. 4. Reliance was placed upon Rule 5 of the Punjab Village Common Lands (Regulation) rules, 1964, which as under:- ‘A Panchayat,if it is of opinion that it is necessary so to do for the benefit of the inhabitants of the village, may, with the prior approval of the Government, transfer any land in Shamlat deh by exchange with the land of an equivalent value.” A reference has been made to the decision of Punjab and Haryana High Court in “Dhaja Ram and another vs. Gram Sabha, 1971 Punjab Law Journal 751” wherein it was observed in para 8 as under:- “Before exchange of Panchayat land can be effected it is necessary for the Panchayat to apply their mind and come to the conclusion that it is for the benefit of the inhabitants of the village, and also to obtain the approval 5 RSA No.199 of 1987 (O&M) of the Government. Even then the exchange can be only with the land of an equivalent value.” The contention is that in order to hold valid the exchange between the panchayat and Shiv Dev Singh, the plaintiff, it was necessary that there should have been a resolution passed by the panchayat for effecting the change, which proposal was to be approved by the Government and the exchanged land should be of equivalent value. Unless such evidence is produced in this case, the exchange cannot be held to be valid. In my view, there is no merit in this contention. Since DW2 Jagjit Singh Patwari admitted the factum of exchange which was approved by the Government no further evidence was required to be led to make the exchange valid which otherwise was obviously for the benefit of the panchayat and inhabitants. Since the exchanged land is almost equal in area, the contention of the appellant cannot be accepted. The disputed land is in possession of the defendants who had encroached upon the panchayat land and now by exchange the panchayat got the land without encumbrance which is obviously beneficial to the panchayat and inhabitants of the village. Since the 6 RSA No.199 of 1987 (O&M) factum of approval of the Government for this exchange was admitted, it was not necessary to prove letter mark A written by the Director giving approval to the exchange effected by the panchayat.” 6. Learned counsel for the appellant has proposed following substantial question of law:- “Whether the land could be exchanged by the Panchayat without passing a resolution stating therein that it was for the benefit of inhabitants of the village and that the same was done with the prior approval of the Government?” 7. Learned counsel for the appellants submits that there being no resolution of the Panchayat mentioning that exchange was for benefit of inhabitants of the village and the same had been done with the prior approval of the Government, the exchange was void. He places reliance on judgment of this Court in Dhaja Ram (supra). 8. Learned counsel for the plaintiff supports the impugned finding and submits that there was due compliance of Rule 5 of the Rules, as held by the lower appellate court. Predecessor of the plaintiff from whom the 7 RSA No.199 of 1987 (O&M) plaintiff purchased the suit property acquired title to the suit land by way of exchange from the Panchayat and he gave his own land to the Panchayat which was duly approved by the Director, Panchayats. The benefit to the Panchayat and inhabitants was patent from the fact that Panchayat got vacant land in lieu of land which was unauthorisedly occupied by the appellant. The approval by the Director which was duly proved by official witnesses clearly established that there was compliance with the procedural provisions and exchange was for benefit of the Panchayat. He relies upon Illustration (e) to Section 114 of the Evidence Act and submits that once there was approval by the competent authority for which document was on record, passing of resolution could be presumed. He submits that in these circumstances, judgment of this Court in Dhaja Ram (supra) was distinguishable, as held by the lower appellate court. In Dhaja Ram (supra), there was no application of mind by the Panchayat that exchange was for the benefit of the inhabitants of the village and exchange was allowed without any application of mind. Judgment is, thus, clearly distinguishable. 8 RSA No.199 of 1987 (O&M) 9. I have considered the rival submissions. 10. It remains undisputed that the plaintiff purchased the suit land from one Janak Raj who gave his land to the Panchayat by way of exchange for land of the panchayat which was in possession of the defendants. The exchange was duly recorded in revenue record and was duly approved by the competent authority. Exchange was for the benefit of the Panchayat and inhabitants. Plaintiff acquired valid title and appellant was in unauthorized possession. Decree for possession in favour of the appellant is valid. 11. In view of undisputed facts on record, the question proposed cannot be held to be substantial question of law. 12. The appeal is dismissed. November 5, 2009 (Adarsh Kumar Goel) ‘gs’ Judge 9