IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. L.P.A. No. 1887 of 2011 ( O&M ) DATE OF DECISION : 22.11.2011 Dalip Singh and another .... APPELLANTS Versus Commissioner, Ambala Division, Ambala and others ..... RESPONDENTS CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE PARAMJEET SINGH Present: Mr. Ravinder Hooda, Advocate, for the appellants. * * * SATISH KUMAR MITTAL, J. Appellants Dalip Singh and Pirtho, who are sons of late Fakiria, have filed the instant Letters Patent Appeal against the order dated 15.3.2011, passed by the learned Single Judge, whereby the writ petition (CWP No. 7936 of 1988) filed by the father of the appellants (who died during the pendency of the writ petition) challenging the orders dated 7.2.1985; 20.5.1986 and 20.11.1987 (Annexures P-1; P-2 and P-3), passed by the Assistant Collector Ist Grade, Sonepat; the Collector, Sonepat; and the Commissioner, Ambala Division, Ambala, respectively, rejecting the claim of ownership of the father of the appellants over the land in question measuring 37 kanalas 4 marlas, situated in village Sisana, District Sonepat, LPA No. 1887 of 2011 -2- has been dismissed. We have heard learned counsel for the appellant and perused the impugned order as well as the orders passed by the authorities below. In this case, the land in dispute, admittedly, belongs to “Thola Rupa”. As per the Sharat Wajib-ul-Aarz, the disputed land was used for “Gau Charand”, which is a use for general public of the village. Keeping in view these factors, mutation of the land in dispute along with other land was sanctioned in the name of the Gram Panchayat vide mutation No. 2399 dated 2.6.1962. In the year 1984, some proprietors of “Thola” filed a title suit under Section 13-A of the Punjab Village Common Lands (Regulation) Act, 1961 (As Applicable to Haryana) (hereinafter referred to as `the Act') in a representative capacity. In the said suit, Fakiria (father of the appellants) was impleaded as defendant No.4, who claims ownership and possession of the land in dispute. It was the case of the proprietors that land belongs to “Thola Rupa Pana Kaslan” and they are co-sharers in the said Pana and in possession of the land. Therefore, this land does not vest in the Gram Panchayat under the Act, and the mutation sanctioned in favour of the Gram Panchayat was illegal. In that suit, various issues, including the following two issues, were framed : “Whether the mutation No. 2399 dated 2.6.62 as per grounds of suit, is against law and liable to be cancelled? Whether Faquira – defendant is owner and in possession of land measuring 37 Kanals – 4 Marlas ? If so, what is its effect? After taking evidence of both the parties, vide order dated 7.2.1985 LPA No. 1887 of 2011 -3- (Annexure P-1), a finding of fact was recorded by the Assistant Collector to the effect that the land measuring 37 kanals 4 marlas (land in dispute) is “Gau Charand” (pasture) and according to the Sharat Wajib-ul-Aarz, it is being used for common purposes of the village. A finding was further recorded that the plaintiffs (proprietors) and respondent No.4 Fakiria (father of appellants), who claimed to be Biswedars of Thola Rupa, have failed to prove their continuous cultivating possession on the land in dispute on or before 9.1.1954, therefore, as per Section 2 (g) of the Act, the land belongs to the Gram Panchayat and the mutation was rightly sanctioned in favour of the Gram Panchayat. Feeling aggrieved against the said order, Fakiria (father of the appellants) and proprietors (plaintiffs in the title suit) filed separate appeals before the Collector, Sonepat, which were dismissed vide order dated 20.5.1986 (Annexure P-2) and the findings recorded by the Assistant Collector were confirmed. The revision petitions, filed by the father of the appellants and proprietors of “Thola Rupa”, were also dismissed by the Commissioner vide order dated 20.11.1987 (Annexure P-3). These orders were challenged by father of the appellants in the aforesaid writ petition. During the pendency of the petition, father of the appellants died and the appellants were impleaded as his legal representatives. The learned Single Judge, vide the impugned order dated 15.3.2011, dismissed the writ petition, after coming to the conclusion that even though the land was belonging to “Thola Rupa”, but the same was LPA No. 1887 of 2011 -4- being used as “Gau Charand”, which is a common purpose of the village. Thus, in view of Section 2 (g) (3) of the Act, such land falls under the definition of Shamilat Deh and vests in the Gram Panchayat. A contention was raised by the appellants before the learned Single Judge that mere entry in the Sharat Wajib-ul-Aarz is not a proof that the land in dispute is being used as “Gau Charand” (pasture). Learned Single Judge, while referring to Section 31 (2) of the Punjab Land Revenue Act, 1887, has held that Sharat Wajib-ul-Aarz is also a revenue document and the same can be relied upon in order to ascertain that the land in dispute was being used for “Gau Charand” which is used for the benefit of the village community. In this appeal, learned counsel for the appellants tried to impress upon this Court that the finding with regard to the use of the land in dispute as “Gau Charand” is perverse. He argued that even if some portion of the land is being allowed to be used as grazing ground, that itself will not make Gram Panchayat as owner of the land. He further argued that Section 2 (g) (3) of the Act is not attracted, as the land in dispute is not Shamilat Deh, as in the jamabandis for the years 1941-42 and 1945-46, it is entered as “Malkite Shamlat Panna, Kaslam Hosal, Paimana Malkiat” which clearly indicates that the land in dispute is not Shamilat Deh. The contentions raised by learned counsel for the appellants are wholly devoid of any merit. Section 2 (g) (3) of the Act provides that “shamilat deh” includes lands described in the revenue records as shamilat, tarafs, pattis, pannas and tholas and used according to revenue records for LPA No. 1887 of 2011 -5- the benefit of the village community or a part thereof or for common purposes of the village. It has not been disputed either before the authorities below or before this Court that the land in dispute was belonging to panna. A finding of fact has been recorded by the authorities below, which is based upon the revenue documents, i.e. Sharat Wajib-ul-Aarz, and has been affirmed by the learned Single Judge, that the land in dispute was being used as “Gau Charand” which, undisputedly, is a common purpose of the village. The appellants themselves in para 4 of the grounds of appeal have admitted that proprietors of this land had left some portion of the land, which was un-cultivable, for purposes of grazing their cattle, and with the passage of time, other residents of the village also started using this grazing portion for grazing their cattle. Not only this, as discussed above, in the Sharat Wajib-ul-Aarz, it has been recorded that the proprietors have left this land for grazing the cattle, where all the residents of the village have right to graze their cattle. As per Section 2 (g) (3) of the Act, even if the land belongs to pannas and tholas and is being used for common purpose of the village, it falls under the definition of shamilat deh and vests in the Gram Panchayat. A finding has also been recorded by the authorities, which has not been assailed before this Court, that the appellants have failed to prove their individual cultivating possession prior to 9.1.1954. Therefore, case of the appellants neither falls under any of the exceptions as provided in exceptions (iii) and (viii) of Section 2 (g) (5) of the Act, nor they can claim de-vesting of the land in dispute from the Panchayat under Section 4 (3) (ii) of the Act. Exceptions (iii) and (viii) of Section 2 (g) (5) of the Act read as LPA No. 1887 of 2011 -6- under : “Shamilat deh” does not include land which - (iii) has been partitioned and brought under cultivation by individual landholders before the 26th January, 1950; (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 or or before the 26th January, 1950. Clause (ii) of Section 4 (3) of the Act 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.” Thus, we do not find any illegality or perversity in the impugned order, passed by the learned Single Judge, as well as the orders passed by the authorities under the Act. No merits. Dismissed. ( SATISH KUMAR MITTAL ) JUDGE November 22, 2011 ( PARAMJEET SINGH ) ndj JUDGE