IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Letters Patent Appeal No.1028 of 2010 Date of decision: 23.8.2010 Surjeet and others …..Appellants versus State of Haryana and others ……Respondents CORAM: Hon’ble Mr.Justice Jasbir Singh Hon’ble Mr.Justice Augustine George Masih Present: Mr.Vinod Bhardwaj, Advocate for the appellants Jasbir Singh, J. (Oral) By filing this appeal, challenge has been laid to an order passed by the learned Single Judge on 9.7.2010, dismissing CWP No.15466 of 2008, filed by the appellants. As per facts on record, the Gram Panchayat- respondent No.7 filed an application under Section 7 of the Punjab Village Common lands (Regulation) Act, 1961 (in short, the Act) before the Collector, for ejectment of the appellants from the land measuring 23 kanals 2 marlas, comprised in Khewat No.168 min. Khatauni No.348/304 min., khasra No.63/21, 70/1, 10/1 as per Jamabandi for the year 1996-97. Upon notice by the Collector, reply was filed by the appellants, claiming therein that they are the co-sharers and on account of their long possession, they had become owners of the land, in dispute. They failed to prove the above said fact. The Collector allowed application of the Gram Panchayat, ordering their ejectment. They failed in appeal. The learned Letters Patent Appeal No.1028 of 2010 Single Judge dismissed the writ petition filed by them by observing as under:- “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. 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 2 Letters Patent Appeal No.1028 of 2010 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 "selfcultivation" 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 dispute is not Shamilat deh”. It was rightly noticed by the learned Single Judge that the appellants have failed to prove that they were in cultivating possession over the land in dispute before the year 1950. Before us, an attempt has been made by the appellants to prove that the appellants were in cultivating possession of the land before the year 1950 by making reference to 3 Letters Patent Appeal No.1028 of 2010 Jamabandi for the year 1945-46 (P9). We are unable to accept the contention raised by the appellants because above said Jamabandi was not produced before the Collector and even thereafter. Otherwise also, the Jamabandi is for the year 1945-46 and it pertains to the land falling in khasra No.5 min. The appellants have failed to bring anything on record to correlate the land, in dispute with the land regarding which ejectment application was filed against them. No case is made out for interference. Dismissed. (Jasbir Singh) Judge 23.08.2010 (Augustine George Masih) gk Judge 4