IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No. 20874 of 2010 ( O&M ) DATE OF DECISION : 21.09.2011 Chattar Singh and others .... PETITIONERS Versus State of Haryana and others ..... RESPONDENTS CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE ARVIND KUMAR Present: Mr. Mahavir Sandhu, Advocate, for the petitioner. * * * SATISH KUMAR MITTAL , J. The petitioners have filed the instant petition under Articles 226/227 of the Constitution of India for quashing the order dated 21.10.2008 (Annexure P-5), passed by the Collector, Jind, whereby the suit filed by the petitioners under Section 13-A of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as `the Act') for declaring them as owners in possession of the land in dispute, was dismissed; as well as the orders dated 26.5.2009 (Annexure P-6) and 15.9.2010 (Annexure P-7), passed by the Commissioner, Hisar Division, Hisar, and the Financial Commissioner, Haryana, respectively, whereby the appeal and revision, filed by the petitioners against the aforesaid order have CWP No. 20874 of 2010 -2- been dismissed. The petitioners claim that they are proprietors of the village and the land in dispute is the land of Jumla Malkan of the village, which is in their possession since 26.1.1950, and vide judgment and decree dated 17.6.1971, passed by the civil court, they were declared owners of the same, on the basis of which mutation No. 478 was sanctioned in their favour. Therefore, they are owners of the land in dispute. It is the further case of the petitioners that on an application filed by the Gram Panchayat under Section 13-A of the Act, the Assistant Collector Ist Grade, Jind, vide order dated 6.6.1975, wrongly set aside the aforesaid civil court decree dated 17.6.1971, holding that the same was without jurisdiction, and on the basis of the aforesaid order, the mutation was wrongly sanctioned in favour of the Gram Panchayat. In the suit filed by the petitioners under Section 13-A of the Act, a prayer was made that the order of the Assistant Collector Ist Grade be set aside and they be declared owners in possession of the disputed land. Vide order dated 21.10.2008 (Annexure P-5), the Collector dismissed the said suit, while coming to the conclusion that the earlier order dated 6.6.1975, passed by the Assistant Collector Ist Grade, setting aside the decree of the civil court, has become final, as the petitioners did not file any appeal against the said order, therefore, the petitioners are not entitled to file the suit for declaration of ownership. The second issue as to whether the land in dispute falls within the definition of shamilat deh, has also been decided against the petitioners, while holding that they have failed to CWP No. 20874 of 2010 -3- produce any documentary evidence to show that the land in dispute does not vest in the Gram Panchayat, and their case falls under any of the exceptions, as provided in clauses (i) to (ix) of Section 2 (g) (5) of the Act. Feeling aggrieved against the said order, the petitioners filed appeal before the Commissioner, which was also dismissed vide order dated 26.5.2009 (Annexure P-6). In the order, it has been mentioned that on the file of the Collector, copy of jamabandi for the year 1951-52 is available, according to which the land in dispute was Shamilat Deh Raqba Khewat and as per Section 2 (g) (1) read with Section 4 (1) (a) of the Act, such land vests in the Gram Panchayat. It has also been observed that prior to consolidation, vide mutation No. 263 dated 25.11.1955, the land in dispute was mutated in favour of the Gram Panchayat. Therefore, it was held that the Collector has rightly dismissed the suit filed by the petitioners. Against the aforesaid order, the petitioners filed revision petition, which has been dismissed by the Financial Commissioner vide order dated 15.9.2010, while making the following observations : “4. I have heard both the learned counsels at length and gone through the record available on the file. The entries in the revenue record prior to the commencement of the shamilat law, the relevant date i.e. on 9th January, 1954 are relevant to determine the nature of the land. In the present case, the petitioners have placed on record the jamabandis for the years 1939-40 and 1947-48 and have claimed that these jamabandis are pertaining to the land in question. In these jamabandis, the land is recorded as Shamilat Deh Hasab Rasad Raqba Khewat CWP No. 20874 of 2010 -4- in the column of ownership and maqbooja malkan in the column of cultivation. The contention of the learned counsel for the petitioners to the effect that the land in question is thola shamilat is devoid of any merit and hence the case laws referred by the learned counsel do not applicable to the fact of the present case. On the other hand, the rulings reported as 1977 PLJ 150 and 2006 (4) RCR (Civil) 150, supports the contention of the learned counsel for the respondent that if the land is recorded as Shamilat Deh Hasab Rasad Raqba Khewat, it is Shamilat Deh and vests in the Panchayat in terms of Section 4 (1) (a) of the 1961 Act. The terms `Shamilat Deh Hasab Rasad Raqba Khewat' means “the share of the proprietors in the Shamilat Deh land is to the extent of the share of their holding in the Khewat”. However, the nature of such land remains to be `Shamilat Deh' unless a partition or exclusive individual cultivating possession of a proprietor on a particular piece of land not exceeding to his share in the Shamilat Deh is established in terms of Section 2 (g) (iii) of the Act. Such land cannot be taken out of the definition of Shamilat Deh. Mere entry of Shamilat Deh Hasab Rasad Raqba Khewat in jamabandi is not enough to detract from its nature. The entry of “Shamilat Deh” in the revenue record is enough to bring the disputed land within the definition of “shamilat deh” contemplated by sub-clause (1) of clause (g) of section 2 of the Punjab Village Common Lands (Regulation) Act, 1961 and need not to be proved that it was earmarked or being utilized for common purpose of the village. 5. The judgment and decree dated 17.6.1971 passed by the Civil Court was a collusive decree and was set aside by the Assistant Collector Ist Grade having jurisdiction under section CWP No. 20874 of 2010 -5- 13A of the Act at the relevant time i.e. 6.6.1975. The order passed by the Assistant Collector Ist Grade was not assailed by the petitioners. Therefore, the claim of the petitioners over the land in dispute on the basis of judgment and decree dated 17.6.1971 is devoid of any merit. The land in question has never remained in the individual cultivating possession of the petitioners according to their share in shamilat deh and hence, it could not be proved on record that the land in question falls under any of the deception clauses of section 2 (g) (5) of the Act. Rather, it being recorded shamilat deh falls within the ambit of section 2 (g) (1) of the Act and hence vests in the Gram Panchayat as per provisions contained under section 4 (1) (a) of the Act. There is nothing on record in favour of the petitioners to warrant interference with the impugned orders. Therefore, there being no merit in the present revision petition, the same is dismissed.” We have heard learned counsel for the petitioners and have gone through the aforesaid orders. During the course of arguments, learned counsel for the petitioners put much reliance on the judgment and decree dated 17.6.1971, passed by Senior Sub Judge, Jind, regarding the land in dispute. It has been argued that the said judgment and decree could not have been set aside by the Assistant Collector Ist Grade, while deciding the application filed by the Gram Panchayat under Section 13-A of the Act. Therefore, on the basis of the said order, the Gram Panchayat cannot assert its ownership on the land in dispute. The aforesaid contention of learned counsel for the petitioners CWP No. 20874 of 2010 -6- cannot be accepted for three reasons. Firstly, the civil court has no jurisdiction to decide the questions whether any land is or is not shamilat deh and whether such land vests in the Gram Panchayat or not. Section 13 of the Act, clearly baring the jurisdiction of the civil court, reads as under : “13. Bar of Jurisdiction – No civil court shall have jurisdiction :- (a) to entertain or adjudicate upon any question whether - (i) any land or other immovable property is or is not shamilat deh; (ii) any land or other immovable property or any right, title or interest in such land or other immovable property vests or does not vest in a Panchayat under this Act; (b) in respect of any matter which any revenue court, officer or authority is empowered by or under this Act to determine; or (c) to question the legality of any action taken or matter decided by any revenue Court, officer or authority empowered to do so under this Act.” Secondly, the said civil court decree was not passed on merits. It was based upon the admission of the Sarpanch, who was in collusion with the petitioners. Thirdly, the petitioners were party before the Assistant Collector Ist Grade and after hearing them, the order dated 6.6.1975, setting aside the judgment and decree dated 17.6.1971 of the civil court, was passed. The said order was never challenged by the petitioners. Therefore, now they cannot agitate that on the basis of the said order, the Gram Panchayat cannot be claim ownership of the disputed land. It is pertinent to mention here that CWP No. 20874 of 2010 -7- vide order dated 6.6.1975, while allowing the application under Section 13-A of the Act, filed by the Gram Panchayat, the Assistant Collector Ist Grade, after setting aside/ignoring the civil court decree, declared the Gram Panchayat as owner of the disputed land. In spite of this, now in the title suit filed by the petitioners under Section 13-A of the Act, on the basis of the revenue record, it has been decided that the land in dispute falls under the definition of shamilat deh and the same vests in the Gram Panchayat and the petitioners have failed to prove that their case falls under any of the exceptions, provided in clauses (i) to (ix) of Section 2 (g) (5) of the Act. Undisputedly, in the revenue record, as discussed in detail by the Financial Commissioner (quoted above), prior to the year 1950 and thereafter, in the column of ownership, the land in dispute was recorded as Shamilat Deh Hasab Rasad Raqba Khewat and in the column of cultivation, it was recorded as Maqbooja Malkan. As per section 2 (g) (1) of the Act, such land vests in the Gram Panchayat, provided it does not fall under any of the exceptions, as mentioned in clauses (i) to (ix) of Section 2 (g) (5) of the Act. During the course of arguments, learned counsel for the petitioners submitted that case of the petitioners falls under clauses (iii) and (viii) of Section 2 (g) (5) of the Act. These clauses read as under : “shamilat deh does not include the 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 CWP No. 20874 of 2010 -8- being in excess of their respective shares in such shamilat deh on or before the 26th January, 1950.” For bringing the case under clause (iii), the petitioners have to prove that the shamilat land has been partitioned and brought under their individual cultivation before 26th January, 1950; and under clause (viii), they are required to prove that the shamilat deh was assessed to land revenue and has been in their individual cultivating possession being co-sharers not exceeding to their respective shares in such shamilat deh on or before the 26th January, 1950. But the petitioners did not produce any documentary evidence in the shape of revenue record, which reflect this position. A finding of fact has been recorded by the authorities below that the petitioners, who claim themselves to be proprietors of the village, have failed to prove their individual cultivating possession being co-sharers not in excess of their respective shares in the land in dispute on or before 26th January, 1950. It has also been held by the authorities below that keeping in view the nature of the disputed land, the mutation was sanctioned long back and subsequently, the mutation in favour of the petitioners was changed only on the basis of the civil court decree, which was subsequently set aside by the Assistant Collector Ist Grade and thereafter, the mutation in favour of the Gram Panchayat was sanctioned. In view of the aforesaid factual and legal position, in our opinion, the suit filed by the petitioners under Section 13-A of the Act for declaring them as owners of the disputed land has been rightly dismissed by CWP No. 20874 of 2010 -9- the authorities under the Act. We do not find any reason to interfere in the impugned orders. No merits. Dismissed. ( SATISH KUMAR MITTAL ) JUDGE September 21, 2011 ( ARVIND KUMAR ) ndj JUDGE ( Refer to Reporter )