IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH LPA No.1473 of 2011(O&M) Date of decision: 06.09.2011 Ram Kumar and others …..Appellants versus Gram Panchayat, Bhil Chhapar and others ……Respondents CORAM: Hon’ble Mr.Justice Jasbir Singh Hon’ble Mr.Justice Augustine George Masih Present: Mr.S.D.Sharma, Senior Advocate with Mr.Anupam Sharma, Advocate for the appellants Jasbir Singh, J. (Oral) This appeal has been filed against an order dated 19.5.2010, vide which, CWP No.2456 of 1989, filed by the appellants was dismissed. Further challenge is to an order dated 2.2.2011, vide which, application for review of the above order was dismissed by the learned Single Judge. Record reveals that one Dwarka Dass – respondent No.3 filed an application under Section 13-A of the Punjab Village Common Lands (Regulation) Act, 1961, as applicable to the Haryana. It was his case that the appellants are in unauthorized occupation of the Gram Panchayat’s land and they be declared as such. The Assistant Collector Ist Grade, Jagadhari, after getting response from the respondents framed the following issues to decide lis between the parties:- LPA No.1473 of 2011(O&M) “1. Whether the land in dispute is shamilat Deh and whether it vests in the Gram Panchayat? OPP 2. Whether this land is used as Goa Charand for the residents of this village? 3. Whether the defendants are in possession of the land in dispute as co-sharer/ owner? OPD 4. Whether the suit is not competent to proceed? OPD 5. Whether the suit is not competent to proceed because of leaving the necessary party to the suit? OPD 6. Whether the plaintiff has no locus standi to file this suit? OPD 7. Relief.” Thereafter, ample opportunity was given to both the parties to produce evidence on record and on conclusion thereof, it was found, as a matter of fact, that possession of the appellants starts only from the year 1980-81 and averment made by them that they were in possession, as co-sharers, in the land, in dispute since before 26.1.1950 was not correct. After making reference to the evidence on record, the Assistant Collector Ist Grade observed as under when deciding issue No.1 against the appellants:- “Issue No.1: The case of the plaintiff is that the land in dispute is shamilat Deh and vests in the Panchayat and the case of the defendants is that the land in dispute is Hasab Rasad Khewat and they are in its possession being share holders owners and Gram Panchayat had nothing to do with it. It is clear from the record that as per the Jamabandi for 1980- 81 Ex.D2, the land in dispute is owned by shamilat Deh Hasab 2 LPA No.1473 of 2011(O&M) Rasad Khewat and in the column of cultivation in Khatauni 66 and the possession of the Panchayat is recorded of 92 kanals 2 marlas min. rest in Khatauni 67, possession of Teja Ram is recorded on 1K- 0 Marlas Khatauni No.68 the possession of Bharu is recorded 015 Marlas and in Khatauni 69, possession of Banarsi Dass and others is recorded of 29 K 5 marlas as non-occupancy tenants. In khasra girdawari the possession of Teja, Bhartu, Banarsi Dass and this is recorded from the year 1981 of Khasra No.26 as non-occupancy tenants as it is clear from the copy of the khasra girdawari Ex.D2 and D/3, the Gram Panchayat vide his resolution dated 28.3.78 has given this land in dispute on lease for one year to Faqir Chand. That it is clear from Ex.P/2/2 that the legal possession is that as per section 4(3)(2) of the above mentioned Act, if the possession of any person is for 12 years prior to enforcement of the Act i.e. before 1948-49 and the occupant is not paying any Batai. This possession of land is legal. In this case the defendant has proved their possession only from 1981-82 which is clear from the copy of the khasra girdawari Ex.D/2 & D/3. As per oral evidence produced by the defendants, their possession is proved at the maximum for 15-16 years, but the possession is required from the last 37 years which has not been proved by the defendants. With the assertion of the defendants that Gram Panchayat has nothing to do with this land is wrong because the Panchayat is in possession of 96K-2 Mrs of land. The possession of defendant is recorded as non-occupancy tenants 3 LPA No.1473 of 2011(O&M) from 1980-81 but their possession is illegal because they have not recorded of tenancy and none less their plea of ownership false because they have produced Ex.D2 and D/3 in which non-occupancy tenancy is recorded. Under Section 2(g)(viii) if any body alleged himself to be owners as co-sharers in shamilat deh, he has to prove that his possession is before 26.1.50 and he has also to prove that his possession is not more than his share in the shamilat Deh. In this case, as it has already come that the possession of the defendants are only from 1980-1981 and they have not proved any where as to show much land they are entitled as per their share and they are not in possession more than their shares in shamilat and hence their possession cannot be kept intact under section 2(g) (viii) of the Act. Under Section 2(g)(viii) of the above mentioned Act only the land which is used for the common purpose of the village comes in the definition of shamilat deh and vests in the Gram Panchayat. In this case, Gram Panchayat gives the land in dispute on lease and the money received from this lease is spent of the benefit of village. Therefore, the land in dispute is to be considered as Shamilat Deh. The owners right holders are not proved to be its owners in any manner. In column No.4 of the Jamabandi, it is mentioned as Shamilat hasab Rasad Khewat. Entries in Jamabandi has presumption of truth but this presumption is not conclusive but rebuttable. In this case it is clear from the resolution of the Panchayat and from the witnesses produced 4 LPA No.1473 of 2011(O&M) by the Panchayat that the land in dispute is used by the common man and it vests in the Pancyayat being shmilat deh. And the possession of the defendants is not proved as owners. Hence issue No.1 is decided in favour of the plaintiff.” Other issues were also accordingly decided. Application filed by respondent No.3 was allowed. Appellants went in appeal, which was dismissed. Thereafter, they filed the above said writ petition, which was also dismissed by the learned Single Judge by holding that once, the appellants have failed to prove that their possession is before 26.1.1950, they cannot claim title in the land, in dispute. At the time of arguments, Mr.Sharma has vehemently contended that possession of the appellants was before the above said date. We are not ready to accept above said argument because in application moved by the appellants themselves for correction of khasra girdawari in the year 1978, it was specifically stated by them that they are in possession of the land since the time of consolidation and had made it cultivable in the year 1977-78 only. This fact is recorded at page No.63 of the paper book by the Tehsildar when deciding application for correction of khasra girdawari vide order dated 24.5.1979. Only correction was made with regard to the cultivation column in khasra girdawari and not with regard to the ownership. No case is made out for interference. Dismissed. (Jasbir Singh) Judge 5 LPA No.1473 of 2011(O&M) 06.09.2011 (Augustine George Masih) gk Judge 6