IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No. 17257 of 2011 DATE OF DECISION : 16.09.2011 Amargir .... PETITIONER Versus State of Punjab and others ..... RESPONDENTS CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE ARVIND KUMAR Present: Mr. Nandan Jindal, Advocate, for the petitioner. * * * SATISH KUMAR MITTAL , J. Petitioner Amargir has filed this petition under Articles 226/227 of the Constitution of India for quashing the order dated 5.10.2009 (Annexure P-9), passed by the Collector, Patiala (respondent No.3), whereby the petition/suit filed by the petitioner under Section 11 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as `the Act'), declaring him owner of the land in dispute has been dismissed; and the order dated 10.12.2010 (Annexure P-10), passed by the Commissioner, Mohali (respondent No.2), whereby the appeal filed by the petitioner against the aforesaid order has been dismissed. Besides this petition, two other similar petitions (CWPs No. CWP No. 17257 of 2011 -2- 17291 and 17363 of 2011), challenging the orders of the Collector and the Commissioner, have been filed, and the same are being disposed of separately. In this case, earlier vide order dated 30.11.2004, petition/suit of the petitioner was dismissed by the Collector and the said order was upheld in appeal by the Commissioner. However, vide order dated 12.11.2008, passed by this Court in a writ petition, both the orders were set aside and the matter was remanded to the Collector with a direction to first frame the issues and then decide the petition/suit filed by the petitioner, in accordance with law. Thereafter, on the pleadings of the parties, the Collector framed issues, recorded evidence and after considering the evidence, dismissed the petition/suit of the petitioner, vide order dated 5.10.2009, copy of which has been annexed as Annexure P-9. The said order was upheld by the Commissioner. Feeling aggrieved against both these orders, the instant petition has been filed by the petitioner. We have heard learned counsel for the petitioner and have gone through the impugned orders. In this case, three material issues, i.e. regarding the continuous cultivating possession of the petitioner over the land in dispute prior to 26.1.1950; regarding the nature of land, whether it was banjar qadim at the time when the Shamlat law came into force; and whether the petitioner was a lessee of the Gram Panchayat on the land in dispute, have been decided against the petitioner. On first issue, it was held that the petitioner has failed CWP No. 17257 of 2011 -3- to prove that he is in individual cultivating possession of the land in dispute prior to 26.1.1950. It was further held that possession of the petitioner for the first time was shown in the revenue record in the year 1990-91. In the jamabandis for the year 1946-47 and 1952-53, the land in dispute was shown under the ownership of Shamlat Hasab Rasad Zare Khewat and in the column of cultivation, Makbuja Malkan is recorded. The authorities below have held that there is no evidence on record, which proves the individual cultivating possession of the petitioner on the land in dispute on or before 26.1.1950. Regarding the nature of land, it has been held by both the authorities below that in the jamabandis for the years 1960-61 and 1970- 71, the land was shown as `Charand' (a common purpose). On the third issue, it has been held by the authorities below that in the year 1990-91, possession of the petitioner was first entered as lessee. Learned counsel for the petitioner argued that both the authorities below have illegally decided the case against the petitioner, without referring to any provision of Section 2 (g) of the Act and without coming to the conclusion as to how the Gram Panchayat became owner of the land in dispute. Merely because the petitioner has failed to prove his individual cultivating possession, it cannot be held that he is not owner of the land in dispute. According to the learned counsel, both the authorities below are required to hold how the Gram Panchayat has become owner of the disputed land. This contention of learned counsel for the petitioner is not CWP No. 17257 of 2011 -4- acceptable. It is a title suit, filed by the petitioner under Section 11 of the Act. He claimed ownership on the land in dispute. Therefore, onus is on him to prove how he is owner of the land in dispute. In the revenue record, name of the Gram Panchayat has been recorded in the column of ownership. Now, it is for the petitioner to establish that the land in dispute does not fall under the definition of `shamilat deh' and it does not vest in the Gram Panchayat. He has to prove that the instant case falls under any of the exceptions of Section 2 (g) of the Act, where the land is presumed to be `shamilat deh'. It has been argued by learned counsel for the petitioner that at one point of time, the land in dispute was described as banjar qadim, therefore, it does not fall under the definition of `shamilat deh'. This contention is devoid of any force, because the authorities below, while referring to the revenue record, have categorically found that the land in dispute is being used for `Charand', which is a common purpose of the village and thus, as per Section 2 (g) (5) of the Act, such land falls under the definition of `shamilat deh' and under Section 4 of the Act, it vests in the Gram Panchayat. This Court in Shingara Singh v. Collector, Kurukshetra, 1993 PLJ 211, Bachna and others v. State of Haryana and others, 2003 (2) PLJ 138 and Kallattar Singh (since deceased) through L.R.s and others v. The Commissioner, Ambala Division, Ambala, 2011 (1) RCR (Civil) 158, has held that if as per the revenue record, the land is being used as `Charand', then such land falls under the definition of `shamilat deh' and vests in the Gram Panchayat. Regarding the exceptions, the petitioner could bring his CWP No. 17257 of 2011 -5- case under clause (viii) of Section 2 (g) (5) of the Act, which provides that the shamilat deh does not include land which `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'. In this case, as a matter of fact, it has been found by both the authorities below that the petitioner has failed to prove his individual cultivating possession on the land in dispute on or before 26.1.1950. Secondly, there is no evidence on record to the effect that the petitioner was co-sharer in the shamilat deh and if so, what was his share. Therefore, case of the petitioner cannot fall under clause (viii) of Section 2 (g) (5) of the Act. It has also been proved that the petitioner entered into possession of the land in dispute as lessee of the Gram Panchayat and it is well settled position of law that a lessee/tenant cannot question title of his landlord [See Kuldip Singh and others v. Gram Panchayat, Pehar Kalan, Tehsil Rajpura and others, 2005 (4) RCR (Civil) 93 (D.B.)]. Thus, in our opinion, both the authorities below have committed no illegality in passing the impugned orders, rejecting the claim of the petitioner on the land in dispute. No merits. Dismissed. ( SATISH KUMAR MITTAL ) JUDGE September 16, 2011 ( ARVIND KUMAR ) ndj JUDGE