In the High Court of Punjab and Haryana at Chandigarh ...... C.W.P. No.20563 of 2008 ..... Date of decision:20.7.2009 Jaleb Khan and others .....Petitioners v. Commissioner, Gurgaon Division, Gurgaon and others .....Respondents .... Present: Mr. Sachin Mittal, Advocate for the petitioners. ..... S.S. Saron, J. The petitioners aggrieved against the order dated 18.10.2007 (Annexure-P.5) passed by the Commissioner, Gurgaon Division, Gurgaon (respondent No.1) and the order dated 27.12.2006 (Annexure-P.3) passed by the District Collector, Mewat/Nuh have filed the present petition under Articles 226/227 of the Constitution of India seeking quashing of the said orders. The Gram Panchayat, Agon (respondent No.3) filed an application under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (as applicable in Haryana) (`Act' – for short) seeking eviction of the land measuring 136 Kanals 5 Marlas as detailed in the order dated 11.8.2004 (Annexure-P.1) passed by the Assistant Collector Ist Grade, Ferozepur Zhirka. It was alleged that the petitioners and their predecessor- in-interest were in unauthorized possession of the said land after expiry of the lease. The application of the Gram Panchayat (respondent No.3) was dismissed by the Assistant Collector Ist Grade, Ferozepur Zhirka vide order C.W.P. No.20563 of 2008 [2] dated 31.8.2004. It was observed on the basis of evidence and statements recorded that the petitioners had proved from the revenue record that they were in cultivation Billa Lagan. Therefore, it was observed that the land does not fall under Section 7(2) of the Act. The Gram Panchayat, Agon aggrieved against the said order filed an appeal (Annexure-P.1) before the Collector, Gurgaon. The District Collector, Mewat/Nuh vide order dated 27.12.2006 (Annexure-P.3) accepted the appeal and set aside the order dated 31.8.2004 (Annexure-P.1). It was observed that the land in dispute was the property of Gram Panchayat, Agon on which the petitioners were in illegal possession. Besides, the Gram Panchayat (respondent No.3) had leased out the disputed land and Kallu, father of the petitioners had taken the land on `Patta' from the Gram Panchayat (respondent No.3) from the year 1960-61. The petitioners aggrieved against the order dated 27.12.2006 (Annexure-P.3) passed by the District Collector, Mewat/Nuh preferred a revision (Annexure-P.4) before the Commissioner, Gurgaon Division, Gurgaon which has been dismissed vide impugned order dated 18.10.2007 (Annexure-P.5). From the copies of the Jamabandis available on the file it was observed that the land in dispute was the property of the Gram Panchayat (respondent No.3). Learned counsel for the petitioners has submitted that the Gram Panchayat (respondent No.3) had earlier filed an application dated 5.11.1992 against the petitioners seeking possession of the land in question under Section 7 of the Act which was rejected vide order dated 25.1.1996 (Annexure-P.6). Therefore, the second present application was not maintainable being barred by the principle of res judicata. It is also submitted that the land in dispute was partitioned in two shares out of which C.W.P. No.20563 of 2008 [3] land measuring 48 Kanals 5 Marlas is under cultivation on `Chakota' by the petitioners and the rate of `Chakota' has never been increased. The petitioners thus have tenancy right. Besides, another portion of the land measuring 8 Kanals is in possession of the petitioners through their ancestors since 1962 till date and thus they have acquired ownership rights by way of adverse possession. The possession of the petitioners on the both the said portions of land is since the time of the consolidation and is duly reflected in the revenue records which has not been taken into consideration. It is submitted that qua the land on `Chakota', the petitioners had acquired the right of ownership being occupancy tenants and regarding the other portion they had acquired ownership rights being in adverse possession. The stand of the Gram Panchayat that the land was being leased out on yearly basis is in fact contrary to the fact that the land is in possession of the petitioners from the date of consolidation. A reference has been made to the Jamabandis for the years 1962-63 (Annexure-P.7), 1967- 68 (Annexure-P.8) and 1997-98 (Annexure-P.9). After giving my thoughtful consideration to the contentions of the learned counsel for the petitioners and perusing the record, I find no merit in the same. The Gram Panchayat, Agon (respondent No.3) filed a petition under Section 7of the Act seeking eviction of the petitioners. As per Jamabandis for the years 1962-63, 1967-68 and 1997-98 (Annexures- P.7, P.8 and P.9) respectively the ownership of the land in question is recorded in the name of Gram Panchayat. In the column of cultivation Kallu son of Kale Khan son of Chhota Khan is recorded as `Gain Marusi' in the three afore-referred Jamabandis. Therefore, the predecessor-in-interest of the petitioners having been recorded as `Gair Marusi' he cannot possibly C.W.P. No.20563 of 2008 [4] acquire the status and rights of `Marusi' (occupancy tenant) as contended by the learned counsel for the petitioners. The fact that the petitioners acquired rights of ownership being an occupancy tenant is clearly misconceived. The contention that in view of the order dated 25.1.1996 (Annexure-P.6) whereby the earlier application under Section 7 of the Act has been dismissed and the said order operates as res judicata is also devoid of merit. A perusal of the order dated 25.1.1996 shows that the petition filed by the Gram Panchayat, Agon under Section 7 of the Act was dismissed in default. The order records, the case called. The applicant, respondent and their counsel were not present. It appears that applicant, respondent and their counsel did not want to pursue with the case. Therefore, the file was ordered to be consigned to record room for non- prosecution. There is no specific order dismissing the petition but the file was ordered to be consigned to the record room for non-prosecution but the intent is that it was dismissed for non-prosecution. Therefore, nothing was decided in the previous litigation which would operate as res judicata between the parties. It is not shown by the learned counsel for the petitioners that the filing of subsequent petition is, in any manner, barred. The contention that the land is in two portions; one measuring 48 Kanals 5 Marlas which is on `Chakota' and the other measuring 8 Kanals which is in possession of their ancestors since 1962 is also devoid of merit. In all the Jamabandis as referred to above , as already noticed, Kallu the predecessor-in-interest was recorded as `Gair Marusi' and, therefore, the petitioners can not deny the right of ownership of the Gram Panchayat. Nothing has been shown that the petitioners had acquired ownership rights by way of adverse possession or that their possession over the land is since C.W.P. No.20563 of 2008 [5] the time of consolidation which is duly reflected in the revenue records. The petitioner and their predecessor-in-interest came in possession of the land as lessees. Therefore, being lessees they are estopped from denying the title and claim of the lessor in view of the principle of estoppel as provided under Section 116 of the Evidence Act, 1872. In the circumstances, there is no merit in this petition and the same is accordingly dismissed. July 20, 2009. (S.S. Saron) Judge *hsp* NOTE: Whether to be referred to the Reporter or not:Yes