CWP No.15423 of 1999 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No.15423 of 1999 Date of Decision: 9.8.2010 Harnek Singh .....Petitioner Vs. Joint Development Commissioner, Punjab and others .....Respondents .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr. Jitender Singla, Advocate for the petitioner. Mr. C.S. Brar, DAG, Punjab, for respondents no.1 and 2. Mr. Monish Gupta, Advocate for respondent no.3. .... RAJIVE BHALLA, J The petitioner prays for issuance of a writ in the nature of Certiorari for quashing orders dated 27.10.1998 and 30.6.1998, passed by the Joint Development Commissioner (IRD), Punjab, and the Collector- cum-Divisional Deputy Director, Rural Development and Panchayat, Patiala. The Gram Panchayat of Village Balbera, Tehsil and Distt. Patiala, filed an application under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as `the Act')seeking the petitioner's eviction from the land in dispute. During the pendency of this application, the petitioner filed a petition under Section 11 of the Act, CWP No.15423 of 1999 2 for a declaration that as the petitioner is owner in possession, the land in dispute does not vest in the Gram Panchayat. The Gram Panchayat filed a reply opposing the averments in the application and apart from pleading that the land in dispute vests in the Gram Panchayat, also pleaded that as the petitioner has asserted his tenancy, in his reply filed in proceedings under Section 7 of the Act, the petition should be dismissed. The petitioner and the Gram Panchayat led evidence in support of their respective contentions. The Collector dismissed the petition by holding that as the petitioner is recorded as a Chakotedar (tenant) for the last 26 years, he has no right to challenge the ownership of the Gram Panchayat. Aggrieved by this order, the petitioner filed an appeal, which was dismissed by the Joint Development Commissioner(IRD), Punjab, by holding that as the petitioner has made a statement before the Collector, in proceedings under Section 7 of the Act, that he is a lessee of panchayat land, he cannot be allowed to assert ownership in opposition to the title of the Gram Panchayat. Counsel for the petitioner submits that the findings recorded by the Collector and the Commissioner that the petitioner has admitted, in proceedings under Section 7 of the Act, that he is a Chakotedar of the Gram Panchayat are incorrect. No such statement was ever made by the petitioner. It is argued by placing reliance upon a judgement reported as Gram Panchayat Village Bhedpura Vs. Additional Director, Consolidation and others, 1997 (1) PLJ 535, that even if it is presumed that the petitioner has admitted a tenancy, he cannot be estopped from exercising his rights under Section 11 of the Act. It is further submitted CWP No.15423 of 1999 3 that proceedings under Section 11 of the Act are in the nature of a civil suit and therefore, required the Collector to frame issues. The Collector, has not framed any issues thereby causing grave prejudice to the petitioner. Reliance for this argument is placed upon a Division Bench judgement of this court in Nant Singh Vs. Joint Director, Panchayats, Punjab and others, 1993 PLJ 502. It is also submitted that as neither the Collector nor the Commissioner has recorded any finding on the plea of ownership, the impugned orders are null and void. Another argument pressed into service is that before the ownership of the land was changed in the name of the Gram Panchayat, the land was recorded as the ownership of Shamilat Deh, Hasab Rasad Arazi Khewat, in possession of the Maqbooja Malkan. The land, therefore, does not vest in the Gram Panchayat. It is also submitted that mere recording of a mutation in the name of the Gram Panchayat, on the basis of a letter, does not confer title upon a Gram Panchayat. The documents produced by the petitioner, namely; Mutation Ex.P-1, Naqsha Haqdarbar Ex.P-2, Consolidation Missle Haqiat Ex.P-3, Copy of Jamabandies for the years 1973-74, 1978-79, 1983-84, 1988-89, 1993-94 as Exs.P-7 to P-11 clearly establish that the petitioner is owner in possession of the land in dispute. It is also asserted that as the petitioner has been in possession before 1950-51, he is entitled to protect his possession and ownership. Counsel for the Gram Panchayat submits that the writ petition should be dismissed, as the petitioner is estopped from asserting his ownership in view of the averments in the written statement filed in proceedings under Section 7 of the Act and the averments in the plaint filed by the petitioner in Suit No.55-T/15.12.1983/9.C Harnek Singh S/o Sucha CWP No.15423 of 1999 4 Singh Vs. Gram Panchayat of Village Balbera decided on 3/4.4.1984, alleging his tenancy. On the basis of these pleadings, the civil court issued an injunction against the Gram Panchayat. It is further submitted that as both parties have led evidence and were alive to the issues in dispute, the failure to frame issues is a mere irregularity that does not vitiate the impugned orders. Reliance for this argument is placed upon the following judgments :- Kannan (dead) by LRs and others Vs. V.S. Pandurangam (dead) by LRs and others, AIR 2008 SC 951, Ajit Singh Vs. Joint Development Commissioner (IRD), Punjab, Chandigarh, 2005(3) PLR 50, Kashmir Singh and others Vs. Joint Development Commissioner (IRD), Punjab, Chandigarh and others, 2006(1) Local Acts Reporter 606, Thakur Singh and others Vs. State of Punjab and others, 1995 PLJ 195 and Tika and others Vs. Ram Chander & others, 2003(3) PLR 631. It is also argued that the petitioner has failed to establish that he was in possession as a proprietor prior to 26.1.1950. The argument that the mutation entered in the name of the Gram Panchayat does not confer title merits rejection, as the mutation records a statutory vesting of land in the Gram Panchayat as declared by the Pepsu Village Common Lands (Regulation) Act, 1954. I have heard counsel for the parties and perused the impugned orders. Before proceeding to deal with the other aspects of the case, it would be appropriate to deal with the finding recorded by the Collector and the Commissioner that as the petitioner has admitted his status as a “Chakotedar” (a tenant), he is estopped from claiming ownership. The petitioner admittedly filed Suit No.55-T/15.12.1983/9.C Harnek Singh S/o Sucha Singh Vs. Gram Panchayat of Village Balbera, for CWP No.15423 of 1999 5 grant of a permanent injunction to restrain the Gram Panchayat from forcibly dispossessing him, from the land in dispute. The petitioner specifically pleaded that he is cultivating the land for the last more than 20 years and is regularly paying 'Chakota' @ 15% to the Gram Panchayat. The suit was decreed by restraining the Gram Panchayat from forcibly dispossessing the petitioner. It would be appropriate to reproduce a relevant extract from this judgement :- “ The case of the plaintiff is that he is cultivating the land in dispute for the last more than 20 years and regularly paying the chakota @ Rs.15/- percent to defendant.” The plaintiff-Harnek Singh appeared in the witness box as PW 1 and he supported his version in the plaint. He stated in his evidence that he is cultivating the suit land and is continuing paying the chakota as rent. The defendant panchayat issued receipt for the payment of chakota and the land for the last one year as the panchayat is intending to dispossess the plaintiff from the suit land. The plaintiff has produced the khasra girdawaries for the years 1982-83 which is exhibit P1. In the column of cultivating the plaintiff Harnek Singh has been shown the possession of the suit land paying the chakota @ 15 percent.” The above extract leaves no ambiguity that the petitioner raised a positive plea that he is cultivating the land in dispute and regularly paying 'Chakota' @ 15% to the Gram Panchayat, as rent. The civil court CWP No.15423 of 1999 6 accepted this plea and restrained the Gram Panchayat from dispossessing the petitioner forcibly. This apart, in his reply to the application, filed under Section 7 of the Act, the petitioner pleaded as follows :- “ That para no.4 of the petition is wrong and hence denied. The possession of the replying respondent cannot be said to be unauthorised, illegal and without any right, title of authority, as he has been held to be a tenant over the land in dispute by the competent authority and he is so recorded in the revenue records. The petitioner is in possession of the land in dispute in his own right and not as a tresspasser.” The above extracts reproduced from the judgement of the civil court and the reply filed by the petitioner, in proceedings under Section 7 of the Act, leave no manner of doubt that the petitioner raised a considered and conscious plea that he is a tenant of the Gram Panchayat on payment of 15% per annum as 'Chakota' (rent). The petitioner, obtained an injunction, on the basis of this plea of tenancy. The petitioner is barred by the doctrine of estoppel, the provisions of Section 111 of the Transfer of Property Act and Section 116 of the Indian Evidence Act, 1872. from raising a plea of ownership. Reference in this regard may be made to Division Bench judgements of this court reported as Kuldip Singh and others V. Gram Panchayat, Pehar Kalan, Tehsil Rajpura and others 2005(4) RCR (Civil)93 and Ajit Singh V. Joint Development Commissioner, Punjab, 2005(2) RCR (Civil) 678. A relevant extract from Ajit Singh's case (supra) reads as follows :- CWP No.15423 of 1999 7 “(6) A tenant cannot deny the title of his landlord. Section 116 of the Indian Evidence Act, 1872 estops the tenant or a person claiming through such tenant, from denying the landlord's title to such immovable property. A tenant cannot be permitted to change the nature of his possession. (7) Counsel for the petitioner has placed reliance upon the judgements of this court reported as Gram Panchayat, Village Bhedpura V. The Additional Director, Consolidation and others, 1997(2) RCR (civil) 259 (P&H); 1997(1) PLJ 535, Nant Singh V. Joint Director, Panchayat, Punjab 1994(1) RRR 135 and Gurnam Singh V. Gram Panchayat, Village Mangoli and others, 1988(2) RRR 496 (P&H): 1988 PLJ 520. 8. In Gram Panchayat, village Bhedpura's case (supra), the controversy was with respect to re- distribution of bachat land and the powers of the Director, Consolidation. Reference to Section 116 of the Indian Evidence Act, 1872 and Section 111 of the Transfer of Property Act was made in the context of the facts of the aforementioned case. Even otherwise, a perusal of the aforementioned judgement reveals that the petitioner therein had been able to establish that the lease money was being paid under an error of fact and it was in that context that this Court waived the doctrine of CWP No.15423 of 1999 8 estoppel, enshrined in Section 116 of the Indian Evidence Act. No such evidence in forthcoming in the present case.” The judgement pressed into service by counsel for the petitioner namely Gram Panchayat Village Bhedpura Vs. Additional Director, Consolidation and others (supra), does not come to the petitioner's aid, as the petitioner has neither pleaded nor proved that he raised the plea of tenancy under a mistaken belief or an erroneous understanding of his rights. Even otherwise, this judgement was considered and distinguished on facts in Ajit Singh's case (supra). The reasons adopted in Ajit Singh's case (supra) apply to the present case. The petitioner has raised another argument that as the Collector did not frame any issue, the impugned orders are a nullity. The arguments may have been accepted were the petitioner to have urged or established any prejudice. The petitioner and the respondents were alive to the issues in dispute, led evidence on the question of title and addressed arguments. The non framing of issues, in these circumstances is a mere irregularity. The petitioner, therefore, cannot be heard to urge that the impugned orders be set aside, as no issues were framed. Reference in this regard may be made to the following judgements :- Kannan (dead) by LRs and others Vs. V.S. Pandurangam (dead) by LRs and others, AIR 2008 SC 951, Kashmir Singh and others Vs. Joint Development Commissioner (IRD), Punjab, Chandigarh and others, 2006(1) Local Acts Reporter 606, Thakur Singh and others Vs. State of Punjab and others, 1995 PLJ 195 and Tika and others Vs. Ram Chander & others, CWP No.15423 of 1999 9 2003(3) PLR 631 and Ajit Singh V. Joint Development Commissioner, Punjab, 2005(2) RCR (Civil) 678. As regards the petitioner's plea that he is in possession as a khewatdar/proprietor before 1950, there is no evidence on record to support this plea. The petitioner has failed to place any evidence on record to establish his status as a proprietor, the extent of his shareholding or of his possession before 1950. It would be appropriate to mention that the revenue record produced by the petitioner does not contain any entry prior to 26.1.1950 recording the petitioner in possession as a proprietor. The argument that as the land is Shamilat Deh Hasab Rasad Arazi Khewat, the land does not vest in the Gram Panchayat has been raised in ignorance of the fact that the words “Hasad Rasad Arazi Khewat” refer to the extent of shareholding prior to the enactment of the Pepsu Act and the 1961 Act. The enactment of Shamilat Law, in the year 1953 and the Act in the year 1961, brought an end to the shareholding of proprietors, except to the extent prescribed by Section 2(g) of the Act. In view of what has been stated herein above, the writ petition is dismissed with no order as to costs. 9.8.2010 ( RAJIVE BHALLA ) GS JUDGE