LPA No.455 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH LPA No.455 of 2009 DATE OF DECISION: May 27, 2009 ASHOK KUMAR ...APPELLANT VERSUS STATE OF PUNJAB & OTHERS ...RESPONDENTS CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA. HON'BLE MS. JUSTICE NIRMALJIT KAUR. PRESENT: MR. R.D. BAWA, ADVOCATE FOR THE APPELLANT. ASHUTOSH MOHUNTA, J. The present appeal has been filed by the appellant impugning order dated 15-4-2009 passed by the Leaned Single Judge of this Hon’ble Court vide which Civil Writ Petition filed by the appellant had been dismissed with a liberty to the petitioner-appellant to avail of any other alternative remedy available to him. The case of the appellant is that he and his predecessors are owner in possession of land measuring 3K-7M denoted in Khata No.419/659 bearing Rectangle No. 13, Killa No.23/1 situated in Village Agwar pona, Tehsil Jagroan for the last about 100 years as the property in question is a Gair Mumkin Ahata Chahi Pukhta Gair Jari and Samadh gifted for religious and charitable purposes and now is under occupation and ownership of the appellant as depicted in the Revenue record. That the appellant filed a suit for declaration Under Section 11 of the Punjab Village Common Lands (Regulation) Act 1961 with a prayer LPA No.455 of 2009 -2- to declare him as owner in possession of the aforesaid property. The said suit was contested by the Gram Panchayat stating therein that the Samadh is only on 0-3M while rest of the land measuring 3K-4M is under the possession of the Gram Panchayat and is fit for cultivation. They further took up the stand that plaintiff is only looking after the Samadh which is on 0-3 Marlas land and that as far as the possession and ownership of the rest of the land is concerned, the mutation in regard thereof has been sanctioned in the presence of the appellant-plaintiff without any objection from him in favour of the Gram Panchayat. Accordingly, Respondent no.3 dismissed the suit of the plaintiff vide order dated 28-9-1992 holding the Gram Panchayat owner of the rest of the land after leaving 0-3 marlas of land upon which the Samadh is existing. The said order was challenged in appeal by the plaintiff therein before Respondent no.2 who set aside the aforesaid order and held the plaintiff in possession of the land in dispute and in furtherance thereof restrained the Gram Panchayat to dispossess him from the land vide order dated 22-11-1995. The aforesaid order was challenged before this Hon’ble Court in Civil Writ Petition No.15766 of 2001 and the Division Bench of this Hon’ble Court vide order dated 20-4-2004 while setting aside the impugned order passed by Respondent no.2 disposed of the writ petition with a direction to Respondent no.2 to pass appropriate order within two months from the date when the parties appear before him and till then the parties shall maintain status quo with regard to possession. In pursuance to the aforesaid directions issued by this Hon’ble Court, Respondent no.2 remanded the case back to Respondent no.4 with LPA No.455 of 2009 -3- the following instructions vide order dated 23-7-2004:- (Page 55) On remand, Respondent no.4 after hearing arguments of the counsel for the parties and appraisal of the evidence and documents pertaining to the case on record dismissed the suit of the plaintiff vide order dated 12-1-2006 holding that the appellant never performed any ‘Puja’ on the land and neither he has been seen anywhere there. The Panchayat is owner of the land and there is a nallah on the disputed land being constructed by the Panchayat to which no objection was ever raised. The appellant has given no evidence regarding his 100 years' possession over the land in dispute, but rather from a perusal of the Jamabandi and Girdawari produced by the respondent, it is proved that the Gram Panchayat is the owner of the land in dispute and there is a Samadh and Mandir in 0-3 marlas land only. Being aggrieved by passing of the aforesaid order, the appellant challenged the same in appeal before Respondent no.2, who vide his order dated 9-4-2008 dismissed the appeal of the appellant. Against the said order, Civil Writ Petition No.14721 of 2008 was filed by the appellant which was also dismissed by this Court vide impugned order dated 15-4-2009 which in turn led to filing of the instant appeal. It has been argued by the Counsel for the appellant that the appellant is owner in possession of the entire land measuring 3K-7M as is evident from the Civil Court judgment dated 21-10-1994 wherein in a suit for permanent injunction the Gram Panchayat was restrained from dispossessing the appellant forcibly from the land in question except in due course of law and thus in view of the said finding, the possession of the LPA No.455 of 2009 -4- appellant over the land in dispute stands admitted. Further he has also vehemently argued that his possession is also established over the land in dispute being a religious place as is evident from of the revenue record pertaining to the year 1908-09 to 1985-1986. Further, it is also the case of the appellant that there is no justification to deny possession of the remaining land after leaving 0-3 marlas of land over which the Samadh is existing, as, as per Section 2(g)(5)(ix) of the Act, the land which is being used as a place of worship or for purposes subservient thereto, does not fall within the definition of ‘Shamlat Deh’. We have heard the learned counsel for the appellant and gone through the records of the case and are of the view that the present appeal deserves to be dismissed. It is the case of the appellant that he is owner in possession of the land in dispute measuring 3K-7M since the time of his fore-fathers for the last about 100 years and that the revenue entries depicting the same are in his favour. During the course of arguments, learned Counsel for the appellant has referred to an order dated 22-11-1995 wherein it was held that the appellant is in possession of the disputed land for more than 12 years before the commencement of the Punjab Common Village Lands (Regulation) Act, 1961 and accordingly it was held that the appellant cannot be dispossessed from the land in dispute. We are afraid that the said finding is of no help to the appellant as the same was set aside by this Court in Civil Writ Petition No.15766 of 2001 and subsequently by Respondent no.2 who vide his order dated 9-4-2008 rejected the claim of the appellant qua ownership and possession of the disputed land. Even otherwise, a perusal of the written statement and the revenue records pertaining to the case, it is LPA No.455 of 2009 -5- evident that the appellant has failed to prove his and his fore-fathers possession over the land in dispute as the mutation in favour of the Gram Panchayat of the land in dispute was sanctioned in presence of his father without any objection. Further, a perusal of the Jamabandi and Girdawari pertaining to the land, it is evident that the Gram Panchayat (Respondent no.5) is owner of the land in dispute except the ‘Samadh’ which is existing only on 0-3 marlas of land. The Learned Single Judge has rightly held that the possession of the appellant is only on 0-3 marlas of land as has been found by the authorities below and that the controversy with regard to possession of the appellant over the entire land is concerned, the same is disputed fact which cannot be gone into by this Court in Writ Jurisdiction under Articles 226/227 of the Constitution of India. Thus in view of the above, the present appeal sans merit and is accordingly dismissed. (ASHUTOSH MOHUNTA) JUDGE May 27, 2009 (NIRMALJIT KAUR) Gulati JUDGE