CWP No.13659 of 2011 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.13659 of 2011 Date of decision: 01.08.2011 Dharambir and another ....Petitioners Versus Financial Commissioner, Haryana and others ....Respondents CORAM: HON'BLE MR. JUSTICE ALOK SINGH Present: - Mr. Bhoop Singh, Advocate, for the petitioners. 1.Whether Reporters of local papers may be allowed to see the judgment? 2.Whether to be referred to the Reporters or not? 3.Whether the judgment should be reported in the Digest? ***** ALOK SINGH, J (ORAL) Petitioners have invoked writ/supervisory jurisdiction of this Court under Article 226/227 of the Constitution of India, assailing the order passed by learned Collector, Jind, dated 21.10.2008 (Annexure P- 1) dismissing the suit of the plaintiffs/petitioners under Section 13-A of the Punjab Village Common Lands (Regulation) Act, 1961 as applicable within the State of Haryana (hereinafter referred to as 'the Act'), judgment and order dated 26.5.2009 (Annexure P-2) passed by Divisional Commissioner, Hisar, as well as judgment and order dated 27.4.2011 (Annexure P-3) passed by Financial Commissioner, Haryana, confirming the order passed by learned Collector, dismissing the suit of the plaintiff/plaintiffs. Brief facts inter alia are that plaintiff/petitioners preferred a suit under Section 13-A of the Act contending that they are the CWP No.13659 of 2011 -2- proprietors and permanent residents of pana sehrawat of the village; there are other proprietors also; as per jamabandi for the year 1959-60 shamlat pana sehrawat is owner and in possession of the land measuring 118 bigha 6 biswas; in column of ownership in the jamabandi the entry is shamlat pana sehrawat hasab rasad rakba khewat and in the column of cultivation the entry is makbuja malkan; the Assistant Collector, IInd Grade, Jind, on the basis of letter dated 22.11.1961, without giving any intimation to the proprietors of pana sehrawat, sanctioned mutation of this land in favour of gram panchayat vide order dated 19.8.1964; although, entry is in favour of gram panchayat w.e.f. 19.8.1964, but in fact petitioners and other proprietors are in actual physical possession of the land in dispute since they are using the land for baras, gitvar, bitoras; gram panchayat on the basis of mutation in its favour is threatening the plaintiffs/petitioners to evict them, therefore, cause of action arose to file suit under Section 13-A of the Act. Learned Collector/trial Court has framed as many as nine issues and having perused the evidence and material placed before him has come to the conclusion that plaintiffs/petitioners have failed to prove their ownership/possession over the property in dispute; mutation was sanctioned in favour of the gram panchayat way back in 1964 while present suit was filed in 2006 and plaintiff/petitioners have failed to produce any evidence to show their right and possession over the property in dispute. It has further been observed by learned Collector that land in dispute is gair mumkin johar and banjdar kadim and as per revenue record the land in dispute is not worth cultivation; johar and banjar land is being used for common purposes since long. Learned CWP No.13659 of 2011 -3- Divisional Commissioner as well as learned Financial Commissioner have also confirmed the findings recorded by learned Collector. Hence the writ petition. Learned counsel for the petitioners, Mr. Bhoop Singh, has vehemently argued that although part of the property is recorded as johar and banjar kadim, however, since petitioners are in possession of the property in dispute much prior to the appointed day i.e. January, 1950, therefore, any mutation made in favour of gram panchayat in 1964 shall not take away rights and title of the petitioners. He has further argued that mutation does not confer any title and it is the source of the title which is to be seen. Learned counsel for the petitioners has placed reliance on the judgment passed by learned Single Judge of this Court in the case of Bachna Vs. Gram Panchayat, 2005(2) LAR 517 and has argued that in case of Bachna (supra), mutation was carried out in favour of the gram panchayat in 1964, however, on the basis of entries and possession of the plaintiffs therein in the year 1950 mutation sanctioned in favour of gram panchayat in the year 1964 was rightly ignored and plaintiffs were declared owners in possession of the property in dispute. Section 44 of the Punjab Land Revenue Act, 1887 (as applicable to Haryana) reads as under: - “44. Presumption in favour of entries in Records- of-rights and annual records. - An entry made in a record-of-rights in accordance with the law for the time being in force, or in an annual record in accordance with the provisions of this Chapter and the rules thereunder, shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefor.” From the perusal of Section of 44 the Punjab Land Revenue CWP No.13659 of 2011 -4- Act, 1887 (as applicable to Haryana), I have no hesitation to hold that entry made in record-of-rights in accordance with law for the time being in force shall be presumed to be true until contrary is proved. In the present case, mutation was sanctioned in favour of the gram panchayat way back in 1964 while petitioners have brought their suit in 2006. It is not the case of the plaintiffs/petitioners that they were not aware of the entries/mutation in favour of the gram panchayat, which was carried out 46 years before in 1964. If plaintiffs/petitioners did not challenge any entry for long i.e. for more than 46 years, now they shall be debarred from challenging the same in view of principle of waiver, acquiescence and estoppel. Long standing entries have strong presumption of their correctness unless proved by cogent evidence otherwise. Learned Collector as well as two other appellate authorities have rightly recorded that plaintiffs have failed to prove their possession over the property in dispute. The finding of possession is a finding of fact. In the case of Bachna (supra) entries were made in favour of the gram panchayat in 1964, however, proceedings under Section 7 of the Act to evict the occupiers therein were initiated in 1966 within two years wherein question of title was raised by the occupiers, therefore, in view of the facts and circumstances of that case where entries were challenged within two years, this Court has held that mutation in favour of the gram panchayat does not confer any title in favour of the gram panchayat. However, in the present case long standing entries for 46 years were not challenged within reasonable time, therefore, suit of the plaintiffs/petitioners challenging the entries after 46 years is clearly CWP No.13659 of 2011 -5- barred by principle of estoppel, laches, waiver and acquiescence. Ratio of judgment of this Court in the case of Bachna (supra) is of no help to the petitioners. Moreover, as observed hereinabove that plaintiffs/petitioners have failed to prove their possession, therefore, I am not inclined to permit the petitioners to challenge the long standing entries after 46 years. Petition is dismissed. (Alok Singh) Judge August 01, 2011 R.S.