C.W.P.No. 6497 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No. 6497 of 2010 Date of Decision: 6.12.2011 Gurnam Singh and others .....Petitioners Vs. State of Punjab and another .....Respondents. CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE PARAMJEET SINGH Present: Mr. Kanwaljit Singh Sr. Advocate with Mr. I.P.S. Mangat, Advocate, for the petitioners. Mr. Manohar Lall, Addl. A.G.Punjab. Mr. J.S.Bhandohal, Advocate for respondent No.2 ***** PARAMJEET SINGH J. The present writ petition has been filed for quashing of the order dated 17.9.2007 (Annexure P-8) passed by the learned Collector whereby the petition under Section 11 of the Punjab Village Common Lands (Regulations) Act, 1961 (hereinafter referred to as 'the Act') filed by the petitioners had been dismissed and also for quashing of order dated 12.8.2009 (Annexure P-11) passed by the Commissioner whereby appeal preferred had also been dismissed. Brief facts of the case are that the petitioners filed a petition under Section 11 of the Act for declaring them as owners C.W.P.No. 6497 of 2010 -2- of the land, subject matter of the petition. The petitioners have claimed that they are proprietors of the village and the land in question is recorded in the revenue record as 'Mushtarka Malkan'. The possession of the petitioners is prior to 26.1.1950. This land was never reserved for the common purposes nor it has been used for the common purposes. In fact, the land is a 'Bachat' land and was initially recorded in the revenue record as banjar qadim and thereafter the petitioners have improved the land and made it cultivable. On notice, the Gram Panchayat filed their reply to the petition wherein it is specifically submitted that the petitioners are not proprietors of the village, they are not having any share in the 'Mushtarka Malkan' nor they are in the possession of the land prior to 26.1.1950. At the time of consolidation, this land was kept reserved for common purposes. The petitioners are in illegal possession of common purposes land. They have no right to remain in possession nor they can seek declaration as owner. We have heard the learned counsel for the parties and with their able assistance, have gone through the record of the case. The main argument of the learned counsel for the petitioners is that earlier the Gram Panchayat had filed a petition under Section 11 of the Act, with regard to land measuring 24 kanal 8 marlas described in petition situated in the revenue limits of village Sekhupur Jagir, Teshil and District Patiala, which was dismissed vide order dated 6.2.1998 (Annexure P-2) passed by the C.W.P.No. 6497 of 2010 -3- Collector. In that order, it was specifically held the respondents (now some of them are petitioners in this writ petition) to be in possession as cultivators. The learned Collector had recorded a finding in that petition under Section 11 of the Act, that it is not maintainable and Gram Panchayat can file a case in appropriate Court for declaration of ownership of the land in dispute. The contention of learned counsel for the petitioners is not sustainable as earlier the petition under the Act was not decided on merits and it was dismissed as not maintainable rather a liberty was also given to the Gram Panchayat for filing a petition in the appropriate Court. The argument of the counsel for petitioners that earlier findings of Collector operate as estoppel is also not sustainable. It is hereby rejected. Counsel for the petitioners contends that order of the Collector is not sustainable as the petitioners are owner in possession of the land in question in the jamabandi for the year 1959-60 (Annexure P-6), while in the ownership column, land is described as 'Mushtarka Malkaan Hasab Hissas Munderja Khewatwar' and in the cultivation column it is recorded as Makbooja Nagar Panchayat (in possession of the village panchayat). In various places even it is mentioned that the land has been reserved for common purposes like schools, passage, abadi and water course etc. The counsel for the petitioners also referred to the jamabandi for the year 1961-62 (Annexure P-7) where in the ownership column the land is shown to be as 'Mushtarka Malka Hasab Rasad Madraja Shajra Nasab' and in the cultivation column possession of Assa son of Bhola as Gair marusi C.W.P.No. 6497 of 2010 -4- Mutaihat (under) Nagar Panchayat has been shown and in the rent column Chakota at the rate of Rs. 12/- per kanal has been mentioned. Similarly, in the jamabandi for the year 1966-67 ownership of land is shown as 'Mushtarka Malkan' and in the cultivation column names of Sohan Singh son of Labh Singh and Mehar singh son of Mangal Singh have been shown whereas in the rent column Chakota at the rate of Rs. 305/- per year has been mentioned. Further, in the jamabandi for the year 1976-77, Jagta son of Roshan, Niranjan Singh son of Fauja Singh and Sadha Singh son of kartar Singh have been shown as Gair Marusi and in the rent column, it is mentioned that Chakota at the rate of Rs. 300/-, Rs. 400/- and Rs. 1100/- per year respectively for the respective khatonis. Further in the jamabandi for the year 1981-82, in the column of ownership Mushtarkla Malkan is shown and in the cultivation column, possession of one Swaran Singh son of Naurang Singh has been shown and in the rent column, Chakota at the rate of Rs. 1500/- per year has been mentioned. In the Jamabandis for the years 1986-87, 1991-92, 1996-97 and 2001-02 possession of Swaran Singh is continuous as Chakotedar. The contention of the learned counsel for the petitioners is that the land is described as 'Mushtarka Malkan' in revenue record, as such, the land belongs to the proprietory body. The petitioners being proprietors of the village are entitled to the declaration of ownership. This contention of the learned counsel for the petitioners is also without merit. No doubt, the land in the ownership column has been described as 'Mushtarkla Malkan', C.W.P.No. 6497 of 2010 -5- but such land under Section 23-A of the East Punjab Holding (Consolidation and Prevention of Fragmentation) Act,1948. (hereinafter referred to as “the Consolidation Act) and Rule 16 (ii) framed thereunder vests in the Gram Panchayat for management and control. Furthermore, the revenue record clearly shows that the ancestor of the petitioners i.e. Swaran Singh was 'Gair Marusi' (tenant at will) for a varying amount of Chakota year to year. The presumption of truth is attached to the revenue record i.e. Jambandis for the different years. The entries of Gair Marusi had never been challenged by the petitioners in any competent Court of law. We are not inclined to accept the contention of the learned counsel for the petitioners because the revenue entries from 1959-60 to 2001-2002 clearly depict that land is described as 'Mushtarka Malkan'. In the jamabandi for the year 1959-60, possession is of Nagar Panchayat and in subsequent jamabandis the possession is of the respective tenants at will (Gair Marusis) on payment of Chakota at various rates from time to time. In the revenue record, Swaran Singh, ancestor of the petitioners was Chakotedar from 1967-68 to 2001-02 and the petitioners are stepping into the shoes of their ancestor - Swaran Singh who was the tenant and as such the petitioners have no right to claim the ownership of the land. A tenant cannot challenge the title of his landlord. So the contention of the learned counsel for the petitioners that petitioners have been wrongly held to be Chakotedar is rejected. We uphold the findings that Gram Panchayat is the owner of the land. The findings recorded by the C.W.P.No. 6497 of 2010 -6- Collector were upheld by the Commissioner and based on the appreciation of revenue record, call for no interference by this Court. Learned counsel for the petitioners has further assailed the findings recorded by the Collector with regard to the applicability of the amended Section 42-A of the Consolidation Act, which reads as under:- “Notwithstanding anything contained in this Act or in any other law for the time being in force, or in any judgment decree, order or decision of any court or any authority, or any officer, the land reserved for common purposes whether specified in the consolidation scheme or not, shall not be partitioned amongst the proprietors of the village and it shall be utilized and continue to be utilised for common purpose.” The learned counsel for the petitioners contended that amended provision does not apply to the case of the petitioners as they are in possession prior to 26.1.1950. This contention of the petitioners is also not sustainable in law. The validity of Section 42-A of the Consolidation Act has been upheld by a Division Bench of this Court in C.W.P. No. 15509 of 2007 tilled as Mahatam Singh and others vs. State of Punjab and others, decided on 20.05.2011. In view of the amendment, even in the bachat land the petitioners have no right to claim its ownership. There is no iota of evidence on record from which it can be made out that the petitioners are proprietors of the village and have any share in the 'Mushtarkla Malkan' land. In the present case, no document is on record, neither before this Court nor before the authorities below, from which it C.W.P.No. 6497 of 2010 -7- can be made out that the petitioners are proprietors of village and have any right in the land. This contention is otherwise not sustainable in view of the findings already recorded by us while dealing with the contentions of the petitioners; firstly management and control of the land vests in the Gram Panchayat, secondly in view of the amendment of provision of Section 42-A of the Consolidation Act. In view of the discussion above, we are not inclined to interfere in the findings of fact recorded by the Collector and the Commissioner, the present Civil Writ Petition is devoid of any merits. Dismissed. (PARAMJEET SINGH) JUDGE December 06, 2011. (SATISH KUMAR MITTAL) AK. Sharma JUDGE