R.S.A. No. 3218 of 2006 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 3218 of 2006 Date of Decision : 15.2.2010 Gram Panchayat, Village Joshi Chauhan, Tehsil and District Sonepat .......... Appellant Versus Bal Kishan (dead) & others ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. J.S. Duhan, Advocate for the appellant. Mr. M.L. Sarin, Sr. Advocate with ' Mr. Kabir Sarin, Advocate for the respondents. **** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgment and decree dated 31.1.2006, passed by the learned lower appellate Court, vide which suit filed by the plaintiff / respondents stands decreed. The plaintiff / respondents filed a suit for declaration, claiming themselves to be the owners on the plea, that their occupancy tenancy rights matured into ownership. The pleaded case of the plaintiff / respondents was, that they were in cultivating possession of the land measuring 34 Kanal-19Marla situated in village Joshi Chauhan, Tehsil and District Sonepat for the last more than 60 years, through their predecessors-in-interest as tenant Basherah Parts Malkan Bila Meelkan under the appellant / defendant. R.S.A. No. 3218 of 2006 2 The land in dispute was allotted to the plaintiff / respondents during the consolidation in lieu of the land, held by them as occupancy tenant. The suit was contested by the defendant / appellant on the pleading, that the plaintiff / respondents were not the occupancy tenant as they were not in continuous possession of the land for last 12 years, preceding the stipulated date. The learned trial Court dismissed the suit, in view of jamabandi for the year 1956-57, wherein the possession of the plaintiffs / respondents was not shown. It was held, that the plaintiffs failed to prove their continuos possession to claim ownership under the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952. In appeal, the findings of the learned trial Court were reversed by recording a finding that as per Ex. P-1 i.e. the copy of the jamabandi for the year 1939-40, the plaintiff / respondents were shown to be in possession as Marusi tenant. Again in the jamabandi for the year 1943-44 plaintiffs were shown to be in possession of the property in dispute as Marusi tenants. Though, in the year 1956-57, the entry was changed, but subsequently again till the filing of the suit the plaintiff / respondents were shown to be in possession as occupancy tenant. The learned lower appellate Court, therefore, held, that the stray entry in the revenue record was to be ignored to draw a presumption of continuity. In support of this finding, the learned lower appellate Court placed reliance on the judgment of this Court in the case of Jai Ram Vs. The Gram Panchayat, Dehlaka and others, 1978 P.L.J. 43, wherein this R.S.A. No. 3218 of 2006 3 Court held as under:- “3. After hearing the learned counsel for the parties, I am of the view that the petition deserves to succeed. It is settled law that where the long standing possession of a party is established, stray entries in Khasra Girdawaris for one or two years showing possession of another party have to be ignored. The Financial Commissioners in the States of Punjab and Haryana have been consistently taking this view which has commended itself to this Court also. Even if it is held that in the year 1955 the possession was rightly shown to be that of the Gram Panchayat, the petitioner had succeeded in showing that he was in continuous possession for a period of 12 years on the date when the Punjab Village Common Lands (Regulation) act, 1954, came into force. In the circumstances, the Assistant Collector, First Grade had no jurisdiction to evict him under the summary provision of section 7-A of the Punjab Village Common Lands (Regulation) Act, 1961. For the same reason, the appellate order passed by the District Collector, Gurgaon has to be held to be erroneous and I order accordingly. This petition is accordingly allowed and the impugned orders dated November 19, 1976, passed by the learned District Collector Gurgaon, and the order dated July 8, 1976, passed by the Assistant Collector, Ist Grade, Palwal, are set aside with no order as to costs.” The learned counsel for the appellant contended, that this appeal raises the following substantial questions of law :- R.S.A. No. 3218 of 2006 4 1. Whether the judgment and decree passed by the learned lower appellate Court is null and void and without jurisdiction for want of jurisdiction of the Civil Court to entertain and try the suit? 2. Whether on failure to prove the continuous possession of 12 years the occupancy rights could mature into ownership? In support of the substantial questions of law, the learned counsel for the appellant vehemently contended, that the rights under the tenancy Act or the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952 could be adjudicated only by the Revenue Court and Civil Court did not have any jurisdiction to entertain and try the suit. It is, therefore, contended by the learned counsel for the appellant, that decree being without jurisdiction was liable to be set aside. It is also the contention of the learned counsel for the appellant, that once it was proved on record, that entry qua possession of the plaintiff / respondents was not continuous, as the jamabandi for the year 1956-57 possession of the plaintiff / respondents was not recorded, the learned lower appellate Court committed an error in reversing the finding of the learned trial Court. On the contentions, referred to above, the learned counsel for the appellant prayed, that the judgment and decree passed by the learned lower appellate Court be set aside, and that of the learned trial Court be restored, by answering the substantial questions of law in favour of the appellant. R.S.A. No. 3218 of 2006 5 On consideration, I find no force in the contentions raised by the learned counsel for the appellant. The Full Bench of this Court in the case of Shiv Charan Vs. The Financial Commissioner, Revenue Department, Haryana and others (2004-3) P.L.R. 569, has laid down, that after coming into force of the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952, the Civil Court alone has the jurisdiction to determine the dispute regarding ownership claimed under the Act. The judgment and decree passed by the learned lower appellate Court, therefore, can not be said to be without jurisdiction. The learned lower appellate Court has rightly ignored the stray entry in the revenue record, in view of the fact, that the possession of the plaintiff / respondents as occupancy tenant was proved from 1939-40 till the date of filing of suit, except for stray entry in the jamabandi for the year 1956-57, which deserved to be ignored in view of the law laid down in the case of Jai Ram Vs. The Gram Panchayat, Dehlaka and others (supra). No fault can be found with the judgment and decree passed by the learned lower appellate Court, in ignoring the stray entry in the revenue record, regarding possession of the land. For the reasons stated above, the substantial questions of law, are answered against the appellant. No merit. Dismissed. 15.2.2010 ( VINOD K. SHARMA ) 'sp' JUDGE