Judgment:
Rajive Bhalla, J.
The petitioners pray for issuance of a writ in the nature of certiorari setting aside order dated 2.11.1007 passed by Joint Development Commissioner (IRD) (exercising the powers of the Commissioner, under the Punjab Village Common Lands (Regulation) Act, 1961,( hereinafter referred to as the “1961 Act”) reversing order dated 20.1.2004 passed by the Collector-cum- Divisional Deputy Director, Rural Development and Panchayat, Patiala.
The petitioners filed an application under section 11 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as the "1961 Act") claiming that they are owners in possession of land measuring 18 Bighas-13 Biswas. The petitioners alleged that as the land is recorded in the ownership of “Shamilat deh hasab hisas mundraza shajra nasab”, it raises an inference that theland was partitioned amongst proprietors/co-sharers, and is in their individual cultivating possession as owners. It was also averred that as during consolidation, there was no Shamilat deh, consolidation authorities made a deduction from land belonging to proprietors and though land owners did not make any demand for reserving any land as charand (pasture), land measuring 166 Bighas-13 Biswas wasreserved as Charand. It was also averred that as the Missal Haquiat (final document of consolidation) records the ownership of “Shamilat deh hasab hisas mundraza shajra nasab” and jamabandi for the year 1950-51 contains the same entry and records possession of “makbuja malkan”, it is clear that the land was in possession of proprietors before 26.1.1950. The Gram Panchayat denied these averments and pleaded that the land in dispute belongs to the Gram Panchayat as it was never partitioned by the proprietors before 1950 and the petitioners are in an unauthorized occupation. On the basis of these pleadings, parties led evidence and vide order dated 20.1.2004, the Collector-cum-Divisional Deputy Director, Rural Development and Panchayat, Patiala, held that as the land in dispute is in possession of petitioners from the beginning, as established by the expression, “Makbuja Malkan” and admitted by the sarpanch when the girdawari was changed in the year 1994-95. The Gram Panchayat, therefore, has no concern with the land in dispute. The petition was allowed.
Aggrieved by this order, the Gram Panchayat filed an appeal. Vide order dated 2.11.2007, the Joint Development Commissioner accepted the appeal and set aside the order passed by the Collector-cum-Divisional Deputy Director, Rural Development and Panchayat, Patiala, by holding that mutation of this land was sanctioned in the name of Nagar Panchayat in 1958. After enforcement of the 1961 Act, the land has vested in the Gram Panchayat. It was also held that as jamabandi for the year 1958-59 records the possession of the Gram Panchayat and the name of the petitioners appears, for the first time, in the jamabandi for the year 1994-95 as “gair marausi billa lagan”, the petitioners cannot claim ownership. The Joint Development Commissioner, Punjab, also recorded a finding that there is no evidence to establish possession of the petitioners for the last 50 years and khasra girdawari for the year 1994 was changed in the name of the petitioners in collusion with the then Sarpanch.
Counsel for the petitioners submits that a perusal of the jamabandi for the year 1946-47, reveals that the land in dispute is "Shamilat deh hasab hisas mundraza shajra nasab". The column of cultivation records the possession of “Makbuja Malkan”, i.e., the proprietors, thereby clearly establishing that land was owned by proprietors/co-sharers and in possession in accordance with their share holdings. The jamabandi for the year 1950-51 records the ownership of “Shamilat deh majkoor" and possession of “saraam majkoor”. The jamabandi for the year 1954-55 records the ownership of “Shamilat deh hasab rasad hisas mundraza shajra nasab” and possession as “khud kashat malkan”. The revenue entries, therefore, clearly establish possession of the proprietors prior to 1950 thereby excluding the land from "Shamilat deh" by virtue of sections 2(g)(iii) and (viii) of the 1961 Act. It is further submitted that as there was no “Shamilat deh” in the village at the time of consolidation, the land could not have been mutated to the ownership of Gram Panchayat in 1958. In the absence of any consent by proprietors/co-sharers of Shamilat land, it could not be reserved during consolidation as "charand". It is further argued that as mutation of possession and ownership was restored in the name of the petitioners in the year 1994-95, the Joint Development Commissioner has committed an error in reversing the order passed by the Collector-cum-Divisional Deputy Director, Rural Development and Panchayat and dismissing the petition filed under section 11 of the Act. It is argued that as the petitioners fulfil the ingredients set out in sections 2(g)(iii) and 2(g)(viii) of the 1961 Act, the land in dispute is excluded from "Shamilat deh".
Counsel for the Gram Panchayat submits that the appellate authority rightly reversed the order passed by the Collector-cum- Divisional Deputy Director, Rural Development and Panchayat as the petitioners failed to establish their cultivating possession prior to 1950 as required by section 2(g)(iii) or 2(g)(viii) of the 1961 Act. Admittedly, the land in dispute is “Shamilat deh” and reserved as “charand” during consolidation. It, therefore, vests in the Gram Panchayat. It is also pointed out that in the jamabandi for the year 1946-47, there is no entry regarding cultivating possession of individual proprietors whether with or without partition, much less of the petitioners. The expression “Shamilat deh hasab rasad hisas mundraza shajra nasab”, does not indicate partition of land, but merely indicates that proprietors are owners in accordance with their share holdings. After the enactment of the Punjab Village Common Lands (Regulation) Act, 1953 and the Pepsu Village Common Lands (Regulation) Act, 1954, all land described as “Shamilat deh” vested in a Gram Panchayat, whatever be the expressions following the words “Shamilat deh” as these expressions were rendered irrelevant.
We have heard counsel for the parties and perused the impugned order.
The petitioners claim ownership on two pleas:- (a) that though the land is Shamilat deh, it was partitioned and brought under cultivation by individual land holders before 26.1.1950 and (b) the land though “Shamilat deh” was assessed to land revenue and has been in their individual cultivating possession as co-sharers on or before 26.1.1950. The petitioners, in essence, rely upon section 2(g)(iii) and 2(g)(viiii) of the 1961 Act to contend that as they fulfil the ingredients set out in these exclusion clauses, the land is not “Shamilat deh” and therefore, does not vest in the Gram Panchayat.
Sections 2(g)(iii) and 2(g)(viii) of the 1961 Act read as follows:
“2(g) Shamilat deh” includes---
(1) XX XX XX
(2) XX XX XX
(3) XX XX XX
(4) XX XX XX
(5) XX XX XX
[----]
but does not include land which--
(i) XX XX XX
(ii) XX XX XX
(ii-a) XX XX XX
(iii) has been partitioned and brought under cultivation by individual landholders before the 26th January,1950;
(iv) XX XX XX
(v) XX XX XX
(vi) XX XX XX
(vii) XX XX XX
(viii) was Shamilat deh, was assessed to land revenue and has been in the individual cultivating possession of cosharers not being in excess of their respective shares in such Shamilat deh on or before 26th January, 1950'
(ix) XX XX XX”
A perusal of section 2(g) of the 1961 Act reveals that Shamilat deh includes land referred to in sub sections (1) to (5), but does not include land referred to in sub clauses (i) to (ix). A person claiming benefit of the exclusion clauses enacted by sub clauses (i) to (ix) of Section 2(g) of the 1961 Act, has to prove their ingredients by producing clear and cogent evidence. In order to take benefit under section 2(g)(iii) of the 1961 Act, the petitioners would be required to prove:- (a) the land has been partitioned; (b) brought under cultivation by individual land holders and (c) before 26.1.1950.
The petitioners rely upon jamabandi for the year 1946-47 to contend that as the land is recorded as “Shamilat deh hasab rasad hisas mundraza shajra nasab”, in possession of “makbuja malkan”, and the expressions denote that land has been partitioned and is in possession of individual land holders before 26.1.1950. The petitioners also rely upon jamabandi for the year 1950-51, which contains a similar expression of ownership and possession. The submissions, in our considered opinion, merit rejection as the expression “Shamilat deh hasab rasad hisas mundraza shajra nasab”, merely denotes that the land is “Shamilat deh” and is owned by proprietors in accordance with their share holdings in the village and the expression “ makbuja malkan” refers to possession incommon of the proprietary body as opposed to cultivating possession. We would like to state that prior to enactment of thePunjab Village Common Lands (Regulation) Act, 1953 and the Pepsu Village Common Land (Regulation) Act, 1954, all common land in arevenue estate were recorded as “Shamilat deh” and were usually followed by expressions such as “Hasab rasad hisas mundraza shajra nasab”, which refer to the share holdings of proprietors. Upon enactment of the 1953 and 1954 Acts, followed by the 1961 Act, these expressions lost their significance, as proprietary rights in “Shamilat deh” came to vest in a Gram Panchayat, by a statutory declaration contained in section 3 of the 1961 Act. A reference in this regard may be made to judgments of this Court Kashmir Singh and others versus Joint Development Commissioner (IRD) Punjab, Chandigarh and others, 2006(1) LAR 606 (PandH DB); Bakshish Singh versus State of Punjab and others, 2011 (1) LAR 460 (PandH) and Sita Ram etc. versus Gram Panchayat Ismalia etc. 2008(1) LAR 358 (PandH DB). It is therefore, beyond debate that as the land in dispute was Shamilat deh and the petitioners have not been able to establish the ingredients of section 2(g)(iii) of the 1961 Act, the expression “Shamilat deh hasab rasad hisas mundraza shajra nasab”,does not raise an inference of partition, much less individual cultivation after partition, i.e., partition of land and cultivating possession before 26.1.1950, by reference to any document of partition or revenue record. The land, therefore, vests in the Gram Panchayat as“Shamilat deh”.
The next argument, based upon section 2(g)(viii) of the Act, must also fail as the petitioners have not been able to refer to any revenue entry prior to 1950, that would indicate individual cultivating possession as co-sharers prior to 26.1.1950, along with the other ingredients of this exclusion clause. A perusal of the revenue record before 26.1.1950, indicates the possession of “makbuja malkan”, i.e., possession, in common, of the proprietary body, without any individual proprietor being in individual cultivating possession of any part of the land. At this stage, we would like to state that an owner of agricultural land is assigned a khewat number and where co-sharers are in joint possession, they are assigned a single khatoni number to reflect their joint possession. Where co-sharers are in cultivating possession of separate parcels of land, they are assigned separate khatoni numbers to reflect their separate possession. In order to fulfil the ingredients of section 2(g)(viii) of the 1961 Act, a petitioner would be required to establish his status as a co-sharer and thereafter his separate cultivating possession by reference to allotment of a separate khatoni duly recorded in the revenue record. In the absence of any such material on record, we are constrained to hold that the petitioners have no right, title or interest in the land in dispute and the Joint Development Commissioner rightly accepted the application filed by the Gram Panchayat. It appears that the petitioners entered forcible possession and the then sarpanch colluded with them to get khasra girdawaries changed to their name in 1954-55. The petitioners, thereafter, began to assert their ownership and possession. We may also notice that in the jamabandi for the year 1958-59, the Nagar Panchayat is recorded as owner in possession of this land. The petitioners did not initiate any proceeding for more than 40 years and allowed the Gram Panchayat to exercise its rights, with respect to their land and can not be heard to urge that they are owners in possession of the land in dispute.
In view of what has been stated hereinabove, the writ petition is dismissed but with no order as to costs.