Punjab-Haryana High Court
Gram Panchayat Village Mulepur vs Sucha Singh (Deceased Through His Legal ... on 7 September, 2012
Author: Rajive Bhalla
Bench: Rajive Bhalla, Rekha Mittal
Civil Writ Petition No.2264 of 1986 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Writ Petition No.2264 of 1986
Date of Decision: 7th September, 2012
Gram Panchayat Village Mulepur, Tehsil Sirhind
District Patiala. ..Petitioner
versus
Sucha Singh (deceased through his legal representatives) and others
..Respondents
CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA
HON'BLE MRS. JUSTICE REKHA MITTAL
Present: Mr. J.S.Bhandohal, Advocate
for the petitioner.
Mr. Kanwaljit Singh, Senior Advocate
with Mr. I.P.S.Mangat, Advocate
for respondent Nos. 1 to 3.
Ms. Sudeepti Sharma, DAG, Punjab
for respondent Nos. 4 to 5.
RAJIVE BHALLA, J.
The Gram Panchayat of Village Mulepur, Tehsil Sirhind prays for issuance of a writ of certiorari for setting aside orders dated 7.4.1982 and 27.12.1985 (Annexures P-6 and P-7) passed by the District Development and Panchayat Officer, Patiala, (exercising powers of `Collector') and the Joint Director, Panchayats, Punjab (exercising powers of `Commissioner'), respectively, under section 11 of the Punjab Village Common Land (Regulation) Act,1961 (hereinafter referred to as "the 1961 Act").
Before we proceed to adjudicate the rights of parties, it would be appropriate to narrate the facts. The contesting Civil Writ Petition No.2264 of 1986 2 respondents No. 1 to 3 filed a civil suit for declaration of their ownership and for a permanent injunction, by pleading that as the land, in dispute, was partitioned in 1948, and was in cultivating possession of their predecessors before 26.1.1950, it is excluded from "Shamilat Deh". The Gram Panchayat denied these averments. The Sub Judge 1st Class, Fatehgarh Sahib (Bassi Pathana) framed issues, called upon parties to lead evidence and eventually dismissed the suit by recording a positive finding that private respondents have failed to produce any evidence of partition, much less, of the cultivating possession of their predecessors, before 26.1.1950. The contesting respondents preferred an appeal but ultimately, vide order dated 5.4.1976 were allowed, by the learned District Judge, to withdraw the suit.
The Gram Panchayat filed a petition under section 7 of the 1961 Act for eviction of the private respondents who once again pleaded that as their father Chatter Singh was in possession, pursuant to a partition before 26.1.1950, the land does not vest in the Gram Panchayat. The Assistant Collector 1st Grade, vide order dated 31.1.1978, held that private respondents have failed to prove partition or cultivating possession of their predecessor before 26.1.1950 and, therefore, ordered their eviction. An appeal filed by respondents no.1 to 3 before the Collector, Patiala, was dismissed on 22.1.1980. An appeal filed before the Joint Director, Panchayats, was dismissed on 1.9.1980.
Faced with their imminent ejectment, respondent nos. 1 to 3 filed a petition under section 11 of the 1961 Act, claiming Civil Writ Petition No.2264 of 1986 3 ownership of the suit land, by, once again, raising a plea that as the land was partitioned and in cultivating possession of their predecessors before 26.1.1950, it does not vest in the Gram Panchayat. The Collector allowed the petition by holding that as Gurmail Singh, one of the respondents, was not cross-examined on the question of partition, it raises an inference that the land, in dispute, was partitioned before 26.1.1950. The Collector also held that as private respondents have proved cultivating possession of their predecessors, in accordance with their share holdings, "since" 26.1.1950, the land does not vest in the Gram Panchayat. An appeal filed by the Gram Panchayat was dismissed on 27.12.1985. Hence, the present petition.
Counsel for the Gram Panchayat submits that the Sub Judge 1st Class, has held in judgment and decree dated 12.9.1968, that the respondents have not produced any evidence of partition of the "Shamilat Khewat" or of cultivating possession of their predecessors before 26.1.1950. The withdrawal of the suit, before the Appellate Court, does not negate these findings and, in essence, amounts to abandonment of the claim. The respondents are, therefore, estopped from initiating any further proceedings. The Assistant Collector, in proceedings under section 7 of the 1961 Act, has held that petitioners have failed to prove partition and cultivating possession of their predecessors before 26.1.1950 but while deciding the petition under section 11 of the 1961 Act, the Collector disregarded the absence of any document of partition, or a revenue entry recording partition, and held that partition is proved as one of Civil Writ Petition No.2264 of 1986 4 the respondents was not cross-examined on the question of partition. The jamabandi for the year 1950-51, clearly records that the land is joint. The failure to cross-examine a respondent on the question of partition is, therefore, irrelevant. It is further argued that in the absence of any evidence of partition or of "cultivating possession", the Collector has erred in deciding the suit in favour of private respondents. The appellate authority has also failed to consider the arguments raised or the relevant record.
Counsel for the respondents, on the other hand, submits that the land, in dispute, is excluded from "Shamilat Deh" as it was partitioned before 1950 and was in individual cultivating possession of the petitioner's predecessors. It is further contended that jamabandi for the year 1950-51 records Chatter Singh, father of respondents no.1 to 3, as owner in possession of ½ share, out of land measuring 255 Bighas 17 Biswas. Chatter Singh, the petitioner's predecessor, purchased another parcel of land from one Kartar Singh son of Waryam Singh, a co-sharer in the Shamilat Deh, vide registered sale deed no.233 dated 7.5.1943, along with share in Shamilat. The jamabandi for the year 1950-51 records the cultivating possession of Chattar Singh over 118 Bighas 12 Biswas. During consolidation, the land was wrongly recorded as ownership of the Nagar Panchayat. All subsequent jamabandis record respondent nos.1 to 3 in cultivating possession of the land, in dispute. It is also pointed out that the Collector, Patiala, issued notice under section 4 (1) of the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1959, but these proceedings were eventually dropped Civil Writ Petition No.2264 of 1986 5 after the Collector recorded a finding in his order, dated 9.5.1963, that the respondents are in individual cultivating possession since 1948. It is also contended that a notice issued under section 7 of the 1961 Act was withdrawn by the Assistant Collector 1st Grade, Fatehgarh Sahib (Bassi Pathana) on 23.7.1975 on the ground that it has already been decided that the Gram Panchayat is not the owner and the respondents were in possession, before 1950. An appeal against this order was accepted by the Collector, Patiala, and the matter was remanded, vide order dated 15.3.1976. It is further argued that as the Collector and the Appellate Authority have recorded concurrent findings of fact, that the land, in dispute, does not vest in the Gram Panchayat, the writ petition should be dismissed. It is also argued that if the petitioner's case is not covered under section 2(g)(iii) of the 1961 Act, it would fall within section 2(g)(viii) of the 1961 Act.
We have heard counsel for the parties, perused the impugned orders and the paper book.
The dispute in the present case is whether the land, in dispute, is "Shamilat Deh" as defined under section 2(g)(1) of the 1961 Act or is excluded therefrom by virtue of section 2(g)(iii) of the 1961 Act.
The Gram Panchayat claims that as the land, in dispute, is described as "Shamilat Deh" and does not fall within any of the exclusion clauses of section 2(g) or Section 4 of the 1961 Act, it vests in the Gram Panchayat. The respondents, on the other hand, urge that the land is excluded from "Shamilat Deh" by section 2(g)(iii) Civil Writ Petition No.2264 of 1986 6 of the 1961 Act, as it was partitioned before 26.1.1950 and was in cultivating possession of their predecessors. It would, therefore, be appropriate to reproduce relevant extracts from section 2(g) of the 1961 Act , which read as follows:
"2(g) "shamilat deh" includes-
(1) lands described in the revenue records as shamilat deh or charand excluding abadi deh;
(2) XX XX XX
(3) XX XX XX
(4) XX XX XX
(5) XX XX XX
"2(g) but does not include land which--
(i) XX XX XX
(ii) 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) lies outside the abadi deh and was being used as
gitwar, bara, manure pit, house or for cottage industry, immediately before the commencement of this Act;
(vii) XX XX XX
(viii) was shamilat deh, was assessed to land revenue
and has been in the individual cultivating possession of co-sharers not being in excess of their respective shares in such shamilat deh on or before the 26th January, 1950; Civil Writ Petition No.2264 of 1986 7
Section 2(g)(1) of the 1961 Act postulates that "Shamilat Deh" includes land described as "Shamilat Deh". Section 2(g)(iii) of the 1961 Act, provides that the land that has been partitioned and brought under cultivation by individual land holders before 26.1.1950, shall be excluded from "Shamilat Deh".
A person claiming that his land is excluded from "Shamilat Deh", under section 2(g)(iii) of the 1961 Act, shall be required to prove that (a) the land was partitioned before 26.1.1950; and (b) was brought under cultivation by individual land holders. The Collector and the Commissioner have held that the petitioner has proved these ingredients.
We shall, therefore, examine, whether these findings are based upon any legal or tangible evidence. The private respondents reply upon jamabandi for the year 1950-51, appended as Annexure R-1, with their reply and a document, Annexure R-4, purportedly an excerpt of relevant jamabandis in support of their plea of partition and cultivating possession before 26.1.1950. A perusal of these documents does not reveal any reference to a partition, much less, a partition of the "Shamilat Khewat" whether by revenue authorities or by way of a private partition. The jamabandi for the year 1950-51 clearly records that the land is "Shamilat Deh Majkoor" and Chatter Singh has two shares, Mitta, Hazara and Ajit, have equal shares. The recording of Chatter Singh, the alleged predecessor of the private respondents, as a co-sharer, clearly negates the plea of partition. If the land had been partitioned, Chatter Singh would not have been recorded as a co-sharer, but as an individual owner. The Civil Writ Petition No.2264 of 1986 8 respondents are unable to refer to any other document, that may, in any manner, raise an inference of a partition of the "Shamilat Khewat".
At this stage, it would be appropriate to point out that agricultural land, is partitioned, in accordance with procedure prescribed by the Punjab Land Revenue Act, 1887, and involves preparation of a mode of partition, drawing up of various "Naqshas" (Maps), known as Map `A' and Map `B' etc. and eventually the drawing up of a final document of partition, called as "Sanad Taqsim". The private respondents have not produced any document, much less the "Sanad Taqsim", to raise an inference of partition.
The Collector and the Commissioner have accepted the plea of partition on the ground that Gurdial Singh, one of the respondents, was not cross-examined on the point of partition. It is true that an admission is the best evidence of a fact but, in our considered opinion, as revenue record is to the contrary, failure to cross-examine a witness, should not have been relied upon by the Collector and the Commissioner to raise an inference of partition. The Collector and the Commissioner lost sight of the fact that the land, in dispute, is the common land of the village, i.e., Shamilat Deh". A large number of proprietors/co-sharers were co-sharers, before it came to vest in the Gram Panchayat. If the land had been partitioned, individual names of proprietors would have been recorded in the column of ownership, whereas, as admitted by private respondents, the ownership column records, the words "Shamilat Deh" and the column of possession records the Civil Writ Petition No.2264 of 1986 9 possession of "co-sharers". We, therefore, have no hesitation in holding that the Collector and the Commissioner committed an error of jurisdiction in holding that failure to ask a question, in cross- examination, of one of the respondents on the issue of partition, is conclusive evidence of partition, prior to 26.1.1950.
Assuming for a moment that parties may have affected a private partition, it should have been proved by a document of private partition or by a mutation recording such a partition. We, therefore, reject the plea of partition before 26.1.1950. The absence of any proof of partition of the "Shamilat Khewat" in 1948, negates the claim of private respondents for exclusion of land, in dispute, from "Shamilat Deh" in terms of section 2(g)(iii) of the 1961 Act. Our conclusion is fortified by findings recorded in proceedings under section 7 of the 1961 Act, for eviction of the private respondents. We are conscious of the fact that findings recorded under Section 7 of the 1961 Act, do not operate as res judicata in a title suit but are being reproduced so as to place facts, in perspective. The private respondents raised a plea of partition of the "Shamilat Khewat", which was, concurrently, rejected by the Assistant Collector 1st Grade, the Collector and the Joint Director, Panchayats (exercising powers of `Commissioner'). A relevant extract, from order dated 22.1.1978 passed by the Collector, Patiala, reads as follows:
"4. I have considered these arguments. The appellants have failed to produce documentary or convincing oral evidence to prove that the land was being cultivated by Civil Writ Petition No.2264 of 1986 10 them and earlier by their father. Since the year 1948 and that the land was ever partitioned according to the land owner share in the shamlat deh. According to the evidence Sh. Parduman Singh Patwari recorded before the trial court there was 285 acres of banjar land as recorded in the jamabandi for the year 50-51 and there was no reduction in this area in the year 1951-52. It was also stated by the witness that total area of the village in the year 1949-50 was 1308 bighas. The witness categorically stated that no mutation relating to partition of the shamlat land amongst the share holder was ever entered in the revenue record of this village......."
In the absence of any tangible evidence of partition of the "Shamilat Khewat" before 26.1.1950, we have no hesitation in holding that the Collector and the Commissioner have erred in holding that the petitioners have proved partition of the Shamilat Khewat.
During the course of arguments, counsel for the private respondents made a faint attempt to urge that as jamabandi for the year 1950-51, records Chatter Singh, predecessor-in-interest of the private respondents, in possession of land in Khewat No.111, the land, in dispute, is excluded from "Shamilat Deh" by section 2(g)(viii) of the 1961 Act. A plea, based upon section 2(g)(viii) of the 1961 Act, requires the respondents to prove that "Shamilat Deh" was in individual cultivating possession of a co-sharer, but not in excess of his share and after payment of land revenue.
Civil Writ Petition No.2264 of 1986 11
The relevant jamabandi, in our considered opinion, does not fulfil the ingredients of section 2(g)(viii) of the 1961 Act. Even if, we were to read the words "Rousli Awal", as `cultivable land', the absence of any evidence of payment of land revenue, dissuades us from holding in favour of the petitioner. We also refuse to entertain this plea as it was not raised at any stage before any revenue authority. It would also be appropriate to point out that in the civil suit filed before the Sub Judge 1st Class, Bassi Pathana, the plea raised was that the land does not vest in the Gram Panchayat as it was partitioned amongst proprietors in the year 1948, and had remained in their possession without payment of rent etc. In the petitions filed under sections 7 and 11 of the 1961 Act, the private respondents raised a similar plea. We, therefore, do not permit the private respondents to alter the foundation of their case, and raise a plea that was never raised before the Collector or the Commissioner.
In view of what has been stated hereinabove, we allow the writ petition, set aside the impugned orders and dismiss the petition filed under section 11 of the 1961 Act by holding that the land, in dispute, being "Shamilat Deh", vests in the Gram Panchayat. No order as to costs.
( RAJIVE BHALLA ) JUDGE ( REKHA MITTAL ) th 7 September, 2012 JUDGE VK