Punjab-Haryana High Court
Mukand Singh vs State Of Punjab And Others on 7 August, 2008
Author: Rajive Bhalla
Bench: Rajive Bhalla
C.W.P. No.2781 of 1985 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
CWP No.2781 of 1985
Date of Decision: 7.8.2008
Mukand Singh .....Petitioner
Vs.
State of Punjab and others .....Respondents
....
CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA
****
Present : Mr. Avnish Mittal, Advocate for the petitioner.
Mr. N.S. Pawar, Addl.A.G. Punjab for respondents no.1 to 3.
....
RAJIVE BHALLA, J (Oral)
This order shall dispose of CWP Nos.2780, 2781 and 2782 of 1985, as common questions of fact and law arise for adjudication. Facts necessary for adjudication of the present writ petitions have been taken from CWP No.2781 of 1985.
The petitioner impugns orders dated 19.4.1982 and 19.10.1984 passed by the Collector/Divisional Deputy Director, Rural Development and Panchayat, Patiala and the Joint Director, Panchayat, Punjab, Chandigarh, (exercising the powers of Commissioner) respectively.
The Gram Panchayat of Village Gunia Majra, Tehsil Sirhind, respondent no.4, filed a petition under Section 7 of the Punjab Village Common Lands (Regulations) Act, 1961 (hereinafter referred to as `the Act'), praying for delivery of possession and ejectment of the petitioner, as he was in unauthorised possession of Shamlat land. The Gram Panchayat alleged that the land in dispute was owned by the Gram Panchayat but as the C.W.P. No.2781 of 1985 2 petitioner was in unauthorised possession, he should be ejected and possession, of the land in dispute, should be delivered to the Gram Panchayat. In response, the petitioner filed his written statement and pleaded that the land did not belong to the Gram Panchayat, as the petitioner was in continuous possession since before 26.1.1950. Parties were allowed to lead evidence, whereafter, the Collector/Divisional Deputy Director, Rural Development and Panchayat, Patiala, accepted the petition filed by the Gram Panchayat and ordered ejectment of the petitioner, from the land in dispute.
Aggrieved by the aforementioned order, the petitioner filed an appeal before the Joint Director,Panchayat, Punjab, exercising the powers of the Commissioner under the Act. Vide order dated 19.10.1984, the appeal was dismissed.
Counsel for the petitioner submits that the Gram Panchayat has failed to establish its ownership qua the land in dispute and as onus to establish ownership was upon the Gram Panchayat, the learned Courts below, erred in directing the petitioner's ejectment. It is further submitted that as per proviso (iii) to Section 2(g) of the Act, land under separate cultivation, by individual land owners before 26.1.1950 does not fall within the definition of the expression of "Shamlat Deh". The petitioner has been in separate cultivating possession, pursuant to an order of partition before 26.1.1950 and is, therefore, owner in possession of the land in dispute. The findings returned by the authorities below that the Gram Panchayat is owner of the property in dispute is factually and legally incorrect. It is further argued by reference to a Roznamcha Waquiati dated 31.7.1949, appended with the writ petition as Annexure P-3 that pursuant to this document, land C.W.P. No.2781 of 1985 3 held jointly by proprietors was partitioned amongst the co-sharers, but this could not be produced before the authorities and should, therefore, be taken into consideration, while deciding the present writ petition. It is further submitted that in the case of similarly situated co-sharers, namely Jagir Singh and Bant Singh, the Collector/Divisional Deputy Director, Rural Development and Panchayat, Patiala, held on the basis of this Roznamcha that the land in dispute does not vest in the Gram Panchayat, It is, therefore, submitted that as the Gram Panchayat has failed to establish its ownership, the petition under Section 7 of the Act should have been dismissed.
Counsel for the respondents, on the other hand, submits that though the petitioner had asserted, before the Collector, that he was owner in separate cultivating possession, prior to 26.1.1950, the petitioner failed to produce any evidence in support of this assertion. The petitioner was granted 17 opportunities, to establish his defence but failed to produce any material, cogent or otherwise, to establish his plea of separate cultivating possession, prior to 26.1.1950. It is further submitted that the order dated 28.7.1982 Annexure P-4, passed by the Collector/Divisional Deputy Director, Rural Development and Panchayat, Patiala, based upon the Roznamcha Waquiati (Annexure P-3) was reversed in appeal and, therefore, the petitioner's reliance on the said order is misplaced. It is further submitted that the relevant Jamabandis, clearly establish that the Panchayat is owner of the suit land and, therefore, the present writ petition be dismissed.
I have heard learned counsel for the parties and perused the impugned orders.
The respondent-Gram Panchayat filed a petition under Section C.W.P. No.2781 of 1985 4 7 of the Act, praying for the petitioner's ejectment, alleging that the petitioner is an unauthorised occupant of land belonging to the Gram Panchayat. The petitioner set up a positive defence that the land was not Shamlat Deh, as the petitioner was in separate cultivating possession prior to 26.1.1950. The petitioner, in essence, sought to draw benefit of the third proviso to Section 2(g) of the Act, which postulates that land partitioned and brought under cultivation by an individual land owner prior to 26.1.1950, shall not fall within the definition of "Shamlat Deh". This stand though positively asserted, by the petitioner in the written statement, is not supported by any evidence, whether in the shape of a jamabandi or any other relevant revenue record, evidencing his separate cultivating possession. In fact the evidence produced by the petitioner, namely Jamabandis Exs.R-1 to R-8 relate to the period after 26.1.1950 and are, therefore, irrelevant for deciding the petitioner's defence that as he was in separate cultivating possession of the land in dispute and the land, therefore, did not vest in the Gram Panchayat. As regards the submission that the Roznamcha Waquiati (Annexure P-3) reflects partition of the land in dispute and allotment of individual and separate possession of land to the petitioner and other co-sharers, suffice it to say that this document was not produced before the authorities below and even otherwise, is of doubtful authenticity. It would also be necessary to mention here that this document was relied upon by the Collector in a case titled as Gram Panchayat Gunia V. Jagir Singh and Bant Singh, to hold that the Gram Panchayat was not owner of the land in dispute. However, this order, as is apparent from the averments in the written statement, filed by Gram Panchayat was set aside in appeal and it was held that the Gram Panchayat is owner of the land in C.W.P. No.2781 of 1985 5 dispute. The petitioner has not controverted this averment. The Roznamcha Waquiati,therefore, can not be pressed into service by the petitioner. The petitioner has failed to establish his defence, that he is a co-sharer, in separate cultivating possession of land, after partition, prior to 26.1.1950. I find no error of jurisdiction or of law, as would require interference with findings of fact recorded in the impugned orders.
Before parting with the judgement, it would be necessary to mention here that Section 7 of the Act, empowers the Gram Panchayat to pray for possession of land described as Shamlat Deh. While exercising jurisdiction under Section 7 of the Act, the Collector, does not decide or adjudicate questions of title that may arise between the alleged unauthorised occupant and the Gram Panchayat. A question of title is to be decided under Section 11 of the Act.
In view of what has been stated herein above, the writ petitions are dismissed with no order as to costs. The petitioner, may, however, agitate the question of title, if any, before an appropriate forum, if permissible and in accordance with law.
7.8.2008 (RAJIVE BHALLA) GS JUDGE