GRAM PANCHAYAT VILLAGE CHAURA, BLOCK SANAUR, TEHSIL AND DISTRICT, PATIALA Vs. STATE OF PUNJAB AND OTHERS

JUDGEMENT

(1.) The Gram Panchayat has challenged the validity of orders dated 5.10.2006 (Annexure P-1) and 13.3.2009 (Annexure P-2), passed by the Collector/Divisional Deputy Director, Rural Development and Panchayat, Patiala and Director, Rural Development and Panchayat Department, Punjab (exercising the powers of Commissioners under the Punjab Village Common Lands (Regulation) Act, 1961 (for short 'the 1961 Act'), respectively, by which an application filed by respondent No. 2 under Section 11 of the Act for declaring their title over the land bearing Khewat/Khatoni No. 300/660 and 663, Khasra No. 521(3-8), 519(3-13), has been allowed on the ground that respondents No. 2 to 4 were recorded in possession through their predecessor-in-interest in the jamabandi for the year 1945-46, i.e., prior to 26.1.1950 and the Panchayat has failed to prove that disputed land had ever been used for common purposes. Respondents No. 2 & 3, examined Gurmukh Singh son of Sh. Santokh Singh as PW1 and Harsimran Singh son of Rabinder Singh as PW2 and produced Jamabandi for the year 1945-46 (Ex. P-1), Jamabandi for the year 1949-50 (Ex. P-2), Jamabandi for the year 1952-53 (Ex. P-3), Intkal No. 325 (Ex. P-4), Khatauni Consolidation (Ex. P-5), Misal Haquiat (Ex. P-5/a), action taken (Ex. P-6), Map of Haqdarwar (Ex. P-7), Drafts Scheme (Ex. P-8), Jamabandi for the year 1956-57 (Ex. P-9), Jamabandi for the year 1960-61 (Ex. P-10), Jamabandi for the year 1965-66 (Ex. P-11), Jamabandi for the year 1970-71 (Ex. P-12), Jamabandi for the year 1975-76 (Ex. P-13), Jamabandi for the year 1980-81 (Ex. P-14), Jamabandi for the year 1995-96 (Ex. P-15), Jamabandi for the year 2000-2001 (Ex. P-16), Khasra Girdawari for the year 2001-04 (Ex. P-17). The Panchayat examined Balvinder Singh Sarpanch and tendered the affidavit as Ex. R-1, besides producing resolution dated 19.5.2005 as Ex. R-1 and jamabandi for the year 2000-01 as Ex. R-2.

(2.) The Collector, while allowing the application of respondents No. 2 to 4, observed that the land in dispute is in the name of the petitioners through their predecessor-in-interest from the very beginning on Chakota/Batai and Panchayat could not prove that it is used for the common purposes and welfare of the village. It was also observed that the land in dispute was Banjar Qadim on 9.1.1954 and has remained in possession of the petitioners through their predecessor-in-interest prior to 26.1.1950. The Commissioner, while dismissing the appeal of the Panchayat, has observed that the predecessor-in-interest of respondents No. 2 & 3 were continuously in possession over the land in dispute since 1945-46 till 1975-1976, it was never in possession of the Panchayat or used for common purposes and, as such, it does not come within the definition of Shamilat deh.

(3.) Counsel for the petitioner/Gram Panchayat has submitted that even as per jamabandi for the year 1945-46 attached as Annexure R2/1 with the reply filed by respondent No. 2, the land in dispute, is recorded as "Shamilat Deh Hasab Rasad Araji Khewat" and is shown in possession of Mohan Singh son of Sunder Singh (predecessor-in-interest of respondents No. 2 and 3) but the nature of the land is recorded as Banjar Qadim, which has been further shown in the jamabandi for the year 1949-50 (Ex. R2/2). Banjar Qadim is uncultivated land and in order to seek exclusion of land from Shamilat deh on the ground that it was in possession of respondents No. 2 and 3, through their predecessor-in- interest, they are required to bring their case within the four corner of Section 2(g)(iii) or 2(g)(viii), which excludes land in "cultivating possession" and not in mere "possession". It is further submitted that as the land in dispute has been repeatedly recorded as Banjar Qadim in jamabandis for the years 1945-46 and 1949-50, Sections 2(g)(iii) and 2(g)(viii) are of no help to respondents No. 2 and 3 to exclude it from Shamilat deh. He has also submitted that as per jamabandi for the year 1960-61 (Ex. P4/T), land in dispute has been shown as 'Chahi' but the revenue authorities have erred in not appreciating the fact that it would not suffice to hold that the land has been recorded as Banjar Qadim and was not used, as per revenue record, for common purposes of village, as on 9.1.1954. The authorities were required to consider whether the land was Banjar Qadim on the date of enactment of the 1961 Act. In this regard, he has relied upon a decision of this Court in CWP No. 6727 of 2007 titled as "Gram Panchayat, Kalwa v. The Joint Development Commissioner (IRD), Punjab, Chandigarh and others " decided on 30.3.2012,