SUSHIL KUMAR Vs. GRAM PANCHAYAT

JUDGEMENT

(1.) Brief facts giving rise to these two revision petitions are that Collector, Sirsa vide its order dated 16.4.2007 decreed the suit filed under section 13-A of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as the Act) and held that the possession of the petitioners over the land measuring 81 Kanal 10 Marla bearing Khewat No. 485 min Khatoni No. 1195, Khasra No. 73//1(8-0) 2 min (2-18), 6 to 10 (40-0), 11/1 (3-2), 12 to 14 (24-0), 15 min west (4-0) as per jamabandis for the year 2000-2001 of village Risalia Khera is protected under section 4(3)(ii) of the Act. The Commissioner Hisar Division vide its order dated 16.1.2009 allowed the appeals filed by the gram Panchayat Risalia Khera and set aside the judgment and decree dated 16.4.2007. Aggrieved by the said order dated 16.1.2009, these revision petitions have been preferred.

(2.) LEARNED counsel for the petitioners reiterating the pleadings made in the petitions argued that Sita Ram etc., the predecessors of the petitioners No. 1 to 8 had been in cultivating possession of the land in question continuously much prior to the year 1941 and stood recorded as such till the jamabandi for the year 2000-01 and consequent upon their demise, petitioner No. 1 and 8 themselves came in cultivating Possession thereof. The learned Collector had decreed the suit on a thorough consideration of the entire material and relevant evidence brought on record by the parties but the learned Commissioner has gone wholly wrong in allowing the appeal of the respondent. It was further argued that the appeal against the judgment and decree dated 16.4.2007 was filed after one year on 10.4.2008 and the learned Commissioner had no option but to dismiss the same in view of the mandatory provision of Section 3 of the Limitation Act, 1963 as he had not jurisdiction to condone to delay. Referring to the case reported in 2006(3) R.C.R. (Civil) 381, learned counsel argued that the suits filed which was barred by limitation are liable to be dismissed irrespective of fact whether any defence is set out or not. He continued to argue that Gram Panchayat is a juristic person and it can act though resolutions but in the present case the Gram panchayat had not passed any resolution no any mention of such resolutions has been made in the appeal filed before the learned Commissioner. Therefore the appeal before the learned Commissioner was not maintainable. Reliance for his submission was placed on the case laws reported in 1969 P.L.R. 257 and 1979 P.L.R. 527. He continued to argue that the view of the learned Commissioner that the person seeking protection of section 4(3) (ii) of the Act has to show that he has himself been cultivating the land in dispute for a period of 12 years since prior to the commence of the Act and not through any other person, is absolutely misconceived and against the provisions of section 4(3) (ii) of the Act. Referring to the case law reported as 1971 P.L.J. 159 (D.B.) Gram Panchayat Ranwan v. Amar Nath (Decd.) and others, the learned counsel argued that it is well settled proposition of law that legal possession does not necessarily and exclusively connote actual physical possession and the terms "self cultivation" and "cultivating possession" are not synonymous and cultivating possession does not necessarily imply possession of actual tiller of the soil who expends labour upon it. Possession of agricultural land by a person through his tenant is covered by "cultivating possession". The predecessors of petitioners No. 1 to 8 stand recorded in continuous cultivating possession of the land in dispute since prior to the year 1940 and actual cultivation has been carried out by different person at different time as tenants under them. The petitioners never paid any rent to the respondent Gram Panchayat or to any other functionary of the Government at any point of time. There is no landlord-tenant relationship between the petitioners and the Gram Panchayat.

(3.) IN reply, learned counsels for the respondents argued that it is settled law that the relevant date for determination of the character of the land with reference to Section 2(g) of the Act is 9th of January, 1954. Revenue entry in jamabandi prior to 9.1.1954 is a relevant fact for the purpose of Section 2(g) of the Act read with the provisions of the Punjab Village Common Lands (Regulations) Act, 1953. In the present case the land in question is recorded as shamilat deh hasab hissa pamaina malkiyat in the Jamabandis for the years prior to the commencement of the shamilat law. Therefore, it is not disputed fact that the land in question being shamilat deh falls within the ambit of section 2(g) (1) of the Act. The land in question being shamilat deh vests in Gram Panchayat in terms of section 4(1)(a) of the Act and nature of such land remains to be shamilat deh unless exclusive individual cultivation possession of a proprietor on a particular piece of land not exceeding to his share in the shamilat deh is established. The petitioners have failed to prove as to which exception clause of Section 2(g) of Punjab Village Common Lands (Regulation) Act, 1961 is applicable to suit land. Onus to prove this tact was also on the petitioners and not on the Gram panchayat as per ruling reported as 1979 P.L.J. 95-Purkha and Suria v. Gram the Sabha Mithanpur and others. It was further argued that the petitioners had filed the present suit for declaration to the effect that the petitioners are the absolute owners of the suit land, whereas the Revenue Officer has not jurisdiction or authority under any law to declare an individual to be owner of any land recorded shamilat deh. Under Section 13-A or proviso clause of section 7 of the P.V.C.L. Act, 1961, the Collector or Assistant Collector, Ist Grade has only to decide as to whether the suit land is shamilat deh or not. To support this contention, the learned counsel referred the ruling cited as 1988 (2) P.L.J. 196-Chhankar Singh v. Joint Development Commissioner and others. As such the suit of the petitioners was not maintainable in the present form. The possession of the petitioners is not protected even under Section 4(3) (ii) of the Act because the land in question had never been in cultivating possession of the petitioner rather different persons, at different points of time, are recorded in the column of possession. Section 4(3) (ii) protects the possession of the person who has been actually in continuous cultivating possession of shamilat 12 years prior to the commencement of the shamilat law. The alleged possession of the petitioners through their tenants cannot be termed as their possession for the purposes of section 4(3) (ii) of the Act. Moreover, as per jamabandi for the years 1940-44 (Ex. p-2), the land in question is measuring only 11 Bigha 1 Biswa whereas the petitioners are claiming 81 Kanal 10 Biswa by way of present suit. The petitioners have failed to establish that 81 kanal 10 Biswa land was alloted in lieu of 11 Bigha 1 Biswa land during consolidation, It was further argued that Shri Raja Ram son of Shri Kesra was in unauthorized possession of the land in question and he was ordered to be ejected by the Assistant Collector 1st Grade, Dabwali vide order dated 20.4.1995 and the appeal against that ejectment order was dismissed by the Collector, Sirsa vide order dated 1.8.1995. The petitioners, if they were in actual cultivating possession of the land, had not come forward against the ejectment order of their alleged tenant. Therefore, it proves that the petitioners have no right, title or interest in the suit land. Concluding their arguments they prayed for dismissal of the petition.