Ishar Singh & Anr. v. The Joint Director, Panchayats, Punjab, Sector-17, Chandgiarh, (exercising

CORAM: HON'BLE MR. JUSTICE JASBIR SINGH Present:- Mr. Ashwani Talwar, Advocate, for the petitioners. Mr. Dhirinder Chopra, Advocate, for the respondent No. 3. JASBIR SINGH, J. (ORAL). This order will dispose of three writ petitions bearing No. 6745 of 1986, 6746 of 1986 and 6747 of 1986 involving similar facts. To dictate order, facts have been taken from CWP No. 6745 of 1986. CWP No. 6745 of 1986 and other connected cases -2- By filing this writ petition, the petitioners have challenged an Order dated 18.10.1984 (Annexure-P-7), vide which Gram Panchayat's application, filed under Section 11 read with Section 7 of the Punjab Village Common Lands Act, 1961, was accepted and Gram Panchayat was declared owner of the land falling in khasra No. 69//38 Min (4-0). The petitioners have also assailed an order dated 16.09.1986 (Annexure-P-9), vide which their appeal against abovesaid order was dismissed. In this writ petition, it is primary contention of the petitioners that in the face of judgment passed in their favour by a Civil Court on 10.01.1973, the findings given by the authorities below are liable to be set aside.

It was further averred that in view of decision given by the Civil Court, granting decree of joint possession in their favour for land measuring 4 Bighas 5 Biswas it was not open to the authorities under the Punjab Village Common Lands (Regulation) Act, 1961, to give findings to the contrary. On notice, reply was filed by the Gram Panchayat wherein it has been stated that as per Jamabandis for the years 1962-63, 1967-68, 1972-73 and 1977-78, Gram Panchayat is owner of the land in dispute. The Gram Panchayat had been giving this land on lease to the right holders of the village whose names also find mention in the revenue record. It is further stated that so far as khasra No. 69//38 is concerned, as per revenue record, it has been shown as Gairmumkin Nadi and in possession of lessees of the Gram Panchayat. Heard counsel for the parties. It is evident from the record that the petitioner Ishar Singh filed a suit in the year 1972 claiming joint possession in the area measuring 4 Bighas 5 Biswas in the land owned by the Gram Panchayat.

It was his case that he was in cultivating possession of the abovesaid land since before 26.01.1950 CWP No. 6745 of 1986 and other connected cases -3- and as such the same would not fall within the definition of Section 2 (g) of the Act. The suit was decreed. Relevant portion of the decree sheet reads thus :- “Suit for joint possession of 4 Bighas 5 Biswas as comprised in Rect. No. 3 Khasra Nos. 17/1-18/3-14-18/1, 18/2 Rect. No. 7 Khasra No. 12/2-3/2-8 9/1, 4/14-15-72 13K Khasra No. 6, 24-1 Rect. No. 15 K Khasra No. 19/2-13-18-16, 4/2, 2 Rect. No. 19 K Khasra No. 2-32 Rect. No. 21 Khasra No. 16/2 Rect. No. 22 K Khasra No. 6/2, 6/1, Rect. No. 24 K Khasra No. 26, 3-10-11-20, 37, 24-2-1- Rect. No. 27 K. Khasra No. 12-13, 18/1, 19/2 Rect. No. 28 K. Khasra No. 4/1 Rect. No. 25 Khasra No. 5/2 Rect. No. 32 K Khasra No. 137, 8. 11 Rect. No. 35 Khasra No. 14-15-17-3- 4-6-7-27-8/1 Rect. No. 86, 38, 54 situated in village Isapur Rauni, Tehsil Rajpura “ It is evident from the records and also as per case of the petitioners that at the time of consolidation proceedings, in the year 1958-59, the entire Shamlat Deh land was put in the hotch potch and thereafter, it was allotted in the name of Gram Panchayat.

The factual position was also so reflected in Jamabandi for the year 1958-59 and subsequent thereto. As per evidence on record, petitioners' name figured in the revenue record only in Jambandi for the year 1977-78. Before that, the land in dispute was shown in possession of other land owners, on lease, from the Gram Panchayat. Rate of rent was also mentioned in the revenue record. It is also an admitted fact that the decree for joint possession was never got executed by the petitioners. In the judgment passed, it is nowhere stated that as to in which Khasra Number, the petitioners were in possession of the land. It was a decree for joint possession of the land measuring more than 100 Bighas. Khasra No. 69//38 itself consists of 176 Bighas and 18 Biswas of land, in the judgment, on the basis of which relief is being claimed by the petitioners, it is nowhere mentioned as to in which portion of the land petitioners were in possession.

It CWP No. 6745 of 1986 and other connected cases -4- is case of the Gram Panchayat that after consolidation, the petitioners were not in possession of the shamlat land. As per facts on record, a specific finding was given by the courts below that the petitioners have failed to connect pre- consolidation land with the post-consolidation land, allotted to the Gram Panchayat. It is evident from the record that the Gram Panchayat/respondent No. 3 filed an application under Section 7 (2) of the Act for ejectment of the petitioners from land, bearing Khasra No. 69//14 (05 Biswas) and Khasra No. 69//38 (4 Bighas 0 Biswas). The claim of the petitioners regarding land falling in Khasra No. 69//14 was accepted, however, the same was rejected qua Khasra No. 69//38 by observing as under :- “ After hearing the arguments of counsel for both sides and after perusing the documentary evidence produced, I have reached the conclusion that regarding the K.No.

69/14 (Min.0-5) of the disputed land, the case has already been decided in favour of the respondents as per the judgment dated 10.01.1973 of the Sub Judge Ist Class, Rajpura Ex.R.6 and accordingly the petitioner's application regarding K.No. 69/14 (Min. 0-5) is dismissed because the principle of Resjudicata is applicable. The petitioner's application regarding K.No. 69/38 Min (4-0) is accepted because the respondents have not produced any proof regarding their possession since 26.01.1950. The respondents are proved to be in unauthorised possession and they are ejected from K.No. 69/38 Min. (4-0).” Petitioners' went in appeal, which was dismissed by the appellate authority by noting the following facts :- “6. I have heard both the parties in detail and have thoroughly gone through the record produced in this case. There is no force in the first contention of the learned counsel for the appellants that the appellants' possession of the land in dispute was prior to 26.1.1950 and it was not Shamlat land.

The revenue CWP No. 6745 of 1986 and other connected cases -5- record produced by the parties includes the copies of Jamabandies for the year 1947-48, 1950-51, 1962-63, 1967-68, 1977-78. According to Jamabandies for the year 1947-48 and 1950-51, the land entered in it is Shamlat. Only in 1950-51 Jamabandi, the name of Sh. Isher Singh figures in the cultivation column “Kasht” but the land entered in this Jamabandi has no connection with the present land. In the remaining Jamabandies, the Gram Panchayat has been described as the owner of the land in dispute. In the Jamabandi for the year 1962-63, in the cultivation column, Makbooja Malkan has been shown and the land has been shown as Nadi. In the subsequent Jamabandies the names of appellants appears in the cultivation column. Before consolidation, the land which was in possession of the appellants, has not been connected with the present land. From this it is evident that this land was not allotted to the present appellants in lieu of the land which was in his possession prior to Consolidation. On the basis of possession, he has no right over the present land. This possession is unauthorised.

The learned counsel for the appellants greatly stressed on the point that this matter has already been decided by the Civil Court and it comes within the purview of resjudicata. This cannot be reagitated. I have seen the judgment dated

19.1.73 of Sh. H.C Modi, Sub Judge !st Class Rajpura. In this case the suit was filed by the present appellants Ishar Singh and Ujjagar Singh against the Gram Panchayat. From this decision it appears that none presented the case on behalf of the Gram Panchayat. The Gram Panchayat knowingly did not appear in the Court as it was conniving with the present appellants. This decree was collusively obtained. Besides in the case Chamel Singh s/o Telu Vs. Gram Panchayat, the decree which was passed on 28.2.73 it is clearly stated that Sarpanch of the then Gram Panchayat appeared in the Court. He had admitted that the present appellants were in possession of the land since 1947-48. He had also admitted that the present land had no connection with Gram Panchayat and the mutation in favour of Gram Panchayat was wrong. For this the connivance of the Panchayat CWP No. 6745 of 1986 and other connected cases -6- is clearly proved.

Gram Panchayat is a local authority. Its property is meant for all the people of the village. Such decrees obtained collusively cannot be enforced against the Gram Panchayat. Besides Rule 16 of the Punjab Village Common Lands (Regulation) Rules, 1964, provides that if a Gram Panchayat, then the proceedings can be initiated after passing a Resolution. In sub rule (3) of this rule it has been provided that the Panch or Sarpanch who is authorised for pursuing such cases, he has no right to enter into a compromise or otherwise collude. If a compromise is to be effected then a Resolution is passed first by the gram Panchayat and Gram Panchayat authorises a Panch or Sarpanch to enter into the compromise. Till such time Gram Panchayat does not authorise for Compromise, no Panch has the right to give evidence against the Gram Panchayat. The judgment given by the Civil Court against the Gram Panchayat, on the basis of a statement given by an unauthorised Panch, would not be binding on the Panchayat.

The third contention of learned counsel for the appellant regarding limitation i.e. that the suit was filed after the expiry of limitation, is also without any force. In his order dated

24.12.1981, the Collector (DDPO) had decided that the Gram Panchayat should get the question of ownership of the land be decided first u/s 11 of the said Act. Vide this Order he had dismissed the application filed by the Gram Panchayat u/s 7 of the said Act. As per the Collector's Order the Gram Panchayat has filed this application under Section 11 and 7 of the said Act. The Collector has ordered the dispossession of the present appellants after first deciding the application of the Gram Panchayat u/s 11 of the Act.