Sampuran Singh & Ors. v. The Commissioner, Ambala & Ors.

CORAM: HON'BLE MR. JUSTICE RANJAN GOGOI HON'BLE MR. JUSTICE RAJAN GUPTA Present: Mr. R.C. Setia, Senior Advocate with Mr. G.S. Nagra, Advocate for the appellants. Mr. Indresh Goel, Addl. AG Haryana for respondents No.1 to 3. None for respondent No.4. Ranjan Gogoi, J. (oral) Heard Mr. Setia, learned senior counsel for the appellants and Mr. Indresh Goel, Addl. AG Haryana for respondents No.1 to 3. None has appeared on behalf of respondent No.4 the Gram Panchayat. All the four Letters Patent Appeals i.e. LPA Nos.27, 25 & 51 of 2004 and LPA No.476 of 2003 have been heard together as the writ petitions, out of which these appeals are arisen, were disposed of in terms of the order dated 14th May, 2003 passed in CWP No.2809 of

1988. The facts of these cases in brief are that the appellant-writ petitioners filed a suit under Section 13-A of the Punjab Village LPA No.27 of 2004 2 Common Lands (Regulation) Act, 1961 (hereinafter referred to be as “the Act”) for declaration as owners of land measuring 84 Kanals 12 Marlas in different Khasra numbers of village Tundli, District Ambala. According to the appellant-writ petitioners, the Shamlat Deh land of the village had been partitioned prior to 26.1.1950 and the suit land had been under cultivation by the petitioners all along. Therefore, according to the appellant-writ petitioners, the said land did not fall within the definition of Shamlat Deh land by virtue of exception (iii) to Section 2 (g) of the Act. The claim of the appellant-writ petitioners was dismissed by the primary authority which order was affirmed in appeal and revision by the different authorities under the Act.

Aggrieved, the writ petitions, out of which these appeals are arisen, were filed. The learned Single Judge hearing the writ petitions identified the core issue in the cases to be one relating to proof of continuous possession of the land prior to 26.1.1950 in order to entitle the appellant-writ petitioners to claim the exemption under exception (iii) of Section 2 (g) of the Act. Learned Single Judge took into account the Jamabandi for the year 1951-52 placed on record by the appellant- writ petitioners as well as a certificate from the village Patwari that earlier to the Jamabandis for the year 1951-52, the Jamabandis were prepared for the year 1943-44. Considering the Jamabandi for the year 1943-44, which showed one late Harnam Singh to be in possession of a portion of the land, the learned Single Judge recorded the finding that the other Jamabandi produced i.e. in respect of the years 1951-52, did LPA No.27 of 2004 3 not prove continuous possession prior to 26.1.1950, which was necessary to be established by the appellant-writ petitioners.

In this regard the learned Single Judge also relied on a judgment of this court in Tara Singh Vs. The Financial Commissioner Punjab and Others, 1969 P.L.J. 310 to come to the conclusion that the entries in a Jamabandi can have effect only from the date of such entries. Accordingly and on the further finding that the appellant-writ petitioners had failed to lead any evidence with regard to old and new Khasra numbers of the land in dispute which could show their possession over the suit land on the basis of the earlier Jamabandi of the year 1943-44, the writ petitions were dismissed giving rise to the present appeals. Before us, learned counsel for the appellant-writ petitioners has reiterated that prior to the Jamabandi for the year 1951-52, the Jamabandis were prepared for the year 1943-44 and in the said Jamabandi of the year 1943-44, the predecessors-in-interest of the present appellant-writ petitioners were shown as the persons cultivating the land in question.

Even if this contention is accepted, in our considered view, the same would not establish continuous possession of the appellant-writ petitioners prior to 26.1.1950. What had happened between the years 1943-44 and 1951-52 in so far as the possession of the land is concerned, was required to be proved by the appellant-writ petitioners by leading cogent and acceptable evidence which is conspicuously absent. Reliance has been placed on a judgment of this court in Jai Ram and others Vs. The Assistant Collector Ist Grade, LPA No.27 of 2004 4 Dadri & others, 1989 PLJ 6 to show that an inference can be drawn from the Jamabandis produced by the appellant-writ petitioners that they were in continuous possession of the land. We have read and considered the order of this court passed in Jai Ram's case (supra) and on reading the said order it is our considered view that the said decision does not assist the appellant-writ petitioners in any manner.

In para 2 of the order passed in Jai Ram's case (supra), the averments in the application under Section 13-B of the Act, as is then existed, were reproduced which would clearly go to show that it was specifically averred by the claimants that the land in question was never used for common benefit of the village community and the petitioners were in continuous possession of the said land. The said averments were not denied by the Gram Panchayat in the proceedings in question. In the absence of any denial on the part of the Gram Panchayat to the specific pleadings with regard to the continuous possession, this court took a view that the necessary inference with regard possession on the basis of the Jamabandis produced would be permissible. The decision in Jai Ram's case (supra) does not lay down any law of general application which would be required to be followed by us. We have already noticed that in the present case, the learned Single Judge has also recorded the fact that the appellant-writ petitioners have not led any evidence to show a co-relation between the old and new Khasra numbers to establish their possession of the suit land on the basis of the earlier Jamabandis. The said finding has LPA No.27 of 2004 5 remained uncontroverted in the present appeals. For the aforesaid reasons, we do not find any merit in the instant appeals and consequently the same are dismissed with no order as to cost.

23.9.2010 'rajpal' (Ranjan Gogoi) Judge (Rajan Gupta) Judge