Kashmir Singh v. The Director, Rural Development and Panchayat Department & Ors.

HON'BLE MR. JUSTICE JORA SINGH Present: Mr. Sarjit Singh, Senior Advocate, with Ms. Shikha Sharma, Advocate, for the appellant. * * * SATISH KUMAR MITTAL , J. Kashmir Singh has directed this appeal against the order dated

6.8.2010, passed by the learned Single Judge, dismissing his writ petition, challenging the orders dated 5.6.2007 and 28.10.2009, passed by the Collector-cum-Divisional Deputy Director, Rural Development and Panchayat, Patiala, and the Director, Rural Development and Panchayat Department, Punjab, respectively, vide which the suit filed by the appellant under Section 11 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as `the Act') was dismissed. The appeal is barred by limitation and the appellant has filed an application (CM No. 5486 of 2010), which is duly supported by an affidavit, to condone the delay LPA No. 1830 of 2010 -2- of 99 days in filing the appeal. We have heard learned counsel for the appellant on merits and have gone through the impugned order as well as the aforesaid orders dated

5.6.2007 and 28.10.2009. In his suit filed under Section 11 of the Act, prayer of the appellant was that the land measuring 15 Kanals 16 Marlas was not the shamilat deh and thus was not vesting in the Gram Panchayat, as the said land was in his continuous possession prior to 26.1.1950 and it was never used for common purposes of the village. On the other hand, stand of the respondent-Gram Panchayat was that the land in question was shamilat deh and it vests in the Gram Panchayat. It was further stated that in view of this fact, mutation of ownership of the entire disputed land was entered in favour of the Gram Panchayat and thereafter, the Gram Panchayat was leasing out the land to various persons. It was the further case of the respondent-Gram Panchayat that the land in question was leased out to the appellant on payment of Chakota and in the revenue record, the Gram Panchayat was recorded as owner of the land in question and name of the appellant was recorded in the column of possession as Chakotedar. The Collector-cum- Divisional Deputy Director, Rural Development and Panchayat, Patiala, vide order dated 5.6.2007 dismissed the suit, while coming to the conclusion that in the jamabandi for the year 1961-62, the Gram Panchayat was recorded as owner of the land in question and the appellant was shown in possession of the same as Chakotedar on payment of rent at the rate of ` LPA No. 1830 of 2010 -3- 375/ per killa. Further, in the subsequent jamabandis for the years 1972-73, 1982-83 and 1987-88, again the Gram Panchayat has been recorded as owner and the appellant was recorded to be in possession of the land as Chakotedar. It was further held that the appellant has failed to prove his possession over the land in dispute prior to 26.1.1950. He has also failed to establish that he was one of the proprietors of the village having some share in the proprietary body. The appeal, filed by the appellant against the said order, was also dismissed by the Director, Rural Development and Panchayat Department, Punjab, vide order dated 28.10.2009, while observing that possession of the appellant over the land in question is illegal as in the jamabandis for the years 1972-73, 1987-88 and 1992-93, he has been recorded as Chakotedar of the Gram Panchayat. Both these orders have been further upheld by the learned Single Judge. Hence, this appeal. During the course of arguments, learned counsel for the appellant argued that the Collector-cum-Divisional Deputy Director, Rural Development and Panchayat, Patiala, as well as the appellate authority have committed grave illegality, while not recording the reason as to how the land vests in the Gram Panchayat. According to the learned counsel, the onus to prove that the land in dispute falls under the definition of shamilat deh and vests in the Gram Panchayat rests upon the respondent-Gram Panchayat and not upon the appellant. We do not find any force in this LPA No. 1830 of 2010 -4- contention. Since the appellant was the plaintiff in the suit filed by him under Section 11 of the Act, therefore, the onus was on him to prove that the land does not vest in the Gram Panchayat and he is owner in possession of the same. As per clause (viii) of Section 2 (g) of the Act, only that land does not include in the definition of shamilat deh, which was shamilat deh, was assessed to the land revenue and has been in the individual cultivating possession of co-sharers not being in excess of their respective shares in such shamilat deh on or before 26.1.1950. In order to place his case under the said clause, it is incumbent upon the appellant to prove that he has been in individual cultivating possession of the land in question prior to

26.1.1950 and the said possession was not exceeding to his share in the shamilat deh. The appellant could not prove this fact. Rather, a finding has been recorded that in the jamabandi for the year 1961-62, the Gram Panchayat was recorded as owner in possession of the suit land and subsequently, it was leased out to the appellant on Chakota. In the revenue record, possession of the appellant was recorded as Chakotedar of the Gram Panchayat. Even in this appeal, the appellant has not disputed the fact that he has taken the disputed land on Chakota from the Gram Panchayat. It is well settled that if a person has taken the land on lease from the Gram Panchayat, then he cannot challenge the ownership of the Gram Panchayat, claiming that he is owner in possession of the land. In this regard, reference can be made to Jarnail Singh and others v. Joint Director Panchayat and others, 1999 (1) PLJ 318, Mam Deen v. State of Haryana and others LPA No. 1830 of 2010 -5- (2001-1) 127 PLR 563, Gram Panchayat, village Mardaheri and another v. The Joint Development Commissioner and others (2003-2) PLR 694 and a Division Bench judgment of this Court in Baljit Singh v. Joint Development Commissioner, Punjab and another, (2005-2) 140 PLR 89. In this case, the appellant has failed to prove that he is owner of the disputed land, which does not vest in the Gram Panchayat. Therefore, in our opinion, the learned Single Judge, while dismissing the writ petition of the petitioner, has rightly confirmed the orders dated 5.6.2007 and

28.10.2009, passed by the Collector-cum-Divisional Deputy Director, Rural Development and Panchayat, Patiala, and the Director, Rural Development and Panchayat Department, Punjab, respectively, dismissing the suit of the appellant under Section 11 of the Act. Dismissed. ( SATISH KUMAR MITTAL ) JUDGE December 23, 2010 ( JORA SINGH ) JUDGE