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Judgment
Satish Kumar Mittal, J.—This order shall dispose of Letters Patent Appeals No. 22, 30, 46 and 47 of 2012, arising from the common order
dated 17.8.2011, passed by the learned Single Judge, whereby four separate writ petitions (Civil Writ Petitions No. 15937, 17944, 17943 and
17565 of 2006) filed by Gram Panchayat, Village Aakri, Tehsil Rajpura, District Patiala (respondent No. 1 herein) were allowed. All these
appeals have been filed by the proprietors. The title suits filed by them u/s 11 of the Punjab Village Common Lands (Regulation) Act, 1961
(hereinafter referred to as ''the Act of 1961'') claiming themselves to be owners in possession of the land in question were dismissed by Collector,
Nawanshahr, vide order 18.4.2006, while holding that the land in dispute described in the revenue record as ''Shamlat Deh Hasab Rasad Zar
Khewat'' is being used for the benefit of the village community, and thus it falls under the definition of ''shamlat deh'' and the same shall vest in the
Gram Panchayat u/s 4 of the Act of 1961. On separate appeals, filed by the appellants u/s 11(2) of the Act of 1961, the Commissioner set aside
the order of the Collector, while holding that the suit land was in continuous possession of the appellants and was wrongly shown as ownership of
the Gram Panchayat. It was further held that the Gram Panchayat had failed to lead any documentary evidence to prove that the suit land was kept
reserved for the common purpose of the village. It was also not proved by the Gram Panchayat that proprietors were holding land more than their
share.
The Gram Panchayat challenged the said order of the Commissioner by filing separate writ petitions, which were allowed by the learned Single
Judge, and after setting aside the order of the Commissioner, the title suits of the appellants were dismissed. The order of the learned Single Judge
has been challenged in these appeals.
After hearing learned counsel for the appellants and going through the impugned order passed by the learned Single Judge as well as the orders
passed by the authorities under the Act of 1961, we do not find any reason to interfere in the impugned order.
Undisputedly, in the present case, the land in question is recorded as ''Shamlat Deh Hasab Rasad Zar Khewat''. In view of Section 3 of the
Punjab Village Common Lands (Regulation) Act, 1953 (hereinafter referred to as ''the Act of 1953''), which reads as under, such land vests in the
Gram Panchayat:
Vesting of rights in Panchayats and in non-proprietors - Notwithstanding anything to the contrary contained in any other law for the time being in
force, and notwithstanding any agreement, instrument, custom or usage or any decree or order of any Court or other authority, all rights, title and
interest whatever in the land :-
(a) which is included in Shamilat deh of any village, shall, on the appointed date, vest in a Panchayat having jurisdiction over the village;
(b) which is situated in the Abadfi deh of a village and which is under the house owned by a non-proprietor, shall at the commencement of the Act
vest in the said non-proprietor.
Accordingly, in the present case, mutation with regard to the land in question was sanctioned in favour of the Gram Panchayat in the year 1957.
Thereafter, in the year 1961, the Act of 1961 came into force with saving clause, as provided in Section 16 of the Act of 1961. In the year 2005-
06, the appellants filed title suits u/s 11 of the Act of 1961, seeking declaration that they are owners of the land in dispute and mutations in the
name of the Gram Panchayat were wrongly recorded, as the land in dispute does not fall under the definition of ''shamlat deh'', therefore, by
deleting the name of the Gram Panchayat, their names be entered as owners in the revenue record.
The Collector dismissed the title suits. The said order of the Collector was set aside by the Commissioner in appeal. The order of the
Commissioner was set aside by the learned Single Judge, and it was held that the land in dispute falls under the definition of ''shamlat deh'' and
vests in the Gram Panchayat, and the appellants have failed to establish that their case falls under any of the exemptions/exclusion clauses i.e. (iii)
and (viii) of Section 2(g) (5) of the Act of 1961, while observing as under:
As per clause (iii) and (viii), 1 find that such shamlat deh land would be excluded from the definition of shamlat deh when such land has been
partitioned and brought under separate cultivation by individual landholders on or before 26th January, 1950 or was assessed to land revenue and
had been in individual cultivation of a co-sharer not been in excess of their respective shares in such shamlat dell on or before 26th January, 1950.
To make out the case either under clause (iii) or (viii), petitioners have to prove that land was partitioned and brought under separate cultivation by
co-landholders on or before 26th January, 1950 or land was assessed to land revenue and has been in individual cultivation of a co-sharer on or
before 26th January, 1950 as per his respective share in the land. No document or material is produced either before the Courts below or before
this Court to show that petitioners are actual legal heirs of the recorded khewatdar and what are their respective shares in the land in question;
petitioners further failed to prove that land was ever partitioned and was used in actual cultivation by the proprietors as per their partitioned share
on or before 26th January, 1950 or land was ever subjected to assessment of land revenue and has been in the individual cultivating possession of
the co-sharer as per his actual share. In the present case, petitioner did not disclose their respective shares nor have shown what was the land
revenue assessed and paid by them according to their respective shares after actual partition among the co-sharers. Possession in the shape of
actual cultivation as per share is sine qua non to attract exemption clause (iii) and (viii). Petitioners cannot take any benefit of ''Makbuja Malkan''.
To make out case under the exemption clauses of Section 2(g) joint possession of all the share holders will not help. Therefore, in the opinion of
this Court, petitioner miserably failed to bring out the case under the exemption clause (iii) and (viii) of Section 2(g) of the 1961 Act.
Learned counsel for the appellants argued that the learned Single Judge has erred while holding that as per Section 3 of the Act of 1953, the
land in dispute vests in the Gram Panchayat. According to the learned counsel, case of the appellants is to be considered and decided under the
Act of 1961 and not under the Act of 1953, as the said Act was replaced by virtue of Section 16 of the Act of 1961. This contention of learned
counsel is wholly devoid of merit. On 4.5.1961, the Act of 1961 came into force. By Section 16 of this Act, the Act of 1953 was repealed. But
proviso to Section 16 clearly provides that ""anything done or any action taken under any law so repealed shall be deemed to have been done or
taken under the corresponding provisions of this Act and shall continue to be in force accordingly unless and until superseded by anything done or
any action taken under this Act."" In the instant case, mutation of ownership in the name of the Gram Panchayat was sanctioned in the year 1957 on
the basis of Section 3 of the Act of 1953. The said action taken is protected under the proviso to Section 16 of the Act of 1961. Section 3 of the
Act of 1961 provides as to which land this Act applies. According to this section, the Act of 1961 shall apply and before the commencement of
this Act the Shamilat Law shall be deemed always to have applied to all lands which are shamilat deh as defined in Section 2(g). Clause (i) of sub-
section (2) of Section 3 further provides that notwithstanding anything contained in sub- section (1) of section 4, where any land has vested in a
panchayat under the shamilat law, but such land has been excluded from shamilat deh u/s 2(g), all rights, title and interest of the panchayat in such
land, shall cease and all such rights, title and interest in the person or persons in whom they were vested immediately before the commencement of
the Shamilat law. Thus, the learned Single Judge has rightly come to the conclusion that in order to make out a case u/s 3 (2) (1) of the Act of
1961, the appellants have to prove that their case falls within the exclusion clauses i.e. (iii) and (viii) of Section 2(g)(5) of the Act of 1961. In this
regard, it has been found by the learned Single Judge that the appellants have failed to establish that their case falls under these clauses.
Furthermore, Section 4 of the Act of 1961 provides that any land which has vested in the Panchayat under the shamilat law (Act of 1953) shall be
deemed to have been vested in the Panchayat under the Act of 1961, except the case falling under three clauses mentioned in sub-section (3) of
Section 4 of the Act of 1961.
Section 4 of the Act of 1961 reads as under:
Vesting of rights in Panchayat and non-proprietors - (1) Notwithstanding anything to the contrary contained in any other law for the time being in
force or in any agreement, instrument, custom or usage or any decree or order of any court or other authority, all rights, title and interests whatever
in the land, -
(a) which is included in the shamilat deh of any village and which has not vested in a Panchayat under the shamilat law shall, at the commencement
of this Act, vest in a Panchayat constituted for such village, and where no such Panchayat has been constituted for such village, vest in the
Panchayat on such date as a Panchayat having jurisdiction over that village is constituted;
(b) which is situated within or outside the abadi deh of a village and which is under the house owned by a non-proprietor, shall, on the
commencement of shamilat law, be deemed to have been vested in such non- proprietor.
(2) Any land which is vested in a Panchayat under the shamilat law shall be deemed to have been vested in the Panchayat under this Act.
(3) Nothing contained in clause (a) of sub-section (1) and in sub- section (2) shall affect or shall be deemed ever to have affected the -
(i) existing rights, title or interests of persons, who though not entered as occupancy tenants in the revenue records are accorded a similar status by
custom or otherwise, such as Dholidars, Bhondedars, Butimars, Basikhuopahus, Saunjidars, Muqarrirdars;
(ii) rights of persons in cultivating possession of shamilat deh, for more than twelve years immediately preceding the commencement of this Act
without payment of rent or by payment of charges not exceeding the land revenue and cesses payable thereon;
(iii) rights of a mortgagee to whom such land is mortgaged with possession before the 26th January, 1950.
A bare perusal of sub-section (2) provides that any land which vests in a Panchayat under the shamilat law shall be deemed to have been vested in
the Panchayat under this Act. The word ''shamilat law'' has been defined in Section 2(h) of the Act of 1961, which reads as under :
shamilat law"" means-
(i) in relation to land situated in part of the territory which immediately before the 15'' November, 1956, was comprised in the State of Punjab, the
Punjab Village Common Lands (Regulation) At, 1953; or
(ii) in relation to land situated in part of the territory which immediately before the 1st November, 1956, was comprised in the State of Patiala and
East Punjab States Union, the Pepsu Village Common Lands (Regulation) Act, 1954.
Undisputedly, the area of village Aakri, immediately before 1st November, 1956, was part of the territory of the State of Punjab. Therefore, the
''shamilat law'' means the Act of 1953, Thus, in our opinion, in view of Section 4 (2) of the Act of 1961, the land in question, which vested in the
Panchayat, on coming into force of the Act of 1953 and mutation of which was sanctioned in favour of the Panchayat in the year 1957, shall be
deemed to have been vested in the Panchayat under the Act of 1961.
Sub-section (3) of Section 4 of the Act of 1961 provides three exceptions to clause (a) of subsection (1) and in sub-section (2). Exception (i)
deals with the existing rights, title or interests of Dholidars, Bhondedars, Butimars, Basikhuopahus, Saunjidars, Mugarrirdars, This exception is not
relevant in the present case. Exception (ii) protects the rights of persons who were in cultivating possession of shamilat deh for more than twelve
years immediately preceding the commencement of the Act without payment of rent or by payment of charges not exceeding the land revenue and
cesses payable thereon, though the land under their possession may be shamilat deh. In our view, shamilat dell, which has vested in the Grain
Panchayat, either under the Act of 1953, or deemed to have vested in the Panchayat under the Act of 1961, can be held to he not vesting in the
Panchayat only if it is proved by a person that he was in cultivating possession of such land on the commencement of the Act and was in such
cultivating possession for more than twelve years on such commencement, without payment of rent or by payment of charges not exceeding the
land revenue and cesses payable thereon. Exception (iii) deals with the rights of a mortgagee to whom such land is mortgaged with possession
before 26th January, 1950. This exception is again not relevant in the present case. Once the shamilat land is deemed to have been vested in the
Panchayat, it can be ordered to be devested from the Panchayat, only on the title suit filed by a person, if he establishes the aforesaid three
ingredients. But in the present 1, case, the appellants have failed to establish any of three ingredients. Therefore, the land in dispute is not to be
ordered as devested from the Panchayat and to he declared under the ownership of the appellants.
Thus, in our view, the learned Single Judge has rightly come to the conclusion that the land in question vests in the Gram Panchayat and the
appellants cannot be declared owners of the same.
No merit. Dismissed.