Kartar Singh vs The Collector

V.K. Bali, J.—This order shall dispose of Letters Patent Appeal Nos. 909, 910, 925 to 933, 971 of 1992, 29, 755 of 1993 and 884 of 1994 as also C.W.P. Nos. 2795, 6896, 6897 and 6898 of 1993 as common questions of law and facts are involved therein.

The learned Single Judge disposed of 163 writ petitions by a common order that came to be recorded in C.W.P. No. 11269 of 1991 as in all the matters vires of Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (here-in-after to be referred to as the Act of 1961) had been challenged. Section 7 was held to be intra-vires. In some of the writ petitions, the findings recorded by the Collector, Patiala, in an application filed u/s 11 of the Act of 1961 filed by petitioners and which findings were affirmed by the Commissioner, Patiala Division, in an appeal, dismissing the application, were also assailed. The writ petitions were dismissed by the learned Single Judge, both on the question of vires of Section 7 as also on facts. Some of the petitioners-appellants herein, being aggrieved of the order of the learned Single Judge, have filed these letters patent Appeals under Clause X of the Letters Patent. The judgment of the learned Single Judge, insofar as it relates to vires of Section 7 of the Act of 1961 has not been challenged and the counsel representing the appellants in all the appeals have confined their arguments to the facts of the case. The arguments have been mainly addressed in L.P.A. No. 925 of 1992 which has been argued by Mr. Jagan Nath Kaushal, Sr. Advocate, His arguments have been adopted by counsel representing the appellants in the remaining LPAs.

Brief facts of the case reveal that the appellants filed applications u/s 11 of the Act of 1961. The burden of their applications was that the Gram Panchayat and Gram Sabha Boharpur and Janhorian, Tehsil Patiala, had no right, title or interest in the land described in their applications as the land did not form part of shamlat deh. These applications were filed in pursuance of orders dated August 11, 1987 passed by the Supreme Court in Civil Appeal Nos. 529-540 of 1982. It is not disputed that the litigating parties had agitated the matter earlier in various Courts culminating into an order passed by the Supreme Court, as referred to above. The Supreme Court passed an order that fresh proceedings u/s 11(i) of the Act of 1961 would be filed by the applicants and the Collector (Revenue), Patiala would decide the cases himself and shall not transfer the cases to any other officer to whom the powers under the provisions of the Act might have been delegated. It was also ordered that the Collector (Revenue) would decide the cases on the basis of material placed before him by the parties without reference to any question of limitation and without referring to any judgment or decree or order in the proceedings between the parties which had already taken place.

The Collector, Patiala, in the applications instituted by the appellants, u/s 11 of the Act of 1961, on the pleadings of the parties, framed the following issues :-

(1) Whether the applicant has locus standi and cause of action to file the present petition ? OPA.

(2) Whether the applicant is in possession of the disputed land for the last 30 years and whether the disputed land was banjar qadim and they brought the same under cultivation, if so to what effect? OPA

(3) Whether the disputed land was never used for the common purposes of the village, if so to what effect ? OPA

(4) Whether the applicant is estopped by his act and conduct to file the present petition? OPR

(5) Whether the disputed land is not shamlat land and the applicant is the owner of the same ? OPA

(6) Whether this Court is not competent and has no jurisdiction to try the intricate question of adverse possession, if so to what effect ? OPR

(7) Whether the applicant is liable to pay special costs to the respondents, if so to what amount ? OPR

The issues, reproduced above, clearly indicate that besides the question as to whether the land in question was shamilat deh or not, other questions mooted out were as to whether the land was excepted from the definition of shamilat deh in view of provisions contained in Sub-clause (5) of Section 2(g) of the Act of 1961; petitioners were in adverse possession for such a long time that the same had ripened into ownership. After exhaustively discussing the voluminous evidence that was brought on records of the case, land in dispute was held to be shamilat deh. It was also held that the land in question, at the relevant time, if it was banjar qadim, was used for common purposes of the Village. The Collector basically relied upon the entries recorded in Misal Hakiyat of the year 1954-55 and held that the land in dispute was a reserved area. It was further held that the reversed area was only meant for the common purposes of the village. The entries in the jamabandi for the land in dispute clearly mention the amount of rent being paid to the panchayat by the petitioners. The findings recorded by the learned Collector were confirmed in appeal by the Commissioner and even though the appeals preferred by the appellants were dismissed in limine, a detailed order came to be passed by the Commissioner. The learned Single Judge, while dealing with the contention of petitioners'' counsel with regard to nature of land, observed as follows :-

"A perusal of the order passed by the Collector, a copy of which has been produced as Annexure P-1 in CWP 14740 of 1989 shows that after consideration of the entire oral and documentary evidence, the following findings have been recorded :-

(a) the applicants have not been able to establish their possession of the disputed land for the last 30 years.

(b) The lands in dispute were used for the common purposes of the village.

(c) The land in dispute is shamilat deh and the applicant can not be said to be the owner of this land.

Nothing has been pointed out to show that these findings are contrary to any evidence on the record of these petitions. These findings have also been affirmed by the Appellate Authority."

Learned Single Judge also dealt with the various contentions of learned counsel representing the petitioners in different writ petitions but, as mentioned above, orders passed by the Collector and so confirmed by the Commissioner, were found to be perfectly in order calling for no interference.

Mr. Jagan Nath Kaushal, learned Senior Advocate, appearing on behalf of appellant in L.P.A. 925 of 1992 contends that the impugned order of the Collector is founded on the entries in the Misal Hakiyat of the year 1954-55 and this document was tendered in evidence only at the time of arguments before the Collector. It was not properly admitted into evidence as also that there was no occasion for the appellants to rebut the entries contained in Misal Hakiyat when the document in question was produced and taken into consideration by the Collector at the time of arguments. We find no force in the contention of learned counsel, noted above. The records of the case shall bear it out that such an argument was not raised at any stage, be it before Collector, Commissioner or the learned Single Judge. That apart, Misal Hakiyat prepared way back in the year 1954-55 is such a revenue record that has presumption of truth attached to it u/s 44 of the Land Revenue Act. The contention is also based only on a technicality i.e. procedure of admitting the document and such an objection raised at a belated stage deserves to be rejected.

The next contention of learned counsel is that even if the entries in the Misal Hakiyat are examined it would be seen that the land belongs to the proprietors of the village and is not shamilat deh. Even though, this contention was also not raised at any stage whatsoever, yet we have scanned through the entries recorded in Misal Hakiyat of the year 1954-55. It is true that in the column of ownership, the entries recorded are "shamilat Deh Hasab Rasad Araji Khewat" but the very next entry clearly depicts that this land was mutated in favour of the Department of Rehabilitation. The reason for this mutation is that almost the entire village, as per averments of the petitioners, made in their applications u/s 11 of the Act of 1961 and other pleadings, was inhabited by the Muslims, who on the eve of the partition of the country in the year 1947, migrated to the areas now forming part of Pakistan. Obviously, thus, the property was abandoned by the Muslims, be it shamilat deh being used for common purposes or the bachat area i.e. the one which could not be put to any common use and continued to be in the ownership of the proprietors. Under the provisions of Displaced Persons and Compensation of Rehabilitation Act, such land vested with the Government of India being an evacuee property. Concededly, there has been a long drawn litigation between the Gram Panchayats and the Custodian Department for such a land and concededly, as well, the apex Court has settled the controversy. In Gram Panchayat of Village Jamalpur Vs. Malwinder Singh and Others, , the Supreme Court held that such lands would vest with the Gram Panchayat. The question that came to be adjudicated by the apex Court was framed in paragraph 2 of the judgment i.e., the right of the Gram Panchayats to the shamilat deh lands situated in these villages which fall within their jurisdiction and, on the other hand, the right of the Rehabilitation Department of the Central Government, to allot lands of that description, to the extent of the evacuee interest therein, to persons who migrated from Pakistan to India after the partition of the country. The facts of the said case would reveal that there were some villages in Punjab which were mostly inhabited by Muslims, with the result that almost all the lands in those villages were owned by Muslim proprietors, who, as a result of their proprietory interest in those lands, had a proportionate undivided share in the shamilat deh lands. They had only an undivided share in the shamilat deh lands as such lands were not liable to be partitioned, they could not be alienated and they were intended to be used and were in fact used, without exception, as undivided property of the proprietors of the other lands. It was held that the effect of the Administration of the Evacuee Property Act was not to take away the character of shamilat deb as shamilat deh but only to vest in the Custodian such interest as the evacuee possessed in the shamilat deh. The interest which the erstwhile evacuees possessed in the shamlat deh was neither enlarged nor abridged. The land continued to be shamilat deh and it could be the subject of competent State Legislation as shamilat deh. If for the purposes of agrarian reform the legislature of the State enacted a law as it was competent to do, and consent to which was accorded by the President under Article 31-A of the Constitution, there could not be any justification for the arguments that there was any conflict between the Punjab Act and the Central Act. When the Parliament and the State Legislature, each of them legislate, in their own filed with respect to different subject - in his case Evacuee Property and shamilat deh - there could be no reason to conclude that there was necessarily a conflict between the two legislations. The question therefore is whether the legislature of the State could make a law relating to agrarian reform in respect of property which included property which by a process of law had become vested in the Central Government or the custodian. There is no reason Why the State Legislature should be considered incompetent to make a law relating to agrarian reform, if indeed it is a law relating to agrarian reforms as it has been found to be so, in the present case, even if it affects land vested in the Central Government or the Custodian." In view of authoritative pronouncements of the Supreme Court on the question aforesaid if could not, thus, be successfully contended by learned counsel for the appellants that the land in question is not shamilat deh and in fact belongs to the proprietors of the village. That apart, it is established on the records of the case that the appellants in all the appeals came to occupy the land as tenants under the Gram Panchayat. They, in considered view of this Court, are estopped from denying the title of their landlord. In LPA 925 of 1992, land was rented by the Gram Panchayat way back in the year 1961-62 to Kartar Singh @ Rs. 2/- per bigha per year. This was with regard to land comprised in khasra Nos. 610, 611 and 612. Charan Singh son of Kartar Singh became a tenant under Nagar Panchayat in the year 1966-67 on rent of Rs. 20/- per bigha per year with regard to the same land. In the year 1971-72, Kartar Singh again occupied the same very land on rent of Rs. 190/- per bigha per year. In LPA 926 of 1992, Fauja Singh came to occupy the land in the year 1971-72 @ Rs. 550/- per bigha per year. This tenancy was with regard to land comprised in Khasra Nos. 668 to 671. In LPA 927 ofl992, Harbans Singh came to occupy the land in the year 1971-72 @ Rs. 525/- per bigha per year. This pertained to land comprised in khasra Nos. 664 to 667. In LPA 928 of 1992, Surain Singh came to occupy the land in the year 1971-72 @ Rs. 400/- per bigha per year on the land comprised in khasra nos. 646, 654 and 655 and @ Rs. 500/- per bigha per year on the land comprised in khasra No. 448. In LPA 909 of 1992, Bakhshish Singh came to occupy the land of the Gram Panchayat in the year 1971-72 @ Rs. 1455/- per year per bigha over land comprised in khasra Nos. 672 to 679. In LPA 929 of 1992, Harbans Singh etc. came to occupy the land in the year 1971-72 @ Rs. 550/- per bigha per year. The land, subject matter of tenancy, with them was comprised in khasra nos. 688 to 703. This very land came to be occupied by Charan Singh and Harbans Singh to the extent of half share each @ Rs. 1100/- per bigha per year. In LPA 930 of 1992 Didar Singh came to occupy the land as tenant on payment of Rs. 250/- per bigha per year under the Nagar Panchayat over the land comprised in khasra nos. 660 to 663. It shall, thus, be seen that all the appellants came to occupy the land under its owner-Gram Panchayat from time to time on specified rate of rent. They are certainly not the proprietors and having obtained the land on lease from panchayat, they can not dispute the title of their landlord.

The appeals as also writ petitions are, thus, devoid of any merit and are dismissed, leaving, however, the parties to bear their own costs.