Krishna vs Commissioner, Ambala Division

B. Rai, J.

In all the three aforementioned cases viz. Civil Writ Petition No. 5421 of 1987, Regular Second Appeal No. 1985 of 1990 and Regular Second Appeal No. 2313 of 1991, same questions of fact and law are involved. Therefore, these shall be disposed of by a common Judgment.

For the facility of reference, facts have been taken from Civil Writ Petition No. 5421 of 1987. Krishna petitioner has filed this writ petition under Articles 226/227 of the Constitution of India for seeking quashment of Annexures P2 and P3 passed by the Collector Rohtak and Commissioner, Ambala Division, Ambala respectively, inter alia on the grounds that the petitioner is in possession of Khasra No. 66/10 situated in the area of village Sasroli, Tehsil Jhajjar, District Rohtak. The Gram Panchayat filed an application under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961, as applicable to Haryana, (for short, the Act) making a prayer therein that the petitioner be dispossessed from the land in dispute on the ground that she was in unauthorised possession of Khasra No. 66/10.

These proceedings were contested by Smt. Krishna petitioner before the Assistant Collector Ist Grade, Jhajjar. After considering the evidence led by the parties, the Assistant Collector Ist Grade, vide his order, dated December 12, 1984, Annexure P1, found that Smt. Krishna petitioner was in illegal possession of 2 Kanals out of the land comprised in Khasra No. 66/10 min. and she was in possession of remaining 6 kanals of the land comprised in the said Khasra Number since very long and, as such could not be dispossessed therefrom. The appeal preferred against the order, Annexure P1, by the Gram Panchayat before the Collector, Rohtak was allowed vide order dated April 23, 1985, Annexure P2. The petitioner challenged that order of the Collector before the Commissioner, Ambala Division, Ambala, in revision which was dismissed vide order, dated November 21, 1985, Annexure P3.

It was averred by Smt. Krishna petitioner that the land in dispute never vested in the Gram Panchayat nor it is a part of the land owned by the Gram Panchayat. In fact, the land in dispute was owned and possessed by the ancestors and the husband of the petitioner. Now the same is owned and possessed by her. She pleaded that the Collector did not properly appreciate the contentions raised before him. Therefore, the finding recorded by the Collector is baseless and erroneous. It was alleged that the Commissioner did not take into consideration the wellreasoned order of the Assistant Collector Ist Grade. The revision petition preferred by the present petitioner was dismissed by the Commissioner in erroneous and illegal manner vide his order, dated November 21, 1985, Annexure P3. According to the petitioner, the orders of the Collector and that of Commissioner being illegal and against the facts are liable to be set aside.

The Writ Petition has been contested by the Gram Panchayat by filing a written statement. According to the Gram Panchayat, ancestors of the petitioner and her husband were never in possession of the land bearing khasra No. 66/10. It was pleaded that Ratti Ram husband of Smt. Krishna petitioner was serving as Sub Inspector in Delhi Police. Ratti Ram in connivance with the Village Patwari got certain stray entries made in some Jamabandis in favour of his wife keeping column No. 9 of Rent as blank. Because of the influence and role played by her husband, Smt. Krishna occupied the disputed land forcibly. From the revenue record produced before the Authorities, it was proved that no rent was ever paid by the petitioner to the Gram Panchayat. It was pleaded that the Authorities under the Act ordered the eviction of the petitioner from the land in dispute.

Smt. Krishna filed a suit for permanent injunction against the Gram Panchayat claiming herself to be in possession of Khasra No. 66/10 as tenant under the Gram Panchayat. She pleaded that the Gram Panchayat in execution of order, dated February 25, 1987 passed under section 7 of the Act by the Assistant Collector Ist Grade, Jhajjar, intends to eject her from the disputed property. According to her she is not unauthorised occupant and the order, dated February 25, 1987 is null and void. Therefore on the basis of that order, she cannot be ejected from the disputed property. After contest the suit was dismissed. Appeal preferred by Smt. Krishna was also dismissed with costs by the learned Additional District Judge IV, Rohtak, vide judgment and decree, dated August 2, 1990, which led Smt. Krishna to file Regular Second Appeal No. 2313 of 1991.

It was pleaded by the Gram Panchayat that in Civil Suit No. 274 of 1987, Smt. Krishna herself had appeared as PW1 and it was admitted by her in the crossexamination that the Gram Panchayat is the owner of the land in dispute, i.e. Khasra No. 66/10 and it was never given to her by the Gram Panchayat on patta. It was also admitted by her that the Gram Panchayat never accepted her as tenant. The case of the Gram Panchayat further is that the matter has since been finally decided by the civil Court; and any order passed by the Assistant Collector Ist Grade loses its significance; and that the petitioner has no concern with Khasra No. 66/10. The possession of Smt. Krishna petitioner is forcible, contumacious and unauthorised. Therefore, she has no right to remain in possession of the suit land which being the shamilat deh has vested in the Gram Panchayat. Other averments contained in the Writ Petition were denied.

Regular Second Appeal No. 1985 of 1990 arises out of Civil Suit No. 703 of October 9, 1985. Smt. Krishna filed a suit for permanent injunction against the Gram Panchayat Sasroli. She claimed that she is in possession of Khasra No. 66/1(80) as tenantatwill under the Gram Panchayat since long. She pleaded that on June 30, 1982, Gram Panchayat filed an application under section (sic) of the Act against her. That application was allowed by the Assistant Collector Ist Grade, Jhajjar, vide order, dated February 13, 1985. The Assistant Collector Ist Grade found that she was unauthorised occupant. Therefore, she was liable to be ejected from the land comprised in Khasra No. 66/1. Smt. Krishna pleaded that order, dated February 13, 1985, was null and void and ineffective. Civil Suit No. 703 of October 9, 1985 filed by Smt. Krishna was decreed by the trial Court vide judgment and decree, dated April 30, 1988. Gram Panchayat preferred Civil Appeal No. 129/13 of 1988 challenging the judgment and decree of the trial Court. That appeal of the Gram Panchayat was allowed by the learned Additional district JudgeII, Rohtak, vide judgment and decree, dated August 29, 1989. The judgment and decree of the trial Court were set aside and suit of Smt. Krishna was dismissed with costs, which has given rise to the filing of Regular Second Appeal No. 1985 of 1990 by her.

I have heard the learned counsel for the parties and have carefully gone through the records. It was argued by the learned counsel for the petition that the land comprised in Khasra No. 66/10 was earlier owned and possessed by the ancestors of her husband and thereafter by her husband and now the same is owned and possessed by her. It neither vested in the Gram Panchayat nor it is part of the land owned by the Gram Panchayat, but this fact was neither considered by the Collector nor by the Commissioner. Therefore, it was argued that the findings recorded against Smt. Krishna petitioner/appellant should not be allowed to sustain. I do not find any substance in these contentions. Admittedly, Smt. Krishna had filed a Civil Suit No. 274 of 1987 on March 19, 1987 against Gram Panchayat Sasroli for permanent injunction on the allegation that she was an old tenant over the disputed property and her possession was authorised. The plaintiff, thus, firstly claimed herself to be the owner of the suit property and in the alternative in possession of the same as old tenant under the Gram Panchayat. No document is available on record which may go to show that Smt. Krishna is the owner of Khasra No. 66/10. In order to prove that Smt. Krishna is in possession of the suit land as old tenant under the Gram Panchayat it was for her to prove that there was any agreement of tenancy between her and Gram Panchayat but she failed to bring any evidence of tenancy on the record by payment of rent by her and acceptance thereof by the Gram Panchayat. It cannot be disputed that it is the payment of rent which determines the status of an occupant of the property. A perusal of the revenue record available on the file would show that no rate of rent in cash or kind has been mentioned in column of rent. It is pertinent to note that undisputably in Civil Suit No. 274 of 1987, Smt. Krishna had examined herself as PW1. It was admitted by her in the crossexamination that the Gram Panchayat is the owner of the land in dispute and it was never given to her by the Gram Panchayat on patta. It was also admitted by her that the Gram Panchayat never accepted her as tenant. She also could not say as to what rent was being paid by her to the Gram Panchayat. She also examined Mohar Singh (PW2). He could not state as to in what capacity Smt. Krishna was cultivating the land in dispute. Therefore, there is neither any documentary nor oral evidence from which it may be concluded that relationship of landlord and tenant subsists between the petitioner and the Gram Panchayat. Not only this, the filing of the suit for permanent injunction by Smt. Krishna against the Gram Panchayat gives rise to an inference that she is not claiming title to the land in herself. On coming into force of the Punjab Village Common Lands (Regulation) Act, 1953, i.e., on December 26, 1953, as amended by Haryana Act No. 2 of 1981, the disputed land being shamilat deh vested in the Gram Panchayat. Section 4(3)(ii) of the said Act protects the rights of only those persons who were in cultivating possession of shamilat deh on the date of the commencement of the Punjab Village Common Lands (Regulation) Act, 1953. There is no evidence to show that within twelve years preceding the commencement of the Punjab Village Common Lands (Regulation) Act, 1953, Smt. Krishna or her husband or his ancestors were in possession of the suit land, and that the possession of the land in dispute was protected under the law. Mere possession howsoever long does not confer any title on the occupant until and unless it is shown that the possession was in the knowledge of the true owner, it was open, hostile and adverse and that it had ripened into ownership or the possession was protected under any provision of law. During the course of arguments, it was not disputed that as reflected in the Jamabandi for the year 195758, Annexure R4/8, big chunk of land measuring 138 Kanals 11 Marlas comprised in Killa No. 198 min. was owned and possessed by Panchayat Deh. Consolidation of holdings took place in the village in the year 196061. In consolidation proceedings an area measuring 8 Kanals was carved out and Khasra No. 66/10 was assigned to it. Annexure R4/7 is the first Jamabandi commonly known as Misal Haquiat. It was prepared in the year 1962. In this Jamabandi, Panchayat Deh is recorded to be the owner and in possession of Khasra No. 66/10. Annexure R4 is the jamabandi for the year 197172. Panchayat Deh is recorded to be the owner of Khasra No. 66/10 (80) and in the column of cultivation, Smt. Krishna wife of Ratti Ram (wrongly mentioned as daughter) is mentioned. In Annexure R4/9, it is not mentioned that Smt. Krishna wife of Ratti Ram was paying any rent or batai to the Gram Panchayat. Annexure R4/3 is the Jamabandi for the year 197677. In this Jamabandi also, Panchayat Deh is recorded to be the owner of Khasra No. 66/10 and Smt. Krishna is recorded to be in cultivating possession of the same as Gair Maurusi. Even in this Jamabandi, no rate of rent has been mentioned. From the material available on record, it is clearly made out that the Gram Panchayat is the owner of Khasra No. 66/10 and Smt. Krishna petitioner is recorded to be in cultivating possession without paying any rent to the Gram Panchayat in cash or kind. In view of the fact that Smt. Krishna is not proved to be a tenant under the Gram Panchayat on payment of any rent, she has to be held to be an unauthorised occupant. Undisputably, on October 15, 1981 Gram Panchayat Sasroli had made an application under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 seeking ejectment of Smt. Krishna from the land in dispute. No doubt, she was found to be in possession of land measuring 6 kanals out of Khasra No. 66/10 since long by the Assistant Collector Ist Grade, Jhajjar but on appeal preferred by the Gram Panchayat, Smt. Krishna was found to be an unauthorised occupant by the Collector Rohtak. He set aside the order of the Assistant Collector Ist Grade and Smt. Krishna was ordered to be ejected by the Collector vide his order, dated April 23, 1985, Annexure P2. Smt. Krishna filed a Revision Petition before the Commissioner, Ambala Division, Ambala, against the order of the Collector but that Revision Petition was dismissed vide order, dated November 21, 1985, Annexure P3. Not only this, Smt. Krishna had also filed a Civil Suit No. 274 of 1987 in respect of the same land seeking permanent injunction against the Gram Panchayat. In that suit, it was held that Smt. Krishna failed to establish the relationship of landlord and tenant. The suit was also dismissed on the ground that the Civil Court had no jurisdiction to entertain and try the suit. That judgment and decree of the trial Court were challenged by Smt. Krishna in Civil Appeal No. 107/13 of 1989. The lower appellate Court also found that Smt. Krishna was not proved to be tenant over the suit land, and rightly so. It was further held that section 13 of the Punjab Village Common Lands (Regulation) Act, 1961 does not bar the jurisdiction of the civil Court to entertain and decide the suit for permanent injunction. Consequently, the appeal was dismissed with costs. So far as Khasra No. 66/1(80) is concerned, Gram Panchayat filed an application, dated June 30, 1982 under Section 7 of the Act against Smt. Krishna. That application was allowed by the Assistant Collector Ist Grade, Jhajjar, vide order, dated February 13, 1985 holding her to be unauthorised occupant and ejectment order was passed against her. It is pertinent to note that the said order was never challenged by Smt. Krishna before the higher Authorities under the Act and that became final. The concurrent finding that Smt. Krishna is not in possession of the disposed land as tenant under the Gram Panchayat is a finding of fact, and as such is not assailable in the Regular Second Appeal.

For the reasons recorded above, the writ petition is dismissed with costs. For the same reasons, Regular Second Appeal Nos. 1985 of 1990 and 2313 of 1991 are also dismissed with costs.

Admittedly, Smt. Krishna is in possession as unauthorised occupant of Khasra No. 66/10(8D) and Khasra No. 66/1(80) for the last more than two decades. Till date, she has not paid even a single penny to the Gram Panchayat. Such a tendency of the unauthorised occupants deserves to be curbed. Public property is to be saved from the encroachers/unauthorised users. Therefore in the facts and circumstances of the case, the costs are assessed at Rupee Five thousand in each case.