JUDGMENT

G.S.SANDHAWALIA J.—

1. The petitioners, in the present case, have challenged the order dated 15.02.1988 (Annexure P6) vide which the application under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (as applicable to the State of Haryana) (hereinafter, referred to as the 'Act') for ejectment of the petitioners was allowed. Further challenge has also been laid to the orders dated 11.03.1991 (Annexure P7) wherein their appeal was dismissed and 09.02.1993 (Annexure P10) whereby the revision petition was also dismissed.

2. Perusal of the record of the case would go on to show that respondent No.6-Gram Panchayat filed application against the petitioners and respondents No.4 & 5 on the ground that it is owner in possession of the land shown as 'ABCD' in the site-plan and disputed land is a chowk, situated in the village and is part of shamilat deh and the area was used for the common purposes of the village. It was alleged that the petitioners were head strong persons and they had made illegal encroachment in the land in dispute. It was neither allotted nor leased out to them. The petitioners raised the question of title and accordingly, the petition was converted into Section 13A of the Act and issues were framed to the fact that whether the petitioner No.2, Molar Ram was the owner-in-possession and whether the disputed land was shamilat deh and the Gram Panchayat was its owner. The Assistant Collector, 1st Grade, relied upon the inspection report dated 13.02.1988 (Annexure P5) and came to the conclusion that since the plot was bounded on 3 sides by a path and there was a heap of broken sticks on one corner of the southern portion whereas in the west-south corner, cowdung and heaps were lying, that the possession was not of one person and rather it was for the common use of the village. It was held that the land was a chowk alongwith the path, being vacant and the petitioners had put their cowdung cakes, heaps and stones and started asserting their ownership. The sale deed dated 11.03.1982 was discussed and the fact that Surjeet Singh, the vendor had been produced but the petitioner had not produced any evidence which may prove that the disputed land was earlier in the ownership of Surjeet Singh. The fact that the vendor had stated that he had sold 830 square-yards whereas the disputed land was only 640 square-yards, further weighed with the Assistant Collector and he discarded the evidence of the seller. Accordingly, it was held that the land was in the ownership of the Gram Panchayat and ejectment was ordered.

3. The appeal was rejected by holding that the site had been inspected and the report of the Local Commissioner was relied upon and the sale deed was alleged not to be relating to the disputed land. The reasoning given in the appellate order dated 11.03.1991 reads as under:

“I have heard the learned counsel for both the parties and have also gone through the record produced on file carefully. I have come to this conclusion that the disputed land is common chowk as proved from the site inspection report of A.C. 1st Grade and report of the Local Commission. Sale deed produced by the appellants does not relate to the disputed land. This AC 1st Grade, after hearing the parties and after converting the matter under section 13A, has decided the matter on merit which is fully justified/speaking. I do not feel any necessity of any change in the order dated 15.2.88 of AC 1st Grade, Jhajjar. I have come to this conclusion that the decision regarding the land situated in Abadi Deh can be done on site inspection and the evidence which was produced by both the parties have also been carefully perused by the court below. Appellants failed to produce any such evidence which may prove that the disputed land is their ownership. It is wrong to say that local commission did not inform them. On the basis of above said discussion, there is no force in appeal and the same is rejected. Parties to bear their own costs.”

4. The petitioners preferred a revision petition which was dismissed on similar grounds by the Commissioner placing reliance upon the report of the Local Commissioner and the fact that the sale deed mentioned transfer of 830 square-yards whereas the report of the Local Commissioner showed that land at the spot was 640 square-yards. Resultantly, present writ petition came to be filed.

5. In the written statement, filed by respondents No.1 to 3, plea taken was that the sale deed was fabricated and did not tally with the land in dispute and Des Raj and Sarjit were not owners of the land in dispute which is an open piece of land. There was no construction at the spot and the orders passed by the authorities were justified.

6. Similarly, in the written statement, filed by respondent No.6, it was pleaded that Des Raj and Sarjit were not the real owners who could give their share to petitioner No.2 for consideration. There were only heaps of cowdung lying at the plot and that some other land was sold and it was not the land in dispute. It was further averred that respondents No.4 & 5 were also claiming ownership over the land in dispute and thus, have been made party by the Gram Panchayat and they were claiming the southern portion of the chowk.

7. Counsel for the petitioners has vehemently submitted that as per the provisions of the Act, shamilat deh land would include vacant land which is situated in abadi deh or gora deh and not owned by any person under Section 2(g)(4a) and thus, contended that the authorities had no jurisdiction to go into the said issue since as per the sale deed dated 11.03.1982, Des Raj and Sarjit had sold the plot, in which boundaries were mentioned, for a sum of Rs.1500 to Molar Ram-petitioner No.2 and therefore, the petitioners could not be ejected.

8. Counsel for the Gram Panchayat, on the other hand, has laid stress on the report of the Local Commissioner and justified the findings recorded by the authorities below.

9. After hearing counsel for the parties, we are of the opinion that the submission made by counsel for the petitioners merits acceptance. It is the case of the petitioners that petitioner No.2 had purchased 2/3rd share of 829/13/18 square-yards whose boundaries were mentioned in the said sale deed and showed a thoroughfare on the east, length of which was 103'; whereas, on the west, there was open land of Mam Chand and Chandgi; on the north, there was closed path; and on the south, there was a thoroughfare. It is also not in dispute that the said plot is also the subject matter of dispute. The Gram Panchayat's ownership was never proved by any document or allotment in its favour and merely on the strength of the report of the Local Commissioner or the inspection by the Assistant Collector, ownership could not be declared in favour of the Gram Panchayat, as has been done by the authorities below. The petitioners had also examined Surjeet Singh, one of the co-owner as a witness in the proceedings to prove the sale deed and substantiate the plea that they had purchased the land. The said statement was rejected by the Assistant Collector 1st Grade only on the ground that no evidence had been produced as to who was the earlier owner of the plot. Merely because the plot was lying vacant and some of the villagers were using the same for storing cowdung, would not make it shamilat deh land and the Gram Panchayat would not be able to claim title on that basis. The registered sale deed had a map attached in which the boundaries of the plot were specified, as mentioned above and the dispute is also regarding the same plot and thus, the authorities were not justified to say that the disputed plot was not the same and that it was some other plot which was sold to petitioner No.2. The appellate authority has only validated the order of the Assistant Collector, 1st Grade, without applying its proper mind and wrongly rejected the sale deed. Section 2(g)(4a) provides the definition of shamilat deh land. The said section reads as under:

“Section 2(g):- Shamilat deh includes:

xxxx                           xxxx                             xxxx

[(4a) vacant land situate in abadi deh or gorah deh not owned by any person;]

xxxx                           xxxx                             xxxx”

10. Once the ownership of the plot in question was in the hands of petitioner No.2, then the authorities were not justified in ejecting the petitioners from the plot in question since they were owners of the plot and thus, the plot in question could not be assumed to be shamilat deh which would give jurisdiction to the authorities. Resultantly, we are of the opinion that the orders passed by the authorities below, ejecting the petitioners, were not justified. Therefore, we allow this petition and orders dated 15.02.1988 (Annexure P6), 11.03.1991 (Annexure P7) and 09.02.1993 (Annexure P10) are, accordingly, quashed.

Petition allowed.

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