JUDGMENT

RAKESH KUMAR JAIN, J. –

1. The petitioners have challenged order dated 27.03.1991 (Annexure P-6), passed by the Additional Director, Panchayats, Punjab, exercising the powers of Commissioner, by which order passed by the Collector-cum-DDPO, Patiala, dated 10.04.1989, on an application filed by the petitioner under Section 11 of the Punjab Village Common Lands (Regulation) Act, 1961 [for short “1961 Act”], seeking declaration of his title over the land measuring 101 Kanals, situated in village Paharipur, Tehsil and District Patiala, has been reversed.

2. In short, the case set up by the petitioner is that at the time of settlement of the village in the year 1940-41, cultivable land was recorded in the names of various right holders, whereas the land which was Banjar Kadim was recorded as Shamilat Deh Hasab Hisis Mundarja Shajra Nasab. It is alleged that as per jamabandi for the year 1947-48, corresponding to Samat 2004-2005, the land bearing Khasra No.99 (Tibba), measuring 84 Bighas 17 Biswas, was Banjar Kadim and under cultivation of the petitioner as co-sharer, without making payment of any rent. After consolidation and re-partition, Khasra No.99 was converted into Killa Nos.1 to 4, 6 to 8, 14 to 16 and 25 of Rectangle No.9, Killa Nos.19, 21, 22, 23 of Rectangle No.7 and Killa No.19/1, 20 of Rectangle No.10, which were made over to the petitioner on payment of consolidation expenses, but the consolidation authorities illegally changed the ownership of the proprietary body's land into Nagar Panchayat. The Gram Panchayat filed a petition under Section 7 of the 1961 Act, whereas the petitioner filed a petition under Section 11 of the 1961 Act. The Collector, vide his order dated 10.04.1989 (Annexure P-5), accepted the application of the petitioner observing thus:

“After hearing the learned counsel for the parties and examining the record brought on the file, I have come to the conclusion that the possession of the petitioner over the disputed land is proved from 1947 to the consolidation time, from Ex.A-1 to Ex.A-3 (from 1947-48). It is proved that the petitioner was allotted the disputed land against old khasra No.99 measuring 84B-17B. The jamabandis after the consolidation period which are as Ex.A-9 to Ex.A-14 depict the continuous possession of the petitioner over the disputed land till date. All these documents do prove that the petitioner is in continuous possession of the land in dispute from the year 1947-48 till date. The order passed under Section 7 does not affect the proceedings taken under Section 11 ibid. I am in agreement with the ruling 1979 LLR 151. the respondent has not been able to prove that Ex.D-7 to Ex.D-10 have any concern with the disputed land. These receipts are not in the name of the petitioner Gurdev Singh s/o Panjaba and the lease register also does not bear the disputed khasra numbers. Therefore, on the basis of the above findings I accept the application of the petitioner and hold the petitioner as owner of the disputed land.”

3. However, order of the Collector was reversed by the Commissioner, vide the impugned order dated 27.03.1991 (Annexure P-6), with the following observations:

“I have heard both the parties in detail and have gone through the record carefully. The jamabandis for the year 1959-60, 1968-69, 1973-74, 1978-79 and 1983-84 which have been produced on record by the parties show that the Gram Panchayat is the owner of the disputed land. The respondent has been shown as lessee of this land. The lease money has been mentioned in the revenue record as Rs.10-11 per acre for 1959-60 and Rs.72 per acre for 1968-79, Rs.70 per acre for 1973-74 and Rs.100 per acre in 1978-79. He deposited the lease money in the Gram Panchayat's fund and the receipts were exhibited as D-7 to D-10 on the record.

The respondent is not proved to be in possession of the disputed land prior to 1959-60. On the record, jamabandi for the year 2004-2005 B.K. has been adduced wherein the respondent has been shown in possession of Khasra No.99 and this land is mentioned as 'Tibba'. Prior to this jamabandi and after this jamabandi there is no other record relating to this Khasra Number. Therefore, it has no basis to reckon the disputed land as having been given to the respondent in lieu of this khasra number. Factually, the possession of the disputed land starts with the respondent from the year 1959-60 and he has this possession as lessee which has been detailed in the last paragraph. The respondent has failed to shatter ownership of the Gram Panchayat. The order of the lower Tribunal is contrary to the record produced in the case. This order cannot be maintained.

This appeal is accepted. The Gram Panchayat is declared as owner of the disputed land and the order dated 10.04.1989 of the Collector-cum-D.D.P.O., Patiala is set aside.”

4. Counsel for the petitioner has submitted that the land in dispute has been recorded as Shamilat Deh Hasab Hisis Mundarja Shajra Nasab and was under cultivation of the petitioner, therefore it stood exempted in terms of Section 2(g)(viii) of the 1961 Act and the land does not vest in view of Section 4(3)(ii) of the 1961 Act.

5. Counsel for the respondents, however, argued that the land recorded in the year 1947-48 (Annexure P-1) is a Tibba/Banjar Kadim, which means it is an old fallow and was, thus, not under cultivation and is, thus, not exempted in terms of Section 2(g)(viii) or divested under Section 4 (3)(ii) of the 1961 Act because it has not been shown to be under individual cultivating possession, either on or before 26.01.1950 or 12 years immediately preceding the commencement of the 1961 Act.

6. We have heard counsel for the parties and perused the available record with their able assistance.

7. In order to appreciate the controversy, it would be relevant to refer to Sections 2(g)(viii) and 4(3)(ii) of the 1961 Act, which are reproduced as under:

“(g)     “shamilat deh” includes-

(1) to (5) xxx xxx xxx

but does not include land which-

(i) to (vii) xxx xxx xxx

(viii) was shamilat deh, was assessed to 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 the 26th January, 1950, or”

“4. Vesting of rights in Panchayat and nonproprietors.-

(1)      xxx                   xxx                   xxx

(2)      xxx                   xxx                   xxx

(3)   Nothing contained in clause (a) of subsection (1) and in sub-section (2) shall affect or shall be deemed ever to have affected the:-

(i)            xxx                   xxx                   xxx

(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;”

8. According to the scheme of the 1961 Act, there are various exceptions to the inclusion of land in the shamilat deh, which includes Section 2(g)(viii). According to this provision, the land, which though was shamilat deh, would not be included as such in the shamilat deh, if it had been assessed to land revenue and has been in individual cultivating possession of the co-sharers not being in excess of their respective shares in such shamilat deh on or before the 26th January, 1950. In order to apply this provisions, it is sine qua non to prove the following:

(i)       individual cultivating possession of the co-sharers;

(ii)      not being in excess of their respective shares;

(iii)     land being assessed to land revenue;

(iv)     on or before 26th January, 1950.

9. Similarly, Section 4 of the 1961 Act relates to vesting of rights in Panchayat and non-proprietors, in which Section 4(3) provides three exceptions. Section 4(3)(ii) is also an exception to Clause (a) of sub-section (1) and sub-section (2) about the rights of the persons who are i) in cultivating possession of shamilat deh for more than 12 years immediately preceding the commencement of this Act, i.e. 22.04.1961, and ii) without payment of rent or by way of payment of charges not exceeding the land revenue and cesses payable thereon.

10. In the present case, even if the land is recorded in the column of ownership as Shamilat Deh Hasab Hisis Mundarja Shajra Nasab, it would only indicate shareholdings of proprietors as per inheritance prior to vesting. The entry with regard to the Makbooja Malkan in the column of cultivation reflects the possession in common of the proprietary body but not the individual cultivating possession. Moreover, the nature of land is recorded as Tibba/Banjar Kadim. It is well known that uncultivated land is classified as Banjar Jadid, Banjar Kadim and Ghair Mumkin. If for four successive harvests the land, which was once cultivated, has not been sown, it is classified as Banjar Jadid or new fallow and if it continues to be uncultivated and the said entries are maintained for the next four harvests, then such land passes into the category of Banjar Kadim or old fallow, whereas the term Ghair Mumkin is barren land.

11. Since the petitioner has only sought exclusion under Sections 2 (g)(viii) and 4(3)(ii) of the 1961 Act, without proving on record his individual cultivating possession either on or before 26th January, 1950 or 12 years immediately prior to 22.04.1961, i.e. commencement of the 1961 Act, therefore, he is not deemed to be in cultivating possession of Tibba/Banjar Kadim land, which has been recorded as such in the jamabandi for the year 1947-48 (Annexure P-1). A presumption of truth attaches to a jamabandi that the land being an old fallow, i.e. uncultivated for 8 successive harvests, cannot be in the cultivating possession of the petitioners, before 26.01.1950 so as to exclude it from Shamilat Deh.

12. In view thereof, we are of the considered opinion that the petitioner is not entitled to any exemption under Sections 2(g)(viii) and 4 (3)(ii) of the 1961 Act. Hence, the present writ petition is hereby dismissed.

13. No costs.

Petition dismissed.

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