Hemant Gupta, J. - (1.) THE challenge in the present writ petition is to an order passed by the Collector on 31.05.1984 (Annexure P -18) in an application under Section 7 and 11 of the Punjab Village Common Lands (Regulation) Act, 1961 (for short 'the Act') and the order in an appeal under Section 7 and 11 of the Act passed by the Commissioner against the said order on 22.07.1987 (Annexure P -19). The Gram Panchayat filed a petition under Section 7 of the Act (Annexure P -26) on 09.06.1981 and later a petition under Section 11 of the Act on 22.07.1982 (Annexure P -29). Both the petitions were decided by the common order, impugned in the present writ petition. In the petition under Section 11 of the Act, the assertion of the Gram Panchayat is that the land vest in Panchayat from the date of enforcement of the shamilat law and has been under its management, whereas the respondents (present petitioners) are now denying the title of Gram Panchayat on the basis of long possession. The present petitioners in the reply (Annexure P -30) asserted that the Panchayat has never managed this land. It has been under actual use, occupation and cultivation of the petitioners. It was asserted that the present petitioners are in actual possession of land prior to 26.01.1950 and continues to be in possession thereafter. It is also asserted that in earlier proceedings initiated under Section 7 of the Act, a finding was returned that the petitioners were in actual possession of the land even prior to 26.01.1950, therefore, in view of the said decision, the petition under Section 11 of the Act is not tenable.
(2.) THE learned Collector in the order (Annexure P -18) found that total land of the village is 3622 Bighas, the shamilat land is 1133 Bighas, whereas the land of khewatdars is 2489 Bighas. In view of the total land owned by the proprietors and the shamilat, it was found that the share of the petitioners is 49 Bighas 10 Biswas. It was also found that the petitioner is in possession in respect of land measuring 47 Bighas 10 Biswas i.e. 9 Bighas 16 Biswas out of Khasra No. 887 and 38 Bighas 2 Biswas out of Khasra No. 941 as per the Jamabandi for the year 1955 -56 (Ex. R3). Since the possession of the petitioners is less than their share in the land in question, therefore, the petitioners are entitled to protect their possession in terms of provisions of the Act. However, an order of ejectment in respect of land measuring 36 Kanals 1 Marla was passed against the petitioners for the reason that petitioners have failed to prove their possession over such land prior to 26.01.1950. Aggrieved against the said order, Panchayat and the present petitioners filed separate appeals. The learned Joint Director, Panchayats, exercising the powers of the Commissioner under the Act returned a finding that as per Jamabandi for the year 1947 -48, Panchayat is the owner. In the column of cultivation, the possession is that of makbuza malkan but since the nature of land is banjar qadim, therefore, the petitioners are not found to be in possession of the land which is also not cultivable. While examining the Jamabandi for the year 1951 -52, it was found that land is different from the earlier land. In the Jamabandi relating to period 1955 -56 in the column of cultivation, the names of Shadi Ram, Pirthi Ram and Durga Dass are mentioned for the first time in the Khasra Numbers 887 and 941. Since the land was banjar qadim in these Jamabandies, therefore it was concluded that the possession of the petitioner is not continuing cultivating possession which alone could bring their claim within Exception of Section 2(g) of the Act.
(3.) IN the present writ petition, learned counsel for the petitioners has vehemently argued that earlier petition of the Panchayat under Section 7 of the Act was dismissed on 26.08.1975 (Annexure P -20) wherein it was found that petitioners are in possession of land in dispute since prior to 26.01.1950. The land in question in the aforesaid proceedings was land measuring 13 Kanals 17 Marlas comprising in Khasra Nos. 4/6(1 -2), 14 (0 -15), 16(8 -0), 25/1 (4 -0). It is further pointed out that appeal against the said order was dismissed by the Collector on 15.03.1976 (Annexure P -21) and that revision by the learned Financial Commissioner on 14.02.1979 (Annexure P -22). Therefore, the Panchayat cannot claim possession of the said land in the present proceedings. Learned counsel for the petitioner further argued that from the Jamabandies produced on record, the petitioner is reflected to be in possession supported by the entries in the Khasra Girdawri (Annexure P -6). Since the petitioners are in possession prior to 26.01.1950, therefore, the Panchayat is not entitled to claim possession in terms of Section 2(g) Exception (viii). It is also contended that, even if the land is banjar qadim but Khasra No. 887 measuring 9 Bighas and 16 Biswas is chahi and is recorded in cultivating possession of the petitioner, therefore, the petitioners have proved their possession at least over the part of the suit land prior to 26.01.1950.;