- (1.) AT the request of the parties, the arguments were heard and the appeal is being disposed of finally.
(2.) THE appellants have preferred this intra court appeal against the order dated 5th May, 2011 passed by the learned Single Judge, whereby S.B. Civil Writ Petition No.12891/2008 filed by petitioner/respondent No.1 has been allowed. The brief facts of the case are that there is a piece of land measuring 15'x17' in Village Panchayat Sunel, District Jhalawar. A patta was issued by Gram Panchayat in favour of appellants. The same was challenged by respondent No.1, Nanuram contending that he is in possession of the same, therefore, no patta could have been issued in favour of the present appellants. The District Collector dismissed the revision petition filed by respondent No.1. However, the Single Bench allowed the writ petition filed by respondent No.1. The Single Bench also held that the petitioner (Nanuram) is declared entitled to retain the possession of the land and apply for patta to Gram Panchayat in accordance with law on the basis of his possession. The submission of the learned counsel for appellant is that the land in dispute was vacant and the Gram Panchayat was right in issuing pata in favour of appellants, whereas learned counsel for respondent No.1 submitted that the land in dispute was already in his possession, therefore, the land was not vacant and it could not have been allotted to any one. He challenged the patta issued in favour of the appellants, but the District Collector without considering the factum of his possession, dismissed the revision petition. He further submitted that the learned Single Judge was right in holding the possession of the writ petitioner and setting aside the order of the Gram Panchayat as well as District Collector. We have considered the submissions of the learned Counsel for the parties and examined the impugned order of the Single Bench as well as the District Collector. From the order of Distt. Collector, it appears that Nanuram was in possession of the land in dispute, but as per the report, he was a trespasser. It does not appear as to whether any application for regularization was filed by Nanuram and pending before issuance of patta in favour of Pramod Kumar and Anoop Kumar. Although, the revision petition was preferred by Nanuram after a delay of more than eight years, but merits of the case were also examined by Collector. It has been observed in the order that earlier an enquiry was made by the Sub Divisional Officer as well as Vikas Adhikari and the petitioner, Nanuram was found in possession as a trespasser. It is true that the land can be allotted only which is vacant land, therefore, unless a trespasser is dispossessed, the land is not available for allotment. The question of possession over land in dispute cannot be decided by this Court. The said fact has not been examined properly by the Single Bench. In these circumstances, we are of the view that the matter be remitted to the Gram Panchayat for considering the claim of both the parties afresh. Consequently, the special appeal is allowed. The order of the Single Bench as well as District Collector both are set aside. The matter is remanded to the Gram Panchayat Sunel, District Jhalawar with a direction to consider the matter again afresh.
(3.) BOTH the parties are directed to maintain the status quo in respect of disputed piece of land till fresh order in this regard is passed by the Gram Panchayat. The parties are directed to bear their own costs. The stay application also stands disposed of.;