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CASE NO.: Appeal (civil)  5517 of 2003

PETITIONER: Puran & Ors.

RESPONDENT: Gram Panchayat, Faridabad

DATE OF JUDGMENT: 30/01/2006

BENCH: Arijit Pasayat & R. V. Raveendran

JUDGMENT: J U D G M E N T RAVEENDRAN, J.

       This is a plaintiff’s appeal against the judgment dated  19.9.2002 of the Punjab & Haryana High Court in Regular Second  Appeal No.3689 of 2002 confirming the judgment and decree of  the first appellate court dated 6.8.2002 allowing defendant’s  appeal and dismissing the plaintiff’s suit. The first appeal was filed  by the defendant against the judgment and decree dated  16.1.2002 in Civil Suit No. 1083/1996 on the file of Civil Judge,  Junior Division, Palwal decreeing the suit for a declaration that the  plaintiffs are the owners in possession of the suit land (agricultural  land measuring  70 Kanals and 1 Marla situated within the revenue  estate of village Hassapur, Tehsil Palwal, district Faridabad,  described in the plaint).

2.      The appellants filed the said suit alleging that a century prior  to the filing of the suit, the suit land had been entrusted by the  defendant/owners of the land, to their (Appellants’) forefathers for  cultivation on the understanding that they and their successors  would not be evicted therefrom; that as per the local custom, such  tenants became full fledged owners by acquiring occupancy rights  under Sections 5 and 8 of the Punjab Tenancy Act, 1887 (for short  ’the Tenancy Act’) read with Section 3 of the Punjab Occupancy  Tenants (Vesting of Proprietary Rights) Act, 1953 (for short ’the  Proprietary Rights Act’). The appellants contended that though the  name of respondent Gram Panchayat was entered as the owner of  the suit land in the revenue records, the respondent had no right,  title or interest therein.  

3.      The suit was contested by the respondent Panchayat.  Respondent alleged that the suit land, being part of Shamilat deh,  vested in it under section 4(1) of the Punjab Village Common  Lands (Regulations) Act, 1961 (for short ’the Common Lands Act’).  It was also pointed out that as the Gram Panchayat itself came into  existence in or about the year 1952, the question of the  respondent Panchayat entering into any agreement with the  forefathers of appellants about 100 years prior to the suit, as  alleged by the appellants, did not arise. The Gram Panchayat  contended that neither the plaintiffs nor their predecessors had  cultivated the suit land at any point of time prior to the Common  Lands Act came into force, nor secured any occupancy rights at  any time under any law or local custom; and that the suit was an  attempt to grab a large area of valuable land belonging to the  Gram Panchayat.  

4.      On the said pleadings, the parties went to trial, the main and

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first issue being whether the plaintiffs were entitled to a  declaration that they had become the owners in possession of the  suit land by acquiring occupancy rights thereof. The other issues  were whether the plaintiff had any locus standi to file the suit,  whether the suit was maintainable and whether the court had  jurisdiction to try the suit.  

5.      The trial court decreed the suit by judgment dated  16.1.2002, on the basis of the oral evidence of the appellants that  they and their predecessors were cultivating the suit land for  several decades and the revenue documents, namely, Jamabandi  for the years 1966-67, 1971-72, 1976-77, 1986-87, 1991-92 (Ex.  P-1 to P-3, P-5 and P-6) and the Khasra Girdawaries (Ex. P-7, P-9,  P-11 and P-12) which showed the Gram Panchayat as the owner  and Sarjeet (father of appellant Nos.1 to 3) and Jivan Lal (father of  appellant Nos.4 and 5) were the Gair Marusian. The trial court held  that the appellants had proved that they were in possession of the  suit land for a period of more than 30 years and had acquired  occupancy rights under Section 5 of the Tenancy Act read with  Section 3 of the Proprietary Rights Act, and consequently, they  were entitled to the declaration prayed for.  

6.      The appeal filed by the Gram Panchayat was allowed by the  first appellate court by judgment and decree dated 6.8.2002. The  first appellate court held that the suit land which was admittedly  Shamilat deh of the village and had vested in the Gram Panchayat,  under Section 4(1) of the Common Lands Act; and that the  appellants had failed to establish that they had any right title or  interest which was protected under sub-section  (3) of section 4 of  the Act. The first Appellate Court also held that the mere fact that  appellants’ predecessors were shown as Gair Marusian for the year  1966-67 or subsequent years by paying some nominal rent, will  not given them the status of allottee, lessee or grantee, so to seek  any protection under the Common Lands Act or Rules thereunder,  unless they are able to establish that they had entered into  possession in pursuance of an allotment, lease or grant by the  Gram Panchayat. Consequently, the first appellate court set aside  the decree of the trial court.

7.      The second appeal filed by the appellants was dismissed by  the High Court, affirming the findings recorded by the first  appellate court. The said judgment is challenged in this appeal. The  following contentions are urged by the Appellants :-   

i)      The right crystallized in their favour under Section 5 of  Tenancy Act read with section 3 of Proprietary Rights  Act, due to long and uninterrupted possession, could not  be defeated by the Gram Panchayat by invoking section  4 of the Common Lands Act.

ii)     Having regard to the fact that the names of the father of  Appellants 1 to 3 and father of Appellants 4 and 5 were  shown in the Jamabhandi for 1966-67 and some  subsequent years as persons cultivating the suit land, it  should be assumed that Appellants and their forefathers  were in possession for a period of more than 12 years  immediately preceding the commencement of the  Common Lands Act, in the absence of positive evidence  to the contrary.  

8.      The Punjab Village Common Lands (Regulations) Act, 1961,  enacted by the Punjab Legislature to consolidate and amend the  law relating Shamilat deh, which  came with operation on  4.5.1961, applied to all lands which are Shamilat deh. Section 4 of  the 1961 Act relates to vesting of rights in panchayats and non\026

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proprietors. It is extracted below :  "4. Vesting of rights in Panchayats and non-proprietors. \026  (1) Notwithstanding  anything to the contrary contained in  any other law for the time being in force or in any  agreement, instrument, custom or usage or any decree or  order of any Court or other authority, all rights, title and  interests whatever in the land, -  

a)      which is included in the Shamilat deh of any village  and which has not vested in a panchayat under the  Shamilat law shall, at the commencement of this Act, vest  in a panchayat constituted for such village, and, where no  such panchayat has been constituted for such village, vest  in the panchayat on such date as a panchayat having  jurisdiction over that village is constituted;   b)      which is situated within or outside the abadi  deh of a  village and which is under the house owned by a non- proprietor, shall on the commencement of the Shamilat law,  be deemed to have been vested in such non-proprietor.  

(2)     Any land which is vested in a panchayat under the  Shamilat law shall be deemed to have been vested in the  panchayat under this Act.  

(3)     Nothing contained in clause (a) of sub-section (1) and  in sub-section (2) shall affect or shall be deemed ever to  have affected the \026  

i)      existing rights, title or interest of persons who  though not entered as occupancy tenants in the  revenue records are accorded a similar status by  custom or otherwise, such as Dholidars, Bhondedars,  Butimars, Basikhuopahus, Saunjidars, Muqararidars;  

ii)     Rights of persons in cultivating possession of  Shamilat deh for more than twelve years  [immediately proceeding the commencement of the  Act] without payment of rent or by payment of  charges not exceeding the land revenue and cesses  payable thereon;  

iii)    Rights of a mortgagee to whom such land is  mortgaged with possession before the 26th January,  1950.  

Sub-section (3) of section 4 makes it clear that neither sub-section  (1) (a) nor (2) of section 4 will affect the rights of the three  categories of persons mentioned therein. It is not the case of  Appellants that they were accorded a status similar to occupancy  tenants by custom or otherwise (though not entered as occupancy  tenants in the revenue record), such as Dholidars, Bhondedars,  Butimars, Basikhuopahus, Saunjidars, and Muqararidars. Nor are  appellants mortgagees in favour of whom, the land had been  mortgaged with possession prior to 26.1.1950. Therefore, neither  clause (i) nor (iii) of sub-section (3) will apply. That leaves only  clause (ii) of section 4(3). Clause (ii) of section 4(3) will be  attracted only if the following 3 conditions are satisfied : (i) the  person must be cultivating land which is part of the Shamilat deh  of a village, (ii) he should be cultivating such land for a period of  12 years immediately preceding the commencement of the Act;  and (c) he should be cultivating such land without payment of rent  or payment of charges in excess of the land Revenue and cess. Let  us consider whether appellants fulfilled the said three conditions.  

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9.      Section 5 of the Tenancy Act enumerates the tenants who  have the right of occupancy in the land occupied by them. Sub- sections (1) and (2) of section 5 are extracted below:

"5. Tenants having right of occupancy. \026 (1) A tenant \026  

a)      who at the commencement of this Act has, for more  than two generations in the male line of descent through a  grand-father or grand-uncle and for a period of not less  than twenty years, been occupying land paying no rent  therefor beyond the amount of land revenue thereof and the  rates and cesses for the time being chargeable thereon; or  

b)      who having owned land, and having ceased to be  landowner thereof otherwise than by forfeiture to the  Government or than by any voluntary act, has, since he  ceased to be landowner continuously occupied the land; or

c)      who, in a village or estate in which he settled along  with, or was settled by, the founder thereof as a cultivator  therein, occupied land on the twenty-first day of October,  1868, and has continuously occupied the land since that  date; or

d)      who being jagirdar of the estate or any part of the  estate in which the land occupied by him is situate, has  continuously occupied the land for not less than twenty  years, or, having been such jagirdar, occupied the land  while he was jagirdar and has continuously, occupied it for  not less than twenty years;  

has a right of occupancy in the land so occupied unless, in  the case of a tenant belonging to class specified in        clause (c), the landlord proves that the tenant was settled  on land previously cleared and brought under cultivation by,  or at the expense of, the founder.  

(2)     If a tenant prove that he has continuously occupied  land for thirty years and paid no rent therefore beyond the  amount of the land revenue thereof and the rates and  cesses for the time being chargeable thereon, it may be  presumed that he has fulfilled the conditions of clause (a) of  Sub-section (1)."  

Section 8 of the said Act provides that nothing in Sections 5 to 7  shall preclude any person from establishing a right of occupancy on  any ground other than the grounds specified in those Sections. The  appellants admitted that they were not ’tenants’ falling under any  of the four categories described in sub-section (1) of section 5. Nor  could they establish that they took the suit land from Gram  Panchayat in the year 1966 and held the land under the Gram  Panchayat as lessee and occupied it continuously for thirty years in  the manner described in sub-section (2) of section 5.  

10.     The Appellants contend that their right of tenancy is based  on a ground other than those mentioned in section 5 and is based  on section 3(a) of the Proprietary Rights Act, which is extracted  below :  "3. Vesting of proprietary rights in occupancy tenants and  extinguishment of corresponding rights of landlords.- No  withstanding anything to the contrary contained in any law,  custom or usage for the time being in force, on and from  the appointed day \026

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a)      All rights, title and interest (including the contingent  interest, if any, recognized by any law, custom or usage for  the time being in force  and including the share in the  Shamilat with respect to the land concerned of the landlord  in the land held under him by an occupancy tenant, shall be  extinguished, and such rights, title and interest shall be  deemed to vest in the occupancy tenant free from all  incumbrances, if any, created by the landlord :

Provided that the occupancy tenant shall have the option  not to acquire the share in the Shamilat by giving a notice  in writing to the Collector within six months of the  publication of this Act or from the date of his obtaining  occupancy rights whichever is later.  

Section 3 of the Act relates to vesting of proprietary rights in  occupancy tenants and extinguishment of corresponding rights of  landlords. It is evidence therefrom that the right, title and interest  shall be deemed to vest only in an ’occupancy tenant’. Occupancy  tenant is defined under section 2(f) as meaning a tenant who,  immediately before the commencement of  the Proprietary Rights  Act, is recorded as an occupancy tenant in the revenue records and  includes a tenant who, after such commencement, obtains a right  of occupancy in respect of the land held by him whether by  agreement with the landlord or through a court of competent  jurisdiction or otherwise, and includes also the predecessors and  successors-in-interest of an occupancy tenant. Admittedly, neither  the appellants nor their predecessors were recorded as occupancy  tenants in the revenue records immediately before the  commencement of the Proprietary Rights Act, nor did they obtain a  right of occupancy in respect of  the said land either by agreement  with the landlord or through a court of competent jurisdiction or  otherwise after the commencement of the Act. The appellants,   therefore, do not answer the definition of ’occupancy tenant’ under  the Proprietary Rights Act. Consequently, they cannot derive any  benefit under Section 3 of the said Act.  

11.     If section 3 of the Proprietary Rights Act is inapplicable, the  question that remains for consideration is whether they are entitled  to the relief sought merely because the names of Sarjit and Jivan  Lal (father of appellants 1 to 3 and father of appellants 4 and 5  respectively) were shown as cultivating the lands for some years  from 1966-67. To get excluded from the vesting under section 4(1)  of the Common Lands Act, by relying on section 4(3)(ii), the  Appellants should prove that they and their ancestors were  cultivating such land for a period of at least 12 years prior to the  commencement of the Common Lands Act. The Appellants have  not produced any document prior to 1966 to show that they were  in possession or cultivating the suit land. The oral evidence is also  of no assistance. As against the pleading that the land was given to  appellants’ forefathers about a century prior to the filing of the  suit, Appellant No. 1 (PW-3) admitted in his evidence that no  record was available to show that they were so cultivating the land  prior to 1966. In his cross-examination, he admitted that neither  his grandfather nor his great grandfather cultivated the suit land.  He stated that he was cultivating the land for about 25 years and  earlier his tau (father’s elder brother) was cultivating the land. PW- 2 (Aged 35 years) has stated in his evidence (recorded in the year  2000) to his knowledge appellants and earlier Sarabjit (father of  appellants 1 to 3) was cultivating the land. His knowledge  obviously cannot exceed 25 to 30 years. To same effect is the  evidence of PW-1 who was aged 40 years when he gave evidence  in 2000. There is thus no oral or documentary evidence to show

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possession or cultivation of suit land by appellants or their  parents/ancestors prior to 1966. The evidence at best shows that  for a few years between 1966-67 and 1986-87 and that too not  continuously, the appellants (or the father of Appellant 1 to 3 and  father of Appellant 4 & 5) unauthorisedly cultivated some portion  of suit land. That does not entitle them to protection under section  4(3)(ii) of the Act. Consequently, the vesting under section 4(1) in  the Panchayat cannot be questioned. In view of the above, it is  unnecessary to go into the defence evidence that appellants were  ejected in the year 1976-77 and that thereafter, appellants again  illegally cultivated the land for a few years.  

12.     The suit is based on title. Title is not made out. As a  consequence, the dismissal of the suit by the first appellate court,  affirmed by the decision of the High Court in Second Appeal,  cannot be said to suffer from any infirmity. The appeal is,  accordingly, dismissed.