The definition of 'shamilat deh' under section 2(g)(5) of the Punjab Village Common Lands (Regulation) Act, 1961, requires three conditions to be met, and the onus of proving these conditions lies on the party claiming the land to be shamilat deh.

K.S.Tiwana, J.

1. Gram Sabha of village Salina, the appellant before us, filed an application under section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 , (hereinafter referred to as the Act) for the ejectment of Nahar Singh, Boota Singh and Tara Singh, before the Assistant Collector 1st Grade, Moga, from the land in dispute. The case of the appellant is that the land in dispute measuring 836 Kanals and 4 Marlas was left for the common purposes of the village and being Banjar Qadim was being used as a charand. The land is entered in the revenue records in the possession of the rightholders of the Patti and no one had the right to reclaim or cultivate it, as it is to be used as charand only. The respondents, according to the appellant, have illegally occupied the land in question and were not permitting the rightholders to graze their cattle on it.

2. The respondents contested the application and denied if the land was shamilat as defined in section 2 of the Act. They took the plea that the land was owned by specific rightholders in well-defined shares. The jurisdiction of the Assistant Collector to decide the case was also questioned.

3. The learned Assistant Collector, Moga, after recording evidence led by the parties, accepted the application and ordered the ejectment of the respondents. The appeal filed before the Collector, Faridkot, against the order of ejectment was also dismissed. Nahar Singh respondent then took the matter in appeal before the Commissioner, Ferozepur Division. The Commissioner, in his order Annexure P.10, dated 23rd of September, 1975, observed :-

"The record of the lower Courts reveals that there has been no mention that the land in dispute to the extent of twenty-five per centum of the total area of the village exists or not in the said village. The record is also silent whether the whole village is using the land in dispute as a grazing ground or some individuals. This finding is necessary as required by the proviso under section 2(g)(5) mentioned above. It was necessary for the respondent to prove his case on the above two points. In its absence, it cannot be definitely said that the land in dispute falls under section 2(g)(5) of the Act ibid; especially, when the respondent has failed to place on record any evidence in this respect."

On the basis of these observations, it was held by the Commissioner that the land in dispute was not proved to he shamilat as defined in section 2(g)(5) of the Act. It was also held that the Assistant Collector 1st Grade had no jurisdiction to decide the question of title and that there was no proper authority in favour of the said Sarpanch to file the ejectment application. On these basis the appeal of Nahar Singh respondent was accepted by the Commissioner and the application for ejectment was dismissed.

4. Against the order Annexure P.10 of the Commissioner, the appellant filed C.W.P. No. 782 of 1976, out of which this present Letters Patent Appeal has arisen. The challenge against the impugned order is that the learned Commissioner, Ferozepur Division, misdirected himself to hold that the land is not shamilat and also on the ground of jurisdiction and the authority in favour of the Sarpanch to file the ejectment proceedings.

Respondent No. 1 contested the petition and controverted the case of the appellant as contained in the petition. The order of the Commissioner was defended. It was averred that Smt. Suraj Kaur owned one-third share in the land in dispute, which was gifted by her through a registered gift deed dated 4th of February, 1971, in favour of respondent No. 1 for being used for the welfare of the villagers. Respondent No. 1 has created a trust for establishing certain institutions. Respondent No. 1 has raised buildings on the land for the welfare of the people and has also constructed structures, like, stadium and runway. The existence of these buildings was to the knowledge of the appellant and the other village community.

In th