2012 Supreme(P&H) 399

2012(3) LAW HERALD (P&H) 2100
IN THE HIGH COURT OF PUNJAB AND HARYANA
[DIVISION BENCH]
Before
The Hon’ble Mr. Justice Rajive Bhalla
The Hon’ble Mr. Justice Jora Singh
CWP No.4495 of 1985 (O&M)
Bundi Ram (deceased) through his LRs.
v.
Commissioner, Ambala Division Ambala & Ors.
{Decided on 13/03/2012}

Shamilat Deh--Land recorded as a gair mumkin nadi is not excluded from Shamilat Deh
Shamilat Deh--Land recorded as gair mumkin nadi--Petitioner failed to prove their cultivating possession--Claim based merely on proprietary possession, set aside.

Headnote:(A) Punjab Village Common Lands (Regulation) Act, 1961 (As applicable to Haryana), S.2(g)(i), 3&4--Shamilat Deh--Land recorded as a gair mumkin nadi is not excluded from Shamilat Deh--The mere fact that a seasonal rivulet passes through the revenue estate or that the land is recorded as a gair mumkin nadi, does not raise an inference that the land has become or becomes Shamilat Deh due to fiver action or was reserved in a village subject to river action--The words "gair mumkin nadi" refer to a river and not to land created by river action--Punjab Land Revenue Act, 1887, S.59(1)(d)--Haryana Land Records Manual, Chapter 6.1 and 6.5.

       Mere existence of a river or a rivulet in a revenue estate does not raise an inference that proprietary lands were lost due to river action--An entry in the Sharat Wajib-ul-arj, as to the manner in which land, subject to river action is to be made good, does not raise an inference that land in the present case "becomes or has become Shamilat Deh" due to river action or that land in Shamilat Deh was "reserved" for making good any loss of proprietary land, by river action--The petitioners were required to produce the record maintained by revenue authorities in accordance with chapter 6.1 to 6.5 of the Haryana Land Records Manual to prove that the land in dispute was created by river action, there was loss on account of river action to proprietary holdings and count of river action to proprietary holdings and that Shamilat Deh, in the revenue estate was reserved for making good loss in holdings of proprietors, by river action--In the absence of any such record or evidence, the mere fact that the Wajib-ul-arj records that ownership and possession would remain unchanged despite alluvion and diluvion, or that land lost to river action would be made good from Shamilat Deh, does not raise an inference that the land in dispute is excluded from Shamilat Deh--The mere existence of a river and an entry in the Wajib-ul-arj, may be a pointer to the fact that land in the village at some stage in the past was subject to river action but this cannot be the sole basis for holding that the land in dispute becomes or has become Shamilat Deh due to river action or that land in Shamilat Deh due to river action or that land in Shamilat Deh was reserved for making good loss in proprietary holdings, by river action. (Para 26 & 27)

       (B) Punjab Village Common Lands (Regulation) Act, 1961 (As applicable to Haryana), S.2(g)(iii) & (viii)--Shamilat Deh--It is "cultivating possession" and not mere "proprietary possession" that excludes land from Shamilat Deh, under section 2(g)(iii) and (viii). (Para 18)

       (C) Punjab Village Common Lands (Regulation) Act, 1961 (As applicable to Haryana), S.2(g)(iii) & (viii)--Shamilat Deh--Land recorded as gair mumkin nadi--Petitioner failed to prove their cultivating possession--Claim based merely on proprietary possession, set aside. (Para 19)

       A Gair mumkin nadi i.e. a river cannot be in cultivating possession of individual proprietors--It is, however, conceivable that during the dry season, the river bed may be used for cultivation but this alone would not exclude the land from Shamilat Deh--Furthermore, the absence of any entry in the jamabandi or a khasra girdawari to prove such possession, persuades us to hold that the petitioners were not in cultivating possession as required by Section 2(g)(viii) of the Act.

       (D) Punjab Village Common Lands (Regulation) Act, 1961 (As applicable to Haryana), S.2(g)(iii) & (viii)--Shamilat Deh--Exclusion of land due to river action--Held; --A person who invokes the provision of Section 2(g)(i) is required to prove by clear, cogent and reliable evidence, particularly by reference to the revenue record, that:

       (a) the land becomes or became Shamilat Deh due to river action; or

       (b) has been reserved as shamilat in villages subject to river action.

       In order to claim the benefit of section 2(g)(i) of the 1961 Act, the petitioners are required to prove that land becomes or has become--Shamilat Deh due to river action or that land in Shamilat Deli was reserved in a village subject to river action--The best evidence to prove the ingredients of section 2(g)(i) is the record maintained by revenue authorities, under Section 59(1)(D) of the Punjab Land Revenue Act, 1887, read with Chapters 6.1 and 6.5 of the Haryana Land Records Manual recording land affected by diluvion land created by alluvion and the list of villages where land is subject to river action. (Para 21)

       (E) Words and Phrases--"Makbuja malkan," i.e. possession of the entire proprietary body, in common, with no particular co-sharer in possession of any particular portion of the land, much less in cultivating possession. (Para 18)

       (F) Words and Phrases--Bag barani i.e., an orchard but without recording the possession of any individual proprietor. (Para 18)

       (G) Words and Phrases--Choe--Seasonal rivulets and perennial rivers. (Para 23)

       (H) Punjab Village Common Lands (Regulation) Act, 1961 (As applicable to Haryana), S.2(g)(i), 3&4--Shamilat Deh--In the absence of any revenue record to establish that the land becomes or has become Shamilat Deh due to river action, or that it was Shamilat Deh due to river action, or that it was Shamilat Deh reserved to make good loss in land due to river action, the land in dispute cannot be excluded from Shamilat Deh and, vests in the Gram Panchayat under Section 2(g)(1) read with Sections 3 and 4 of the Act. (Para 8)

       (I) Punjab Village Common Lands (Regulation) Act, 1961 (As applicable to Haryana), S.2(g)(i), 3&4--Shamilat Deh--Land recorded as a gair mumkin nadi is not excluded from Shamilat Deh--If an entry of "gair mumkin nadi" were to raise an inference that land vests in proprietors, all rivers, river beds and their banks, would vest in proprietors, thus, divesting the State of its rights--Punjab Land Revenue Act, 1887, S.59(1)(d)--Haryana Land Records Manual, Chapter 6.1 and 6.5. (Para 27)