The petitioners pray for issuance of a writ of certiorari for setting aside orders dated 19.10.2004 and 30.12.2009 (Annexures P3 and P5), passed by the Collector-cum-Divisional Deputy District Director, Rural Development and Panchayat, Patiala and the Commissioner, Rural Development and Panchayat, Punjab, respectively, under Section 11 of the Punjab Village Common Land (Regulations) Act, 1961 (hereinafter referred to as ''the 1961 Act'').

Before proceeding to adjudicate the rights of the parties, it would be appropriate to narrate the relevant facts. The petitioners filed a suit for declaration of their ownership in respect of land, measuring 25 bighas 1 biswa, situated in the revenue estate of village Janetpur, Tehsil Derabassi, District Patiala, by pleading that they are in continuous possession of the land, in dispute before 26.01.1950, it is excluded from 'shamilat deh'. The petition filed by the petitioners was dismissed by the Collector, by holding that they have failed to establish their continuous possession since 1950. The petitioners preferred an appeal before the Appellate authority but the same was also dismissed. The petitioners claim ownership of the land, in dispute, mainly, on two counts;

a) the land has been partitioned and brought under cultivation by individual land holders before 26.01.1950 (Section 2(g) (iii) of 'the 1961 Act'); and

b) the land has been in cultivating possession of cosharers before 26.01.1950 and the same is not in excess of their share in shamilat deh (Section 2(g) (viii) of 'the 1961 Act') Counsel for the petitioners has placed reliance upon the jamabandi for the year 1940-41, to substantiate his contention that Inder Singh, predecessor-in-interest of the petitioners has been recorded to be in cultivating possession of land, in dispute. The jamabandi for the year 1960- 61 records pre and post consolidation khasra numbers and the land, in dispute was allotted in lieu of khasra numbers previously in cultivating possession of said Inder. It is submitted that the Collector and the Commissioner have failed to appreciate the revenue record and wrongly ignored the entries in the jamabandies, showing continuous cultivating possession of the petitioners prior to 26.01.1950. Counsel for the Gram Panchayat submits that as the petitioners failed to establish their plea of cultivating possession of the land, in dispute before 26.01.1950 much less any evidence that 'shamilat khewat' was partitioned amongst the proprietors of the village before 26.01.1950, the Collector and the Commissioner have rightly held against the petitioners. It is further prayed that the writ petition filed by the petitioners is liable to be dismissed.

We have heard counsel for the parties, perused the impugned orders and the paper book.

The dispute in the present case, is whether the land, in dispute, is 'shamilat deh' as defined under Section 2(g) of 'the 1961 Act' or is excluded therefrom by virtue of Section 2(g)(iii) or (viii) of 'the 1961 Act'. The petitioners urge that the land is excluded from 'shamilat deh' by Section 2(g)(iii) and/or Section 2(g)(viii) of 'the 1961 Act'. It would, therefore, be appropriate to reproduce relevant extracts from Section 2(g) of 'the 1961 Act', which read as follows:-

“2(g) “shamilat deh” includes-

(1) lands described in the revenue records as shamilat deh or charand excluding abadi deh;

(2) XX XX XX

(3) XX XX XX

(4) XX XX XX

(5) XX XX XX

“2(g) but does not include land which--

(i) XX XX XX

(ii) XX XX XX

(iii) has been partitioned and brought under cultivation by individual landholders before the 26th January, 1950;

(iv) XX XX XX

(v) XX XX XX

(vi) XX XX XX

(vii) XX XX XX

(viii) was shamilat deh, was assessed to land revenue and has been in the individual cultivating possession of co-sharers not being in excess of their respective shares in such shamilat deh on or before the 26th January, 1950;

Section 2(g)(1) of 'the 1961 Act' contemplates that 'shamilat deh' includes land described as 'shami