IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH.

L.P.A. No. 1887 of 2011 ( O&M )

DATE OF DECISION : 22.11.2011

Dalip Singh and another

.... APPELLANTS

Versus

Commissioner, Ambala Division, Ambala and others

..... RESPONDENTS

CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL

HON'BLE MR. JUSTICE PARAMJEET SINGH

Present:

Mr. Ravinder Hooda, Advocate,

for the appellants.

* * *

SATISH KUMAR MITTAL, J.

Appellants Dalip Singh and Pirtho, who are sons of late Fakiria,

have filed the instant Letters Patent Appeal against the order dated

15.3.2011, passed by the learned Single Judge, whereby the writ petition

(CWP No. 7936 of 1988) filed by the father of the appellants (who died

during the pendency of the writ petition) challenging the orders dated

7.2.1985; 20.5.1986 and 20.11.1987 (Annexures P-1; P-2 and P-3), passed

by the Assistant Collector Ist Grade, Sonepat; the Collector, Sonepat; and

the Commissioner, Ambala Division, Ambala, respectively, rejecting the

claim of ownership of the father of the appellants over the land in question

measuring 37 kanalas 4 marlas, situated in village Sisana, District Sonepat,

LPA No. 1887 of 2011

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has been dismissed.

We have heard learned counsel for the appellant and perused

the impugned order as well as the orders passed by the authorities below.

In this case, the land in dispute, admittedly, belongs to “Thola

Rupa”. As per the Sharat Wajib-ul-Aarz, the disputed land was used for

“Gau Charand”, which is a use for general public of the village. Keeping in

view these factors, mutation of the land in dispute along with other land was

sanctioned in the name of the Gram Panchayat vide mutation No. 2399

dated 2.6.1962. In the year 1984, some proprietors of “Thola” filed a title

suit under Section 13-A of the Punjab Village Common Lands (Regulation)

Act, 1961 (As Applicable to Haryana) (hereinafter referred to as `the Act')

in a representative capacity. In the said suit, Fakiria (father of the

appellants) was impleaded as defendant No.4, who claims ownership and

possession of the land in dispute. It was the case of the proprietors that land

belongs to “Thola Rupa Pana Kaslan” and they are co-sharers in the said

Pana and in possession of the land. Therefore, this land does not vest in the

Gram Panchayat under the Act, and the mutation sanctioned in favour of the

Gram Panchayat was illegal. In that suit, various issues, including the

following two issues, were framed :

“Whether the mutation No. 2399 dated 2.6.62 as per grounds of

suit, is against law and liable to be cancelled?

Whether Faquira – defendant is owner and in possession of

land measuring 37 Kanals – 4 Marlas ? If so, what is its effect?

After taking evidence of both the parties, vide order dated 7.2.1985

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(Annexure P-1), a finding of fact was recorded by the Assistant Collector to

the effect that the land measuring 37 kanals 4 marlas (land in dispute) is

“Gau Charand” (pasture) and according to the Sharat Wajib-ul-Aarz, it is

being used for common purposes of the village. A finding was further

recorded that the plaintiffs (proprietors) and respondent No.4 Fakiria (father

of appellants), who claimed to be Biswedars of Thola Rupa, have failed to

prove their continuous cultivating possession on the land in dispute on or

before 9.1.1954, therefore, as per Section 2 (g) of the Act, the land belongs

to the Gram Panchayat and the mutation was rightly sanctioned in favour of

the Gram Panchayat.

Feeling aggrieved against the said order, Fakiria (father of the

appellants) and proprietors (plaintiffs in the title suit) filed separate appeals

before the Collector, Sonepat, which were dismissed vide order dated

20.5.1986 (Annexure P-2) and the findings recorded by the Assistant

Collector were confirmed. The revision petitions, filed by the father of the

appellants and proprietors of “Thola Rupa”, were also dismissed by the

Commissio