JUDGMENT
R.L. Anand, J.
1. Municipal Committee, Sirhind, through its Executive Officer, has filed the present appeal and it has been directed against the judgment and decree dated 31.10.1979, passed by the court of the Distt. Judge, Patiala, who set aside the findings of the trial court and declared the plaintiff Sukhinder Singh son of Patisar Singh, not only in possession of the property but also the owner of the suit land and that the Committee had no concern with the suit land. Consequently, the Committee was restrained from interfering in the possession of the plaintiff over the suit land.
2. The brief facts of the case are that Sukhinder Singh filed a suit for declaration and for permanent injunction against the Committee to the effect that he is owner in possession of the land measuring 25 kanals fully described in the head note of the plaint and further sought an injunction restraining the defendant Municipal Committee and its servants from interfering in his possession. The case set up by the plaintiff in the trial court was that he is resident of Sirhind and is Khewatdar of Sirhind. The land under dispute is situated at Sirhind and the plaintiff is in peaceful cultiyating possession of the same as owner since his fore-fathers. The land in suit was a shamlat of village Sirhind and being a co-sharer and Khewatdar of the village Sirhind, grand father of the plaintiff was earlier in peaceful cultivating possession of the land as owner and as co-sharer of the shamlat land. On the death of the grand father of the plaintiff, the father of the plaintiff came into possession as owner being a co-sharer of the shamlat land of Sirhind. His father remained in possession till 16.6.1968 on which date a family settlement took place between the plaintiff and his father and the land measuring 39 kanals 5 marlas situated at Sirhind which was the ancestral property of the plaintiff and his father was transferred in favour of the plaintiff along with other rights appertaining to the land and the share in the shamlat which is the land in suit. Since 16.6.1968, the plaintiff is in continuous possession of the suit land as owner. The plaintiff spent a sum of Rs. 7,000/- on the improvement of the land in dispute. On 30.4.1973, the defendant-Committee, in connivance with the revenue authorities got sanctioned mutation of the suit land in the name of Municipal Committee, Sirhind, illegally and against law and without any notice to the plaintiff. The plaintiff came to know of the same on 18.1.1975. According to the plaintiff, the land in suit is not situated in the revenue limits of Sirhind and it does not vest in the Municipal Committee and that the Committee has no concern with the same but the defendant-Committee wants to dispossess the plaintiff from the suit land on the basis of the wrong mutation entered. Hence, the plaintiff prayed for a declaration and injunction.
3. Notice of the suit was given to the Committee, which contested the claim of the plaintiff by stating that the plaintiff was not in possession of the land as owner nor his fore-fathers were in possession of the suit land as owner. The property in dispute is owned and vests in the defendant. The plaintiff is a trespasser and separate proceedings are pending before the Collector, Bassi, for the eviction of the plaintiff from the disputed land. The plaintiff never made any improvement. The mutation has been rightly sanctioned in favour of the Municipal Committee. The plaintiff did not serve any notice before filing the present suit and the civil court had no jurisdiction to try the suit. In short, the defence of the Committee was that the land in suit vests in it.
4. On the pleading of the parties, the following issues were framed:-
“1) Whether the plaintiff is the owner and in possession of the suit land? OPP
2) Whether notice Section of the Municipal Act was necessary before filing the suit? OPD
3) Whether the court has no jurisdiction to try this suit? OPD
4) Relief.”
5. The parties led oral and documentary evidence in support of their case. While deciding issue No. 1, the learned trial Court held that the plaintiff is in possession of the property on the date of the institution of the suit. In fact, his possession is for the last more than 7 years before the institution of the suit which was instituted on 27.1.1975 but the plaintiff had not been able to prove that he is in possession of the suit property as owner and, therefore, the issue No. 1 was partly decided in favour of the plaintiff by the trial Court and partly against him. Issues No. 2 and 3 were decided in favour of the plaintiff and against the Municipal Committee. Resultantly, the suit of the plaintiff was partly decreed and he was granted the decree for injunction but with regard to the ownership the trial Court did not declare the plaintiff as owner. Rather, it declared that the defendant can only evict the plaintiff through legal course.
6. Aggrieved by the judgment and decree dated 11.5.1977 passed by the trial Court, the plaintiff filed an appeal before the Court of Distt. Judge, Patiala, who for the reasons given in para-7 of the judgment reversed the part findings against the plaintiff and decided the entire issue No. 1 in favour of the plaintiff by holding that the plaintiff is not only in possession of the suit land but also is the owner of the suit land and the suit of the plaintiff was decreed in its entirety.
7. Aggrieved by the judgment and decree of the appellate court, the Committee has come in the present appeal.
8. Before I deal with the submission of the counsel for the parties, it will be proper for me to incorporate para-7 of the first appellate Court, which reads as under:-
“The possession of the plaintiff over the land in question is admitted. Now the only question that remains to be seen is as to whether the plaintiff was its owner. The land in question is admittedly Shamlat. It is the common case of the parties that there is no Gram Panchayat in Sirhind. So the question of its vesting in the Gram Panchayat would not arise. I was taken through the Notification Ex.PW7/B, issued under Section 3(1)(b) of the Small Towns Act, 1995. It is dated 21.9.1939. The municipal limits of Sirhind were increased therein, but the same would not amount to the title of the municipal committee. The increase in the area of the Municipal limits would only indicate that for the purpose of scauanging octroi the limitation of the Municipality stood extended. The notification is no evidence of the title. I was taken through the copy of the mutation order Ex.PW7/C. Mutation does not confer title. It is only in the nature of a fiscal enquiry. I was taken through a letter marked B issued by the Secretary Local Self Government, Punjab, to all the Deputy Commissioner. It is dated 30.4.1976. In my opinion a letter written by a Secretary could not confer any title. The land in question was Shamlat as given earlier. How the municipality clothed itself with title has not been shown to me. I hold that the plaintiff is its owner and is entitled to the relief of declaration and injunction sought. The appeal thus deserves to be accepted.”
9. I have heard Mr. R.P. Sood, counsel for the appellant and Mr. R.K. Gupta, counsel for the respondent and with their assistance have gone through the record of this case.
10. The case set up by the complainant before the trial Court was that his fore-fathers were the proprietors/Khewatdards of village Sirhind. At that time, there was no Gram Panchayat, Gram Sabha, etc. The land in dispute was reserved as shamlat by the Khewatdars and the propriety body of the village were in possession of the respective areas of the shamlat land in the capacity as owners. By virtue of a family partition which took place in the year 1968, the plaintiff was allotted 39 Kanals 5 marlas of land besides the shamlat share which was attached with this land.
11. On the contrary, the case set up by the defendant in the trial Court was that by virtue of the notification. Ex.PW-7/B, issued under the Patiala Small Town Act, the boundaries of Sirhind were extended and the land in dispute fell within the extended boundary and, thus, it vests in the Committee. Now, at the appellate stage, the learned counsel for the appellant submitted that by virtue of the notification No CSR-1-PA-4/54, Section 101/AMD(6)/76 dated 7.1.1976, the disputed land which earlier reverted to the co-sharers/owners shall be deemed to have vested in the local authorities and in this view of the matter, the plaintiff cannot claim himself to the owner of the property.
12. Refuting the argument of the counsel for the appellant, the learned counsel for the respondent submitted that the notification dated 7.1.1976, on the basis of which letter dated 30.4.1976 was issued; firstly, is not applicable to the facts in hand and, secondly, this notification has to be applied prospectively and not retrospectively. Moreover, it is established on the record that the plaintiff was in continuous possession of the property right from 1968 and earlier to that his fore-fathers were in possession and by virtue of Section 110 of the Indian Evidence Act, the plaintiff will be deemed to be the owner of the property.
13. I have considered the submission of the counsel for the parties and I am of the opinion that the contentions which were raised by the counsel for the appellant are totally devoid of any merit and this appeal is liable to be dismissed.
14. The examination of the written statement filed by the defendant would show that they only wanted to defeat the claim of the plaintiff with regard to the ownership on the basis of the order No. 46, Ex.PW-7/B, which was issued under Section 3(1)(b) of the Small Towns Act. A reading of this notification would show that through this notification, the Municipal Committee, Sirhind, only wanted to extend its jurisdiction for the purpose of defining from where its jurisdiction starts. This has nothing to do with the acquisition of the property which belonged or which was in possession of the private owners. Earlier, there was no Gram Panchayat or Gram Sabha in Sirhind. Khewatdars of the Village Sirhind, earmarked some area for the purpose of shamlat, i.e. common use and the rest of area was being cultivated by them. It is the specific case of the plaintiff that his father gave to him 39 K 5 M of land along with share in the shamlat and, in this manner, he came into the possession of this land as a Khewatdar. It is has never been established nor proved that this land ever vested in any Gram Panchayat being a Shamlat Deh and for this reason, the provisions of the Gram Sabha or Gram Panchayat Act were never made applicable. The notification dated 7.1.1976 reads as follows:-
“Disposal of Assets and liabilities of Gram Sabha (Section 4(3). If the whole of Sabha area is included -in a municipality, cantonment or notified area, all rights, obligations property, assets and liabilities if any, whether arising out of any contract or otherwise shall vest in the Municipal Commit tee, cantonment Board or NAC as the case may be.
Provided that the land which vests in the panchayat under the Punjab Village Common Lands (Regulation) Act, 1961, or the land, management and control of which vests in the Panchayat under the East Punjab Holdings (Consolidation and Prevention of Fragmentation Act, 1948, shall revert to the co- sharers and owners thereof.”
15. This was the position prior to 30.4.1976. The proviso quoted above has been omitted, meaning thereby that the Shamlat Deh situated in the villages of the Municipal Committee, notified area, etc., now shall vest in the respective local authorities. Two points would arise in this case. Where is the evidence to this effect that the land in dispute ever vested in the Gram Panchayat or Gram Sabha. Rather, the evidence on the record is that the complainant remained in possession of the property at least from 1968 in the capacity of a proprietor and the second point for determination would be whether this notification should be applied prospectively or retrospectively. If the plaintiff is holding the property in the capacity of an owner prior to 30.4.1976, how he could be divested of the same.
16. The matter regarding the operation of the notification came up for consideration before this High Court in Gurdial Singh and Ors. v. The State of Punjab and Anr., 1987 P.L.J. 76, and it was held that this notification of 30.4.1976 applies prospectively and not retrospectively, meaning thereby if it is assumed for the sake of arguments that the land in question had vested in the Gram Panchayat earlier, it will not go to the Municipal Committee, but in the present case there is no proof at all that it became the property of any Gram Sabha or Gram Panchayat.
17. Similar point came up for consideration in Gram Sabha Salina v. Nahar Singh and Ors., Punjab Legal Reports and Statutes 749, and it was held that the amending notification of 1976 is to apply prospectively and not retrospectively.
18. In Dinesh Mehta v. Shri H.D. Giri, Lecturer Chemistry and Ors., 1986 P.A.P. 142 Punjab and Haryana, it was held that when amendment of rules takes place, such amendment shall apply prospectively unless the intention is to the contrary.
19. Further support can be taken from R. Rajagopal Reddy v. Padmini Chandrasekharan, 1995 H.R.R. 208.
20. Faced with this difficulty, the counsel for the appellant submitted that the plaintiff has not been able to connect the Khasra numbers of the suit land with the case property.
21. In my opinion, this argument has been taken for the sake of arguments. Defendant is forgetting its own case. The case of the defendant is that by virtue of the extension of the boundary limits of the Committee, it has become the owner of the property and it has been rightly mutated in its name. Mutation does not confer title. It is not established on the record that, at any point of time, this property had ever vested in the Gram Panchayat. Also, it is not established that on the date of the notification of 1976. It was with the Gram Panchayat or Gram Sabha. In these circumstances, Section 110 of the Indian Evidence Act will come into play which lays down that when the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner. Plaintiff has been able to establish at least that he is in possession of the property since 1968. Even if he has not been able to connect the Khasra Nos. by saying that this very land was earlier in the possession of his fore-fathers, the fact remains that he was holding this property as owner on the date of the institution of the suit and as such the first appellate court rightly decreed the entire suit of the plaintiff-respondent.
22. There is no merit in this appeal and the same is hereby dismissed with no order as to costs.