Jamabandi - A Document Of Title
Ajay Kumar Jindal, Advocate[1*]
(B.Sc., LL.B LL.M)
Abhay Kumar Jindal, Advocate[2*]
Email Id : email@example.com, Abhayjindal14@yahoo.co.in
Date : 29/10/2020
Location : Ch. No. 425, 4th Floor, Advocates Complex, District Courts, Ludhiana, Punjab
📱 +91 9814712425, +91 9814912425
Jamabandi - A Document Of TitleIntroduction :- State of Punjab is primarily based on Agriculture and its produce. There are few heavy industries installed and operative in the state of Punjab. In view of the fact that the state of Punjab is based on Agriculture, the knowledge of revenue laws is one of the essential requirement of a practicing advocate. It is not necessary that if one is dealing in civil law or criminal law exclusively. A Civil lawyer is supposed to have thorough knowledge of the revenue laws and revenue terminology. Every advocate is confronted with revenue record in his day to day practice. In the absence of knowledge of revenue laws/terminology, it becomes difficult to represent a client in an effective manner. Jamabandi is a basic document which is a foundation of revenue laws. Most of the advocates have either not studied the revenue laws or do not know the exact meaning of the 12 coloumns in the Jamabandi. Copies of Jamabandis are produced by the sureties of the accused persons at the time of furnishing of the bail bond to show the ownership of the surety. In the absence of thorough of the jamabandi, it become embarrsing for an advocate to support its contention. Preparation of Revenue record is sine qua non for the identification of ownership, change of ownership, law and value of mutation and other aspects of immovable property in a revenue system. Earlier, the main source of income of every Govt. was receipt of land revenue. In olden days when small kingdoms were ruled by various kings/Nawabs, the land revenue was realized either in the form of cash or by a fixed share in the produce of land. Agriculturist, who committed default in payment of land revenue, were meted out various type of punishments. Payment of land revenue and ownership of land are two facets of the same coin. With the advent of East India Company in India, slowly and slowly, they had taken over the administration of various states by means, fair or foul. Till that time, there was no uniform system for identification of a location or ownership of the property applicable to all the states. Various acts were promulgated to govern the ownership, identification and payment of land revenue. Land revenue in its popular terminology was called "Lagaan". The Indian movie `Lagaan', clearly depicts that as to how it was difficult for the farmers to pay lagaan and what type of punishments were bestowed on them, in case, they committed default in payment of the same. Legislation: The transfer of property act was brought on the statute book for the first time in the year 1882 while the Punjab Land Revenue Act, 1887 was brought on the statue book for the first time, which codified the law relating to agricultural land by making amendments and improvements in the existing rules, which was earlier implemented as per the whims and fancies of the local rulers. The Punjab Land Records Manual was also added to the statue book which contained the detailed procedure and other allied subjects concerning the agriculture land. Hierarchy of officers from Patwari till Financial Commissioner was constituted in the Punjab Land Revenue Act besides laying down the duties, which have to performed by them and how and in what manner, the records of agriculture land was to be maintained. The Punjab Land Revenue Act, 1872 and the land record started governing the entire procedure of land revenue and the agricultural land. In this article, the author proposes to deal with very limited scope of the effect of Jamabandi, which is defined in the act as "Records of Right". The records of right are updated every four years. All the changes, which has come into existence during the period of four years are incorporated in the fresh record of rights. Besides, the record of rights, annual records are being maintained, which show the quantity of the crop produced, nature of the crop and the name of the cultivator of the land, which are helpful in assessing the total produce grown in the State. These changes also include the change of ownership, the rate of land revenue payable, the name of the cultivator of land (If he was not the owner) encumbrances created by the owner on the land and its discharge, partition of land, law of aluvian and diluvian etc.). Definitions of Jamabandi and records of right:- Section 31 of the Punjab Land Revenue Act, 1887 defines record of rights and documents included therein. 31. Record-of-rights and documents included therein: -
(1) Save as otherwise provided by this Chapter, there shall be record-of-rights for each estate.
(2) The record-of-rights for an estate shall include the following documents, namely: -
(a) statements showing, so far as may be practicable :-
(i) the persons who are land-owners, tenants or assignees of land-revenue in the estate or who are entitled to receive any of the rents, profits or produce of the estate or to occupy land therein;
(ii) the nature and extent of the interests of those persons, and the conditions and liabilities attaching thereto;
(iii) the rent, land-revenue, rates, cesses or other payments due from and to each of those persons and to the Government;
(b) a statement of customs respecting rights and liabilities in the estate;
(c) a map of the estate; and
(d) such other documents as the Financial Commissioner may, with the pervious sanction of the 1[State Government] prescribe.Similarly, section 33 of the Punjab Land Revenue Act defines the annual record:- 33. Annual record :-
(1) The Collector shall cause to be prepared by the patwari of each estate yearly, or at such other intervals as the Financial Commissioner may prescribe, an edition of the record-of-rights amended in accordance with the provisions of this Chapter.
(2) This edition of the record-of-rights shall be called the annual record for the estate, and shall comprise the statements mentioned in sub-section (2), clause (a), of section 31 and such other documents, if any, as the Financial Commissioner may, with the previous sanction of the [State Government] prescribe.
(3) For the purposes of the preparation of the annual record, the Collector shall cause to be kept up by the patwari of each estate a register of mutations and such other registers as the Financial Commissioner May Prescribe.The records of rights as prepared under section 31 of the Act is popularly known and in vernacular is called "Jamabandi". There are twelve columns in the Jamabandi. Special instructions relating to Jamabandi are contained in rule no. 7.41 of the Punjab land record manual read in conjunction with rule 72 of the Punjab Land revenue rules. Column No. 1 represents Khewat number, which depicts the number of the owner's holding; Column No. 2 is Khatauni number is the number of holdings (Khata) of the person responsible for the cultivation. In this column, firstly if the holdings is cultivated by the owner himself (KHUD KASHT) is entered. Next entries of tenant of will is record. When there are several tenancy holders under one proprietor, the tenants in their several classes should be entered as far as possible in alphabetical order. Column No. 3 contains the Pattis or Tarafs in the order in which they appear in shajra nasab. If there is any common land belonging to all the owners of the Patti or Taraf, enter it a separate khewat number after the khewat number of individual owners. Column No. 4 describes the name, father's name, grandfather's name and address of the owner and other particulars. Column No. 5 includes the name of the cultivator, father's name and other particulars, as to whether the owner, the tenant or any other person is cultivating the land. Column No. 6 depicts the nature of source of irrigation of the agricultural land. In the earlier days, the land was irrigated from the well. However, nowadays, the traditional wells have been replaced by tubewell. If the land is not cultivated, then entry to that effect is entered. Column No. 7 the field of khasra number is the number given to the field in village map (Shajra kishtwar). The order of entry should usually be that of khasra number. Column No. 8, the area and classification of land is given in this column. Land was divided in the various classifications in earlier days. Column No. 9 contains the entry regarding the rent, whether it is a shared of produce (batai) or the lump sum note of the amount. Column No. 10 depicts the share or measure the right and rule of the bachh. Column No.11 the land revenue payable is entered, if the land revenue is exempted from payment of it. Column No. 12, in this column, the name of the owners, mortgagees with possession and alteration in shares by sale purchase, partition which are supported by any mutation or faradbadar entry are entered. Thus, the details of the jamabandi are entered in this peculiar way. Presumption of truth:- Presumption of truth is attached to the entries in the record of rights under section 44 of the Punjab Land Revenue Act in accordance with the law for the time being in force. Similarly, the presumption is also attached to the annual records prepared in accordance with the provisions of the aforesaid act. Otherwise also besides this statutory presumption conferred on the entries in the record of rights or annual records is also supported by section 114 of the Evidence Act, wherein it has been stated that an act done by a public officer in discharge of his public duties, shall be presumed to be has been done in due course of business, unless it is proved otherwise. This statutory presumption and protection attached to the record of rights and annual records confers a great edge on the said record. Jamabandies and Municipal Record:- Presumption of truth is attached to jamabandies u/s 44 of the Act, which is a statutory presumption awarded on it by the legislature. There is no such presumption conferred on the municipal record under the Punjab Municipal Act or Punjab Municipal Corporation Act. No parallel can be drawn between the two. Both operate in different fields. The statutory presumption attached to the revenue record cannot be diluted by their intersee comparison. Both operate in their respective field. In these days of urbanization where the agricultural land or the entire village is declared to be urban area of the municipal committee or corporation, the revenue record is still prepared. However, in some of the judicial pronouncements, it has been held that the entries in the Jamabandi lose their significance when the area is declared to be urban area. It is humbly submitted that such a interpretation is not correct as the Municipal record or the area contained in the municipal committee are not meticulously prepared and maintained as are being maintained and prepared by the revenue authorities. Most of the time, no plan of the exact area of particular holding can be ascertained from the municipal record. Judicial Interpretation:- It has been held in various judgments of Supreme Court and High Court that Jamabandi is not a document of title[2*]. The head notes prepared by the publishers in this regard are misleading which leads an impression that Jamabandi is not a document of title. One must remember that there cannot be an absolute proposition of law. Every preposition of law carries with it various exceptions. On the peculiar facts and circumstances of the case, such observations have been made. A cogent and convincing evidence is required to be led by the person who challenges the presumption attached to the record of right or annual record. Under section 110 of the Evidence Act, which is reproduced as under:-
[2* 1994(1) CCC 212 : AIR 1994 SC 227 : 1995(2) RCR(C) 444]
"110. Burden of proof as to ownership-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."A person who is in possession of a particular property, when challenged regarding his ownership, then it is the person, who challenges such ownership is required to prove the same. In legal jurisprudence it is called "Possession is nine points in law". If a person is claiming ownership on the basis of a registered document, then, he has to produce the said document to prove its ownership. Applicability of Provisions of Transfer of Property Act in Punjab:- The provisions of Transfer of Property Act 1882 are not applicable in the State of Punjab in its entirety. Certain sections have been made applicable to the State of Punjab under various notifications. All the provisions of Transfer of Property Act are not applicable in the State of Punjab.
a) Sale Deed: The provisions of section 54 of the Transfer of Property Act was extended to the State of Punjab w.e.f. 01.04.1955. Prior thereto the sale deed not required to be registered. Oral sale was permissible, which require evidence in the form of mutation duly sanctioned by the Assistant Collector.
b) Mortgage: The provision of mortgage contained in section 69 of the transfer of property act was made applicable in the State of Punjab w.e.f. 10.06.1968. Whereas, it was extended to Chandigarh w.e.f. 31.03.1975.
c) Lease Deed: The provisions of Section 107 of the Transfer of Property Act was extended to the State of Punjab w.e.f. 01.04.1955.
d) Gift Deed: The provisions of Gift Deed as contained in section 123 of Transfer of property act have been made applicable in the State of Punjab w.e.f. 01.04.1955 and in the erstwhile State of PEPSE. It was made applicable w.e.f. 15.05.1957.
e) Exchange Deed: The provisions of Exchange Deed have been made applicable to the Municipal Areas of the State of Punjab vide notification no. 11/2/2000-ST-1/2212.Prior to the applicability of the above said provisions, all these transaction were contained in the mutation order prepared on the statement made by both the parties admitting the transaction. Sometimes, it was signed by the parties. Thereafter, the assistant collector use to sanction or certify the mutation. No deed much less a registered deed was required to be written between them incorporating the said terms and conditions. Importance of Mutation; The agriculturist in Punjab still feel satisfied when mutation is sanctioned in their favour in the revenue record. This psyche has developed into their minds with the passage of several decades, when mutation was considered to be the sole source of title. They have not reconciled themselves with the fact that mutation does not confer any title. They still consider that once mutation has been sanctioned in their favour i.e. the end of the matter. Most of the time, the agriculturist do not preserve the document of title viz. sale deed, mortgage deed, gift deed, lease deed or other deed in their possession. They often lose the same with the passage of time. In case of any dispute, they have to rely upon the mutation entered in their favour and have to lead secondary evidence of the registered document, on the basis of which they have derived title. Measurement of the land The agricultural land is recorded in the Jamabandi in two forms in various districts. Under one set of districts, the land is recorded in Bigha-Biswa-Biswasi. A Bigha contains 20 Biswas and the total area of a Bigha is 3000 Sq Yds. Again, a Biswa contains 20 Biswasis i.e. each Biswa measures 150 Sq Yds. Lastly, a Biswasi thus measures 7.5 Sq Yds. In some of the districts, the land is entered in the form of Kanal and Marlas. 8 kanals are equal to 1 acre/killa of land. 8 Kanals of land measures 4840 Sq Yds. 1 Kanal consists of 20 Marlas. Thus, 1 Kanal measures 605 Sq yds while a Marla contains 30.25 Sq yds. In Punjab, the land is also recorded in the form of rectangles and killa numbers. A rectangle has 25 killas in it while killa no. 26 is always designated as Ahata Chah from where the entire rectangle was being irrigated. Different rectangle numbers are given to the land consisting in the Village. Aksh Shajra/Ladha is prepared by the patwari or the revenue officials at the time of consolidation in which the land of entire village is hsown by way of the measurement of a particular Khasra number/Bigha/Killa Number. The Aksh Shajra is helpful in determining the location of the land in the village. Challenge to the jamabandi in a court of law:- U/s 45 of the Punjab Land Revenue Act, if any person feels aggrieved by the entries in any record of rights/jamabandi, then he has to file a suit in a civil court challenging the veracity of the entries and taking his claim on the basis of his own title. Existence of section 45 in the Punjab Land Revenue Act also fortify the version that the entries made in the record of right are supreme and the will continue to hold the field despite the fact that as to whether they are made on the basis of a registered document or otherwise. Judgement of the Supreme Court. In AIR 1954 SC 379 (Full Bench), it has been held that if the property has been inherited by an agriculturist from his ancestors after their death from time immemorial, it will be very difficult for them to prove their acquisition of title by registered document. In such cases, the copy of jamabandi is the sole document of title. Otherwise also at the time of registration of a title deed, the Sub Registrar refuses to register a document, unless it is coupled with a latest copy of Jamabandi (in case the land is bearing revenue numbers and also the copy of TS-1, in case the property is situated within the municipal area). Thus, in these circumstances, no absolute preposition can be said to exist that Jamabandi is not a document of title. It is not a document of title, in case the person claiming himself to be the owner deriving his title to the property on the basis of a registered document. Suppose a person challenges, the title of another person which is evidenced by the entries in the record of rights(Jamabandi), then, he has to prove the basis of his challenge. Mere denial of the title should be rejected outrightly. This becomes cumbersome when the court takes the casual challenge of title to be a serious one without deeply identifying and verifying the basis of the said challenge. Mere denial of the title which is not supported by any cogent and convincing evidence should be rejected outrightly to save the precious time of the court to record the evidence and decide the lis. The court should not become oblivious of the fact that section 44 and 45 of the Punjab Land revenue act, 1882 are also on the statute book. Can a statutory presumption will stand rebutted by a mere denial without any cogent and convincing basis as section 44 of the aforesaid act specifically provides that unless contrary is proved. All these sections of the Punjab Land revenue act is to be taken into consideration in conjunction with the other provisions of the acts for coming to a conclusion regarding the value of the entries in the Jamabandi. Thus, it can be safely concluded that Jamabandi is a document of title in case of land covered by Revenue numbers when the person is not claiming title on the basis of registered deed. It is an evidence of title. Thus, the preposition that the Jamabandi is not a document of title and is prepared for fiscal purposes is not an absolute preposition but fortified by certain exceptions.
[1*] The author passed degree in Master of Laws from the Panjab University Chandigarh in the year 1978. He has been practicing on civil side at Ludhiana. He has been a guest professor in Panjab University Regional Centre, Ludhiana. He had judged various moot competitions held in PURC, Ludhiana. Contact No. 9814712425, Email Id : firstname.lastname@example.org, Ch. No. 425, 4th Floor, Advocates Complex, District Courts, Ludhiana, Punjab.
[2*] The co-author started visiting the courts since may, 2011 and completed his law graduation from Panjab University, Chandigarh and is regularly doing practice on Civil Side. Email Id :-Abhayjindal14@yahoo.co.in, M No. 9814912425
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