Babu Ram vs Gram Panchayat

Sarojnei Saksena, J.—The plaintiff-petitioners has assailed lower appellate Court''s order dated September 4,1995, whereby injunction order passed in plaintiffs favour is set aside.

In a nutshell, facts of the case are that the plaintiff-petitioner filed a suit for permanent injunction restraining the defendant-respondent from interfering in any manner or demolishing the boundary walls of his house shown in the site plan attached with the plaint. His contention is that he has constructed this house along with the boundary walls 20/25 years ago. In the last election as he opposed the Sarpanch of the defendant-Gram Panchayat there is a political rivalry between the two and motivated by that rivalry Sarpanch of Gram Panchayat defendant-respondent is threatening to demolish the boundary wall and constructed rooms forcibly and illegally. Therefore, he filed a petition under Order 39 Rules 1 and 2 CPC for restraining the defendant-respondent from demolishing the constructed house or boundary wall.

The defendant-Gram Panchayats contention was that the suit is not maintainable. Civil Court has no jurisdiction to try this suit. Plaintiffs house is situated in the Lal Lakir. Beyond his house is the Phirni of the village. In Khasra No. 57 the plaintiff has encroached upon whole of the Phirni and has further encroached upon a portion of Khasra No.48, which is Gair Mumkin Chhappar. The Phirni and the Chhappar are the property of the Gram Panchayat. It is also denied that plaintiff''s construction is 20/25 years old. Contest of the election between the two for the post of Sarpanch is admitted, but alleged rivalry is denied. It is further averred that on the complaint of the villagers defendant-Gram Panchayat got demarcation done of the Phirni through revenue staff. The plaintiff-petitioner was also present at that time. It was found that the plaintiff has encroached upon Khasra Nos.48 and 57. Thereupon notice was issued to the plaintiff to remove the encroachment. Instead of removing the encroachment he has filed this suit. The Gram Panchayat has got the legal right to remove the encroachment.

On these facts the trial Court granted injunction order in plaintiff''s favour, but in appeal the lower appellate Court set aside that order holding that except the site plan the plaintiff-petitioner could not file any document to show his title over the disputed property. In the copy of Jamabandi for the year 1992-93 Khasra No.48 is shown as Shamlat and Gair Mumkin Chhappar. Similarly Khasra No. 57 is shown as Gair Mumkin Rasta. The lower appellate Court also held that the defendant-Gram Panchayat got the demarcation done from the revenue authorities. From the report of demarcation dated June 16,1993, it is. evident that the plaintiff has encroached upon Khasra Nos.48 and 57. As per the entries in the Jamabandi, these Khasra numbers are property of Gram Panchayat as they are recorded as Shamlat Deh and Mushtarka Malkan. Hence the lower appellate Court held that the plaintiff has no legal right to remain in possession of the disputed property. It also repelled this contention that even if the plaintiff-petitioner is to be treated as trespasser, he cannot be ejected forcibly on the ground that the defendant-Gram Panchayat is proceeding in accordance with law to dispossess him, as proceedings are being taken under the provisions of the Punjab Panchayati Raj Act, 1994.

The plaintiff-petitioner''s learned counsel strongly stressed that the lower appellate Court has relied on the demarcation report of 1993, which is yet to be proved in the lower Court. The plaintiff-petitioner has made this construction 20/25 years ago. There are other persons also who have encroached upon these Khasra numbers, but no action is being taken by the Gram Panchayat against those persons. The Gram Panchayat is taking action against him only because of political rivalry. Learned counsel also contended that the Gram Panchayat has no right to eject him forcibly

The respondent''s learned counsel placed on record demarcation report dated March 14,1996, and the statement of the plaintiff recorded on this very date in those demarcation proceedings. He contended that in these demarcation proceedings, the plaintiff was present. He was satisfied with the demarcation. In this report it is specifically mentioned that the plaintiff has encroached upon portions of Khasra Nos.48 and 57 as shown therein. This demarcation is done as per the instructions of the Financial Commissioner, Punjab. He also placed on record copies of two other judgments delivered by this Court in Civil Revision No.3692 and 3804 of 1995, which were dismissed by this Court on the same facts and circumstances.

No doubt, in Mohan Lal and Others v. State of Punjab and Others, 1971 P.L.J. 338 the Apex Court has held that even an unauthorised occupant can be evicted only in the manner authorised by law. This is the essence of the rule of law. In R.V. Bhupal Prasad v. State of Andhra Pradesh and Others, 1996(1) ACJ 104 (S.C.) : 1995(3) RRR 310 (SC), the case of a trespasser is considered by the Apex Court and their Lordships held that a person entering into Government land and remaining in unlawful possession though a trespasser, but he cannot be ejected by Government forcibly, Government has to take action under law against the trespasser.

Plaintiff-petitioner''s learned counsel could not dispute the demarcation-report dated March 14.1996. wherein his statement is also recorded and demarcation was done in his presence. It is also pertinent to mention that the plaintiff-petitioner could not place any document on record to show his title over the suit property. As the lower appellate Court has observed, he has only placed on record a site plan, which cannot be termed as a title deed From the demarcation report dated March 14.1996. it is prima facie apparent that the plaintiff has encroached upon portions of Khasra Nos. 48 and 57.

In Mohan Lal v. Mohan Singh, 1995 PLJ 48 a Single Bench of this Court has held if a party takes the plea of possession of disputed property and claims injunction in his favour to retain possession without interference except in accordance with law, but if the land in dispute is a portion of public passage recorded as Gair Mumkin Rasta Share Aam in Jamabandi. then obviously the property in dispute is a public property. His Lordship also recorded a note of caution for the lower Courts that when deciding petitions for the grant of ad interim injunction in cases involving public properties and public interests. Courts have to bear in mind as to whether grant of injunction would be conducive or detrimental to public interest apart from three ordinary ingredients, which must be satisfied for grant of injunction, namely, a strong prima facie case, balance of convenience and irreparably injury. Where any attempt is made by an individual to misappropriate/misuse or otherwise interfere with enjoyment of public property toy the people in general. Courts have to be extremely cautious in granting ad interim injunction in favour of such person only on the ground that he is in possession of the property. Possession of public property by such individual or group of individual is no possession in the eyes of law. Such a person cannot claim any right whatsoever on the basis of unlawful occupation of the public property. Plaintiff in such like cases cannot claim parity with a person who has a dispute with another individual over a private property. Courts have to act as guardian of public property and should not pass the order of injunction in favour of a person who has made unauthorised encroachment of public property.

In this case also the plaintiff-petitioner has utterly failed to show his title to the disputed property. Conversely, there is demarcation report dated March 14,1996, which prima facie established that the plaintiff has encroached upon Khasra Nos.48 and 57. In the Jamabandi also Khasra No.57 is recorded as Shamlat Gair Mumkin Rasta and Khasra No.48 is recorded as Shamlat Deh and Gair Mumkin Chhappar. Thus, the lower appellate Court has rightly observed that the plaintiff has failed to show that he has a prima facie case.

The other argument advanced by the plaintiff-petitioner''s learned counsel is that even if the plaintiff is treated to be trespasser, he cannot be evicted forcibly. Gram Panchayat can evict him in due course of law. The lower appellate Court has also mentioned in its order that Gram Panchayat is taking court proceedings under the Punjab Panchayati Raj Act, 1994. From the impugned order it is apparent that on a complaint received from the villagers the Gram Panchayat issued a show cause notice to him u/s 34 of the Punjab Panchayati Raj Act, 1994. He appeared before the Gram Panchayat but without complying with the said show cause notice or without showing any cause he has straight away filed the civil suit for permanent injunction. Under the aforesaid section 34 of the Punjab Panchayati Raj Act, 1994, the Gram Panchayat has got a right to remove encroachment etc. on a public street, place or drain etc. The Gram Panchayat is proceeding under this provision. Hence even this argument is devoid of any substance that Gram Panchayat is removing the said encroachment forcibly without complying with any provisions of law.

On the above facts and circumstances, in my considered view, the lower appellate Court has not fallen into any error in passing the impugned order. The findings are neither infirm nor illegal nor against the facts on record. Consequently the revision, being meritless, is hereby dismissed.