Balbir Singh vs Umed and Others

Tejinder Singh Dhindsa. J.—A suit seeking a declaration filed by the plaintiff Balbir Singh to the effect that he is owner in possession of the suit property and that the order dated 27.12.2007 passed by the Assistant Collector 1st Grade, Hansi and order dated 6.1.2009 passed by the Collector, Hisar being bad in law and further seeking the consequential relief of permanent injunction restraining the defendants from taking possession of the suit property, was dismissed by the Trial Court vide judgement dated 30.9.2010. Even a civil appeal preferred by the appellant has met the same fate in terms of judgement dated 3.3.2012 passed by the Additional District Judge, Hisar. Accordingly, the plaintiff-appellant is in second appeal before this Court. I have heard Mr. R.N. Lohan, learned counsel appearing for the appellant at length.

Briefly noticed, the plaintiff instituted a suit in terms of pleading that he is a permanent resident of village Dharam Kheri and was stated to be residing in the village since his birth. It is pleaded that the forefathers of the plaintiff had constructed the house in question over an area measuring 170 sq. yards. It was further stated that the land upon which RSA No. 2390 of 2012(O&M) -2-the house was constructed was situated outside the Abadi Deh of the village. Plaintiff pleaded that he was in continuous and peaceful possession of the suit property since a long stretch of time and only on account of the fact that the plaintiff had supported one Satya Narain in the Panchayat Elections and who lost to Jage Ram for the post of Sarpanch and accordingly due to such rivalry in the village the defendants had obtained a demarcation report dated 8.1.2001/20.1.2001 in respect to the suit property and such demarcation report was without following due procedure and contrary to the instructions issued by the Financial Commissioner, Haryana. It was pleaded that on the basis of such demarcation report the defendants had filed a petition u/s 7 of the Punjab Village Common Lands Act and the Assistant Collector 1st Grade, Hansi vide impugned order dated 27.12.2007 had ordered the ejectment of the plaintiff. Even the appeal filed by the plaintiff before the Collector, Hisar stands dismissed vide order dated 6.1.2009 and the defendants were threatening to take possession of the suit property. Plaintiff pleaded that the impugned orders regarding his ejectment are illegal in as much as question of title regarding the suit property has not been gone into and adjudicated upon.

The suit was contested and it was stated that the land in dispute upon which the plaintiff was stated to have encroached upon and raised construction was part of Phirni in Khasra No. 163, which was in the ownership and possession of the Gram Panchayat. As there had been encroachment at the hands of the plaintiff as also the other villagers, an application had been moved before the B.D.P.O concerned and a demarcation was conducted by Halqa Kanungo as per procedure and after effecting Munadi in the village through Chowkidar. It was stated that at the RSA No. 2390 of 2012(O&M) -3-time of demarcation the Patwari Halqa, Sarpanch as also various other residents of the village had been present. In terms of the demarcation report 48 persons including the plaintiff had been found to have encroached the land comprised in Khasra No. 163, which was the common passage/Phirni. Despite the repeated requests to the plaintiff the encroachment had not been removed and which in turn had necessitated the filing of the petition before the Assistant Collector 1st Grade, Hansi, wherein the ejectment order had been passed and the same has been affirmed by the Collector.

Learned counsel appearing for the appellant vehemently argued that the petition u/s 7 of the Punjab Village Common Lands Act had been decided by the Assistant Collector 1st Grade, Hansi in a summary fashion. Learned counsel would contend that it was incumbent for the competent authority to have gone into the question of title and accordingly the petition should have been decided as a regular suit. It was further argued that even the report of demarcation had been wrongly relied upon so as to hold the present appellant to be an encroacher and as such holding him liable to be ejected.

On thoughtful consideration of the averments raised by learned counsel and having perused the case file minutely, it becomes apparent that even though, the plaintiff-appellant had specifically averred in the plaint that the suit property was situated outside the Abadi Deh but no evidence whatsoever had been adduced on record in the nature of revenue record or sale deed so as to corroborate his plea of being owner in possession. The plaintiff had placed reliance only upon a site plan (Ex.P-1), which certainly could not be construed as a document of title. Learned counsel has not been able to show any procedural irregularity while passing the order of ejectment by the Assistant Collector 1st Grade, Hansi u/s 7 of the Act. In so far as the demarcation report (Ex.P-5) is concerned, the courts below have duly appreciated the report to return a finding that such RSA No. 2390 of 2012(O&M) -4-demarcation was conducted by the Kanungo and Patwari after giving due publication and notice to the residents of the village. The presence of the Sarpanch, Lambardar and several other villagers is proved on account of the thumb impressions and signatures that were duly obtained on the report itself. The demarcation report (Ex.P-5) also reveals that permanent points were fixed as required under the instructions issued by the Financial Commissioner and it was only thereupon that the plaintiff was found to have encroached upon three marlas of land. The deposition of DW-2 Mahender Singh, who was a Member of the Panchayat in the year 2001 is also crucial. There is no allegation of bias and malafide against DW-2. Mahender Singh, DW-2 clearly stated that he was present at the time of demarcation proceedings, wherein a number of villagers had been present. The contents of the demarcation report (Ex.D-2) have been read over by the Halqa Kanungo and the land of persons including the plaintiff, who had encroached upon the Phirni was contained in Ex.D-3.

It is upon due appreciation of evidence and based on cogent and valid reasoning that the courts below have non-suited the plaintiff-appellant. The present appellant has been found to have encroached upon the common land and has not been able to adduce any evidence towards proof of his title upon the suit property. The present second appeal must fail as it does not raise any question of law much less a substantial question of law. The appeal, accordingly, is dismissed. Appeal dismissed.