Dalip Singh and ors. vs Harchand Singh and ors.

J.V. Gupta, J.

This is plaintiffs'' second appeal whose suit for permanent injunction has been dismissed by both the Courts below.

The plaintiffs filed a suit for permanent injunction restraining the defendants from taking forcible possession of the vacant site. According to the plaintiffs, the disputed property was jointly owned by them as Khewatdars and cosharers of Shamlat Abadi. The site in dispute had been reserved by the plaintiffs for the common use of the villagers i.e., for use as playground for the school children, for parking vehicles on occasions like celebrations of marriages etc. It was also pleaded in the plaint that the defendants were threatening to raise construction by taking forcible possessions, which would affect the rights of the plaintiffsappellants adversely.

The suit was contested on the plea that the disputed site was not joint property of the plaintiffs. It was further pleaded that the site in dispute had been in possession of Harchand Singh defendant continuously and peacefully without any interruption, as owner since the time of his forefathers. He had been using the disputed site for keeping Goharas, dung cakes, heaps of manure, tethering cattle and parking bullock carts etc. According to the further allegation of the defendants, previously there was a Kacha boundary wall, which had now been replaced by a pucca wall. Hence they claimed exclusive possession over the disputed property. It was specifically denied that the suit property was ever used by the plaintiffs or other covillagers for any purpose.

The trial Court found that the plaintiffs were not entitled to the permanent injunction because they were not in possession of the site in dispute at the time of the filing of the present suit, even if it be assumed that they were the owners of the site in dispute being cosharers. Consequently, the plaintiff''s suit was dismissed. In appeal the learned Additional District Judge affirmed the said finding of the trial Court, and thus maintained the decree dismissing the plaintiff''s suit. The learned lower appellate Court relied upon the report of the Local Commissioner, who was appointed to inspect the spot. According to the said report a pucca built wall, though small in height was found in existence at the spot besides heaps of manure and dung cakes lying there. It was further found that the plaintiffs had failed to show their possession over the disputed site at the time of the filing of the suit.

Learned counsel for the plaintiffsappellants submitted that even if the plaintiffs were not in possession of the suit land, they were entitled to the relief of injunction, since the defendants were alleged to be trespassers. In support of this contention he referred to Jwala and another v. Ram Dutta and others, A.I.R. 1964 Allahabad 437.

After hearing the learned counsel for the parties, I do not find any merit in this appeal. The judgment referred to above has no applicability to the facts of the present case. There the site in dispute was a cremation ground and the plaintiffs claimed injunction restraining the defendants from interfering with the exercise of their right of easement. Once it was found that the plaintiffs were not in possession of the suit land, the suit for injunction was liable to be dismissed. No only that, according to the plaintiffs the suit land vests in the Gram Panchayat under the Punjab Village Common Lands (Regulation) Act and, therefore, on the facts and circumstances of the case it was for the Gram Panchayat to take action if any, against the defendants under the Act itself. Faced with this situation, the learned counsel for the plaintiffsappellants cited Bhagu and others v. Ram Sarup and others, 1985 P.L.J. 366. There the plaintiffs filed a suit alleging the site in dispute to be a public street. It was alleged therein that the defendants caused obstruction in the gree passage to the plaintiff''s house and, therefore, they sought permanent injunction restraining the defendants from raising any construction or interference in the plaintiff''s possession. Such is not the position as regards the facts of the present case. Here no rights of the plaintiffs as such have been violated and, therefore, the appropriate remedy will for the Gram Panchayat be to take any action against the defendants in accordance with law.

Consequently, the appeal fails and is dismissed with costs.