Gram Panchayat vs Des Raj and Others

R.L. Anand, J.—This is a defendant''s appeal and it has been directed against the judgment and decree dated 9.1.1980 passed by the courts of Additional District Judge, Gurdaspur, who reversed the judgment and decree dated 21.8.1975 passed by the Court of Sub Judge, Ist Class, Pathankot who dismissed the suit of the plaintiff-respondent for injunction.

Brief facts of the case can be given as follows: Des Raj, Nand Lal and Satya Nand, filed a suit for permanent injunction restraining the defendant-Panchayat permanently from interfering in their possession on the shop compounding and adjoining Thara over which some trees are also standing of the plaintiffs and the disputed site has been shown by the words ABCKHDEFG shown in red colour and fully described in the Village Kalesar, Tehsil Pathankot.

The case set up by the plaintiffs before the trial court was that they are the co-owners of the site in dispute and the same has been in their possession since the time of their forefathers. The site was partitioned by the forefathers of the plaintiffs. The portion marked as ABCHFG has been in exclusive possession of the plaintiff No. 1 for the last more than 20 years. The portion marked as EFHD is in exclusive possession of plaintiff No. 2 and 3. They are enjoying the peaceful possession of the site in dispute. The son of plaintiff No. 1, Shri Des Raj, contested the panchayat election against the defendant Shri Amar Singh Sarpanch in the election of 1972. After the election, plaintiff No. 1 filed an election petition also. Sarpanch Amar Singh had been putting the pressure on the son of the plaintiff No. l to withdraw the election petition. On 24.12.1973, Sarpanch of the Gram Panchayat, passed the resolution claiming the site in dispute to be the property of the Gram Panchayat and thereby threatening to interfere in the possession of the plaintiffs. This act on the part of the defendant in passing the resolution regarding the site in dispute is illegal. It casts a cloud upon the title of the plaintiffs. The defendant-Gram Panchayat was asked not to interfere in the possession of the plaintiffs but it refused. The plaintiffs, thus, filed the suit.

The suit was contested by the defendant on the plea that the property in dispute was being used by the Gram Panchayat for the common purpose of the village. All the residents of the village had been using the property in dispute. The shop was built by the plaintiff Des Raj during the night of 3/4 days back. The person who was working as Sarpanch at the time of the construction of the shop was also in league with the plaintiff and he did not take any action against the plaintiff. The remaining land has been in continuous possession of the defendant. Under the protection of the stay order obtained from the Court, the plaintiffs opened the door on the land belonging to the Gram Panchayat. There is a raised platform at the disputed site. A Pipal tree is also standing. Original platform was kucha and now the same has been repaired by the members of the Saini Bradari of the village. The management of the property in dispute was given to the Panchayat by the villagers and the Panchayat has been managing this property. The property in dispute is not the ownership of the plaintiffs. No valid notice has been given to the Gram Panchayat before filing the suit. The plaintiffs are estopped by their own act and conduct in filing the suit. Moreover, the suit is not properly valued for the purpose of Court fee and jurisdiction.

From the pleadings of the parties, the trial Court framed the following issues:-

Whether the plaintiffs are co-owners in exclusive possession, of the site in dispute, if so to what effect?

Whether the present suit is not competent without serving a notice on the defendant Gram Panchayat under the provisions of the Gram Panchayat Act?

Whether the plaintiffs are estopped to bring by their own act and conduct, if so to what effect?

Whether the plaintiffs have got cause of action to bring this suit?

Whether the suit is properly valued for the purposes of Court fee and jurisdiction?

Relief.

The parties led oral and documentary evidence in support of their case and for the reasons in para No. 11 to 16 of the judgment, the learned trial Court dismissed the suit vide the judgment and decree dated 21.8.1975.

Aggrieved by the judgment and decree of the trial Court, unsuccessful plaintiffs filed the first appeal before the Court of Additional District Judge, Gurdaspur, who for the reasons given in para No. 5 to 10 of the judgment and decree dated 9.1.1980 set aside the judgment of the trial Court and decreed the suit of the plaintiffs-respondents.

This time, the defendant-Gram Panchayat of village Kalesar, has come in appeal before the High Court against the judgment and decree of the first appellate Court.

It may be mentioned here that at one point of time the plaintiffs filed an appeal against the judgment and decree of the trial Court before the first appellate Court and the first appellate Court held that the property in question vested in Gram Panchayat and that the jurisdiction of the civil Court was barred. The plaintiffs were not satisfied with this observation made by the first appellate Court and they came in the High Court against the judgment and decree dated 19.11.1976, passed by the court of Shri R.K. Singhal, 2nd, Additional District Judge, Gurdaspur and the Hon''ble High Court reversed the judgment and decree of the Courts below and remanded the case to the first appellate Court to re-decide the controversy on merits. In compliance of those directions, the judgment and decree dated 9.1.1980 had crept in.

I have heard Shri H.S. Bhullar, Advocate, on behalf of the appellant and Shri Sanjiv Man Rai, Advocate, appearing on behalf of the respondents and with their assistance have gone through the record of this case.

The learned counsel appearing on behalf of the appellant submitted that the first appellate Court committed illegality in holding that the plaintiffs are the owners in possession of the suit property and, therefore, they are not entitled to the injunction. According to Shri Bhullar, the property in dispute is a Shamilat Deh within the meaning of Section 2(g) of Punjab Village Common Lands, (Regulation) Act, 1961 and vests in the Gram Panchayat and the Gram Panchayat was using the property in question for common purposes and in these circumstances, the plaintiffs are not entitled to the injunction as prayed for. According to the counsel, if the plaintiffs claim any right, title or interest in the property, they should approach the collector under the relevant provisions of Punjab Village Common Lands (Regulation) Act. I am not in a position to accept this contention raised on behalf of the appellant for the simple reasons that prima facie it is not established on the record that the property in question was ever given to the Gram Panchayat. There is no documentary evidence to suggest that the property in question was ever given to the Gram Panchayat for common purposes of the villagers. Also there is no evidence on the record to suggest that the Gram Panchayat passed any resolution to raise a pucca construction over the kucha platform or that there has been any kucha platform over the site in dispute. No account books have been produced by the Gram Panchayat to indicate that any expenditure was sanctioned or incurred to raise any Platform for the common purposes. In such a situation, by mere saying that the site in dispute vests in the Gram Panchayat will not confer a valid title in order to oust the plaintiffs.

On the contrary, the plaintiffs have led oral evidence to establish that they were enjoying the possession of this property for the last 15-20 years and in this regard, the statements of Ram Chand, Onkar Singh Charanji Lal, Suraj Parkash and Devi Singh, PW1 to PW5 respectively, can be referred with advantage. According to Ram Chand, the disputed site is in possession of the plaintiffs and he had been seeing Shri Des Raj plaintiff using this land for the last 25 years. So much so he has constructed a karyana shop. Similar is the statements of Shri Onkar Singh and Charanji Lal. According to Shri Charanji Lal (who also remained at one time a Member Panchayat) this property never vested in the Gram Panchayat. When it is established on the record that the plaintiffs are in possession of the property for the last 14-15 years before the institutions of the suit and that they have constructed a shop, in such a situation, the possession of the plaintiffs can not be disturbed, except in due course of law. The witnesses of the defendant though denied the title of the plaintiffs-respondents but they admitted the possession of the plaintiffs.

Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961, as applicable to the State of Punjab, lays down as under:-

"7 Power to put the panchayat in possession of shamilat deh-(1). The Collector shall on an application made to him by a panchayat,or by an officer, duly authorised in this behalf by the state Government by a general of special order, after making such enquiry, as he may think fit and in accordance with such procedure as may be prescribed put the panchayat in possession of the land or other immovable property in the shamilat deh of that village which vests or is deemed to have been vested in it under this Act and for so doing the collector may exercise the power of revenue Court in relation to the execution of a decree for possession of land under the Punjab Tenancy Act. 1887".

If the Gram Panchayat had any genuine case with regard that the site in dispute vests in the Gram Panchayat or at any stage it has vested in the Gram Panchayat, it could and it can make a proper application before the collector u/s 7 of the Act to prove its claim. Till today, the Gram Panchayat has not taken any such step in this regard. In case the Gram Panchayat makes an application, it shall be disposed of by the collector according to law by taking note of the definition of Section 2 (g) of the said Act which defines the Shamilat deh.

I do not want to give any finding in this appeal whether the property in dispute is a shamilat deh or not because there is no specific issue in this regard nor there is any such plea. The fact remains that the plaintiffs- respondents are in established possession of the site in dispute and in these circumstances, they cannot be ejected from the site in question except in due course of law.

With the above observation, the present appeal is hereby dismissed with no order as to costs.