Gram Panchayat, Mundliyan, Tehsil Tohana vs Bawria and others

R.L. Anand, J.—Gram Panchayat, Mundliyan, Tehsil Tohana, District Hissar has filed the present Regular Second Appeal and it has been directed against the judgment and decree dated 5.3.1991 passed by the Court of District Judge, Hissar, who accepted the appeal of the plaintiffrespondents and set aside the judgment and decree dated 24.3.1990 passed by the Court of Sub Judge Ist Class, Tohana, who dismissed the suit of the plaintiffs.

Brief facts of the case are that plaintiffs Bawria and others filed a suit for declaration to the effect that they were cultivating the land in suit situated in village Mundliyan, Tehsil Tohana, District Hissar as tenants Ghair Marussi and the entries of Khasra girdawari were wrong and were liable to be corrected and not binding upon the rights of the plaintiffs, who were entitled to get the entries as tenants Gair Marussi in the revenue record. The plaintiffs further prayed for a decree for permanent injunction of the effect that defendantGram Panchayat be restrained from interfering into the possession of the plaintiffs who may not be evicted from the land in question except in due course of law.

It was further pleaded by the plaintiffs that they are cultivating the suit land with the consent of the defendantGram Panchayat. The exsarpanch of the Gram Panchayat was inimical with the plaintiffs and he connived with the revenue patwari and got entries manipulated in favour of the Gram Panchayat. Said entries were wrong and not binding upon the rights of the plaintiffs. The Gram Panchayat on the basis of the said wrong entries wanted to evict the plaintiffs from the suit land forcibly; hence the suit.

The suit was contested by the defendantGram Panchayat stating that plaintiffs were evicted from the suit land under section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 as applicable to the Haryana. In pursuance of the said ejectment, the possession of the land in suit was taken on 17.4.1984 and 22.1.1985. Again, the plaintiffs took forcible possession of the suit land in an unauthorised manner. The plaintiffs were not tenants. They were not paying any rent or Batai to the defendant Panchayat. Even otherwise, as per byelaws of the Gram Panchayat, the land in question could be leased out by the Panchayat for one year only and panchayat could not create any tenancy in favour of anybody after one year. Prior to 1982, the suit land was given to the plaintiffs on lease but later on their possession became unauthorised. It was also pleaded by the appellant Gram Panchayat that the suit of the plaintiffs is not maintainable in the present form; that the civil court had no jurisdiction to entertain the suit; that the plaintiffs had no locus standi to file the suit; and that the plaintiffs did not approach the Civil Courts with clean hands.

The plaintiffs filed rejoinder to the written statement in which they reiterated their allegations made in the plaint. While denying that of the written statement and from the above pleadings of the parties, the learned trial Court framed the following issues:

(1) Whether the plaintiffs are in cultivating possession of the suit land as tenants ghair marussi, if so, its effect ? OPP.

(2) Whether the suit is not maintainable as alleged in preliminary objections No. 1 to 6 of the written statement ? OPD.

(3) Whether the Civil Court has no jurisdiction to ascertain and try the present suit ? OPD.

(4) Whether the plaintiffs have no locus standi to file the present suit ? OPD.

(5) Whether the plaint is not duly signed and verified by the plaintiffs ? OPD.

(6) Relief.

Both the parties led oral and documentary evidence in support of their claims and on the conclusion of the trial, the suit of the plaintiffs was dismissed holding that they were in unauthorised possession. The possession had already been taken by the Gram Panchayat in pursuance of the ejectment order passed by the Collector under Section 7 of the Punjab Village Common Lands Act, on 17.4.1984 and 22.1.1985.

Aggrieved by the judgment and decree of the trial Court dated 24.3.1990, the plaintiffs filed civil appeal in the Court of District Judge, Hissar who vide impugned judgment and decree dated 5.3.1991 set aside the judgment and decree of the trial Court and decreed the suit of the plaintiffs and this time the defendantGram Panchayat which was aggrieved by the judgment and decree of the Ist Appellate Court has filed the present appeal.

It may be mentioned here at the first instance that I am disposing of this appeal with the help of the learned counsel for the appellant. No body has given appearance on behalf of successful plaintiffs. The sole point for determination in this case is about the nature of the possession of the respondents. The case set up by the plaintiffs in the trial Court as well as before the Appellate Court was that they were ghair marussi tenants over the land in dispute and after the passing of the ejectment order their possession could not be held to be unauthorised and they could not be evicted by the Gram Panchayat except in due course of law. However, after perusing the record of this case, I find that the learned Ist Appellate Court gravely erred in decreeing the suit of the plaintiffrespondents because it stands established that the land in question was given on lease from 1952 to 1979 80. Thereafter, the Gram Panchayat filed ejectment proceedings in the Court of SubDivisional Magistrate, Tohana, who passed the eviction order against the plaintiffs and in pursuance of the eviction order, the possession of the land in dispute was delivered to the Gram Panchayat on 17.4.1984 and 22.1.1985 as confirmed by Bhupinder Singh revenue patwari who appeared in the trial Court as D.W. 2. Even as per jamabandi Ex. D.1 for the year 1985 86, the ownership and possession of the Gram Panchayat has been shown over the land in dispute. There is a presumption of correctness of the revenue entries and the plaintiffs could not rebut this entry by leading any evidence. Once the ownership of the Gram Panchayat stands established from oral and documentary evidence, and that the plaintiffs did not claim any ownership in themselves, the respondent is supposed to convince the court how they are in possession of the suit land. As I stated above that the stand of the plaintiffs throughout was that they were earlier inducted as tenants and after the expiry of the period of tenancy they remained in possession of the suit land as tenants holding over. This stand of the plaintiffs is not borne out from the record in the light of the ejectment order which was passed by the Sub Divisional Magistrate and in view of the facts that the possession was transferred to the Gram Panchayat on 17.4.1984 and 22.1.1985. Even the revenue entries Ex. P.1 to Ex. P. 4 relied upon by the plaintiffs in the trial Court do not establish that the plaintiffs were occupying the land in dispute in the capacity of tenants rather their possession has been recorded as unauthorised. Ajmer Singh, one of the plaintiffs admitted in his statement that the plaintiffs are not giving any Batai for the last 89 years. Also there is no proof that at the time of the institution of the suit, plaintiffs were paying any rent, nor there is any evidence to the effect that any fresh tenancy was created between the parties after the passing of the order or that the Gram Panchayat took any decision to induct the plaintiffs over the suit land as tenants.

Counsel for the appellant has drawn my attention to the citation reported as 1995(3) R.R.R. 11 : 1994(6) JT Supreme Court 585, Premji Ratansey Shah and others v. Union of India and others, where it has been held that injunction is a personal right under Section 41(i) of the Specific Relief Act and cannot be issued against the true owner. It cannot be issued in favour of a trespasser or a person who gained unlawful possession, as against the owner. The learned counsel for the appellant also relied upon a citation of the Supreme Court reported as The Gram Panchayat v. Bachna and others, 1988(2) R.R.R. 260 : 1987 PLJ 656 in which it has been held that when a tenant has been inducted for a fixed period on a panchayat land, after the expiry of the term of the tenancy, no authority remains to such a tenant to continue in occupation of the land. Upon expiry of the term of the tenancy, the possession of such person becomes unauthorised and he would be lawfully proceeded against under Section 7 of the Punjab Village Common Lands Act. Such an unauthorised person also does not get the protection of Section 21 of the Punjab Security of Land Tenures Act as against the Gram Panchayat which is a local body. From the above it can safely be concluded that the possession with the plaintiffs over the suit land in any manner could not be held as authorised or lawful and they were not entitled to any declaration much less the injunction which was prayed for by them.

The learned First Appellant Court while decreeing the suit of the plaintiffrespondents held in para No. 13 of the judgment as follows:

``Relying upon the authorities cited by the learned counsel for the appellantplaintiffs above, I am of the view that the appellantplaintiffs cannot be evicted except in due course of law and it is now an accepted principle that any person in possession of property cannot be thrown away. Even the authority relied upon by the learned counsel for the respondents Ram Singh v. Jit Singh (supra) did not say that any person in unauthorised possession of the property could be thrown out by applying force. Hence in view of the totality of the law laid down in various authorities mentioned above, it is clear that force is not be used in dispossessing any person. It must be through legal and peaceful means. Hence the finding on issue No. 1 is absolutely erroneous and is reversed.''''

In my considered view the Ist Appellate Court has not rightly appreciated the legal proposition. It could not lose site of the fact that after the expiry of the lease, the possession of the plaintiffs was unauthorised. Moreover, it stood established on the record that the Gram Panchayat legally obtained the eviction order against the plaintiffs with regard to the suit land. Thirdly, there was no evidence that after the eviction order the Gram Panchayat gave the land in dispute on rent to the plaintiffs or that any fresh tenancy came into existence between the parties to the suit; also there was no evidence that Gram Panchayat ever passed any resolution or took a decision that the land in dispute be again given on rent to the plaintiffs.

The net result is that the possession of the plaintiffs over the suit land on the date of institution of the suit was unauthorised and they could not seek declaration and injunction against the defendants.

In the light of above discussion, I accept this appeal, set aside the judgment and decree dated 5.3.1991 passed by the Court of District Judge, Hissar and dismiss the suit of the plaintiffrespondents. No order as to costs.