Gram Panchayat Village Bhainswal Kalan vs Jai Pal Singh

Rakesh Garg, J.—Plaintiff-respondent No. 1 filed the instant suit for permanent injunction against the defendants (now appellant and proforma respondents) restraining them from dispossessing him from the suit property i.e. plot bearing Khasra No. 498 situated within the revenue estate of Village Bhainswal Kalan, Tehsil Gohana, District Sonepat. The plaintiff also claimed the relief of mandatory injunction directing the defendants to remove the bricks of illegally constructed street over the suit property.

As per the averments made, plaintiff-respondent had constructed a room and boundary wall over the suit property in the year 1990. In the year 2004, a dispute arose between the parties and the defendants illegally and forcibly constructed a pucca street over some portion of the suit property. In April 2008, defendant no. 2/respondent no. 3 issued a notice to the plaintiff-respondent No. 1 directing him to remove the wall constructed by him. The plaintiff-respondent No. 1 demolished the wall with the assurance that the suit property will be demarcated. It is his further case that demarcation was done by Naib Tehsildar on the suit property and in that demarcation, it was found that some portion of the suit property was found encroached upon by the appellant Gram Panchayat. It was alleged that the defendants were bent upon to make the street on the same. Hence, the suit.

Upon notice, defendants appeared and filed written statement contesting the suit, raising various preliminary objections. It was further pleaded that the suit property was neither owned nor possessed by the plaintiff-respondent no. 1 and was part of the village phirni. The only intention of the plaintiff-respondent was to encroach upon the land belonging to the Gram Panchayat. It was further stated that the defendants had constructed pucca street over the suit property being rasta sar-e-aam. It was denied that the defendants have encroached upon the suit property. Rest of the averments made in the plaint were denied and dismissal of the plaint was prayed.

No replication was filed. On the basis of pleadings of the parties, following issues were framed:-

Whether the plaintiff is entitled to a decree for mandatory injunction as prayed for? O.P.P.

Whether the suit is not maintainable in the present form? O.P.D.

Whether the plaintiff has no locus standi for file the present suit? O.P.D.

Whether the civil court has no jurisdiction to try and entertain the present suit as per Section 13A of Panchayat Village and Common Law Act? O.P.D.

Relief.

After considering the evidence on record, the trial Court decreed the suit of the plaintiff-respondent No. 1 vide judgment and decree dated 17.10.2011, observing that the plaintiff-respondent was the owner in possession of the suit property bearing khasra No. 498 and the defendants have no right, title or interest in the same and have no authority to construct public street on the suit property bearing khasra No. 498.

Aggrieved from the aforesaid judgment and decree of the trial Court, the defendant No. 3 (now respondent no. 4) preferred an appeal before the first Appellate Court which was also dismissed vide impugned judgment and decree dated 30.4.2013. While dismissing the appeal, the lower Appellate Court observed as under:-

With due regards to the rival contentions, this Court does not find any illegality in the findings recorded by learned Trial Court. It is the case of the plaintiff that he is owner in possession of a plot bearing Khasra No. 498 measuring 1 Kanal 0 Marla, which was allotted to Plaintiff and his brother namely, Chand Ram in consolidation proceedings and to this effect learned counsel for the plaintiff has referred to copies of Jamabandi, Aks Sizra and site plan i.e. Ex. P-1 to Ex. P-3 respectively. A perusal of Ex. P-1, copy of Jamabandi for the year 1998-1999 reveals that Chand Ram and Jaipal sons of Sh. Balwant Singh are owners in possession of plot bearing Khasra No. 498. Further, the demarcation report dated 11.11.2008 Ex. P-9, which has been prepared after fixing of three pucca points as per. FCR Rules, reveals that some portion of the suit property has been encroached upon by defendant No. 4 Gram Panchayat while making the street. The said demarcation report Ex. P-9 was conducted by Naib Tehsildar who appeared in the witness box as PW-5 and specifically deposed that he had conducted the demarcation as per rules. PW-5 was cross-examined at length, but nothing substantial came out to impeach his testimony. Thus, the gist of demarcation report makes out a case that it is the Gram Panchayat which has encroached upon some portion of the suit property belonging to plaintiff comprised in Khasra No. 498. On the other hand, learned counsel for the appellant-defendant has failed to show any document or record or otherwise that the suit land belongs to Gram Panchayat as has been vehemently argued by learned counsel for the appellant. Though, it has vehemently been argued by learned counsel for appellant that the suit land pertains to Phirni sare-am, but there is not even a single document on record which can establish the same. A feeble attempt has been made by learned counsel for appellant by contending that the plaintiff was directed to remove obstruction in Phirni Sare-am Rasta between plot No. 498 and 206 vide order dated 22.3.2010. However, the said order does not establish that the plaintiff is not owner in possession of suit land plot bearing khasra No. 48. Thus, in view of the admitted fact that the suit property is owned and possessed by the plaintiff, he is entitled to remain in peaceful possession of the suit property. Further, learned counsel for the appellant-defendant has argued that the suit land is Phirni sare-am and vests in Gram Panchayat and the same being Shamlat deh, no injunction can be granted against the defendant Gram Panchayat in view of legal proposition that no injunction against true owner can be granted. There is no denying the fact about legal proposition that no injunction can be granted against the true owner, but as a matter of fact appellant-defendant has failed to disclose as to how the suit property belongs to Gram Panchayat or the same vests in Phirni Sare-am. On the other hand, plaintiff has duly established that he is owner in possession of the suit land bearing khasra No. 498 as per Ex. P-1 Jamabandi and Ex. P-9 demarcation report. Still further, the argument of learned counsel for defendants-appellant to the effect that jurisdiction of civil court is barred in view of Section 13 of the Act also lacks any merit in as much as the Section 13 of the Act prohibits civil court jurisdiction to entertain or adjudicate upon any question whether any land or other immovable property is or is not Shamlat Deh or any land or other immovable property or any right, title or interest, in such land or other immovable property vests or does not vests in a Panchayat under the Act. However, in the instant case there is no question regarding vesting or non-vesting of the immovable property in the Gram Panchayat or declaration of land as Shamlat Deh or not. In fact, the dispute is qua the suit land bearing Khasra No. 498 which is owned and possessed by plaintiff and defendant-appellant has failed to lead any cogent and convincing evidence as to how the suit land falls within the definition of Shamilat Deh. Though, the Phirni may be said to be Shamlat Deh but the suit land clearly falls within the plot Khasra No. 498 and the question of vesting or non-vesting of the same does not arise especially in view of Jamabandi Ex. P-1.

Therefore, this argument of learned counsel is also without any merit. Further, in the absence of any document on record establishing Vesting of he suit land in Phirni Sare-am, no force can be derived from the authorities cited by the Ld. Counsel for the appellant.

Still not satisfied, the Gram Panchayat has filed the instant appeal submitting that following substantial questions of law arise in this appeal for consideration of this Court:-

i) Whether the impugned Judgments and Decrees of both the Ld. Courts below are perverse ''to the evidence available on file of the case?

ii) Whether both the Ld. Courts below have misread the documents and misconceived the evidence while delivering the impugned Judgments and Decrees?

iii) Whether the findings of the Ld. lower appellate Court and that of Ld. Trial Court are based on no evidence and hypothetical considerations?

iv) Whether the area of circular path (phirni) left in consolidation for the use of all inhabitants of the Village falls within the definition of shamilat deh provided in Section 2(G) of the VCL Act, 1961 or not''?

v) Whether the Civil Court jurisdiction is barred in regard to the area of the circular path vesting in the Gram Panchayat under Sections 13 and 13-D of the VCL Act, 1961?

vi) Whether the impugned Judgments and decrees of both the Ld. Courts below are liable to be set aside?

At the outset, it may be noticed that the appellant Gram Panchayat cannot be held to be aggrieved from the impugned judgments and decrees of the Courts below, as the appellant has failed to challenge the judgment and decree of the trial Court by filing an appeal before the first appellate Court. In absence of any such appeal, the instant appeal is not maintainable and the substantial questions of law, as raised, cannot be raised by the appellant. Moreover, the question whether the suit property is a part of khasra No. 498 owned by the plaintiff-respondent No. 1 or part of village phirni belonging to the Gram Panchayat is a question of fact on which concurrent finding has been recorded by the Courts below which is based upon the evidence produced on record by the plaintiff-respondent, which has remained unrebutted.

Admittedly, the appellant could not produce any revenue record to establish the exact width of the alleged phirni in front of the house of the plaintiff-respondent.

In view thereof, this Court finds no merit in this appeal.

Thus, no substantial question of law arises in this appeal.

Dismissed.