Sant Ram vs Dharam Chand

N.C. Jain, J. (Oral)

This appeal has been preferred by Sant Ram defendant appellant only, against the judgments and decrees of Courts below, decreeing the suit of the plaintiffs for mandatory injunction ordering. the removal of the encroachment from the disputed land.

The facts as averred by the plaintiffs are that they own and possess a house described in para No. 1 of the plaint, which is being used by them for tethering the cattle, storing their cowdung cakes and for their residential purposes where they have raised the construction of Chappar etc. It is alleged that they have only one way to their house which is shown in capital letters ''A.B.C.D.'' in the site plan but the defendants, who are described to be strong headed persons, have encroached upon the same and they have raised pucca wall at point A. B. and C. D. E.; thus obstructing the thoroughfare of the plaintiff''s house. In view of the encroachment, a suit for mandatory injunction was filed in the trial Court, praying for removal of the encroachment, i.e., the boundary wall. A decree for permanent injunction was also claimed, restraining the defendants from interfering in the possession of the plaintiffs.

The suit was contested by the defendants on the ground that the disputed land was purchased by Sant Ram defendant No. 1 from Parbhati etc., by way of a registered sale deed, dated 15.10.1980. The construction of wall was admitted but it was stated that the same was done in his own land. It was denied that the plaintiffs had the right of way to their house.

On the rival pleas of the parties, the following issues were framed by that trial Court :

(1) Whether the plaintiffs are owners in possession of the house detailed in para No. 1 of the plaint ? OPP.

(2) Whether the street marked ''A.B.C.D.'' in the site plan attached with the plaint is the only street for the house of the plaintiffs ? OPP.

(3) Whether the defendant has constructed a wall at point AB and CDE as shown the site plan attached with the plaint and has blocked the way of the house of the plaintiffs. If so, its effect ? OPP.

(4) Whether suit is bad for misjoinder of necessary parties ? OPD.

(5) Whether the suit is not maintainable ? OPD.

(6) Whether plaintiffs are estopped from filing the suit by their own act and conduct ? 0PD.

(7) Whether plaintiffs have no locus standi ? OPD.

(8) Whether the defendant is entitled to special costs ? OPD.

(9) Relief.

The trial Court decided all the issues in favour of the plaintiffs and against the defendants and consequently decreed the suit. The matter was taken up in appeal at the instance of Sant Ram defendantappellant which has been dismissed by the Additional District Judge. It is the judgment and decree of the Additional District. Judge which has been challenged by way of appeal before this Court.

Before the first appellate Court it was not seriously disputed by the counsel for the defendantappellant that the disputed site was a street. Inspite of no dispute having been raised about the disputed site being a street, the appellate Court took pains to record a finding that the disputed site is a street. After discussing the entire evidence comprising of documentary evidence as well as oral. the appellate Court has recorded a finding of fact to the effect the defendant has included 8 feet wide disputed street in his land which has been shown in the site plan. The finding is based upon good evidence brought on the record of the case regarding which no argument noteworthy has been advanced warranting this Court to take a different view other than the one which has been taken by the appellate Court.

Confronted with this factual position, the learned counsel for the appellant Mr. Saini has tried to reopen the findings recorded by appellate Court to the effect that the civil Court has no jurisdiction to try the suit. It was argued before the first appellate Court with reference to Section 13 of the Punjab Village Common Lands (Regulation) jurisdiction of the civil Court to entertain or adjudicate upon any question whether any land or other immovable property is or is not shamilat deh or vests or does not vest in a Panchayat under the Act. In this respect the appellate Court has observed that no such question was raised by the defendant appellate in the written statement as to whether the suit land is or is not shamilat deh. Before me, the learned counsel could not refer to any plea in the written statement wherein it has been stated that the disputed land is shamilat deh. The. Gram Panchayat is not a party to the present suit. The defendant appellant could have filed an application for impleading the Gram Panchayat as a party so that proper pleas on facts could have been taken. It appears that the present dispute regarding the encroachment is between the plaintiffs and defendants only and that is why no plea regarding the vesting of the property in dispute in Panchayat has been taken. The present suit has been filed on the plea that the plaintiffs are the owners of the house described in para No. 1 of the plaint where they tether the cattle, store the cowdung cakes and use the same for residential purpose in which construction has been made and that through the disputed site which is public street the plaintiffs have got the way to their house and since encroachment has been made the same needs removal by way of mandatory injunction. Such a suit is surely triable by the civil Court only and in such suit the encroachment on the public street can be ordered to be removed by way of mandatory injunction. In similar circumstances a Division Bench of this Court in Bhagu and others v. Ram Sarup and another 1985 RRR 353 (P&H) : 1985(2) PLR 142 ordered the removal of encroachment by granting a decree for mandatory injunction. It was held in Bhagu''s case (supra) while dealing with a lis between two private individuals as follows :

"Held that the whole implication of Section 13 of the Act is that the jurisdiction of the civil Court is taken away when the lis is between the Gram Panchayat and a private person and it relates to any of the question specified in the section. It appears clear that the section would not be operative when the lis or the dispute is between two private individuals. In case the contention of the learned counsel for the appellants is to be accepted and taken to its logical end, or Section 13 of the Act is to be subjected to the interpretation suggested by him. then the jurisdiction of the civil Court can be ousted in any and every suit relating to any property or interest therein raising a wholly frivolous plea in the written statement that the subject matter of the litigation is Shamilat Deh or Panchayat property. In the instant case, it is not the claim of the plaintiff that either the suit property be declared as Shamilat Deh or included or a excluded from Shamilat Deh. All that been stated by him in the plaint is that the suit land is a "Gali shehreaam which is only statement of fact. The denial of this fact by the defendant led to the settlement or determination of the question whether the land in dispute was a Gali Shehreaam or a thoroughfare which was being used by the plaintiff as an approach to this house for the last about 30 years. This determination by the trial Court was only ancillary to prayer or the relief sought by the plaintiff. Any finding either way is not to affect the interest or title of the Panchayat to the land in question."

The ratio laid down in Bhagu''s case (supra) is applicable on all fours when the facts of the present case as they are proved are closely examined. In the present case also, it has been specifically averred by the plaintiffs that through the public street they had a way to their house where the encroachment has been made by the defendants by raising a boundary wall. The plea of the plaintiffs has been proved and. therefore, no interference is called for in second appeal

In the light of the observations made above, the appeal fails and is consequently ordered to be dismissed. The parties are left to bear their own costs throughout.