High Court Punjab-Haryana High Court

Balwant Singh And Another vs Sucha Singh And Others on 3 August, 2009

Punjab-Haryana High Court
Balwant Singh And Another vs Sucha Singh And Others on 3 August, 2009
R.S.A.No.3659 of 2005                                       1



      IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                      CHANDIGARH


                              R.S.A.No.3659 of 2005

                              Date of Decision : 03.08.2009

Balwant Singh and Another                         ...Appellants

                              Versus

Sucha Singh and Others                            ...Respondents

CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA

Present: Mr. K.S.Sidhu, Sr. Advocate, with
         Mr. G.S.Sidhu, Advocate,
         for the appellants.

          M/s Naresh Kaushal & Harish Goyal, Advocates,
          for respondent No.10.

HEMANT GUPTA, J. (ORAL)

Defendant Nos.1 and 2 are in second appeal aggrieved against

the judgment and decree passed by the learned first Appellate Court

directing the said defendants to remove ruri and foundation as shown in

site plan Ex.PW-7/A.

The plaintiff-respondent Nos.1 to 6 have filed the present suit

for declaration to the effect that the plot shown by words ABCD in the

site plan Ex.PW-7/A, is the common property of the proprietors of Pati

Chehlan, Village Mardanpur, and is being used for common purposes.

The plaintiffs also sought the relief of mandatory injunction directing

defendant Nos.1 and 2 to remove the foundation marked EF; defendant

Nos.3 and 4 to remove the ruri; and defendant No.5 to remove the small

construction raised in the suit property in an unauthorizedly manner.
R.S.A.No.3659 of 2005 2

It is the case of the plaintiffs that there are four patties in

Village Mardanpur, whereas the plaintiffs are residents of Pati Chehlan.

Each patti has separate Dharamshala and vacant chowk. The proprietors

of Patti Chehlan constructed a Dharamshala and in front of that

Dharamshala, the suit property was left for common use by the

proprietors of the Patti Chehlan, for common purposes of parking bullock

carts etc. The marriage parties use to stay in the said Dharamshala. The

plaintiffs alongwith other proprietors have been using the suit property

i.e. land in front of Dharamshala for common purposes, but the

defendants have got no right to occupy the suit property exclusively for

the purpose of their personal use. The said suit was filed in the

representative capacity. Earlier a suit for injunction was filed, which was

decreed by the learned trial Judge, but was dismissed in appeal by the

learned Addl. District Judge on 29.11.1995. It was, thus, alleged that on

account of encroachment by the defendants, the property in front of

Dharamshala is not available for common use, which led to filing of the

present suit.

Defendant Nos.1 and 2 contested the suit and raised a plea that

the Civil Court has no jurisdiction in the matter, and that the suit is hit by

the principle of constructive res judicata. Defendant Nos.1 and 2 asserted

that they are in exclusive possession of the suit property. It was asserted

that defendant Nos.1 and 2 are continuing in possession for long time and

that they have become owner by adverse possession.

The plaintiffs have led voluminous evidence to prove that the

property in front of Dharamshala was reserved for common purposes.
R.S.A.No.3659 of 2005 3

The learned trial Court dismissed the suit, but in appeal a finding was

returned that the site in dispute is situated in front of Dharmshala and it is

situated within the Lal Lakir of the Village. There is no documentary

evidence of the ownership. The Court considered that none of the

defendants has claimed the title over the suit property. Defendant Nos.1

and 2 claimed adverse possession. It was found that the defendants have

not stated against whom title by way of adverse possession was asserted.

On merits, learned first Appellate Court found on the basis of

statement of Kuldip Singh (DW-3), defendant No.3, that the site in

dispute has been continuing in the possession of his ancestors and

thereafter in the possession of the defendants. He has admitted that the

site in dispute is in front of Dharamshala across the street. From his

statement, a finding was returned that the site in dispute is not owned by

any person, but is a common property outside the Dharamshala for

permanent use by the residents of Chehlan Pati. Similar is the statement

of Ajaib Singh-defendant No.5, admitting that the land in front of

Dharmshala is common.

The Court has also considered judgment Ex.DZ passed by Sub

Judge Ist Class, Rajpura in a suit for injunction filed by the present

appellants. There was restrained order, but the said judgment was set

aside in appeal vide judgment dated 29.11.1995 (Ex.DZ-B). Defendant

No.1 has appeared as DW-1 and asserted possession over the suit

property from the time of his ancestors. Baljinder Singh DW-2, asserted

possession of defendant Nos.1 and 2 over the suit property. On the other

hand, the plaintiffs have produced resolution Ex.P-2 dated 20.4.1996 that
R.S.A.No.3659 of 2005 4

the site in front of the Dharamshala of Chehlan Patti has been kept for

common use. Sucha Singh PW-8 has deposed that defendant Nos.1 and 2

started placing ruri over the site in 1988. After considering the entire

evidence, a finding was returned that the site in dispute is a common site

in front of Dharamshala and no resident of Village Mardanpur has got

any exclusive right over it. In view of the said fact, a decree as aforesaid

was granted in favour of the plaintiffs.

Learned counsel for the appellants has vehemently argued that

the Civil Court has no jurisdiction as the land in dispute is a land reserved

for common purposes and not falls in abadi deh of the village

Mardanpur. Therefore, the question whether the plaintiffs are entitled to

any declaration or mandatory injunction cannot be examined by the Civil

Court.

The appellants have set up title in the suit land by adverse

possession. Such adverse possession has not been proved on record, as

for adverse possession it has to be asserted to the knowledge of the true

owner. There is no such assertion. The land is in front of Dharamshala

and is meant for common purposes. Earlier, the suit for injunction filed

by the present appellants has been dismissed in appeal on 29.11.1995. It

is a question of unauthorized possession over the common property,

which is sought to be removed by intervention of the Civil Court. The

jurisdiction of Civil Court is barred to entertain or adjudicate upon any

question, whether any property or any right to or interest in any property

is or is not shamilat deh vested or deemed to have been vested in a

Panchayat. There is no plea by any of the parties that the land is shamilat
R.S.A.No.3659 of 2005 5

deh and the question regarding vesting of land in Panchayat being

shamilat deh has not been examined by the authorities and by the Courts

below. Therefore, the plea of bar of jurisdiction is not available to the

defendants in the present appeal.

In view thereof, I do not find that any substantial question of

law arises for consideration of this Court in view of the findings of fact

recorded by the learned first Appellate Court.

Dismissed.

03.08.2009                                       (HEMANT GUPTA)
Vimal                                                JUDGE