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