R.S.A.No.2149 of 2007 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
R.S.A.No.2149 of 2007
Date of Decision : 24.08.2009
Charanjit ...Appellant
Versus
Nagar Panchayat Begowal and others ...Respondents
CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA
1. Whether Reporters of local papers may be allowed to see the
judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. G.S.Gandhi, Advocate,
for the appellant.
Mr. G.S.Attariwala, Advocate,
for respondent Nos.1 and 2.
HEMANT GUPTA, J. (ORAL)
The plaintiff is in second appeal aggrieved against the
judgment and decree passed by the learned first Appellate Court, whereby
suit for injunction restraining the defendants, its employees, agents,
contractors from demolishing the building located in khasra No.320/15,
was dismissed.
It is the case of the plaintiff-appellant that Mohinder Paul S/o
Khushi Ram has purchased in auction an area of 25 ft. x 12 ft. out of
khasra No.320/15 from the Gram Panchayat, Begowal. The auction
money of Rs.310/- was deposited by Mohinder Paul on 5.2.1970. The
balance amount of Rs.1000/- was paid in two installments i.e. Rs.400/- on
27.2.1970 and Rs.600/- on 5.4.1970. The said Mohinder Paul through his
R.S.A.No.2149 of 2007 2
attorney Madan Lal, his brother, executed an agreement dated 5.12.1978
in favour of the plaintiff. It is thereafter, the plaintiff has raised
construction of building after demolishing the dilapidated room earlier in
existence. It was, thus, pleaded that the appellant is owner in possession
of the suit property and the defendants cannot dispossess the plaintiff. In
the written statement, the defendants have pleaded that Gram Panchayat
was not competent to sell any property vested in it and the alleged
auction, if any, is against the provisions of law. The Sarpanch cannot
bound the Gram Panchayat by his illegal acts. It was also pleaded that
the plaintiff has encroached upon the land of the Gram Panchayat and
that the notice issued is perfectly legal and valid. In a rejoinder to the
said written-statement, it was pleaded by the plaintiff that auction of the
plot was made by the competent authority and it had did so by adopting
due procedure of law and the Sarpanch was competent to issue the
receipt.
Though the learned trial Court decreed the suit, but the learned
first Appellate Court found that the auction in favour of Mohinder Paul
was in contravention of Rule 12 of the Punjab Village Common Lands
(Regulation) Rules, 1964, as such, auction was without the approval of
the State Government. It was also found that the plaintiff is relying upon
an agreement to sell Ex.P-3/1 and such agreement with the wife of the
plaintiff is not sufficient to convey the title of the suit property. In view
of the said findings, the appeal was allowed and the suit dismissed.
Alongwith the second appeal, the appellant has filed an
application under Order 41 Rule 27 of the Code of Civil Procedure, so as
R.S.A.No.2149 of 2007 3
to produce on record House Tax Bills and Receipts (Annexures A-1 to A-
5) as well as affidavit dated 11.1.2007 (Annexure A-6), executed by
Mohinder Paul in respect of the property in dispute. Such documents are
sought to be produced in evidence to show that the possession of the
appellant is not that of a unauthorized occupant, but the appellant is in
possession as owner.
Learned counsel for the appellant has vehemently argued that
the appellant has purchased the land in dispute vide agreement Ex.P-3/1
from Mohinder Paul through his attorney Madan Lal. It is thereafter, the
appellant has raised construction of the building and, thus, the possession
of the appellant is that of a owner, consequently, the notice directing the
appellant to remove the encroachment is misconceived. It is contended
that in the notice, the defendants have not specified that which of the area
in possession of the appellant is unauthorized. Therefore, the notice itself
is vague and cannot form basis of removal of encroachment. Reliance is
placed upon a judgment of Hon’ble Supreme Court in Municipal
Corporation, Ludhiana Vs. Inderjit Singh and another 2008(4) The
Punjab Law Reporter 753. It is also argued that no issue regarding title
of Gram Panchayat was framed and, therefore, no amount of evidence or
arguments can be looked into in the absence of any pleadings. Reliance
is placed upon a judgment of Hon’ble Supreme Court in Anathula
Sudhakar Vs. P. Buchi Reddy (Dead) by LRs and others AIR 2008 S.C.
2033.
I have heard learned counsel for the parties at some length, but
do not find any merit in the present appeal.
R.S.A.No.2149 of 2007 4
The appellant is claiming the property by virtue of purchase
from Mohinder Paul. However, the appellant is relying upon an
agreement to prove title though the value of the property is admittedly
more than Rs.100/- which is evident from the receipts allegedly
propounded by the plaintiff in support of the auction in favour of
Mohinder Paul. In the absence of any registered document of purchase,
the agreement Ex.P-3/1 cannot be relied upon by the appellant in proof of
the title of the appellant.
Even, Mohinder Paul is said to be owner by virtue of purchase
in an auction, however, no document of title executed by Gram Panchayat
in favour of Mohinder Paul has been produced. What is relied upon is
receipts of payment of some of the auction amount. Even if, Mohinder
Paul has deposited some amount towards the auction of Panchayat land,
such deposit will not confer any right unless the appellant is able to bring
on record that auction was conducted in accordance with the Rules. Rule
12 of the Punjab Village Common Lands (Regulation) Rules, 1964,
contemplate that the sale of land of the Gram Panchayat is permissible
only after approval from the State Government to the inhabitants. Rule
12 reads as under :
“12. Purpose for which land may be sold. [Section 5 and 15
(2)(f) of the Act]. — (1) A Panchayat may, with the previous
approval of the Government, sell land in Shamilat Deh vested
in it under the Act for :-
(i)the purpose of constructing building for Block
Samiti Office or any department of or institution
recognized by the Government;
(ii)the purpose of any industrial or commercial
R.S.A.No.2149 of 2007 5concern; or
(iii)executing such a scheme as may be a source of
recurring income for the benefit of the inhabitants
of the village;
(iv)residential purpose of the inhabitants of the
village.
(v)For the purpose of financing the construction of
building for schools and for veterinary and civil
dispensaries in the Sabha area.
(2) Where it is proposed to sell the land in Shamilat Deh
under sub-rule (1), the Panchayat shall forward to Government
a copy of its resolution passed by a majority of the three-forth
of its members proposing to sell the land through the Panchayat
Samiti and [Divisional Deputy Director, Panchayati Raj]
stating–
(a) the area and location of the land proposed for
sale;
(b) the estimated income from the sale and whether
the income would increase, if the land is sold after
some years;
(c) the reasons as to why the panchayat wants to sell
the land and the plans for utilization of the income
from the sale.
(3) the publicity for sale of land in Shamilat Deh by auction
shall be made by the Deputy Commissioner in accordance with
the procedure laid down in sub-rule (10) or Rule 6 on receipt of
the approval of Government who shall also decide whether the
land should be sold in one or more lots and the officer who
should be present at the auction.In view of the Rule 12, the findings recorded by the learned
first Appellate Court that the sale in favour of Mohinder Paul is not legal,
for lack of approval of the statement, cannot be said to be suffering from
R.S.A.No.2149 of 2007 6any patent illegality or irregularity.
The argument that notice calling upon the plaintiff to remove
the encroachment is vague is again not tenable. In Inderjit Singh’s case
(supra), the building plan of the occupier was sanctioned by the
Municipal Corporation, but some part of the building constructed was
said to be unauthorized. It was, thus, held that unauthorized portion
should have been specified. But where the entire property is in
unauthorized possession of the appellant, it was not necessary for the
defendants to specify that which part of the property is unauthorized. The
judgment referred to by the learned counsel for the appellant is not
applicable to the facts of the present case.
The argument that there was no issue regarding title of
Mohinder Paul is again not tenable. Issue No.1 is to the effect, whether
the plaintiff is in possession over the house in dispute on the basis of
auction dated 5.2.1970 and entitled for injunction as prayed for. The
plaintiff has claimed possession on the basis of auction dated 5.2.1970.
The right to seek injunction on the basis of auction was specifically
required to be examined under Issue No.1. Therefore, it is not correct to
say that there was no issue in respect of validity of auction dated
5.2.1970. Even otherwise, a Division Bench of this Court in Ram Niwas
and another Vs. Rakesh Kumar and others AIR 1981 Punjab and
Haryana 397, has held that framing of issue is immaterial, when the
parties have understood the case and led evidence. From the pleadings
itself, it is apparent that issue of validity of auction was raised and
controverted by the appellant. The evidence has been led in respect of
R.S.A.No.2149 of 2007 7title of Mohinder Paul, when the plaintiff produced the receipts of
purchase of land by Mohinder Paul. Therefore, the argument raised by
the learned counsel for the appellant is without any substance.
In view of the above, I do not find any patent illegality or
irregularity in the judgment and decree passed by the learned first
Appellate Court, which may give rise to any substantial question of law
for consideration by this Court in second appeal.
Dismissed.
24.08.2009 (HEMANT GUPTA) Vimal JUDGE