R.S.A. No. 2734 of 2006 (O&M)
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
R.S.A. No. 2734 of 2006 (O&M)
Date of decision: 15.05.2009
Gram Panchayat, Bidhal
....appellant
versus
Satbir and others
....respondents
CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA
Present: - Mr. Hari Pal Verma, Advocate,
for the appellant.
Mr. Y.P. Malik, Advocate,
for respondent No. 1.
***
VINOD K. SHARMA, J. (ORAL)
C.M. No. 6580-C of 2006
Allowed as prayed for.
C.M. No. 6579-C of 2006
This is an application under Section 5 of the Limitation Act for
condoning the delay of 80 days in filing the appeal.
It has been averred in the application that authorised person
i.e. Sarpanch of the Gram Panchayat was not well and, therefore, the
R.S.A. No. 2734 of 2006 (O&M)
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appeal could not be filed within time. Thereafter, due to procedural
requirement, delay of 80 days has occurred in filing the appeal.
Notice of the application was given. However, no reply has
been filed. The application is supported by an affidavit.
The averments made, therefore, remain unrebutted. The
averments made, make out sufficient cause for condoning the delay.
C.M. is accordingly allowed and the delay of 80 days in filing
the appeal is ordered to be condoned.
R.S.A. No. 2734 of 2006
This regular second appeal is directed against the judgment
and decree dated 8.10.2005 passed by the learned lower appellate Court,
vide which counter claim filed by the defendant/appellant, has been
ordered to be dismissed and the appeal filed by the plaintiff/respondent
was allowed.
The plaintiff/respondent No. 1 filed a suit for declaration with
consequential relief of permanent injunction restraining the defendants,
including Gram Panchayat, from interfering in his possession over plot
mearing 181 sq. yds. purchased by him by way of registered sale deed
dated 26.10.1998. The plaintiff had even constructed a shop over the
plot sold to him which is in khasra No. 189 measuring 9 marlas.
The suit was contested wherein claim of the
plaintiff/respondent qua ownership and possession over khasra No. 189
was admitted. A positive stand was taken that the Gram Panchayat or
the defendants had no intention to interfer with the possession of the
plaintiff/respondent. A plea was also raised that in the garb of purchase
of khasra No. 189, the plaintiff/respondent was, in fact, trying to
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encroach upon khasra No. 130 which is under the ownership of the Gram
Panchayat.
The appellant also raised a counter claim seeking injunction
against the plaintiff/respondent from interfering in possession of the
Gram Panchayat over khasra no. 130.
In reply filed, the plaintiff/respondent did not dispute the
possession of the Gram Panchayat over khasra No. 130, and took a
positive stand that he was not interfering in the possession of the
defendant/appellant qua khasra No. 130 and was to protect his
possession over khasra No. 189, which was purchased by him.
The learned trial Court decreed the suit of the
plaintiff/respondent qua khasra No. 189. However, counter claim filed
by the Gram Panchayat was also accepted and the plaintiff/respondent
was restrained from interfering in possession of Gram Panchayat over
khasra No. 130.
The plaintiff/respondent challenged the decree of the learned
trial Court passed in favour of the defendant/appellant primarily on the
plea that Gram Panchayat has failed to prove their ownership over khasra
No. 130 and, therefore, they were not entitled to injunction.
The learned lower appellate Court accepted the appeal
primarily on the ground that the Gram Panchayat has failed to produce
on record any document to prove its ownership over khasra No. 130.
The learned lower appellate Court further held that mere oral statement
of the defendant witnesses could not be used to hold that the Gram
Panchayat was owner of khasra No. 130 and, thus, reversed the finding
on issue No. 6.
R.S.A. No. 2734 of 2006 (O&M)
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The learned counsel for the appellant contends, that the appeal
raises the following substantial question of law: –
“Whether the judgment and decree passed by the
learned lower appellate Court is outcome of mis-
reading of evidence and is otherwise contrary to the
settled law and, thus, perverse?”
In support of the substantial question of law, the learned
counsel for the appellant contends that the learned lower appellate Court
committed an error in law in reversing the finding of the learned trial
Court on issue No. 6 by holding that the defendant/appellant has failed
to prove its ownership.
The contention of the learned counsel for the appellant
deserves to be accepted. In a suit for injunction, question of title was not
to be determined and in any case the dispute regarding the title of Gram
Panchayat could only be adjudicated under the Punjab Village Common
Lands (Regulation) Act and not in the civil suit. For the purpose of
injunction, the Court was only to see the possession of the parties. Once
the plaintiff/respondent had not raised any claim over khasra No. 130
and had taken a stand that he had no intention to interfere with the
possession over khasra No. 130, and was only to protect his possession
and ownership over khasra No. 189, the learned trial Court was justified
in accepting the suit as well as counter claim in view of the admission
made by the respective parties.
The judgment and decree passed by the learned lower
appellate Court is, therefore, outcome of mis-reading of the pleadings,
evidence and is also contrary to established law that in a suit for
injunction, question of title was not to be determined.
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For the reasons stated, the appeal is allowed. The judgment
and decree passed by the learned lower appellate Court is set aside and
that of learned trial Court is restored, but with no order as to costs.
(Vinod K. Sharma)
Judge
May 15, 2009
R.S.