Civil Revision No.2198 of 2008 [1 ]
IN THE HIGH COURT FOR THE STATES OF PUNJAB &
HARYANA AT CHANDIGARH
...
Civil Revision No.2198 of 2008 (O&M)
Decided on : July 02, 2009
Pawan Kumar
… Petitioner
VERSUS
Nagar Panchayat and others
… Respondents
CORAM :
HON’BLE MR.JUSTICE A.N.JINDAL
Present: Mr.Arun Palli, Senior Advocate assisted by
Mr.Jai Bhagwan,
Advocate for the petitioner.
Mr.C.M.Sharma, Advocate for respondent No.1.
Mr.Surinder Kapoor, Additional Advocate General
Punjab.
A.N.JINDAL, J.-
This petition has arisen out of the order dated 4.4.2008,
whereby, the District Judge, Mansa, while accepting the appeal against the
order dated 31.1.2006 passed by the Additional Civil Judge (Senior
Division), Mansa, dismissed the application for temporary injunction.
The petitioner – plaintiff (herein referred as the petitioner) filed
a suit for permanent injunction claiming ownership over the property with
the background that the suit property, measuring 15 Kanals, being part of
Khasra No.341 (total 549 Kanals 12 Marlas) is in his possession. Earlier,
his father Daulat Ram was in possession of the said property by
Civil Revision No.2198 of 2008 [2 ]
constructing a `chhan’ (small cottage of wild grass) and he remained in its
possession for over 110-120 years. Then after his death, on the basis of a
Will, he (petitioner) came in possession and he has been in possession as
such for the last 50-60 years. The property being Abadi Deh does not vest
in the Nagar Panchayat, respondent – defendant (herein referred as
`respondent’). He constructed a room as also boundary wall on three sides
of the said land. Besides, construction of three small tombs in the land in
dispute, a water pump was also installed by him. The Local Commissioner
vide his report dated 28.1.2006 has supported the aforesaid construction,
raised by him, therefore, he being in possession cannot be dispossessed by
the respondent.
In turn, the respondent set up a plea that the petitioner is
neither the owner nor in possession of the suit property; the Will is a forged
and fabricated document; the land in dispute vests in the Gram Panchayat,
which has also passed resolutions dated 29.11.2001 and 27.9.2000 about
construction of its boundary wall. It was further averred that the
Panchayat intends to construct a park in the land in dispute after filling up
the low lying area and after seeking grant from the Government. Since the
respondent has been managing the total land and the same is used for the
benefit of village community as a whole, therefore, it vests in the
respondent. Further, it was averred that the Civil Court has no jurisdiction
to try the suit and in any case, if the construction is taken to have been
raised by the petitioner, it does not debar the Panchayat from taking the
possession of the suit property.
Civil Revision No.2198 of 2008 [3 ]
The Trial Court decided the application in favour of the
petitioner (plaintiff), whereas, the Appellate Court also decided against him.
Arguments heard. Record perused.
On perusal of the Jamabandhi for the year 2003-2004, it
transpires that the disputed land measuring 15 Kanals is part of Khasra
No.341, which has total area of 549 Kanal-12 Marlas. The revenue record
reveals that it is `Gair Mumkin’. The name of the petitioner being in
possession does not figure in the revenue record. The record further
transpires that the property was being used by the villagers for the common
purposes. It has not been established on record that the petitioner was the
proprietor of the village having any share in the Abadi Deh. The Abadi Deh
being used by all the inhabitants of the village falls within the definition of
Clause (4) of Section 2(g) of Punjab Village Common Lands (Regulation)
Act (herein referred as `the Act’). Such observations were made by this
Court in case Suraj Mal and others vs. Devi Singh alias Deepa and
others, 1988(1) Recent Revenue Reports 258, wherein, it was held as
under:-
“… In view of sub-clause (4a) of Section 2(g), it could not be
disputed that the shamlat deh includes vacant land situated in
abadi deh or gora deh not owned by any person. Once, it is
found, then section 13 of the Act is a bar to the entertaining of
a suit to adjudicate upon any question whether any land or
other immovable property is or is not a shamlat deh or any land
or other immovable property or any right, title or interest in
such land vested or did not vest in the Gram Panchayat under
Civil Revision No.2198 of 2008 [4 ]the Act.”
Further, to deal with the claim of the petitioner that he has been in
possession of the land in dispute for the time immemorial, it is relevant to
quote the decision in case Ram Sarup vs. Gram Panchayat, 2000(3)
RCR (Civil) 619, wherein, the plaintiff had also filed a suit for permanent
injunction against the Gram Panchayat and on consideration of the matter,
this Court observed as under:-
“… The case set up by the plaintiff before the trial Court was
that the site in question is his ownership since the time
immemorial and he is using the same as owner. The location of
the site would show that this is not adjacent to the house of the
plaintiff. Rather the house of the plaintiff is at some distance.
The site in question vests in the Gram Panchayat. In these
circumstances, the Civil Court has no jurisdiction to entertain a
suit of the type filed by the plaintiff by virtue of provisions of
Section 13 of the Punjab Village Common Lands (Regulation)
Act. The balance of convenience also lies in favour of the
defendant, who are likely to suffer irreparable mischief even if
a status quo order is passed in favour of the plaintiff.”
In any case, without delving deep into the question, whether
the Civil Court has jurisdiction to entertain the suit or not, it is observed
that none of the documents reveals the possession of the petitioner, which
may be an essential ingredient to prove a prima facie case in his favour. As
regards the report of the Local Commissioner, it may be observed that it is
Civil Revision No.2198 of 2008 [5 ]
still debatable, whether the alleged construction had been raised by the
Panchayat or the petitioner. The Appellate Court has also rightly taken
shelter of the judgment delivered in case Bhim Singh and others vs. Zile
Singh and others, 2006(3) Civil Court Cases 479, wherein, it was held that
no declaration could be sought by a plaintiff with regard to his ownership
on the basis of adverse possession and that the plea of adverse possession
can be taken only to the defendant.
Since the petitioner has also failed to prima facie establish if
Daulat Ram was the owner of the property and in that situation Daulat Ram
could not have bestowed the same upon the petitioner by way of a Will, in
favour of the petitioner.
Under these circumstances, without commenting on the merits
of the case, since the plaintiff – petitioner has failed to establish a prima
facie case in his favour, no ground is made out to interfere with the well-
reasoned order passed by the District Judge.
Dismissed.
July 02, 2009 ( A.N.JINDAL ) `gian' JUDGE