Regular Second Appeal No. 2275 of 2011 1
In the High Court of Punjab and Haryana, at Chandigarh.
Regular Second Appeal No. 2275 of 2011
Date of Decision: 18.7.2011
Zile Singh
... Appellant
Versus
Bansi Lal and Others
... Respondents
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA.
Present: Mr. Sushil Bhardwaj, Advocate
for the appellant.
Kanwaljit Singh Ahluwalia, J. (Oral)
Having remained unsuccessful in two rounds of litigation, the
appellant/plaintiff approached this Court by filing the present regular
second appeal.
Briefly stated, the plaintiff has instituted a suit for mandatory
injunction with consequential relief of permanent injunction seeking a
direction that defendants No.1, 2 and 4 should remove the
encroachment made by them in a Gali Shar-e-aam with consequential
relief of permanent injunction restraining them from raising any further
construction over the same. In the suit, it was pleaded that a gali,
maintained by Gram Panchayat-respondent No.3, is in existence, width
of which is 13.3 feet, from the last about 20-30 years. The gali was
used by the residents of the locality. The site plan was attached with the
plaint showing plaintiff’s residence in green colour. It was averred that
Regular Second Appeal No. 2275 of 2011 2
defendants No.1, 2 and 4 intend to encroach upon the gali in collusion
with defendant No.3. It was stated that the portion marked with letters
ABCD in the site plan has been encroached upon by defendants No.1,
2 and 4. Upon issuance of notice, defendants No.1, 2 and 4 filed a
written statement. They raised several legal objections. They further
stated that the suit was not maintainable as no permission under the
provisions of Section 91 CPC was obtained. It was further pleaded that
jurisdiction of the Civil Court is barred under Section 13 of the Punjab
Village Common Lands Act, 1961 (hereinafter referred to as “the Act”). A
specific stand has been taken by defendants No.1, 2 and 4 that the
portion, shown in red colour in the site plan, is not a part of gali and the
same is a part of plot No. 763, which was purchased by them vide sale
deed dated 27.9.1979. After conclusion of the pleadings, the trial Court
framed the following issues:-
"1. Whether the plaintiff is owner in
possession of the property in dispute?
OPP
2. Whether the defendant No.1 has
encroached upon it? OPR
3. Whether their encroachment is liable to be
removed? OPR
4. Relief".
The parties to the suit examined their witnesses and tendered
documents. The trial Court, vide its judgment dated 17.7.2010, decided
issue No.1 in favour of the defendants and against the plaintiff. The trial
Court held that it is an admitted fact that the plaintiff is not an owner of
Regular Second Appeal No. 2275 of 2011 3
the gali in question. The trial Court further held that the gali is not having
a uniform width. Issues No.2 and 3 were also decided in favour of the
defendants and the suit was dismissed. Aggrieved against the same,
the appellant filed an appeal. The lower Appellate Court, vide its
judgment dated 22.3.2011, held that it is not disputed that the property,
where the plots and houses of parties are situated, was a property of
Qilla. It was an evacuee property and was allotted to different persons,
who migrated from Pakistan. This property was allotted by the
Rehabilitation Department. The lower Appellate Court further held that it
is not disputed that the different allottees of the land have left the street
in existence. The street was made pucca by the Gram Panchayat by
laying bricks about 20-25 years ago. The lower Appellate Court relied
upon the cross-examination of PW.2 Vinod that the width of gali is at
variance at different places. Even in the site plan Ex.P6/A, prepared by
the Local Commissioner, the width of gali, at different points, vary.
Therefore, the lower Appellate Court held that it cannot be held that
defendants No.1, 2 and 4 have encroached upon the gali.
I have heard learned counsel for the appellant/plaintiff, who
stated that the report of the Local Commissioner was per se admissible
and the lower Appellate Court erred in holding that the same cannot be
relied upon till an opportunity was afforded to the defendants to cross-
examine the Local Commissioner. The lower Appellate Court has taken
an overall view of the entire evidence led before the trial Court. Since
the gali was made pucca by the Gram Panchayat by laying bricks about
20-25 years ago and there is variance of the width at various points, it
cannot be said that the defendants have encroached upon the part of
Regular Second Appeal No. 2275 of 2011 4
gali. It is a common knowledge that there is no planning in the village.
Therefore, to non suit the defendants only on the ground that the gali
should have a uniform width is too much to ask. This Court will refrain
itself from disturbing concurrent findings of fact arrived at by both the
Courts below.
No question of law, much less a substantial one, has been
raised before me which could warrant interference of this Court. Hence,
there is no merit in the present appeal and the same is hereby
dismissed in limine.
(Kanwaljit Singh Ahluwalia)
Judge
July 18, 2011
“DK”