Mohinder Ram v. Gram Panchayat

CORAM: HON'BLE MR. JUSTICE RAKESH KUMAR GARG Present: Mr.Surender Dhull, Advocate for the appellant. Rakesh Kumar Garg, J.(Oral) * * * This is plaintiff's second appeal challenging the judgment and decrees of the courts below whereby, suit of the appellant for permanent injunction restraining respondent from dispossessing him from the suit property, has been dismissed. In short, the case of the appellant is that he is owner in possession of the suit property since his forefathers and is residing therein. It is his further case that as per the scheme of the Govt., the State Government constructed one room and one kitchen in South-East corner of the suit property as the appellant is a poor person and falls below the poverty line. It is further alleged that respondent has no right, title or interest whatsoever in the suit property and were bent upon to dispossess the plaintiff/appellant from the suit property forcibly or illegally. Hence, the present suit was filed. Upon notice, respondent appeared and raised various legal submissions. On merits, it was submitted that the land in dispute was shamlat-deh which was used as “Bachgan”(i.e where the dead infants are buried). It was further submitted that the land was within the abadi-deh and R.S.A.No.611 of 2010 (O&M) 2 reserved for the aforesaid common purpose of the village. The plaintiff- appellant was not the owner in possession of the land in dispute. The plaintiff had constructed one room and kitchen thereupon illegally and he wants to encroach upon the suit property under the garb of the present suit. The plaintiff-appellant was allotted lamd measuring 3 marlas comprised in khewat no.126, Khatoni no.191, khasra no.82/4 within revenue estate of village Ujhana, vide jamabandi for the year 2002-03, for constructing his residential house thereupon but till now, the same is lying vacant. It was further alleged that as per scheme of the Govt., the construction was to be made on this bara given by the respondent to the appellant but the appellant raised the construction on shamlat land owned by the Gram Panchayat. Denying the other averments dismissal of the suit was prayed for. On the pleadings of the parties, the following issues were framed:

1. Whether the plaintiff is owner in possession of suit property?OPP.

2. Whether the defendant is liable to be restrained from dispossessing him from the suit property illegally and forcibly?OPP.

3. Whether the civil courts have no jurisdiction to try and decide this suit?OPD.

4. Whether the plaintiff has concealed the true and material facts from the court, if so, its effect?OPD.

5. Whether the plaintiff has no cause of action to file this suit?OPD.

6. Relief. After hearing the learned counsel for the parties and considering the evidence on record, the trial court found that the appellant had failed to prove on record that he was owner in possession of the suit property and from the evidence, it was established that the land in dispute was shamlat- deh, which was reserved for the use of the villagers as “Bachgan”. It was also held that the suit of the appellant was barred under Section 13 of the R.S.A.No.611 of 2010 (O&M) 3 Punjab Village Common Land Act,1961 and the appellant had concealed material facts from the court. Resultantly, the suit filed by the appellant was dismissed. Feeling aggrieved, plaintiff filed an appeal challenging the aforesaid judgment and decree of the trial court which was also dismissed vide the impugned judgment and decree dated 13.11.2009. Still not satisfied, the plaintiff has filed the instant appeal challenging the judgment and decrees of the courts below. Learned counsel for the appellant has vehemently argued that appellant is a schedule caste who is living in the property in dispute over the last so many years. The land in dispute falls within the abadi-deh and as per evidence adduced by the appellant, he is residing in the said house since 1998 and the findings of the courts below that land in dispute is shamlat-deh is without any evidence and therefore, the findings of the courts below are not sustainable on the basis of the evidence on record and are liable to be set aside. I have heard the learned counsel for the appellant and perused the impugned judgment and decrees. Both the courts below on appreciation of evidence have recorded concurrent findings of fact that the evidence on record do not in any manner depict that the appellant raised the construction over the land which was allotted to him and the document Ex.P-6, which is memo dated

11.09.2000, does not specify in any manner that appellant was required to raise construction under the Indra Avas Yozana. Even the testimony of Virender Singh, Assistant is of no help to the appellant as he has admitted in his cross-examination that he had not seen the original record, which could prove the case of the appellant. On the other hand from the evidence of DW-2 Khilla Ram, it stand established that the construction raised by the appellant was not under the scheme of the Govt. and the land R.S.A.No.611 of 2010 (O&M) 4 in dispute was shamlat-deh which was reserved for the common purposes of the village. On this specific stand of the respondent, the appellant has not cross-examined the witness. Even no suggestion was put to him with regard to the suit land being shamlat-deh. Moreover, learned counsel for the appellant was unable to challenge the findings of the courts below on the issue of jurisdiction of civil court. Faced with this situation, learned counsel for the appellant has raised the contention that he, being in long standing possession, is entitled to protect the same and he can be evicted only in accordance with law. It is settled law that trespasser cannot seek injunction against the true owner. In the case in hand, the appellant has failed to prove his ownership over the suit property and his possession over the suit land is totally unlawful whereas, the findings of the courts below that respondent is the owner of the suit land could not be challenged successfully by the learned counsel for the appellant and thus, in view of the aforesaid facts, the appellant is not entitled to seek injunction against the respondent. No other point has been urged. No substantial question of law arises in this appeal. No merit. Dismissed. February 10,2010. Seema-II (RAKESH KUMAR GARG) Judge