Research › Search › Judgment

Punjab High Court · body

2000 DIGILAW 1242 (PNJ)

Sher Singh v. Daryao Singh

2000-10-11

M.L.SINGHAL

body2000
JUDGMENT M.L. Singhal, J. - Plaintiffs Sher Singh and Bhoop Singh filed suit for permanent injunction against Daryao Singh and others defendants restraining the latter from interfering with their possession and raising construction on gitwar shown by letters ABCD in the plan attached to be plaint with is part of Khasra No. 8190 situated in the abadi deh of village Majra Dubaldhan as per Bandobast of 1879. Along with the plaint, they made application under order 39 rules 1 and 2 read with Section 151 CPC whereby they claimed ad-interim relief to this effect. It was alleged in the plaint that this gitwar is part of khasra No. 8190 as per bandobast 1879 situated in the abadi deh of village Majra Dubaldhan. It was in the ownership and possession of their ancestors namely Paras Ram etc. and now it is in their ownership and possession. They are using this gitwar for tethering their cattle. They have set up bitoras there. They have set up manger. Their bricks are lying there. Their apprehension is that defendants shall dispossess them and raise construction over there. They are residents of village Majra Bindhyan and have no right, title or interest in the suit property. 2. Defendants resisted their claim. It was denied that plaintiffs are owners in possession of this gitwar. It was also denied that this gitwar was part of khasra No. 8190. Suit land was ownership of shamilat Bhojian Thola Malwan. During consolidation its khasra No. was 559 and prior to that it was the ownership of Pana Bhojian and some part was in lal dora and now gram panchayat Majra Bhimpan and Pana Bhojian Thola Malwan were raising construction of Vikas Centre after Collecting donations from the residents of the village for the benefit of the public at large. Walls to the height of 12, 15 feet have been raised and earth filling to the extent of 8 feet x 10 feet has taken place and construction is almost complete. 3. Addition Civil Judge (Senior Division), Jhajjar directed both the parties to maintain status quo with regard to the possession and construction till the disposal of the suit vide order dated 2.9.1999. 4. Not satisfied with this order of Additional Civil Judge (Senior Division), Jhajjar dated 2.9.1999, Daryao Singh and other defendants went in appeal. 3. Addition Civil Judge (Senior Division), Jhajjar directed both the parties to maintain status quo with regard to the possession and construction till the disposal of the suit vide order dated 2.9.1999. 4. Not satisfied with this order of Additional Civil Judge (Senior Division), Jhajjar dated 2.9.1999, Daryao Singh and other defendants went in appeal. Additional District Judge, Jhajjar vide order dated 8.12.1999 allowed the appeal and dismissed the application of the plaintiff-respondents filed under Order 39 rules 1 and 2 read with Section 151 CPC. 5. Not satisfied with the order dated 8.12.1999 of Additional District Judge, Jhajjar, Sher Singh and Bhoop Singh plaintiffs have come up in revision to this Court. 6. I have heard the learned counsel for the parties and have gone through the record. 7. It was submitted by the learned counsel for the petitioners (plaintiffs) that the learned trial Court after considering the entire pros and cons of the matter had ordered the parties to maintains status quo with regard to the construction and possession over the suit land till the disposal of the suit and this order should not have been interfered with by the learned first appellate Court. It was submitted that appeal against the order of the trial Court disposing of temporary injunction matter should have been treated more like a revision than an appeal and the appellate Court should have been very slow in reversing the exercise of discretion by the trial Court. Appellate Court could have reversed the discretion exercised by the trial Court if its exercise was unreasonable, capricious and perverse. It was submitted that the case of the petitioner-plaintiffs was that in the bandobast of 1879, Paras Ram and others were in possession of khasra No. 8190. Plaintiffs and others was are residents of village Majra Dubaldhan used the site for tethering their cattle, keeping waste and cow dung etc. It was further submitted that defendants-respondents who are residents of village Bindhyan Majra have no right, title or interest in the suit property and thus should have been restrained from interfering with their peaceful possession of gitwar and raising any construction over there. It was further submitted that the learned trial Court had given temporary injunction to the petitioners (plaintiffs) keeping in view the report of the local Commissioner and the demarcation report. It was further submitted that the learned trial Court had given temporary injunction to the petitioners (plaintiffs) keeping in view the report of the local Commissioner and the demarcation report. Local Commissioner submitted his report dated 9.7.1999 stating that foundations had already been laid and two rooms were under construction. Building material was lying there. Demarcation report showed encroachment to have been made in khasra No. 8190. It was submitted that the gram panchayat of village Majra Bindhyan had no right or control over the area covered by the gram panchayat of village Majra Dubaldhan. Khasra No. 8190 is situated within the territorial jurisdiction of village Majra Dubaldhan. It was submitted that the plaintiffs are the descendants of Mukh Ram, Paras Ram, Amrit etc. as per pedigree table and this gitwar is situated in khasra No. 8190 and in not shamilat deh Pana Thola Bindhyan. At the demarcation, it was found that khasra No. 559 touches the eastern doll of khasra No. 8190 as per settlement of 1879. It was submitted that the defendants case that khasra No. 8190 became khasra No. 559 was not supported by any material or record. It was submitted that demarcatin report showed the existence of khasra No. 8190 which is not merged in any other khasra number nor during consolidation, khasra No. 8190 was given a new khasra number. 8. Learned counsel for the respondents defendants, on the other hand, submitted that the learned appellate Court had justifiably vacated the statute quo order as their plea is that the suit proerty commprises khasra No. 559 and is owned and possessed by Shamilat Pana Bhojian Thola Malwan where Vikas centre is being constructed after raising donations from various persons of this village which will benefit the public at large. Main thrust of the argument of the learned counsel for the plaintiff respondents was that this gitwar is part of khasra No. 8190 which was in possession of their forefathers in the settlement of 1879. Plaintiffs and others who are residents of village Majra Dubaldhan used this gitwar and defendants who are residents of village Majra Vindyan have no right, title or interest in this gitwar and khasra No. 8190 is situated within the territorial jurisdiction of the gram panchayat of village Dubaldhan. 9. Plaintiffs and others who are residents of village Majra Dubaldhan used this gitwar and defendants who are residents of village Majra Vindyan have no right, title or interest in this gitwar and khasra No. 8190 is situated within the territorial jurisdiction of the gram panchayat of village Dubaldhan. 9. It lay upon the plaintiffs-respondents to prove prima facie that they had a case on merits and that if injunction was not granted to them, they would suffer irreparable injury and further balance of convenience was also in their favour inasmuch as if injunction was granted to them, there will be less injury to the respondent defendant vis-a-vis the injury which they would be put to if injunction was not granted to them. It is true that the plaintiffs- respondents were required to satisfy all the three ingredients which are necessary to be satisfied before being entitled to the grant of temporary injunction. It was submitted by the learned counsel for the petitioners plaintiffs that the learned trial Court has passed an order only directing the parties to maintain status quo. It is an innocuous order which should not have been disturbed in appeal. Suffice it to say, gram panchayat is raising construction of Vikas Centre. For raising construction of Vikas Centre, they have collected donations from various persons of village Majra Vindyan. It is laudable object for which the gram panchayat of village Majra Bindhyan is intending to raise construction which the plaintiffs-petitioners are stalling Defendants-respondents pleaded that construction is almost complete. 10. Learned counsel for the plaintiff-petitioners submitted that at the spot khasra No. 8190 is existing. There is no merger of this khasra number in any other khasra number in consolidation as per para VII-a of the scheme of consolidation area within abadi of Pana Bhojian and Pana Jatan was not touched as the same had been occupied by the proprietors in the shape of gitwars. 11. Defendants-respondents are raising construction saying that it is khasra No. 559. Plaintiffs-petitioners to stall the raising of construction by them say that this is khasra No. 8190 which is in their possession since the times of their possession since the times of their ancestors namely Paras Ram and others. Construction is almost complete. It is Vikas Centre which is being constructed. It will benefit public at large. Plaintiffs-petitioners to stall the raising of construction by them say that this is khasra No. 8190 which is in their possession since the times of their possession since the times of their ancestors namely Paras Ram and others. Construction is almost complete. It is Vikas Centre which is being constructed. It will benefit public at large. Mere acts of user such as throwing rubbish, placing dung cakes, tethering cattle do not clothe one with possession. If a person is claiming that he is in possession of a particular site because of the throwing of rubbish, placing of dung cakes, tethering of cattle, he cannot stall the other party from raising construction if the other party lays claim to ownership when the other party is gram panchayat raising construction which will benefits the public at large. It was held in Mohan Lal v. Mohan Singh, 1995(3) PLR 564 as follows : "Order 39, Rules 1 and 2 CPC - Government lands - Government holds property as a trustee of the people and, therefore, where any attempt is made by an individual or a group of individuals to misappropriate/misuse or otherwise interfere with the enjoyment of public property by the people in general, the Courts have to be extremely cautious in granting injunction in favour of such person only on the ground that he is in possession of the property. Possession of public property by such an individual or a group of individuals is no possession in the eye of law. Such a person cannot claim any right whatsoever on the basis of unlawful occupation of the public property." 12. For the reason given above, I am of the opinion that the learned trial Court justifiably vacated the status quo order passed by the learned trial Court as the effect of the direction to the defendants that they shall maintain status quo would be to restrain them from raising construction which they are raising with an object which is highly laudable. Court cannot restrain a party from the exercise of its legitimate rights over a piece of property for the sake of mere asking by the other party. That party will have to satisfy the Court that it has prima facie case in its favour and if injunction is not granted, there will be irreparable injury to him and the balance of convenience principle is also in its favour. 13. That party will have to satisfy the Court that it has prima facie case in its favour and if injunction is not granted, there will be irreparable injury to him and the balance of convenience principle is also in its favour. 13. This revision fails and is dismissed. Defendants-respondents gram panchayat of village Majra Bindhyan, Tehsil Beri shall, however, execute separate undertaking in the sum of Rs. 1 lac before the trial Court that in case the plaintiffs-respondents suit succeeds, they will readily demolish the construction. Revision dismissed.