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2000 DIGILAW 996 (PNJ)

Sardara Singh v. B. D. P. O.

2000-08-25

R.L.ANAND

body2000
JUDGMENT R.L. Anand, J. - This is a Civil Revision and has been directed against the order dated 6.4.1999 passed by the learned Additional District Judge, Ludhiana, who dismissed the appeal of the petitioner by affirming the order dated 4.11.1996 passed by the Court of Civil Judge, who dismissed the application of the petitioner Shri Sardara Singh son of Shri Dalip Singh under Order 39 Rules 1 and 2 C.P.C. 2. Some facts can be noticed in the following manner. The suit was instituted by Sardara Singh against the Director Panchayat and Rural Development and the B.D.P.O., Sidhwan Bet Block and he sought permanent injunction restraining them from dispossessing or interfering in any way in his peaceful and cultivating possession of the suit land. According to the plaintiff he is in possession of the suit land measuring 72 Kanals since 1981 and the property in dispute was the ownership of Jumla Mustarka Malkan and the plaintiff was also a co-sharer and the defendants have no concern with the suit land and moreover, the same does not belong to the Gram Panchayat. Gram Panchayat filed a writ under Article 226 of the Constitution of India in the High Court against the order dated 3.5.1995 of Addl. Director of Consolidation but the same was dismissed on 16.8.1995. Defendant No. 2 is raising the threat to interfere in the possession of the plaintiff by giving the suit land on lease by auction. Notice under Section 80 C.P.C was also given and the defendants were called upon not to interfere in the possession but to no effect. Hence the suit. 3. The suit was contested by the defendants. A preliminary objection was raised that the Gram Panchayat of village Bhatha Dhua usually gets the lease money of the suit land and it is a necessary party. The suit land was always auctioned by the Gram Panchayat and the suit of the plaintiff is not legally maintainable. It was also stated by the defendants that the State of Punjab is a necessary party. 4. On merits, the stand of the defendants was that plaintiff was not in lawful possession of the suit land. His possession is illegal because the suit land was duly auctioned by the Gram Panchayat for the year 1993-94 and it was given on lease to Shri Ranjit Singh for one year against consideration of Rs. 30,000/-. 4. On merits, the stand of the defendants was that plaintiff was not in lawful possession of the suit land. His possession is illegal because the suit land was duly auctioned by the Gram Panchayat for the year 1993-94 and it was given on lease to Shri Ranjit Singh for one year against consideration of Rs. 30,000/-. The plaintiff was not in possession of the suit land because in the year 1985, eucalyptus trees were planted in the suit land and thereafter given on lease to Shri Sikandar Singh for three years and that Dalip Singh father of Sardara Singh plaintiff also gave the approval regarding the auction of the land for the year 1993-94. The suit property was the ownership of Zumla Mustarka Malkan. The plaintiff is not co-sharer. It was the stand of the defendant that the Gram Panchayat had all the rights on the Zumla Mustarka Malkan land except for selling and the Gram Panchayat was entitled to take care of the said land and is further entitled to use it for the betterment of the village. 5. Alongwith the suit the plaintiff filed an application under Order 39 Rules 1 and 2 C.P.C. that during the pendency of the suit he should not be dispossessed. This application was also opposed on the ground that plaintiff is a trespasser. 6. The learned trial Court vide order dated 4.11.1996 dismissed the application under Order 39 Rules 1 and 2 C.P.C. 7. Aggrieved by the order dated 4.11.1996, the plaintiff-petitioner filed an appeal and it was also dismissed by the first appellate Court on 6.4.1999 for the reasons given in para No. 7 of its judgment, which are as under :- "The argument advanced by Shri B.B. Singh Sobti, Advocate, counsel for the appellant at the outset was that findings of the learned lower Court that the plaintiff-appellant had concealed material facts of the filing of the previous suit regarding the property in dispute from the notice of the suit stood contradicted when it was later on observed in the impugned order that in para No. 13 of the plaint, it stood recorded that Civil suit was already pending in the Court of Shri Dharam Singh, Additional Civil Judge, Sr. Division, Jagraon and that Court had passed the order regarding the possession of the said application of the applicant during the pendency of the suit. Division, Jagraon and that Court had passed the order regarding the possession of the said application of the applicant during the pendency of the suit. His argument was that the application had, thus, been dismissed on wrong apology that the plaintiff had concealed the material facts regarding the pendency of the previous suit from the notice of the Court. I have considered this contention of the learned counsel in the background of the facts on the file. In para No. 13 of the plaint, it stood recorded that the plaintiff had already filed a civil suit against Gram Panchayat village Bateha Dhua regarding the suit land which was pending in the Court of Shri Dharam Singh, Additional Civil Judge, Sr. Division, Jagraon where the order of status quo regarding the possession on the stay application of the applicant stood passed but the full particulars of the suit with details of the order passed were not supplied by the plaintiff. Even if it is said that the plaintiff had no intention of concealing the facts of the suit from the knowledge of the Court is debatable question from the other angle as well. There is no answer to the question as to why the State Government has not been arrayed as party to the suit and only the officers like Director Panchayat and Rural Development and B.D.P.O. Sidhwan Bet, had been arrayed as defendants. The provisions of order 27 Rule 5/- C.P.C. have, thus been violated. Again it is a fact to be reckoned with that no notice as is envisaged under Section 80 C.P.C. has been served upon the defendants. As per the averments contained in para 10 of the plaint, notice was served upon the defendants on 8.7.1996 asking them not to interfere in the possession of the plaintiff over the suit land and that the defendants had not given any reply and hence the suit was filed by the plaintiff on 26.7.1996. Notice required to be served under Section 80 CPC was of two months duration before filing the present suit. Again the maintainability of the present suit is also debatable issue, in view of the pendency of the earlier suit in the Court of Shri Dharam Singh, Additional Civil Judge (Sr. Division), Jagraon. Notice required to be served under Section 80 CPC was of two months duration before filing the present suit. Again the maintainability of the present suit is also debatable issue, in view of the pendency of the earlier suit in the Court of Shri Dharam Singh, Additional Civil Judge (Sr. Division), Jagraon. The argument of the learned counsel that suit was against Gram Panchayat and in the present suit the defendants were not the Gram Panchayat but the Director Panchayat and Rural Development and B.D.P.O. only, does not appear to be all correct. The impugned order, thus, cannot be said to be perverse and illegal and unless it is so held, it cannot be interfered with." 8. In this manner, the present revision has been filed. 9. I have heard Ms. Ritu Punj, learned counsel appearing on behalf of the petitioner and Shri K.S. Hissowal, learned counsel appearing on behalf of the respondents and with their assistance have gone through the record of the case. 10. The case set up by the plaintiff-petitioner in the trial Court was that he was in possession of the property since 1985. This stand of the petitioner prima facie appears to be false because this land was auctioned in the year 1993-94 in favour of Shri Ranjit Singh. Earlier the trees standing on this land were sold through auction to Shri Sikandar Singh. The father of the plaintiff approved the auction of the year 1993-94. There is no prima facie evidence to show that the name of the plaintiff figures in the column of ownership of the land. Assuming for the sake of arguments, the possession of the plaintiff is there, still this possession is without any right, or interest. 11. In these circumstances, a tres-passer cannot get the injunction against the rightful owner of the property. A person who seeks equity must do equity. If the possession of the plaintiff is without any right, he cannot be allowed to perpetuate his possession. 12. Faced with this difficulty, the learned counsel for the petitioner invited my attention to the Division Bench order of the Honble High Court dated 16.8.1995. I have gone through that order. The said order does not say that the plaintiff is a co-sharer or that he is holding the property since the year 1985 in his own right. 12. Faced with this difficulty, the learned counsel for the petitioner invited my attention to the Division Bench order of the Honble High Court dated 16.8.1995. I have gone through that order. The said order does not say that the plaintiff is a co-sharer or that he is holding the property since the year 1985 in his own right. Rather, the writ was filed by the Gram Panchayat and the challenge was given to the order of the Additional Director, Consolidation. Also there is no finding in the said order that the Gram Panchayat had no right to give the land on lease. 13. In these circumstances, I do not see any merit in this revision and the same is hereby dismissed with no order as to costs Revision dismissed.