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2001 DIGILAW 1299 (PNJ)

Baru v. Tek Ram

2001-11-21

R.L.ANAND

body2001
JUDGMENT R.L. Anand, J. - This is plaintiffs regular second appeal and has been directed against the judgment and decree dated 24th January, 1985 passed by the Court of Additional District Judge, Jind who allowed the appeal of the defendants by setting aside the judgment and decree dated 2nd April, 1983 passed by the court of Sub Judge Ist Class, Narwana who decreed the suit of the plaintiffs for permanent injunction. 2. The case set up by the plaintiffs in the trial Court was that the Johar (pond) measuring 21 kanals 5 marlas comprised in Khasra No. 502/2 situated in village Danoda Kalan is Gair Mumkin Johar for the last 150-200 years and it is being used for common purpose of the whole village. The villagers show water to their cattle heads and they take bath. They also take drinking water from this Johar and the people also wash their clothes. The defendants Sarvshri Rajmal, Tek Ram etc. wanted to take forcible possession of the Johar by raising construction and by converting the Johar into the bara and for this purpose, they had collected bricks and started throwing cow-dung at the spot. They have no right to do so. Hence the suit. 3. Notice of the suit was given to the defendants. Defendant No. 1 Rajmal in his written statement has admitted the claim of the plaintiffs. However, the other defendants in their joint written statement have denied the allegations of the plaintiffs and it is asserted that, in fact, the Johar in dispute is owned and possessed by the defendants and accordingly they are entitled to use this land in any manner they like and the plaintiffs and the other villagers have no right or concern with this land. It is also alleged by the defendants that they have constructed the pond in some portion of this land and the remaining land is being used by them for their benefit. It is then alleged that in the land measuring 3 kanals 8 marlas they have already laid foundation and have collected material for making construction. The plaintiffs have no locus standi to file the suit and that the suit is not maintainable in the present form. 4. From the pleadings of the parties, the trial Court framed the following five issues : 1. Whether the suit property is used for common purposes of the village as alleged/OPP. 2. The plaintiffs have no locus standi to file the suit and that the suit is not maintainable in the present form. 4. From the pleadings of the parties, the trial Court framed the following five issues : 1. Whether the suit property is used for common purposes of the village as alleged/OPP. 2. Whether the defendants want to encroach upon the suit property ? OPP. 3. Whether the suit is not maintainable in the present form ? OPD. 4. Whether the plaintiffs have no cause of action to file the present suit ? OPD. 5. Relief. 5. The parties led evidence in support of their case and vide judgement and decree dated 2nd April, 1983 the suit of the plaintiffs was decreed by the trial Court. Aggrieved by the judgment and decree of the trial Court the defendants filed appeal in the Court of Additional District Judge, Jind, who vide the impugned judgment and decree dated 24th January, 1985, allowed the appeal of the defendants and dismissed the suit of the plaintiffs for the following reasons given in para Nos. 7 and 8 of the judgment : "7. With regard to issue No. 1 it may be stated that according to the case of the plaintiffs, the suit land bearing Khasra No. 502/2 measuring 21 kanals 5 marlas is being used for common purposes of the village and accordingly, the defendants have no right to encroach upon any portion of this land or to make construction etc. on it. In order to prove that this land is reserved for common purposes during consolidation proceedings, reliance has been placed upon copy of Jamabandi for the year 1977-78 Ex.P1, copy of scheme of consolidation Ex.P2, entry from proceedings register Ex.P.3 and copy of Jamabandi for the year 1964-65 Ex.P.5. It is an admitted fact that old Khasra number of this land was 501/2. Perusal of Jamabandis Exhibits P5 and P1 would show that therein the defendants have been shown to be owners and in possession of this land. However, in column No. 8 of the jamabandi this land has been described as Gair Mumkin Johar. Then in Ex.P.2 (also Ex.D.1) which is a copy of the details of land reserved for common purposes by the consolidation department, the land comprised in Khasra No. 501 has been shown to be johar within the Phirni and is reserved for common purposes. Then in Ex.P.2 (also Ex.D.1) which is a copy of the details of land reserved for common purposes by the consolidation department, the land comprised in Khasra No. 501 has been shown to be johar within the Phirni and is reserved for common purposes. However, in the end of Ex. D.1 there is a note that if the land reserved for common purposes was owned and possessed by any person then the same will remain in the name of that person and that if any piece of land out of this land is taken out for constructing road or used for any other purpose then owners will be compensated with some other land. Then perusal of entry Ex.P3 from the proceedings register of consolidation it would come out that against this khasra No. 501 it is incorporated that this land has been correctly reserved and its ownership will remain as it was before the said reservation. Therefore, from this document Ex.P.3 it comes out their earlier to reservation of this land for the common purposes it was owned and possessed by the defendants which fact is also clear from the jamabandi Ex.P.5. Thus, from the perusal of the above documents of the revenue and consolidation departments it comes out that although the land in dispute was reserved for common purposes during consolidation proceedings yet its ownership remained with the defendants. Thus, from the perusal of the above documents of the revenue and consolidation departments it comes out that although the land in dispute was reserved for common purposes during consolidation proceedings yet its ownership remained with the defendants. Section 23-A of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act is as under :- "As soon as a scheme comes into force the management and control of all lands assigned or reserved for common purposes of the village under Section 18 : (a) In the case of common purposes specified in sub-section (iv) of Section 2 in respect of which the management and control are to be exercised by the State Government, shall vest in the State Government, and (b) In the case of any other common purpose, shall vest in the Panchayat of that village, and the State Government or the panchayat as the case may be shall be entitled to appropriate the income accruing therefrom for the benefit of the village community, and the rights and interests of the owners of such lands shall stand modified and extinguished accordingly : Provided that in the case of land assigned or reserved for the extension of village abadi or manure pits for the proprietors and non-proprietors of the village such land shall vest in the proprietors and non-proprietors to whom it is given under the scheme of consolidation." Thus according to this provision it is only management and control of lands left for common purposes which vests in the Gram Panchayat and not the ownership as such and the ownership of such lands reserved for the extension of village abadi vests in the proprietors to whom it has come in the scheme of consolidation. In this connection, reference may be made to an authority of Honble High Court reported as Dharam Singh v. Ram Dia and others, 1983 P.L.J. 76 wherein it is held that in such situation that once the land is reserved for the extension of village abadi in the scheme of consolidation then it vests in the proprietors for whom it was so reserved. In the case in hand although in the scheme of consolidation Ex.D.1 it is not specifically mentioned that this land is reserved for extension of village abadi or for manure pits etc. In the case in hand although in the scheme of consolidation Ex.D.1 it is not specifically mentioned that this land is reserved for extension of village abadi or for manure pits etc. yet as in this document other pieces of land have been reserved for other specific purposes it comes out that this land was impliedly reserved for extension of village abadi or for manure pits etc. This inference can also be gathered from the fact that this land reminded under the ownership and possession of the defendants and also from the fact that there is a stipulation in this scheme that if any land is taken out from this land for any other common purpose then the proprietors will be compensated in lieu of other land. Thus from these circumstances it comes out that the land in dispute vests in the defendants and not in the panchayat etc. If that be so then the question of making encroachment by the defendants does not arise especially when in the revenue record they have been shown to be owners in possession of this land. Therefore, the findings of the learned trial Court on issue Nos. 1 and 2 are reversed. 8. With regard to issue Nos. 3 and 4 the learned counsel for the defendant- appellants has argued that if any land is reserved for common purposes in the scheme of consolidation then only its management vests in the panchayat and accordingly, plaintiffs have no cause of action to file this suit nor the suit in the present form is maintainable. In Dharam Singhs case (supra) it has been held by the Honble High Court that under Section 23-A of the Act it is only the management and control of the land left for common purposes which vests in the gram panchayat and not the ownership as such. Now if the ownership of such land remains with the proprietors and only its management vests with the Panchayat then it follows that only the panchayat has a right to file the suit against the defaulting proprietors and no individual has a right to file such a suit. Now if the ownership of such land remains with the proprietors and only its management vests with the Panchayat then it follows that only the panchayat has a right to file the suit against the defaulting proprietors and no individual has a right to file such a suit. Then even if for the sake of arguments it be assumed that this land vests in the panchayat then also as held in Chatra and others v. Bhana and others, 1982 P.L.J. 98 it was for the gram panchayat to institute the proceedings if it thought it necessary to safe-guard the interest of the villagers. In this view of the matter, plaintiffs who are two in number have no right to file such a suit. Then even if for the sake of arguments it be assumed that apart from the Panchayat the villagers are also entitled to file such a suit then also the plaintiffs in their individual capacity, especially when they have not pleaded any special damages to them have no right to file this suit and at best they could file a suit in the representative capacity under Order 1 Rule 8 of the Code of Civil Procedure. Therefore, in view of the these circumstances, I hold that neither the suit in the present form is maintainable nor the plaintiffs have any cause of action to file the suit. Therefore, the findings of the learned trial Court on issue Nos. 3 and 4 are reversed." 6. This time the plaintiffs are not satisfied with the judgment and decree of the first Appellate Court. Hence the present appeal. 7. I have heard Shri Bhoop Singh, learned counsel appearing on behalf of the appellants and Shri Rajesh Chaudhary, learned counsel appearing on behalf of the respondents and with their assistance, have gone through the record of this case. 8. During the pendency of this appeal the respondents filed an application under Order 41 Rule (sic) C.P.C. in order to place on record a copy of the order dated 30th April, 1990 passed by the Assistant Collector Ist Grade, Narwana, who declared that the land in suit not a Johar. It never vested in the Gram Panchayat Since the controversy of the present suit has been decided by the competent Court of jurisdiction on 30th April, 1990, therefore, I am inclined to admit this document into evidence. It never vested in the Gram Panchayat Since the controversy of the present suit has been decided by the competent Court of jurisdiction on 30th April, 1990, therefore, I am inclined to admit this document into evidence. This document will help me in the just decision of the case. Moreover, it is a copy of the order of the competent authority and there are no chances of any fabrication etc. Even otherwise, this order was passed during the pendency of the litigation. For all these valid reasons I have accepted this document into evidence. First of all I will discuss this very document which will clear the case of the appellants. The Gram Panchayat filed an application under Section 7 of the Punjab Village Common Lands Act, as applicable to the State of Haryana, against Shri Tek Ram, Zila Singh, Dalip Singh, Sube Singh, Surgan and Lalji and the case set up by the Gram Panchayat before the Assistant Collector was that the Panchayat was in possession of the land in question. It was a Gair Mumkin Johar which was in existence for the last 150-200 years. The land was being used for common purposes of the villagers. The common purpose was taking drinking water and for the showing water to the cattle heads. The respondents wanted to take forcible possession. In other words, the Gram Panchayat claimed the property being Shamlat deh. This is exactly the case of the plaintiff-appellants before me. This application was contested by the respondents before the Assistant Collector and finally the Collector by relying upon the revenue record specially the Jamabandi for the year 1977-78 came to the conclusion that the ownership of the land was not shamilat deh or that the Gram Panchayat was not the owner, therefore, the application of the Gram Panchayat was dismissed. This order dated 30th April, 1990 has become final as it has never been challenged either by any other interested person of the village or by the Gram Panchayat itself. Once this order is held to be final, the only inference would be that the land in question is not shamilat deh and, as such, the villagers of the village cannot agitate by saying that it is a Johar meant for common purposes or that it is a shamilat one or that they have the right to use the same. 9. 9. Learned counsel appearing on behalf of the appellants vehemently submitted that in the consolidation scheme, the property has been shown as Johar for common purposes and, therefore, the plaintiffs have the locus-standi to file the present suit for permanent injunction. In support of his contention, the counsel also drew my attention to the document Ex.P-1. I have gone through this document very carefully and am of the opinion that it is not helpful to him. Firstly against this khasra number, the Johar has not been shown. Rather a Phirni has been shown. Secondly there is a note in this document that the name of the owners shall not be disturbed from the column of ownership. The consolidation scheme took place somewhere in the year 1981. As against this document, let us examine the other revenue record. Exhibit P-2 shows Andruni Phirni. Similar is the entry in Ex. P-3. Exhibit P-5 is the Jamabandi for the year 1964-65. In the column of ownership the names of Sarvshri Raj Mal, Aadram, Sham Singh, Dal Singh etc. appear. Meaning thereby these people are co-sharer in the column of cultivation. It has been shown "Makbuja Malkan" (in the possession of the owners) It has never been shown that it is in the possession of the Gram Panchayat. Had it been the property of the Gram Panchayat or Shamilat Deh, there would have been entry in column Nos. 4 and 5. In the Jamabandi for the year 1964-65 in column No. 8 it has been mentioned as "Gair Mumkin Johar" but this presumption cannot be drawn that this property was Shamilat Deh or it had been vested or deemed to have been vested in the Gram Panchayat. This entry of 1964-65 has again been repeated in 1977-78. This very entry was relied upon by the Assistant Collector Ist Grade in his order dated 30th April, 1990. The present plaintiffs never made any effort before the Assistant Collector to be a party in those proceedings. It is not shown on the record that the order dated 30th April, 1990 was collusive in nature. The first Appellate Authority has rightly taken into consideration the entire documentary evidence and rightly came to the conclusion that the property does not vest in the Gram Panchayat. Even otherwise, the plaintiffs have no locus standi to file the suit. The suit is not filed in the representative capacity. The first Appellate Authority has rightly taken into consideration the entire documentary evidence and rightly came to the conclusion that the property does not vest in the Gram Panchayat. Even otherwise, the plaintiffs have no locus standi to file the suit. The suit is not filed in the representative capacity. No special loss has been shown by the plaintiffs before filing the present suit. In these circumstances I am of the considered opinion that there is no merit in this appeal and the same is hereby dismissed. Appeal dismissed.