Judgment M.M.Kumar, J. 1. Challenge in this petition filed under Section 115 of the Code of Civil Procedure (for brevity the Code) is to the order dated 1.3.2001, passed by the Additional District Judge, Faridabad, accepting the appeal of the plaintiff-respondents, in which the order dated 12.12.2000 was impugned. The Civil Judge (Junior Division), Faridabad in his order dated 12.12.2000 has declined the prayer of the plaintiff-respondents for issuance of an interim order under Order 39 Rules 1 and 2 of the Code. 2. The facts, in brief, necessary for deciding the legal controversy raised in the present petition may, first be noticed. The plaintiff-respondents instituted Civil Suit No. 411 on 12.08.2000 for permanent injunction alleging that they are residents of village Badar-pursaid, Tehsil and District Faridabad. According to the averments made in the plaint, it is claimed that a pipe exists towards the pucca road on the Eastern and Western Wings through which the waste water of the dwelling house of the plaintiff-respondents is being discharged since long time and the waste water carried through the pipe falls in the village pond after passing through the two karams passage. The houses of the plaintiff-respondents are connected with the two karams passage through that pipe. The two karams passage is shown red in the site plan which has been placed on record by the defendant-petitioner and is marked "A". It is further pleaded that at one stage, one Lakhi Singh alongwith others made an attempt to remove the said pipe with an intention to encroach upon the two karams passage, which resulted into initiating proceedings under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 for brevity "the Act") through the Sarpanch and the Assistant Collector, Ist Grade, Faridabad held that the encroachment upon the passage was illegal, thereafter, Lakhi Singh filed a civil suit against the Gram Panchayat in respect of the same passage and sewerage. However, the prayer of Lakhi Singh for issuance of an interim injunction was declined vide order dated 19.5.1998. Even the appeal against the order dated 19.5.1998 was dismissed by the Additional District Judge on 3.12.1999. However, the prayer of Lakhi Singh for issuance of an interim injunction was declined vide order dated 19.5.1998. Even the appeal against the order dated 19.5.1998 was dismissed by the Additional District Judge on 3.12.1999. It is further alleged that the defendant-petitioner Lakhi Singh again in collusion with the present village Panchayat has been threatening to remove the cemented pipe and to encroach upon the passage of two karams in question forcibly and illegally, which has resulted into filling of the suit by the plaintiff-respondents alongwith the application under Order 39, Rules 1 and 2 read with Section 151 of the Code. 3. The stand of the defendant-petitioners in their joint written statement is that the plaintiff-respondents have made incorrect averments in their plaint because the cemented pipe was removed long ago in pursuance of the orders of the competent authorities and the plaintiff-respondents have been making efforts by putting the cemented pipe afresh by breaking the pucca road. It is denied that the two karams passage is meant for water outlet. According to them, the pucca road is four karams wide and the Gram Panchayat has conducted a small drain adjoining to the houses of the plaintiff-respondents and other residents of the village towards the Eastern Wing of the said passage which is described in the site plain marked "A" as "Filing water-Panchayat Land-Deep area". It is also alleged that one water outlet was left incomplete on account of obstruction caused by the plaintiff-respondents at the time of construction of pucca drain alongwith the four karams of wide passage. The defendant-respondents in its separate written statement has alleged that the plaintiff-respondents 1 to 9 had encroached upon the passage in question which is adjacent to the fields of defendant-respondents 10 to 13. It is further asserted that the Gram Panchayat defendant-petitioner has proposed construction of drain upon the said passage for the outlet of dirty water of the village. However, the present Gram Panchayat considered that the outlet of dirty water is beneficiary through the passage in question which has four karams of width and is more beneficial for the inhabitants of the village and the same may not be beneficial to the individual interest of the plaintiff-respondents. 4. After hearing, the Civil Judge dismissed the application of the plaintiff-respondents 1 to 9. 4. After hearing, the Civil Judge dismissed the application of the plaintiff-respondents 1 to 9. The Civil Judge recorded the finding that the Rasta measuring two karams wide existing on the spot is for the common use of the people. He further held that the pipe which has been affixed on the Rasta of the plaintiff-respondents had already been removed by order of the Sub Divisional Magistrate. He also referred to a copy of the Jamabandi in which the land in dispute is shown to be Shamilat Deh and the same is being used as Rasta of defendant-respondents 10 to 13 and the other inhabitants of the village. The Civil Judge also referred to the site plan marked "A" to conclude that the defendant-petitioner has planed to construct the outlet of waste water for the villagers and after construction of the proposed Nali (drain) shown in yellow colour, the water would fall in the "Filling water-Panchayat land-Deep area". The existence of two karams Rasta being used by the residents of the village alongwith defendant-respondents 10 to 13 is also proved by Aksh-Shizra. Further, reliance has been placed by the Civil Judge on the order dated 1.8.2000 passed by the B.D.& P.O, where directions were issued to uproot the cemented pipe installed by plaintiff-respondents No. 1 to 9 with the help of the police. The Panchayat was also directed to make pucca road and to ensure further that there may not be any wrongful installation of such pipe. The land in dispute is claimed to be Shamilat Deh which is meant for all the residents of the village and the defendant-petitioner Gram Panchayat was held to be owner of the land in dispute. On the basis of the aforementioned reasons, the application for ad interim injunction was rejected. 5. On appeal, the Additional District Judge, set aside the order dated 12.12.2000 passed by the Civil Judge and held that plaintiff-respondents 1 to 9 were entitled to the grant of interim injunction. The operative part of the order passed by the Additional District Judge, reads as under: "It is axiomatic from the perusal of the photocopy of the judgment passed by learned Additional District Judge vide dated 3.12.1999 in appeal preferred by the defendant No. 1 against Gram Panchayat and proforma defendants No. 2 to 4 against the order dated 19.5.1998 seeking ad interim injunction was dismissed. It transpires that no injunction was granted to the present defendants No. 1 to 4 in respect of two karams vide passage-pathway towards the Southern-Eastern wings of the lands of the plaintiffs. Further it is tremendously clear from the order dated 13.3.1996 passed by Assistant Collector, Ist Grade, Faridabad under Section 7 of the Punjab Village Common Lands (Regulation) Act that the present defendants were in unauthorised possession over the passage in question. Consequently, the resolution passed by the Panches Vide dated 12.7.2000 has no legs to stand because the passage in question is for the public purpose and to be used by the public at large and this fact has also been supported by the report of the Local Commissioner. Anyhow, the panchayat is supposed to watch the interest of the village as a whole but no an individual interest. Resultantly, the defendants are not competent to remove the water pie and to encroach upon the passage of two karams in question. Having a glance over the judgment dated 3.12.1999 rendered by the learned Additional District Judge with regard to the same passage, it can be safely gathered that rather the defendants have concealed material facts from the Court. Therefore, adverse inference is drawn against them. It also cannot be lost sight of that the defendants had tried their level best to protect unauthorised possession but they woefully failed. It is note-worthy that no objection have been filed by the defendants against the report of the local commissioner. Moreover so, Law Officer for respondent No. 5-Gram Panchayat conceded that the defendants No. 1 to 4 had made encroachment. Keeping in view these glaring facts and circumstances, I am inclined to the view that the plaintiffs have emerged as triumphant to prove prima facie case in their favour for grant of ad interim injunction in the contemplation of Order 39 Rules 1 and 2 read with Section 151 CPC." 6. Mr. Lokesh Sinhal, learned counsel for the defendant-petitioner/Gram Panchayat has made two-fold submissions before me. He has submitted that no order of injunction could be issued against the true owner. According to the learned counsel the land in dispute is a Shamilat Deh and, therefore, belongs to the defendant-petitioner/Gram Panchayat. Therefore, no interim injunction could be issued against the true owner, in favour of an encroacher. He has submitted that no order of injunction could be issued against the true owner. According to the learned counsel the land in dispute is a Shamilat Deh and, therefore, belongs to the defendant-petitioner/Gram Panchayat. Therefore, no interim injunction could be issued against the true owner, in favour of an encroacher. In support of his submission, the learned counsel has placed reliance on a judgment of this Court in the case of Municipal Committee Dhuri v. Bhagwan Das Mittal and Ors. (1999-1)121 The Punjab Law Reporter 124. It is further submitted that the Additional District Judge has committed a grave error by exercising appellate jurisdiction under Order XXXXIII Rule l(r) of the Code because no part of the findings recorded by the Civil Judge has been reversed. According to the learned counsel, the appellate Court cannot decide the appeal in a manner as if it was hearing the application for the first time, which is purely within the domain of the trial Court. Asserting that the requirement of prima facie case, balance of convenience and irreparable loss were satisfied and the trial Court granted the interim order on that basis. The learned counsel further submitted that before showing interference with the order of the trial Court by the appellate Court, the finding recorded by the trial Court should have been reversed. In support of his submission, the learned counsel has placed reliance on two judgments of this Court in the case of Mohan Lal v. Mohan Singh, (1995-3) 111 The Punjab Law Reporter 564 and Gram Panchayat Dharamkot and Anr. v. Harbhajan Singh and Ors., (1996-1)122 The Punjab Law Reporter 795. 7. Mr. Mahesh Grover, learned counsel for plaintiff-respondents 1 to 9 has argued that once it is conceded that defendant-respondents 10 to 13 had also made encroachment, then no fault could be found with plaintiff-respondents 1 to 9. He has further pointed out that the defendant-petitioner has concealed material facts from the Court. 8. After hearing the learned counsel for the parties and perusing the orders passed by both the Courts below, I have reached the conclusion that the approach adopted by the Additional District Judge cannot be approved. The detailed finding recorded by the Civil Judge with regard to the factual position on record has not been touched by the Additional District Judge because there was no material before him to do so. The detailed finding recorded by the Civil Judge with regard to the factual position on record has not been touched by the Additional District Judge because there was no material before him to do so. The Rasta measuring two karams wide has been admitted to be common passage for the use of the residents of the village which would vest in the Gram Panchayat as the nature of the land is Shamilat Deh. It is also worth-while to point out that under Section 7 of the Act, the Civil Court may not have even jurisdiction to entertain the suit filed by plaintiff-respondents 1 to 9. The order passed by the B.D.&P.O. on 1,8.2999, directing the removal of the cemented pipe of the plaintiff-respondents with the help of police has been completely ignored. Similar is the position with regard to the directions issued by the B.D.&P.O. to the Panchayat to ensure that no such cemented pipe is installed in future. The plan of the Gram Panchayat for making a outlet for the waste water has also not been referred to. A number of other findings recorded by the Civil Judge, as extracted in the paras above have been completely ignored. Such is not the jurisdiction of the appellate Court under Order XXXXIII Rule 1(r) of the Code. The appellate Court cannot consider the appeal against the order passed by the Civil Judge as it was hearing the application for the first time, but there was a duty cast upon the appellate Court to first consider the material sufficient to reverse the finding of prima face case, balance of convenience and irreparable loss and then record its own finding. In somewhat similar circumstances, this Court in Gram Panchayat Dharamkots case (supra) has taken the same view. Therefore, it is held that the order passed by the appellate Court is sketchy and perfunctory and is, thus, liable to be set aside. 9. Even otherwise, no injunction could be granted in favour of an encroacher against the true owner. The land in dispute is Shamilat Deh within the meaning of Section 2(g) of the Act and vests in the Gram Panchayat. Plaintiff-respondents 1 to 9 would not become entitled to the grant of any interim injunction as is held by this Court in the case of Municipal Committee, Dhuris case (supra). 10. The land in dispute is Shamilat Deh within the meaning of Section 2(g) of the Act and vests in the Gram Panchayat. Plaintiff-respondents 1 to 9 would not become entitled to the grant of any interim injunction as is held by this Court in the case of Municipal Committee, Dhuris case (supra). 10. For the reasons recorded above, this revision petition succeeds, the order passed by the Additional District Judge, Faridabad dated 1.3.2001 is set aside and that of the Civil Judge (Junior Division) Faridabad dated 12.12.2000, is restored. However, it is made clear that anything observed in this order shall not be taken as an expression of opinion on merits of this case which is based on impressions at the first blush.