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2003 DIGILAW 533 (PNJ)

Narata (Dead) through LRs. v. State of Haryana

2003-04-10

SATISH KUMAR MITTAL

body2003
JUDGMENT Satish Kumar Mittal, J. - This judgment shall dispose of Civil Writ Petitions No. 5781 and 5782 of 1991, in which common questions of law and facts are involved. In both these writ petitions, the petitioners (now deceased through their legal representatives) have challenged the orders dated 18.2.1991 (Annexure P-5) passed by the Collector Kurukshetra, vide which they were ordered to be evicted from the land in question under Section 7(2) of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as the Act). 2. In Civil Writ Petition No. 5781 of 1991, Narata petitioner was ordered to be ejected from the land measuring 16 bighas comprising in Khasra Nos. 2146, 2147, 2142 and 2128 situated in the revenue estate of Village Sanghaur, Tehsil Thanesar, District Kurukshetra. In Civil Writ Petition No. 5782 of 1991, Keeru petitioner was ordered to be ejected from the land measuring 19 Bighas 6 Biswas comprising in Khasra Nos. 2114, 2123, 2129, 2244, 2245 and 2246 situated in the same village. In both the cases, respondent No. 3 Gram Panchayat filed ejectment applications against the aforesaid petitioners under Section 7(2) of the Act on 17.1.1990 before the Assistant Collector Ist Grade, Kurukshetra by alleging therein that the aforesaid land belongs to the Gram Panchayat and the petitioners are in unauthorised and illegal possession of the same. Despite the repeated requests made by the Gram Panchayat, they refused to vacate the land in question, therefore, they should be ordered to be evicted from the land in question and possession of the same be restored to the Gram Panchayat. 3. The petitioners contested the aforesaid applications by stating that the Gram Panchayat has no right to file the said applications because earlier also, it had filed similar applications for their eviction which were dismissed, therefore, the second application by the Gram Panchayat is not maintainable, and the Assistant Collector Ist Grade has no jurisdiction to hear such applications. The earlier decision passed by the Assistant Collector Ist Grade will operate as res judicata/i>. It was further pleaded that the Gram Panchayat is not the owner of the land in dispute because the petitioners have been in possession of the same as owners since time immemorial, therefore, they cannot be considered in unauthorised possession of the land in question, and their long possession has ripened into ownership. 4. It was further pleaded that the Gram Panchayat is not the owner of the land in dispute because the petitioners have been in possession of the same as owners since time immemorial, therefore, they cannot be considered in unauthorised possession of the land in question, and their long possession has ripened into ownership. 4. Both the parties were given full opportunity to lead their respective evidence. The Assistant Collector Ist Grade, vide his order dated 6.12.1990 (Annexure P-3) dismissed both the aforesaid ejectment applications filed by the respondent-Gram Panchayat, while observing that the Sarpanch had admitted in his statement that possession of the petitioners on the land in question is more than 40 years old and therefore, they cannot be ordered to be evicted. However, it was observed that the Sarpanch had acted against the interest of the Gram Panchayat, which caused loss to the Panchayat land, therefore, a request was made to the Deputy Commissioner, Kurukshetra to take disciplinary action against the Sarpanch. 5. Against the aforesaid order dated 6.12.1990 (Annexure P-3), the respondent-Gram Panchayat filed an appeal (Annexure P-4) before the Collector, Kurukshetra on 18.1.1991 along with an application for condonation of delay under Section 5 of the Limitation Act. The Collector condoned the delay in filing the appeal. After hearing both the parties, the Collector vide his order dated 18.2.1991 (Annexure P-5) allowed the appeal and set aside the aforesaid order dated 6.12.1990 passed by the Assistant Collector Ist Grade, and ordered the eviction of the petitioners from the land in question with penalty of Rs. 2,000/- per Hectare per year from 1985-86 onwards. The said orders have been challenged by filing the present writ petitions by the petitioners separately. 6. Learned counsel for the petitioners submitted that as per the documents available on the record i.e. jamabandis for the years 1960-61 and 1985-86, the Gram Panchayat is the owner of the disputed land. The possession of the said land has been recorded in the same of the petitioners. The contention of learned counsel is that the petitioners are in possession of the land in question from time immemorial, therefore, they have become owners of the same. The possession of the said land has been recorded in the same of the petitioners. The contention of learned counsel is that the petitioners are in possession of the land in question from time immemorial, therefore, they have become owners of the same. Secondly, learned counsel for the petitioners submitted that the present ejectment application filed by the respondent-Gram Panchayat is barred on the principle of res judicata/i> as the earlier application filed by the respondent- Gram Panchayat under Section 7(2) of the Act their eviction was dismissed. In support of his contention, learned counsel relied upon the decisions in Azamu v. The Collector Sonepat and others, 1983 PLR 681, Vir Singh alias Bir Singh v. Gram Panchayat, Village Dabkheri and anr., 1989(2) Recent Revenue Reports 122 (P&H) and Harya (died) through his LRs v. The Collector, Gurgaon, 1993(1) Recent Revenue Reports 100 (P&H). 7. In reply to the aforesaid contentions, learned counsel for the respondents submitted that there is no documentary evidence available on the record which shows that the petitioners were in possession of the land in question from time immemorial, and at least 12 years before the commencement of the Punjab Village Common Lands (Regulation) Act, 1953 or the Pepsu Village Common Lands (Regulation) Act, 1954 without payment of any rent or charge not exceeding land revenue. Therefore, it cannot be said that the land in question does not vest in the Gram Panchayat and the petitioners are not liable to be ejected under Section 7(2) of the Act. Regarding the second contention, learned counsel for the respondent-Gram Panchayat submitted that the earlier ejectment application filed by the Gram Panchayat was pertaining to different Khasra numbers, which are not the subject matter of the instant ejectment applications. Therefore, the principle of res judicata/i> will not be applicable in the instant case. The learned counsel for respondent No. 3 further submitted that the petitioners will not be ejected from the land which was the subject matter of the earlier ejectment applications. 8. In rebuttal, learned counsel for the petitioners submitted that even though the earlier ejectment applications were not pertaining to the Khasra numbers now in dispute but in spite of that the second application is not maintainable as the same is hit by the principle contained in Order 2 Rule 2 of the Civil Procedure Code (hereinafter referred to as the Code). In support of his contention, learned counsel for the petitioners relied upon Rakha Singh v. Amrit Land and others, AIR 1984 Punjab and Haryana 47. 9. I have considered the arguments of learned counsel for the parties and have perused the record of the cases. In my opinion, there is no force in both the contentions raised by learned counsel for the petitioners. Admittedly, as per the revenue record, placed on the record of the case, i.e. jamabandis for the years 1960-61 (Annexure P-7) and 1985-86 (Annexure P-8), the respondent-Gram Panchayat is the owner of the land in question. There is no documentary evidence available on the record which establish that the petitioners and their predecessors were in possession of the land in question 12 years prior to the commencement of the Punjab Village Common Lands (Regulation) Act, 1953 or the Pepsu Village Common Lands (Regulation) Act, 1954. Therefore, it cannot be said that the land in question does not vest in the Gram Panchayat in view of the exception contained in clause (ii) of sub- section (3) of Section 4 of the Act. 10. Learned counsel for the petitioners, while arguing the matters, has categorically admitted that except the oral statements, there is no documentary evidence available on the record to establish possession of the petitioners on the land in question from the time immemorial. The Collector has also recorded finding to the effect that there is no evidence available on the record to show possession of the petitioners from the time immemorial. In view of this factual position I am of the opinion that the land in question cannot be said to be not vesting in the Gram Panchayat, and the petitioners are liable to be evicted under Section 7(2) of the Act. Section 3(2)(ii) of the Act exempts only that Shamlat Deh from vesting in the Gram Panchayat upon which a person was in cultivating possession on the date of commencement of the Punjab Security of Land Tenures Act, 1953 or the Pepsu Village Common Lands (Regulation) Act, 1954 and was in such possession for more than 12 years of such commencement without payment of any rent or charge not exceeding the land revenue. The petitioners could not establish their rights in the aforesaid clause of the Act. The petitioners could not establish their rights in the aforesaid clause of the Act. Therefore, I am of the opinion that the petitioners are not entitled for any protection and are liable to be ejected under Section 7(2) of the Act. 11. As far as the non-maintainability of the present ejectment applications under Section 7(2) of the Act on the plea of res judicata/i> is concerned, I am of the opinion that the said plea is not available to the petitioners. Admittedly, the earlier ejectment applications filed by the respondents-Gram Panchayat were pertaining to different Khasra numbers. Therefore, the present ejectment applications which pertain to different Khasra numbers cannot be said to be not maintainable on the plea of res judicata/i>. The applicability of the principle of res judicata/i> will only arise if the subject matter of booth the proceedings is the same. I also do not find any force in the contention of learned counsel for the petitioners that the second ejectment application filed by the respondent-Gram Panchayat is barred by the principle of constructive res judicata/i> as contemplated under Order 2 Rule 2 of the Code. Order 2 Rule 2 of the Code precludes splitting up of a cause of action. The Rule provides that if the plaintiff omits any portion of the claim which he was entitled to make; or omits one of the reliefs, in case he is entitled to more than one relief, in respect of a cause of action, he shall not afterwards be entitled to sue for a part of the claim or the relief so omitted. But there is no material on the record that the respondent-Gram Panchayat was having any cause of action relating to the land in question at the time when the earlier ejectment applications were filed. Even the earlier orders passed by the Assistant Collector Ist Grade and the earlier applications filed by the respondent-Gram Panchayat have not been placed on record. Moreover, the provisions of Order 2 Rule 2 of the Code only preclude to claim a relief from the same cause of action which was not earlier sought or omitted. This provision is not applicable regarding different causes of action. In view of this factual position, the contention of the petitioners is this regard cannot be accepted. Moreover, the provisions of Order 2 Rule 2 of the Code only preclude to claim a relief from the same cause of action which was not earlier sought or omitted. This provision is not applicable regarding different causes of action. In view of this factual position, the contention of the petitioners is this regard cannot be accepted. The authorities cited by the learned counsel for the petitioners are not applicable in the facts and circumstances of the present case. 12. In view of the aforesaid discussion, I find no merit in both the writ petitions filed by the petitioners and the same are hereby dismissed with costs, which are quantified at Rs. 10,000/- in each petition. Petitions dismissed.