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2009 DIGILAW 1404 (PNJ)

Bhagta Rsm v. State of Haryana

2009-08-12

SABINA

body2009
JUDGMENT Sabina, J.:- Plaintiff-appellant filed a suit for permanent injunction, which was dismissed by the Additional Civil Judge (Sr.Divn.), Meham vide judgment and decree dated 31.10.2006. In appeal, the said judgment and decree were upheld by the Additional District Judge, Rohtak, vide judgment and decree dated 7.6.2008. Hence, the present appeal. 2. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 and 3 of its judgment, are as under:- “2. Briefly stated, the allegations of the plaintiff as set out in his plaint are that he is inhabitant of village Meham, since the time of his ancestors. He is in occupation of land measuring 49 kanals comprising in Khewat No.330 Min, Khatoni No.3841, Khasra No.779 Min situated in the revenue estate of Tehsil Meham, district Rohtak as per the jamabandi for the year 1999- 2000 (for short ‘the land in dispute) for the last more than 35 years. The part of the land in dispute is covered by Satsang Bhawan, hotel and other construction raised gradually from time to time. Some of the land in dispute is used for agricultural purpose and some as cremation ground by the inhabitants of the village. The constructed area, agricultural land and the income of the hotel are used by him for the purpose of common religious and cultural rituals etc. A tubewell having electric connection meant for irrigation of the agricultural portion, is also in existence over the land in dispute. Whatsoever was being done since long on the land in dispute was with the consent and knowledge of the inhabitants of the village. Thus, the property is being utilized for common and religious purposes. The defendants have no concern or right to interfere over the same. The employees of the defendants have threatened to dismantle the construction over the land in dispute to deprive him (plaintiff) the user thereof and also to throw him out from there forcibly. They were asked not to do so but they have refused. Hence, the suit for a decree for permanent injunction restraining the defendant from interfering in his possession over the land in dispute and dismantling the construction raised in any manner. 3. The defendant No.1 put in appearance but did not file any written statement and reply to the injunction application. Hence, the suit for a decree for permanent injunction restraining the defendant from interfering in his possession over the land in dispute and dismantling the construction raised in any manner. 3. The defendant No.1 put in appearance but did not file any written statement and reply to the injunction application. However, the written statement and reply to the injunction application filed by the defendant No.2 were adopted as also to be those of the defendant No.1. This is clear from order dated 9.10.2004 passed by the learned lower Court. 4. The defendant No.2 in its written statement has pleaded that the suit was not maintainable in the present form. The plaintiff has no legal capability to bring the same against it because he is not a shareholder in the shamlat Deh, situated in the revenue estate of village Meham. He is merely an inhabitant of the village. The land in dispute vests in the Municipal Committee, Meham. Suit is bad for want of joinder of necessary parties. No case of action has accrued in favour of the plaintiff to file it which is not properly valued. It is bad for want of issuance of notice under Section 52 of the Municipal Act, 1973 as well as 80 CPC. The plaint has not been properly verified as required under Order 6 Rule 15 CPC. The plaintiff is not in possession of the land in dispute and possession, if any, has no sanctity in law. A person, who has encroached upon the common property of the locality or public institution, is not entitled to seek the relief under the Specific Relief Act. The plaintiff is attempting to acquire propriety rights in the shamlat deh by pleading that the land in dispute was being used for Satsang, running a hotel etc. Installation of a tubewell and acquiring an electric connection are nothing but the act to grab the public property only. The receipts of payment of electricity bills etc. have been collected intentionally in collusion with the concerned persons. No religious ceremonies are ever performed as alleged. Thus, the plaintiff is not at all entitled to the relief. The allegations of the plaintiff regarding extending threats by the officials of the defendants for dispossessing him are false and concocted. The other allegations were also denied in toto. have been collected intentionally in collusion with the concerned persons. No religious ceremonies are ever performed as alleged. Thus, the plaintiff is not at all entitled to the relief. The allegations of the plaintiff regarding extending threats by the officials of the defendants for dispossessing him are false and concocted. The other allegations were also denied in toto. With these pleadings the defendants have prayed for the dismissal of the suit with special costs under Section 35-A CPC.” 3. On the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether the plaintiff is in possession over the property in dispute as mentioned in the prayer clause? OPP 2. Whether the suit is not maintainable in the present form? OPD 3. Whether the plaintiff is no more a share-holder having alrights in shamlat deh property? OPD 4. Whether the plaintiff has got no cause of action to file the present suit? OPD 5. Whether the suit is bad for want of notice u/s 52 of the Haryana Municipal Act? OPD 6. Whether the suit has not been verified as per the requirement of order 6 Rule 15 CPC? OPD 7. Relief. 4. After hearing learned counsel for the appellant, I am of the opinion that the present appeal deserves to be dismissed. 5. The plaintiff filed a suit for permanent injunction that the defendants be restrained from interfering in his possession and dismantle the construction raised in any manner. However, both the Courts below, after appreciating the evidence led by the parties on record, have held that the land in dispute was shown as Shamlat Deh and was being used for common purposes. The same vested in the Municipal Committee vide amendment made in the year 1999 in Section 61, in the Haryana Municipal Act, 1973. There was a cremation ground in some portion of the suit land. A Satsang Bhawan had also been raised in some portion of the suit land. A hotel was also in existence in the suit land. The cremation ground and Satsang Bhawan are being used by the public at large. The plaintiff could not tell the exact area of the Satsang Bhawan and cremation ground nor could tell the exact area, which was being used for agricultural purposes. A hotel was also in existence in the suit land. The cremation ground and Satsang Bhawan are being used by the public at large. The plaintiff could not tell the exact area of the Satsang Bhawan and cremation ground nor could tell the exact area, which was being used for agricultural purposes. In these circumstances, the Courts below gave a finding of fact that the plaintiff had failed to establish his exclusive possession over any specific portion of the suit land. As per the revenue entries, the plaintiff was not proved to be in possession of 49 kanals of land in dispute on the day, the suit was filed. Moreover, observation made by learned Additional District Judge that the revenue entries had been changed from time to time without any rhyme or reason after appreciating the relevant entries also call for no interference. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. ------------