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2010 DIGILAW 1642 (PNJ)

Pirbhu v. Mehtab Singh

2010-05-12

MAHESH GROVER

body2010
Judgment Mahesh Graver, J. 1. This appeal by the plaintiff is directed against the judgment of the first Appellate Court dated 18.1.2007. The facts of the case are to be noticed to appreciate the controversy.:- The appellant was having a house in a village. In dispute was Khasra No. 129 which was a village Johar. Respondent No.4 Gram Panchayat of the village initiated proceedings against the appellant under the provisions of Section 7 of the Punjab Village Common Land Regulation Act by pleading that he is in unauthorised occupation of Khasra No. 129, which is a village Johar. On the direction of the Asstt. Collector, Rohtak demarcation was got done which was to the satisfaction of both the parties and was unrebutted as no objection was preferred by either of the parties. The Asstt. Collector, Rohtak passed an order dated 14.6.1993, the relevant extract of which reads as under:- "After seeing the report of the Tehsildar very carefully, I have reached the conclusion, that the land- which is shown in the map as ABCD, is not the part of khasra No. 129. Respondent himself accepted that the Gram panchayat is the owner of khasra No. 129 as has been stated in his statement. Even according to section 2-g(4), Khasra No. 129 comes within the definition of Shamlat deh, because, it is gair mumkin Johar and is being used for public purposes. So this suit is dismissed to the extent that disputed land is not part of khasra No. 129, which is shown in the map as ABCD and it does not vest in the panchayat deh. Whereas, khasra No. 129 vests in the Panchayat deh." 2. An appeal was carried against this order before the Collector, Rohtak by three persons namely, Karan Singh, Ex-Panch, Tarachand and Raj Singh, Panch of Gram Panchayat, Dabodha Khurd. The Gram Panchayat Dabodha Khurd as an entity was also impleaded as respondent in these proceedings. The Collector concluded that the appellant was in possession of only 1 marla of land i.e. 4 karam in the east, 4 karam in the west and 4 karam in the south and ordered the ejectment of the appellant from this portion. It was observed on the basis of the report of the Local Commissioner that the appellant had encroached upon this area by placing mud. It was observed on the basis of the report of the Local Commissioner that the appellant had encroached upon this area by placing mud. The relevant portion of the order of the Collector dated 19.4.1994 is reproduced below :- "I have heard the arguments of counsel for all the parties and have perused the record of the lower court very carefully. As per jamabandi Ex.A-4 disputed land is part of Johar and Panchayat is the owner. During the course of the argument counsel for the appellant has raised the objection that disputed land has not been demarcated as per rule. I have again demarcated this land by AC 1st Grade Bahadurgarh in presence of both the parties. Both the parties are satisfied with this demarcation and all of them accept this demarcation. As per the report dated 22.3.94 by the AC 1st Grade, disputed land is the part of Khasra no. 129 and Gram Panchayat is the owner of this land. Respondent Pirbhu has illegal possession over the part of disputed land by placing the earth, on one Maria land i.e. 4 karam in the east, 4 Karam in the west, and 4 Karam in the south. Satbir Respondent No.3 has installed a door 5 karams towards the side of Johar from the marks shown in the Aks Sazra, which is installed with the intention to encroach the land. Therefore, I accept the appeal and pass the order that Pirbhu is ejected from the one marla land (4 x4 Karam) and Satbir is directed to close the door which is installed at a distance of 5 karam and due to this installation of the door, the land which comes in illegal possession, he is also ejected from this land. ..." 3. The appellant was being threatened with demolition of his house and he filed the instant suit for permanent injunction seeking to restrain the respondents from interfering in his peaceful possession over the house and from demolishing the same. He pleaded that the respondents are threatening to demolish the house in the garb of executing the orders of the Collector dated 19.4.1994. The respondents contesed the suit and denied the ownership of the appellant and pleaded that he has illegally encroached upon the land of the Gram Panchayat and the competent court has ordered the eviction of the appellant from the said area. The respondents contesed the suit and denied the ownership of the appellant and pleaded that he has illegally encroached upon the land of the Gram Panchayat and the competent court has ordered the eviction of the appellant from the said area. They disputed the site plan and denied that the house was ancestral but the proceedings before the Asstt. Collector and Collector were admitted to be a part of the record. In short, the defence was raised that the demolition which was sought for is justified and that the orders of the revenue authorities had become final. 4. The appellant during the course of proceedings was granted an interim protection on 2.6.2000 and the respondents were restrained from interfering in the possession of the appellant. The Gram Panchayat Dabodha Khurd moved an application on 21.7.2000 to get itself impleaded as a party, which was allowed on 26.7.2000. Thereafter they defaulted and did not participate in the proceedings and was proceeded ex-parte on 29.11.2002. In the meantime, on 26.7.2000 i.e. the date on which the Gram Panchayat was impleaded as party, the house of the appellant was demolished. The appellant thereafter preferred an application under order 39 Rule 2-A CPC seeking prosecution of the respondents for having violated the orders of the Court vide which injunction had been granted. The contempt petition was also answered along with the main suit. The trial Court concluded that the respondents had violated the orders of the Court and also held that the suit of the appellant deserves to be decreed and while doing so directed the respondents to reconstruct/restore the house in its original condition within two months from the date of pronouncement of the order failing which the appellant was entitled to reconstruct the house at the site in question at his own expenses and recover the same from the respondents. It also punished Mehtab Singh, Munshi Ram, Raj Singh, BDO Liakit Ali Khan and Satbir to undergo civil imprisonment for one month for willful and deliberate disobedience of the order dated 2.6.2000. It also punished Mehtab Singh, Munshi Ram, Raj Singh, BDO Liakit Ali Khan and Satbir to undergo civil imprisonment for one month for willful and deliberate disobedience of the order dated 2.6.2000. An appeal was filed by the present respondents No.l to 3 in which the findings of the learned trial Court were reversed and it was primarily observed by the first Appellate Court that the demolition was carried out pursuant to the directions of the Collector and therefore there was no infirmity in the action of the respondents who were merely acting under the orders of the Collector dated 19.4.1994. Aggrieved by the same the instant regular second appeal has been preferred in which learned counsel for the appellant has contended that in view of the facts which have been mentioned above the respondents were not authorised to carry out the demolition more so when neither the order of the Asstt. Collector nor the order of the Collector contemplated such action. It was further contended that the injunction was granted by the Court on 2.6.2000 which was to the knowledge of the respondents and even the Gram Panchayat which had got itself impleaded as a party on 26.7.2000 was knowing about the order, yet the same was violated by them and the demolition was carried out. He thus contended that the judgment of the learned trial Court was justified while the judgment of the first Appellant Court is erroneous. 5. Learned counsel for the respondents No.l to 3, on the other hand, justified the judgment of the first Appellate Court and contended that there is no role attributed to respondents No. 1 to 3 in the demolition of the house of the appellant and no infirmity can be said to have been committed by the first Appellate Court. Respondent No.4 Gram Panchayat despite having been served had not put in appearance and was proceeded against ex-parte on 10.3.2010. I have heard the learned counsel for the parties and have perused the impugned judgments and also the material shown during the course of arguments. 6. The foremost question that has to be considered by this Court is as to whether the orders of the Asstt. Collector and Collector ever contemplated demolition of the house of the appellant as interpreted by the first Appellate Court. The orders of the Collector and Asstt. 6. The foremost question that has to be considered by this Court is as to whether the orders of the Asstt. Collector and Collector ever contemplated demolition of the house of the appellant as interpreted by the first Appellate Court. The orders of the Collector and Asstt. Collector are unambiguous as would be seen from the extracts which have been reproduced in the foregoing paragraphs of this judgment. As a matter of fact, the appellant was found to be in unauthorised possession of only a small portion of Khasra No. 129 on which he is said to have placed the mud. By no stretch of imagination can such an order be construed as the one which authorised the demolition of the entire house of the appellant. At best, the only exercise that could have been undertaken by the respondents was that the mud which was lying in the disputed area could have been removed. There is no dispute regarding the demolition of the house of the appellant as it has been observed by the trial Court Court that the demolition was carried out but it was justified by the first Appellate Court, which, according to the opinion of this Court, can be termed to be perverse. The Supreme court in Kulwant Kaur & Ors. v. Gurdial Singh Mann (dead) by LRs and others,(2001-2)128 P.L.R. 492 (S.C.):A.I.R. 2001 S.C. 1273:(2001)4 S.C.C. 262 has held that where a perversity has been committed by a Court is a question of law. The Court therefore traverses to answer to this substantial question of law as to "whether an order which merely established an encroachment on the panchayat land in the shape of placing of mud on some portion of the disputed area could be termed to be an order of demolition of a super structure and whether the finding recorded by the first Appellate Court is perverse or not?" In the considered opinion of this Court the interpretation as laid by the first Appellate Court is not only erroneous but blatantly perverse. The term perversity as understood would mean an unacceptable conclusion or a conclusion which is blatantly erroneous arrived at by adopting an unsustainable and illogical reasoning. The term perversity as understood would mean an unacceptable conclusion or a conclusion which is blatantly erroneous arrived at by adopting an unsustainable and illogical reasoning. Even the simplest interpretation of the order of the revenue authorities would show that such a conclusion was absolutely unsustainable and hence the findings of the first Appellate Court on this count can only be termed perverse and deserve to be set aside and it is held that the demolition of the house of the appellant was wholly unjustified to put at mildly. 7. The next question that has to be determined is as to whether order of injunction dated 2.6.2000 was binding upon the respondents or not? This question arises because action of demolition has been carried out purportedly in exercise of the orders of Asstt. Collector and Collector. Apart from holding that, the said orders never contemplated such an exercise, it has to be observed that the order of the civil court which grants an injunction binds all the parties to a dispute and no party can take the liberty of flouting the same. In the instant case, however, the action of the respondents in demolishing the house of the appellant is blatant enough to warrant scathing remarks from the Court. The orders of the civil court have been flouted with impunity. Once a Court grants injunction and if any other competent authority has granted any right to the contrary, the same has to be kept in abeyance and cannot be executed in view of the injunction granted by a civil court. If the respondents had any doubt about the execution of the orders of the Asstt. Collector and Collector, even if they had understood it to mean carrying out the demolition, the proper course for them would have been to get a clarification from the civil court rather than pursuing a path which was in complete disregard of the law of land. 8. A plea has been raised by respondents No.l to 3 that they had nothing to do with the demolition of the house of the appellant. I am afraid the contention of the said respondents has to be repelled. A bare reading of the written statement filed by the said respondents shows their enhanced concern with the demolition that had been carried out as they have repeatedly said that the orders of the Asstt. I am afraid the contention of the said respondents has to be repelled. A bare reading of the written statement filed by the said respondents shows their enhanced concern with the demolition that had been carried out as they have repeatedly said that the orders of the Asstt. Collector and Collector are justified and warranted the demolition of the house. The conduct of the respondents as inferred from the written statement is abundantly clear that they were having a deep interest in the demolition of the house of the appellant. That apart, if the testimony of the respondents witnesses is to be seen, they have categorically stated that they had come with the Sarpanch of the village and were interested in the demolition of the house of the appellant because of factional rivalry in the village. 9. The Gram Panchayat also necessarily has to be held guilty for violating the orders as it made an application for impleading itself as a party on 2.7.2000 and was impleaded as such on 26.7.2000. The demolition was carried out on 26.7.2000 itself. The Panchayat was conscious of the fact that an injunction has been granted against it. In any eventuality it had chosen not to participate in the proceedings and therefore an adverse inference has to be drawn against it. Their testimony further reveals that no attempt was made to cross-examine the plaintiff and his witnesses on the role of respondents No.l to 3. In this eventuality respondents No.l to 3 as also the Gram Panchayat necessarily have to be held responsible for the demolition that has been carried out. The first Appellate Court, however, has not addressed this issue at all and has merely interpreted the orders of the Collector to mean the carrying out of demolition which as observed earlier could not have been done. 10. As a net result of the discussion above, this Court is of the considered opinion that the findings recorded by the first Appellate Court are erroneous, perverse and liable to be set aside. Ordered accordingly. 11. The questions of law that arise for consideration of this Court are :- 1. Whether the findings recorded by the first Appellate Court are perverse? 2. Whether an injunction granted by a court is binding on the parties to the proceedings or not? Ordered accordingly. 11. The questions of law that arise for consideration of this Court are :- 1. Whether the findings recorded by the first Appellate Court are perverse? 2. Whether an injunction granted by a court is binding on the parties to the proceedings or not? For the aforesaid reasons it has to be held that the findings of the first Appellate Court are perverse and the same have to be set aside as observed earlier. It has also to be held that the law of injunction does not grant any liberty to an individual who is a party to the proceedings to flout and violate the same as this would lead to lowering of the majesty of law and create utter chaos and lawlessness. 12. Having regard to the aforesaid, the appeal is allowed, impugned judgment is set aside and it is ordered that the respondents shall compensate the appellant by paying a sum of Rs.2 lacs for having unauthorisedly and unabashedly carrying out the demolition despite the restraint order by the court of competent jurisdiction and for taking the law into their own hands. This Court also directs the Deputy Commissioner, Rohtak and the competent authorities under the Panchayati Raj Act to ensure that severest action is taken against the persons who were holding office of Gram Panchayat at that point of time. They will also ensure that such people do not find their way as representatives of the Gram Panchayat and if the law permits debarring of such persons from contesting the elections of Panchayat or public offices, an order to this effect shall be passed by the Deputy Commissioner within a period of 15 days from the receipt of the copy of the order. Copy of this order shall be communicated to the Deputy Commissioner, Rohtak.