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2014 DIGILAW 1205 (PNJ)

Baseshar v. Gram Panchayat

2014-08-20

NARESH KUMAR SANGHI

body2014
JUDGMENT : Naresh Kumar Sanghi, J. The present second regular appeal has been filed by the appellant-plaintiff, Baseshar, challenging the judgment and decree dated 29.10.2011 passed by the learned Additional Civil Judge (Junior Division), Bhiwani, whereby the suit filed by the appellant/plaintiff was dismissed, and the judgment dated 19.11.2013 passed by the learned Additional District Judge, Bhiwani, whereby the first appeal filed by the appellant/plaintiff was also dismissed. 2. The brief facts of the case though enshrined in the judgments of both the court below but for the sake of convenience, the same can be summarized as under:- "The appellant/plaintiff, Baseshar, filed a suit for permanent injunction against the respondent/defendant, Gram Panchayat, Bidola, alleging that the appellant/plaintiff was owner in possession of a residential house marked with letters ABCD showing with red colour in the site plan Ex.P1. The construction of the suit property was in existence for the last several years and the same was raised by the father of the appellant/plaintiff. After the death of his father, the appellant/plaintiff had been maintaining the suit property by getting it repaired from time to time. It was further alleged that the plaintiff had not encroached upon the panchayat land in any manner. In spite of the said fact, the Gram Panchayat, Bidola, was bent upon to demolish the suit property and had threatened the appellant/plaintiff in that regard on 19.01.2009 and as such, the appellant/plaintiff had no other remedy except to file the suit." 3. In response to the notice issued, the respondent/defendant, Gram Panchayat, filed the written statement and raised the preliminary objections of maintainability of the suit; cause of action; locus- standi of the appellant/plaintiff; and that he (appellant/plaintiff) was estopped from filing the suit by his own act and conduct. The jurisdiction of the Court for entertaining the suit was also questioned. While filing the reply on merits, it was claimed by the respondent/defendant that the plaintiff owned and possessed the house shown in blue colour and marked with BEFG in the site plan Ex.P-1 and the dimensions of the house were also mentioned in the field book of the village Bidola where the name of the plaintiff was entered against entry at Sr.No.11. There was a public street which was shown with yellow colour in the site plan which was leading towards northern side of the village Phirni and towards southern side of village pond. There was a public street which was shown with yellow colour in the site plan which was leading towards northern side of the village Phirni and towards southern side of village pond. There was yet another pucca street leading towards the main road and it merged in the street leading towards the village Phirni. The appellant/plaintiff had illegally and without authority encroached upon the part of the public street towards the western side of the disputed property and had constructed a temporary room shown with red colour and marked with letter ABCD on 20.11.2006. When the said fact came to the notice of the respondent/defendant, Gram Panchayat, that the appellant/plaintiff had raised illegal construction on the public street which was causing obstructions in the use and occupation of the street, a notice dated 20.11.2006 in terms of Section 24(1) of the Haryana Panchayati Raj Act, 1994, was issued by the respondent/defendant to the appellant/plaintiff but he (appellant/plaintiff) refused to receive the same. Yet another notice dated 23.11.2006 as per Section 24(2) of the Haryana Panchayati Raj Act, 1994, was also issued but the appellant/plaintiff ignored the said notice as well. Thereafter, the respondent/defendant passed a resolution and requested the Deputy Commissioner, Bhiwani, for getting the unauthorized encroachment and temporary construction removed. Resultantly, the Deputy Commissioner, Bhiwani, was pleased to direct the Block Development and Panchayat Officer, Tosham, to get the unauthorized encroachment removed. In the meantime, the appellant/plaintiff filed a civil suit against Ram Kishan, the then Sarpanch, in the personal capacity in which Ram Kishan made statement that the appellant/plaintiff had caused obstructions in the common passage by throwing Malba for which a suitable action would be initiated while exercising his powers as Sarpanch. The said suit was dismissed as withdrawn on 29.11.2006. Yet another suit titled as "Basessar v. Ganga Sahai and Others" was also instituted by the appellant/plaintiff and the same was also withdrawn on 05.02.2007. To put pressure on the respondent/defendant, Gram Panchayat, the appellant/plaintiff had filed the suit in hand so that the unauthorized construction raised on the common passage/street by the appellant/plaintiff is not removed by the respondent, Gram Panchayat. 4. On pleadings of the parties, the following issues were framed by the learned trial court:- 1. Whether the plaintiff is entitled to injunction as prayed for? OPP. 2. Whether the plaintiff has not come to the Court with clean hands? OPD. 3. 4. On pleadings of the parties, the following issues were framed by the learned trial court:- 1. Whether the plaintiff is entitled to injunction as prayed for? OPP. 2. Whether the plaintiff has not come to the Court with clean hands? OPD. 3. Whether the plaintiff has no locus standi to file the present suit? OPD. 4. Whether the Civil Court has no jurisdiction to try and decide the present suit? OPD. 5. Whether the suit is not maintainable in the present form? OPD. 6. Whether the plaintiff is estopped by his own act and conduct to file the present suit? OPD. 7. Relief. 5. In order to prove his case, the appellant/plaintiff appeared as PW-1 and examined Antar Singh as PW-2, Balwant Singh as PW-3, Umed Singh as PW-4, Sher Singh as PW-5 and Subhash as PW-6 and thereafter closed his evidence. 6. On the other hand, the respondent/defendant produced Satbir Singh, Panch, as DW-1, Rajesh as DW-2, Om Parkash as DW- 3, and Amir Chand Taneja, Draftsman, as DW-4. 7. No evidence in rebuttal was adduced. 8. After scanning the whole material and hearing the learned counsel for the parties, the learned trial court dismissed the suit of the appellant/plaintiff. 9. Dissatisfied with the judgment and decree passed by the learned Civil Judge (Junior Division), Bhiwani, first appeal was preferred before the Additional District Judge, Bhiwani, and that too was dismissed vide judgment dated 19.11.2013, hence the regular second appeal by the appellant/plaintiff. 10. Sh. Mani Ram Verma, learned counsel for the appellant/plaintiff submits that in spite of the fact that there was no material before both the courts below to conclude that the appellant/plaintiff had encroached upon the common passage/street, the suit of the appellant/plaintiff has wrongly been dismissed. He further submits that from the evidence adduced by the appellant/plaintiff, it was well proved on record that the appellant/plaintiff was owner in possession of the suit land. The house was constructed by the father of the appellant/plaintiff and the same was being maintained by him. The site plan Ex.P-1 and the photographs Ex.P2 to Ex.P4 would clearly show that the constructed portion was in alignment of the street and as such, there was no encroachment on the part of the appellant/plaintiff. The house was constructed by the father of the appellant/plaintiff and the same was being maintained by him. The site plan Ex.P-1 and the photographs Ex.P2 to Ex.P4 would clearly show that the constructed portion was in alignment of the street and as such, there was no encroachment on the part of the appellant/plaintiff. It has also been argued that the Jamabandi Ex.P5 would further strengthen the plea of the appellant/plaintiff that he was owner in possession of the property in dispute. He further submits that the Panchayat had unauthorizedly interfered into the peaceful possession of the property in dispute by the appellant/plaintiff. In spite of the fact that the construction was raised in the year 2006, the Panchayat did not raise any objection or take action at that time and hence, at a later stage it was not within the jurisdiction of the Gram Panchayat to raise the issue of encroachment. In the previous two suits filed by the appellant/plaintiff, the plea of unauthorized construction/encroachment was not raised by the appellant/defendant. In support of his contention, the learned counsel has placed reliance on the judgment of this Court in the matter of Dhir Singh v. Mal Singh, 1982 PLJ 60. 11. I have learned the learned counsel for the appellant/plaintiff and with his able assistance gone through the records of the learned courts below. 12. Perusal of the record reveals that the appellant/plaintiff had filed the suit for permanent injunction for restraining the respondent/defendant, Gram Panchayat, not to interfere in the land of the appellant/plaintiff shown in red colour and marked by letters ABCD in the site plan Ex.P1. However, no plausible material has been placed on record by the appellant/plaintiff to show that the land on which the new construction was raised on the marked portion AFGE of the site plan Ex.P1 was owned by the appellant/plaintiff. The appellant/plaintiff appeared himself as PW1 and tendered his affidavit Ex.PW1/A wherein he reiterated the contents of the plaint filed by him but during his cross-examination he candidly conceded that he had no knowledge about the dimensions and measurements of the suit land. He further admitted in his cross-examination that he had already filed two civil suits prior to the filing of the suit in hand regarding the land in dispute. He further admitted in his cross-examination that he had already filed two civil suits prior to the filing of the suit in hand regarding the land in dispute. The appellant/plaintiff claimed his ownership over the land measuring 0 kanal 8 marlas by filing Jamabandi Ex.P-5 but failed to substantiate that the land mentioned in the site plan Ex.P- 1 was 08 marlas only tailing with the dimensions described in Jamanbandi Ex.P-5. The disputed land shown in yellow colour marked with letters AEGF was adjoining to the pucca street and on the eastern site. The respondent/defendant had filed the site plan Ex.D-1 to show that the new construction raised by the appellant/ plaintiff adjoining to his house was on the pucca street owned by the respondent/ defendant, Gram Panchayat. The appellant/plaintiff failed to produce the demarcation report regarding the measurement of the land owned and possessed by him as per his claim in Jamabandi Ex.P-5. On the other hand, the respondent/defendant Gram Panchayat proved on record the notice (Ex.D4) under Section 24(1) of the Haryana Panchayati Raj Act which clearly spells out that proper opportunity of hearing was afforded to the appellant/plaintiff to explain with regard to encroachment and unauthorized construction raised by him (appellant/plaintiff) on the street but he failed to respond to the said notice. 13. Since the appellant/plaintiff had filed the suit for permanent injunction so the onus was upon him (appellant/plaintiff) to prove his ownership or title over the disputed portion Mark AFGE in the site plan Ex.P1. The plaintiff has not sought the declaration of the ownership over the disputed property but filed the suit for permanent injunction, therefore, the onus was on him (appellant/plaintiff) to prove his ownership and he failed to do so by producing any document that the disputed property belonged to him. On the other hand, documents Ex.D-4 to Ex.D-6 were produced by the respondent/defendant Gram Panchayat to prove that the appellant/plaintiff had encroached upon the street owned by the respondent/defendant. 14. While concluding its judgment, the first Appellate Court rendered the following findings:- "Hence, it is proved that the plaintiff is habitual for filing the suit for disputed land. The defendant produced oral as well as documentary evidence for proving the land of the Gram Panchayat and the plaintiff failed to produce any documents on record for proving the suit property of the plaintiff. The defendant produced oral as well as documentary evidence for proving the land of the Gram Panchayat and the plaintiff failed to produce any documents on record for proving the suit property of the plaintiff. The plaintiff has not examined any draftsman who prepared the site plan Ex.P1 whereas defendant produced the draftsman Amir Chand Taneja as DW-4, who prepared the site plan Ex.D1. The dimensions of the suit land has been proved by the defendant. The dictum laid down in the authorities (supra) referred by learned counsel for the appellant are not disputed but the same are not applicable to the facts of present case as facts of the present case are entirely distinguishable as the plaintiff filed the present suit for permanent injunction without claiming declaration of his ownership of land marked AFGE shown in site plan Ex.P1. Hence, it is proved that the plaintiff is not owner of suit land but illegally encroached the land of Gram Panchayat Bidola. The unauthorized occupation is not entitled for injunction." 15. The arguments raised by the learned counsel for the appellant have very well been dealt with by both the courts below. The findings recorded while dismissing the suit and thereafter, the first Appellate Court are factually and legally correct and as such, this Court while hearing second appeal does not find any ground to interfere with the well reasoned judgments of both the courts below. 16. The Judgment Dhir Singh's case (supra) is entirely on different facts and the same is not at all applicable to the facts and circumstances of the case. In the case in hand, it has well been proved by the respondent/defendant that the plaintiff/appellant had encroached upon the street owned and possessed by the Gram Panchayat. Finding no merits in the appeal, the same is hereby dismissed.