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2014 DIGILAW 775 (PNJ)

Azad Singh v. Gram Panchayat, Kishangarh

2014-05-02

PARAMJEET SINGH

body2014
JUDGMENT Paramjeet Singh, J. - This regular second appeal of plaintiffs no.2 and 3 is directed against the judgment and decree dated 01.04.2011 passed by learned Additional Civil Judge (Sr. Divn.), Meham whereby suit filed by appellants-plaintiffs for permanent injunction has been dismissed and against the judgment and decree dated 10.09.2013 passed by learned District Judge, Rohtak whereby appeal preferred by appellants has also been dismissed. 2. For convenience sake, hereinafter, reference to parties is being made as per their status in the suit. 3. The detailed facts are already recapitulated in the judgments of the courts below and are not required to be reproduced. In brief, the facts relevant for disposal of this second appeal are to the effect that plaintiffs filed a suit for permanent injunction restraining defendants from interfering in their possession and also from dispossessing them from the suit land i.e. rect. no.267, killa no.24/2, rect. no.455, killa no.1/2, 2/1, 3/3, 4/2, 8/2 and 417/5/2, 6. It was pleaded that plaintiffs were the proprietors of Hadbast No.120 measuring 1624 kanals 11 marlas comprised in khewat no.3319/3150, khatoni no.3861 to 3865, Meham and the same was 'Jumla Mustarka Malkan Hasab Rasad Araji Khewat Wasideh' and they were having shares in the shamilat land of village Meham. It was further pleaded that on 08.12.1993, the Patwari concerned got the mutation no.317 sanctioned in favour of defendant no.1, but in the appeal, the same was set aside and the Commissioner, Rohtak remanded the case to Assistant Collector-Ist Grade vide order dated 24.02.1999, who rejected the mutation, but again in appeal, the Collector, Rohtak remanded the case again and the Assistant Collector-Ist Grade, Meham has sanctioned the mutation in favour of defendant no.1 on 05.05.2006. The appeal thereof has been dismissed. 4. It was further pleaded in plaint that revision against the said order was filed before the Commissioner, Rohtak and during pendency thereof, the order of Collector passed in appeal against order dated 05.05.2006 of Assistant Collector-Ist Grade directing the Assistant Collector-Ist Grade Meham to take action under the provisions of Punjab Village Common Lands (Regulations) Act, 1961 (in short, the 1961 Act) was stayed. As per the provisions of 1961 Act, the Assistant Collector-Ist Grade, Meham was supposed to proceed under Section 7 of the 1961 Act. As per the provisions of 1961 Act, the Assistant Collector-Ist Grade, Meham was supposed to proceed under Section 7 of the 1961 Act. The proprietors were liable to be ejected only in accordance with law but so far, the Assistant Collector-Ist Grade, Meham has not taken any action suo motu and no application under Section 7 of the 1961 Act has been filed against the proprietors of Meham by any competent person. Thus, the plaintiffs being co-sharers were in separate possession of the suit land. It was further pleaded that plaintiffs were still in possession of the suit land and they were entitled to protect their possession till they were ordered to be ejected in due course of law. As such, plaintiffs filed suit for permanent injunction. 5. Upon notice, defendants no.1 and 2 filed written statement taking preliminary objections of maintainability; non-issuance of notice under Section 205 of the Haryana Panchayati Raj Act; cause of action; concealment of material facts and jurisdiction. On merits, nature of suit land as stated by plaintiffs was denied and it was also denied that the plaintiffs were the proprietors of Hadbast No.120 and that they were having any share in the shamilat land of the village and they were in possession of the same. The suit land was owned by the Gram Panchayat and possessed by it. It was further pleaded that suit land was given to defendant no.3 on lease on 01.05.2007 and now it has been given on lease to Dalsher, who was having the possession over the suit property and cultivating the same. The possession was taken by the Gram Panchayat on 29.04.2007 in Kabja Karwai in pursuance to possession proceedings from the persons, who were in illegal and unauthorized possession. Other averments in plaint were denied. 6. Defendant no.3 in his written statement took the similar stand as taken by defendants no.1 and 2. Besides this, it was pleaded that Assistant Collector-Ist Grade, Meham had issued notice against the persons who were in illegal possession and ample opportunities of being heard were given to every person and after that by following due procedure, defendant no.1 had taken the possession of the suit land and same was leased out in open auction for a consideration of Rs. 11,250/- for the year 2007-08. Other averments in plaint were denied. 7. 11,250/- for the year 2007-08. Other averments in plaint were denied. 7. Defendant no.4 also filed his separate written statement taking the preliminary objections of mis-joinder and cause of action. On merits, it was pleaded that plaintiffs were the proprietors of the village and were having share in the shamilat land as well as in the suit property. Plaintiff no.1 was in possession of land pertaining to rect. no.267 killa no.24/2 and he has claimed his possession over the same. Other averments in plaint were denied. 8. On the basis of pleadings of parties, the Court of first instance framed following issues: "1. Whether the plaintiffs are proprietors of Hadbast No.120 as alleged? OPP 2. Whether the Hadbast No.120 measuring 1724 Kanals 11 marlas is the shamlat property of the proprietors as alleged? OPP 3. Whether the plaintiffs are having share in the suit property as alleged? OPP 4. Whether the plaintiffs are in possession of the suit property as alleged? OPP 5. If the above issues are proved in affirmative, whether the plaintiffs are entitled for the relief of permanent injunction restraining the defendants from interfering in the possession of the plaintiff or dispossessing the plaintiff from the suit land? OPP 6. Whether the present suit is not maintainable? OPD 7. Whether the jurisdiction of the civil court is barred? OPD 8. Whether the suit is liable to be dismissed with special costs? OPP 9. Relief." 9. After appreciating the evidence, the Court of first instance dismissed the suit. Feeling aggrieved, plaintiffs preferred an appeal which has also been dismissed by the lower Appellate Court. Hence, this second appeal. 10. I have heard learned counsel for the appellants and perused the record. 11. Learned counsel for the appellants has referred to following substantial questions of law formulated in the grounds of appeal for consideration by this Court: (i) Whether the findings recorded by the learned courts below are contrary to the evidence available on record? (ii) Whether the findings recorded by the learned courts below are not based upon the evidence available on record? (iii) Whether the findings recorded by the learned courts below are contrary to the settled proposition of law? (iv) Whether the learned courts below have totally misread and misinterpreted the oral as well as the documentary evidence available on record? (ii) Whether the findings recorded by the learned courts below are not based upon the evidence available on record? (iii) Whether the findings recorded by the learned courts below are contrary to the settled proposition of law? (iv) Whether the learned courts below have totally misread and misinterpreted the oral as well as the documentary evidence available on record? (v) Whether the appellants can be dispossessed from the suit land without following the process of due course of law? (vi) Whether the grave and manifest injustice has been caused to the appellants-plaintiffs? 12. Learned counsel for the appellants has contended that findings of both the courts below are based on surmises and conjectures. As per the revenue record, the suit land has never been used for any of the common purposes of the village, therefore, the same cannot be considered as shamilat deh. 13. I have considered the contentions of learned counsel for the appellants. 14. Both the courts below have recorded concurrent finding that suit land has vested in the Gram Panchayat and there is nothing on the file to infer that the suit land has not vested in the Gram Panchayat. When there is a dispute regarding the vesting or non-vesting of shamilat deh in Gram Panchayat, jurisdiction of the Civil Court has been specifically ousted in view of provisions of Section 13 of the 1961 Act. It has been rightly recorded that Civil Court has no jurisdiction with regard to the matter contemplated under Sections 2(g) and 13 of the 1961 Act. While relying upon Gurbachan Singh v. Gram Panchayat 2001(4) RCR (Civil) 824 and Amarjeet Singh v. Gram Panchayat Kambheri 2009(5) RCR (Civil) 801, it has been rightly recorded that Civil Court has no jurisdiction to try and entertain the suit, therefore, question of granting any relief on any ground to the plaintiffs does not arise. 15. Learned counsel for the appellants has failed to show that said findings recorded by both the courts below are perverse or illegal or based on misreading, non-reading or mis appreciation of the material evidence on record. Consequently, said findings recorded by both the courts below do not warrant interference in regular second appeal. No question of law, much less substantial question of law, as alleged, arises for adjudication in this second appeal. No other point has been urged. Dismissed in limine.