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2016 DIGILAW 3531 (PNJ)

Swaran Singh v. Ashok Kumar

2016-12-16

SURINDER GUPTA

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JUDGMENT : SURINDER GUPTA, J. 1. This is appeal against concurrent judgments and decree of Courts below dismissing the suit filed by plaintiff seeking the relief of injunction to restrain the defendants from interfering in his peaceful possession over the plot measuring 15 marlas bearing khata no. 64/91 and khasra no. 39 situated in village Toor, Tehsil Mukerian, District Hoshiarpur. 2. In later part of the judgment parties will be referred as 'plaintiff' and 'defendants' as per civil suit. 3. Plaintiff has claimed title and possession over the suit land on the basis of Will dated 18.07.1979 executed by one Labhu Ram and alleged that the suit land was allotted by Gram Panchayat to Labhu Ram. 4. Defendants contested the claim of plaintiff inter alia pleading that the suit land is ownership of village proprietors i.e. Jumla Malkan and is not in possession of plaintiff. Labhu Ram was never in possession of the suit land and the registered Will of Labhu Ram propounded by plaintiff is forged and fabricated document and not binding on the rights of defendants. Plaintiff belongs to Jammu and Kashmir state and is not a permanent resident of village Toor. He was serving in Border Security Force and after his retirement lived at Pathankot, District Guradaspur for about 10 years and was doing cloth business there. The suit land was reserved in the consolidation proceedings for construction of temple. It is a land belonging to 'Jumla Malkan' and cannot be used for the purpose other than for which it was reserved. The title of this land vests with gram panchayat of village Toor. Earlier Madan Lal and Tarsem Lal sons of Babu Ram filed suit No. 23 of 1997 against gram panchayat. Plaintiff had appeared in that suit as PW-1 in support of case of his sons and that suit was decreed. In appeal filed by gram panchayat, judgment and decree passed by the trial Court was set aside by Ist Appellate Court vide judgment dated 14.08.2004 and the suit of plaintiff was dismissed. The villagers including the defendants have constructed a temple in the suit land and plaintiff has no concern with it. A hawan kund has also been constructed at the spot and water pump has been installed. The defendants have also refuted the site plan of the suit property filed by plaintiff as incorrect and filed their own site plan. 5. The villagers including the defendants have constructed a temple in the suit land and plaintiff has no concern with it. A hawan kund has also been constructed at the spot and water pump has been installed. The defendants have also refuted the site plan of the suit property filed by plaintiff as incorrect and filed their own site plan. 5. Learned Additional Civil Judge (Senior Division), Mukerian discarded the plea of plaintiff that suit land was allotted to Labhu Ram by gram panchayat and on the basis of revenue record held that plaintiff is not in possession of the suit land. 6. Ist Appellate Court on perusal of evidence observed in para 10 of the judgment as follows:- "10. Perusal of Section 18 of East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 reveals that Consolidation Officer may direct that any land specifically assigned for any common purpose shall cease to be so assigned. Besides as per Section 18 (c) of the above said Act, the Consolidation Officer may direct that if in any area under consolidation no land is reserved for any common purpose including extension of the village abadi, or if the land so reserved is inadequate, to assign other land for such purposes. Thus, it is obvious that the land reserved for common purposes, during consolidation proceedings to be used for that purposes only. The land reserved for common purposes of the village like construction of temple after imposing prorata cut on the holdings of proprietors, cannot be permitted to be used for a purpose other than the one for which it is reserved during consolidation proceedings. Gram Panchayat has no authority to give the common purposes land in ownership of another because in view of Section 23-A of the above said Act management of common purposes land of the village alone vests in the Panchayat. However, such land to vest in proprietary body of the village alone. In view of this legal position, Gram Panchayat was having no authority to give the suit land to Labhu Ram just by executing writing Ex. PY because the ownership of the land vests in proprietary body of the village and not in Gram Panchayat. So, writing of Ex. PY is meaningless for conferring any right, title or interest on Labhu Ram. In view of this, just on strength of Ex. PY because the ownership of the land vests in proprietary body of the village and not in Gram Panchayat. So, writing of Ex. PY is meaningless for conferring any right, title or interest on Labhu Ram. In view of this, just on strength of Ex. PY, appellant cannot claim ownership rights qua the suit land which actually vests in proprietary body of the village and not in Gram Panchayat." 7. Will of Labhu Ram was also discarded as a suspicious document. Admittedly, plaintiff is not related to Labhu Ram and Will dated 18.07.1979 had not seen light of the day for about ten years. This Will was not disclosed even during the earlier litigation initiated by Madan Lal and Tarsem Lal sons of Babu Ram against gram panchayat pertaining to this very land. This Will was also not produced before the revenue authorities for seeking correction of entries in the khasra girdawaries. In the absence of any entry in the revenue record in the name of plaintiff or any cogent and convincing evidence both the Courts below observed that plaintiff has utterly failed to prove his possession over the suit property. 8. Learned counsel for the appellant has argued that gram panchayat vide resolution dated 15.11.1962 (Ex. P-2) had allotted the suit land to Labhu Ram. Perusal of Punjabi translation of this resolution (Ex. P-4) shows that gram panchayat had agreed to give the land measuring 15 marlas to Labhu Ram out of khasra no. 39. There is no evidence on file that as per resolution of panchayat any allotment letter was issued in favour of Labhu Ram and if so, what were the terms of allotment. Even in jamabandi the land is recorded as owned by jumla malkan vah digar hakdaran arazi rasab hasad khewat. Admittedly, Labhu Ram died in the year 1979 and till the date of filing of suit in the year 2005, the appellant never claimed Will of Labhu Ram before the revenue authorities seeking mutation of suit land or change of entry of possession in his favour. 9. On perusal of judgments of Courts below and the reasons recorded therein while discarding the claim of plaintiff, I find no legal or factual infirmity therein calling for any interference. No substantial question of law, requiring determination arises in this appeal, which has no merit. Dismissed.