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2017 DIGILAW 2886 (PNJ)

Dalip Singh v. Gram Panchayat, VPO Chiri, through its Sarpanch

2017-12-05

AVNEESH JHINGAN

body2017
JUDGMENT : Avneesh Jhingan, J. The present regular second appeal is at the behest of the plaintiffs being aggrieved of the concurrent judgments and decrees passed by the learned courts below dismissing their suit. 2. For the sake of convenience, the parties are being referred to as per their original position in the suit. 3. The suit for declaration was filed by the plaintiffs as owner in possession of the land shown by letters ABCD and BCEF in the site plan attached with the suit. Further, the permanent injunction was prayed for restraining the defendant from disturbing the possession of the plaintiffs. 4. The facts averred in the plaint are that plaintiffs are residents of village Chiri having ancestral houses since time of their forefathers. It is alleged that the same are situated within the Lal Dora area of the village. In front of the said houses where the plaintiffs are keeping their fodder, animals and uplas, the area owned and possessed by Rajbir Singh was shown in red color and bounded as ABCD and owned and possessed by Dalip Singh shown in black color and bounded as BCEF. The said area is owned and possessed by the plaintiffs since the time of their forefathers and defendant has no concern with the disputed land. It is alleged that Sarpanch of village with a bad intention because of political rivalry wants to dispossess the plaintiffs from the suit land. The defendant had issued a notice dated 31.12.2014 and called upon the plaintiffs to show documents regarding ownership of the property. Hence, the plaintiffs filed the suit. On notice, defendant filed written statement and raised the preliminary objections regarding maintainability, jurisdiction and suppression. 5. On merits, it was alleged that the defendant is the true owner of the suit land and the plaintiffs have done unauthorised fencing of the suit land which does not prove their title. It was further stated that the notice under Section 205 of the Haryana Panchayat Act was not served on the defendant. On the notice instead of showing document of title, the suit has been filed. The replication to the written statement was filed. 6. Learned trial Court framed the following issues:- 1. Whether the plaintiff is entitled for a decree for declaration as prayed for? OPP 2. If issue No.1 is proved, whether the plaintiff is entitled to decree for permanent injunction as prayed for? The replication to the written statement was filed. 6. Learned trial Court framed the following issues:- 1. Whether the plaintiff is entitled for a decree for declaration as prayed for? OPP 2. If issue No.1 is proved, whether the plaintiff is entitled to decree for permanent injunction as prayed for? OPP 3. Whether the suit is not maintainable in the present form? OPD 4. Relief. 7. In order to prove their case, the plaintiffs appeared as PW1 and PW3. Bhal Singh Ex. Panch of the Panchayat appeared as PW2. The plaintiffs exhibited site plan, photographs, notices, copies of jamabandis etc as P1 to P12. 8. In order to rebut the claim of the plaintiffs, defendant examined Amit Kumar as DW1. The defendant exhibited the resolutions report of demarcation, site plans, copies of jamabandi etc. as D1 to D10. 9. Learned trial Court after appreciating the facts and considering the evidence produced, decided issues No.1 and 2 against the plaintiffs and in favour of the defendant. Issue No.3 was decided against the plaintiffs. The net result was that the suit was dismissed vide judgment and decree dated 18.07.2016. 10. Aggrieved of the said judgment and decree, plaintiffs filed the appeal. Learned Additional District Judge, Rohtak dismissed the appeal vide judgment and decree dated 21.11.2016. Hence the present regular second appeal. 11. The gist of controversy in the present appeal is that there is dispute with regard to an open area of which the plaintiffs claimed to be owners in possession. It is admitted by the plaintiffs that they do not have documents of ownership as land falls within Lal Dora of the village. The fact that the suit land falls within Lal Dora has been taken as one of the main plank to say that the jurisdiction of civil Court is not barred. 12. The pinpointed issue which needs adjudication is whether the suit land falls within the Lal Dora or not? Rest of the reliefs and contentions would rely upon the outcome of the said adjudication. 13. The suit for declaration and consequential relief of permanent injunction was filed praying for declaration that plaintiffs are owner in possession of the suit land. There cannot be dispute that the onus was upon the plaintiffs to prove their ownership. Rest of the reliefs and contentions would rely upon the outcome of the said adjudication. 13. The suit for declaration and consequential relief of permanent injunction was filed praying for declaration that plaintiffs are owner in possession of the suit land. There cannot be dispute that the onus was upon the plaintiffs to prove their ownership. In order to fill the lacuna that they are not having any document of title, the stand was taken that land falls within Lal Dora. Again for proving that the said land falls within Lal Dora, the onus would be on the plaintiffs. 14. The plaintiffs themselves appeared as PW1 and PW3 to support their claim. Apart from the plaintiffs, the only independent witness was Bhal Singh PW2, the ex-panch of the village. Even his evidence cannot be relied upon as he is the brother of the plaintiffs and hence the interested witness. 15. On one hand, there was no independent witness produced by the plaintiffs. On the other hand, the defendant produced the revenue record as Ex.D8 jamabandis for assessment year 2010-11 to show that the ownership of the suit land was of Gram Panchayat. The Gram Panchayat undertook demarcation, which was exhibited. The demarcation was done in the presence of the plaintiffs. Though, in the suit, the said demarcation report was disputed but the fact remains that the plaintiffs neither raised any objection not challenged the demarcation report. In such circumstances, no blemish can be found in the judgment and decree passed by the learned courts below holding that the plaintiffs failed to prove that the land falls within Lal Dora. Having failed to prove the same in absence of document of title, the suit could not have been decreed declaring the plaintiffs to be owner of the suit land. 16. It would be pertinent to mention here that the revenue records raise rebuttable presumption in favour of the defendant. The Full Bench of this Court in Ram Chander Vs. Bhim Singh and others, 2008 (3) RCR (Civil) 685 has held as under :- “22. Revenue entries reflect the rights of the parties as opposed to conferring rights and raise rebuttable presumptions as to their correctness. They reflect an existing state of affairs, namely, an existing title or a state of possession. Entries in revenue records neither confer nor deprive a person of his title, whether joint or separate. Revenue entries reflect the rights of the parties as opposed to conferring rights and raise rebuttable presumptions as to their correctness. They reflect an existing state of affairs, namely, an existing title or a state of possession. Entries in revenue records neither confer nor deprive a person of his title, whether joint or separate. Rectangle numbers and Killa numbers are revenue measures, used by revenue authorities to identify and describe fields that constitute the ownership of a land owner. A holding may be divided into different Khewats, Khataunis, rectangles and killas/khasras all bearing different numbers. Where parties are joint owners or co-sharers, the land would comprise of a Khewat or khewats, different khataunis, rectangles and/or khasra/killa numbers. Thus, where a group of land owners holds land in joint ownership and are reflected as owners in common of the khewat, commonly known as the joint khewat, they would continue to remain owners in possession of the land, though described as being situated in different khataunis, rectangles and khasra/killa numbers. Division of land into different rectangles, khasra or killa numbers does not alter the nature of property held in common or the rights of cosharers flowing therefrom. The Full Bench in Lachhman Singh's case (supra), disregarded the nature of joint property and by placing undue reliance upon artificial divisions of land meant to identify land, erred while holding that a vendee, who purchases land from a joint khewat by reference to specific rectangles and khasra numbers, does not become a co-sharer in the entire joint khewat.” 17. In the abovesaid decision, it has been held that entries in the revenue record raise a rebuttable presumption. 18. The reliance of the plaintiffs on the site plan to show that the property falls within Lal Dora could not be accepted as in evidence, the draftsman who prepared the site plan was not examined. If he had been examined, he would have been confronted with the demarcation reports Ex.D4 and D5. The objection of the plaintiffs that the demarcation report was not inconsonance with Punjab Land Revenue Act was rightly not entertained by the courts below as it was prepared in their presence. They had not challenged it and even in the present suit, they have not summoned the revenue officers to face cross-examination on the said demarcation. 19. The objection of the plaintiffs that the demarcation report was not inconsonance with Punjab Land Revenue Act was rightly not entertained by the courts below as it was prepared in their presence. They had not challenged it and even in the present suit, they have not summoned the revenue officers to face cross-examination on the said demarcation. 19. Having failed to prove the ownership and the fact that the property is falling within Lal Dora, the issue of jurisdiction decided by the Courts below cannot be faulted as Gram Panchayat was able to prove that the land was a Shamlat Deh vesting in Gram Panchayat. In such situation, in view of Section 13 of Punjab Village Common Land Act, 1961, the Civil Court has no jurisdiction to decide whether the property belongs to Gram Panchayat or not? 20. In the present appeal, though seven substantial questions of law have been framed but while arguing the appeal, learned counsel only raised the issue that once the plaintiffs have claimed that the property was within Lal Dora of village, it was the duty of the Court to frame the issue and to decide the same. The submission deserves rejection. The duty is casted upon the courts to decide the issues which are pressed and are substantiated with evidence. The Courts have to decide the matter as per material available on record. The onus was on the plaintiffs to prove their ownership and in the absence of any document of title, it was claimed by the plaintiffs that the suit land fall within Lal Dora that the plaintiffs failed to discharge the onus casted upon them. 21. In such circumstances, no fault can be found in the judgments and decrees passed by the learned Courts below. 22. During the course of hearing, learned counsel for the appellants could not point out any illegality or perversity in the impugned judgments passed by the Courts below. He could not refer to any question of law much less substantial question of law which is sine qua non for this court to exercise its appellate power under Section 100 of the CPC. 23. The cogent findings recorded by the learned trial court as well as the first appellate court have been found factually correct and legally justified. He could not refer to any question of law much less substantial question of law which is sine qua non for this court to exercise its appellate power under Section 100 of the CPC. 23. The cogent findings recorded by the learned trial court as well as the first appellate court have been found factually correct and legally justified. Thus, no fault can be found in the impugned judgments and decrees passed by the courts below and the same deserve to be upheld. 24. No other argument was raised. 25. Considering the facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that the present appeal is bereft of merit and without any substance, thus it must fail. 26. Resultantly, the instant Regular Second Appeal is dismissed, however, with no order as to costs.