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2019 DIGILAW 255 (HP)

Gram Panchayat Basoli v. Vashisht Kumar

2019-03-13

TARLOK SINGH CHAUHAN

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JUDGMENT : TARLOK SINGH CHAUHAN, J. 1. The appellant is the defendant, who after having lost before both the courts below, has filed the instant regular second appeal. 2. The parties shall be referred to as the "plaintiff" and "defendant". 3. Briefly stated the facts leading to filing of the present appeal are that the plaintiff filed a suit for permanent prohibitory injunction on the allegations that he is co-owner with others in 'Mushtarka Malkan' land and is in possession of shed/site marked with letters ABCD, as shown in the site plan, over the land comprised in Khasra No. 913, Khewat No. 225 min, Khatauni No. 251 min, situated in Village Up Mohal Upperli Basoli, Tehsil and District Una, H.P. Earlier, the father of the plaintiff was running his business over the suit land, but due to his old age, the plaintiff had been running his business of confectionery and Prashad etc. for earning livelihood of his family. The suit property was owned and possessed by 'Mushtarka Malkan' of the village and the defendant had no right over the same, yet the defendant was threatening to interfere with the peaceful possession of the plaintiff to oust him forcibly from the suit land. Hence. the suit. 4. The suit was resisted and contested by defendant by filing written statement, wherein preliminary objections regarding maintainability and locus standi were raised. On merits, it was stated that no shop was existing at the spot. It was denied that the plaintiff was co-owner with other 'Mustarka Malkan' on the suit property and was running the business at the spot for the last 35 years. Rather, it was claimed that the suit property was 'Bachat' land, which was reserved for common purposes and was being managed by the Gram Panchayat under the Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974 and no owner or proprietor could acquire it for his individual use. The plaintiff wanted to grab the suit land. Some of the persons of the village during 'Mela' days used to exhibit their goods for the sale in the open market by displaying goods on a small cot 'Takthposh' and there was no 'pucca' structure existing on the suit land. The exhibition of goods was carried out without permission of the managing committee of Mandir Pir Nigah. 5. Some of the persons of the village during 'Mela' days used to exhibit their goods for the sale in the open market by displaying goods on a small cot 'Takthposh' and there was no 'pucca' structure existing on the suit land. The exhibition of goods was carried out without permission of the managing committee of Mandir Pir Nigah. 5. The plaintiff filed replication to the written statement, wherein averments made in the written statement were denied and the averments made in the plaint were reaffirmed and re-asserted. 6. On the pleadings of the parties, the learned trial court on 22.1.2007 framed the following issues:- 1. Whether the plaintiff is owner in possession of the site marked with letters ABCD as shown red in colour in the attached site plan, as alleged? OPP 2. Whether the plaintiff is running his business in the site marked with letters 'ABCD' as shown red in colour in the attached site plan for the last about 35 years, as alleged? OPP 3. If issues No. 1 &2 are proved in affirmative, then whether the plaintiff is entitled for the relief of permanent injunction, as prayed for? OPP 4. Whether the plaintiff is also entitled for the alternate relief of mandatory injunction? OPP 5. Whether the suit is not maintainable in the present form, as alleged? OPD 6. Whether the plaintiff has no locus standi to file the present suit? 7. Whether the plaintiff has not approached the court with clean hands? OPD. 8. Whether the plaintiff is barred by his act and conduct from filing the present suit? OPD. 9. Relief. 7. After recording the evidence and evaluating the same, the learned trial court vide judgment and decree dated 27.2.2017 partly decreed the suit filed by the plaintiff by passing a decree for permanent injunction restraining the defendant from evicting the plaintiff from the disputed shop marked by letters ABCD as shown in the spot map, Ext.PW1/A, forcibly, except in due course of law. 8. Aggrieved by the judgment and decree passed by the learned trial court, the defendant filed an appeal before the learned first appellate court, but the same was dismissed vide judgment and decree dated 3.10.2018 constraining the defendant to file the instant second appeal. 9. It is vehemently argued by Mr. 8. Aggrieved by the judgment and decree passed by the learned trial court, the defendant filed an appeal before the learned first appellate court, but the same was dismissed vide judgment and decree dated 3.10.2018 constraining the defendant to file the instant second appeal. 9. It is vehemently argued by Mr. Ajay Kumar, learned Senior Advocate, assisted by Dheeraj K. Vashisht, Advocate, representing the defendant, that the findings recorded by both the learned courts below are contrary to the record as there is no kiosk (Khokha) standing over the land in dispute, therefore, no decree for injunction could have been passed in favour of the plaintiff. On the other hand, Mr. Ajay Sharma, Advocate, representing the plaintiff, would argue that the findings recorded by both the learned courts below are based entirely on facts, therefore, are not open to challenge in second appeal. 10. I have heard the learned counsel for the parties and have also gone through the records of the case carefully. 11. At the outset, it needs to be observed that the submissions made by the defendant are not only contrary to the record, but also contrary to the case set up in appeal by it before the learned first appellate court, wherein support was sought to be drawn from para 22 of the judgment of the learned trial court, which reads as under:- "22. On the basis of evidence, on record, as discussed herein-in-above, it has become crystal clear that the disputed shop of the plaintiff in the form of Khokha existed right from 35 years, but during the pendency of present suit, it was demolished by the Gram Panchayat and probably, it was reconstructed and it is on this background that DW-1 came to admit its existence on the spot. The plaintiff has failed to prove his adverse possession over the same as well as his title over the same being member of the proprietary body of UP Mohal Upperli Basoli. Definitely, the Gram Panchayat has right to exercise control over Zumla Mustarka Malkan land wherein Khokha is stated to be existing. But to my mind, the defendant cannot dispossess the plaintiff even though he is a trespasser without resorting to the proper procedure in accordance with law. Definitely, the Gram Panchayat has right to exercise control over Zumla Mustarka Malkan land wherein Khokha is stated to be existing. But to my mind, the defendant cannot dispossess the plaintiff even though he is a trespasser without resorting to the proper procedure in accordance with law. Therefore, to my mind, merely on the basis that defendant has no right to dispossess the plaintiff from the disputed shop without following proper procedure, the plaintiff is within his right to seek injunction from the court directing the defendant not to oust him from the disputed shop until he is evicted in accordance with law. Therefore, issue No.1 is partly answered in favour of the plaintiff to the extent that he is in possession over the disputed shop as shown in spot map (Ext.PW1/A)." 12. As observed above, the defendant instead of being aggrieved by aforesaid observations, sought support to contend that the disputed shop was in the form of 'Khokha' as would be evident from para 4 of the grounds of appeal, relevant portion whereof reads thus: ".................Even the lower court in para No. 22 of the judgment has admitted that the disputed shop is in the form of Khokha. The said Khokha, if any, is a temporary structure. The Ld. Lower Court has given license to the respondent to take possession of the land meant for common purposes of the village." 13. The learned senior counsel would then draw my attention to the photographs placed on record to contend that there is no temporary or 'pucca' structure whatsoever standing over the land in dispute, but even this statement is clearly belied from the photographs Marks A to G. Mark G, in particular, shows that a full-fledged tin shed has been erected on the spot and it is only the extension thereof that is supported by tarpaulin, whereas rest of the shop/Khokha is covered with a tin shed/rood and cannot, therefore, be held to be a temporary structure. 14. No other point urged. 15. The findings recorded by the learned Courts below are based on the correct appreciation of the pleadings and evidence and are pure findings of fact which are immune from challenge in second appeal. 16. No question of law much less substantial question of law arises for consideration in this appeal. 17. 14. No other point urged. 15. The findings recorded by the learned Courts below are based on the correct appreciation of the pleadings and evidence and are pure findings of fact which are immune from challenge in second appeal. 16. No question of law much less substantial question of law arises for consideration in this appeal. 17. Accordingly, there is no merit in this appeal and the same is dismissed, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.