Punjab-Haryana High Court
Municipal Corporation vs Smt. Prem And Others on 3 April, 2014
Author: Paramjeet Singh
Bench: Paramjeet Singh
RSA No.530 of 2013 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No.530 of 2013 (O & M)
Date of Decision: 03.04.2014
Municipal Corporation, Yamuna Nagar
... Appellant(s)
Versus
Smt. Prem and others
... Respondent(s)
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1) Whether Reporters of the local papers may be allowed to
see the judgment ?.
2) To be referred to the Reporters or not ?.
3) Whether the judgment should be reported in the Digest ?
Present: Mr. Raj Karan Singh Brar, Advocate with
Mr. A.P.Kaushal, Advocate for the
appellant.
Paramjeet Singh, J.
CM No.1472-C of 2013 Having heard learned counsel for the appellant and for the reasons mentioned in application, delay of 52 days in re-filing the instant appeal is condoned. Application is allowed.
RSA No.530 of 2013 Kumar Parveen 2014.04.26 13:50 I attest to the accuracy and integrity of this document RSA No.530 of 2013 2
This regular second appeal is directed against the judgment and decree dated 20.01.2010 passed by learned Civil Judge (Sr. Divn.), Yamuna Nagar at Jagadhri whereby suit for declaration, possession and permanent injunction filed by appellant-plaintiff has been dismissed and against the judgment and decree dated 21.08.2012 passed by learned Additional District & Sessions Judge, Yamuna Nagar at Jagadhri whereby appeal preferred by appellant-plaintiff has also been dismissed.
For convenience sake, reference to parties is being made as per their status in the suit.
The detailed facts are already recapitulated in the judgments of the courts below and are not required to be reproduced. However, the brief facts relevant for disposal of the present second appeal are to the effect that plaintiff filed the suit as aforesaid with the averments that land mentioned in the head-note of plaint had been shown in the revenue record i.e. jamabandi for the year 1989-90 as a 'charand gauan' under the 'mohtmimship' of defendants. In the column of cultivation, this land was shown to be in possession of the owners i.e. 'khudkasht makbujan malkan'. It was pleaded that in fact, entry in the revenue record to the effect that the suit land was in possession of the owners was wrong. The suit land had been gifted as a grazing ground for cows and for charitable purposes. This land was meant for public purpose and it had vested in the plaintiff/council for all intents and purposes. The defendants had conspired with each other and in pursuance of their collusion, defendants Kumar Parveen 2014.04.26 13:50 I attest to the accuracy and integrity of this document RSA No.530 of 2013 3 no.1 to 4 executed a lease deed for 99 years in respect of suit land in favour of defendant no.6. This lease deed was presented before the Tehsildar, Jagadhri for registration. Vide order dated 19.10.1995, Teshildar-cum-Sub Registrar, Jagadhri refused registration of this lease deed and the defendants filed an appeal before the Registrar-cum-Deputy Commissioner. The plaintiff came to know about the pendency of appeal filed before the Registrar, Yamuna Nagar and his application for being impleaded as a party was allowed. Only then it came to know that defendants no.1 to 4 had executed a lease deed in favour of defendant no.6 for a period of 99 years on 19.10.1995 with an intention to misappropriate the suit land. The suit land had been gifted for 'charand' purposes and a public trust was created qua the same. Appeal filed by the defendants before the Deputy Commissioner-cum-Registrar, Yamuna Nagar was accepted vide order dated 21.01.1997. The plaintiff, thus, prayed for passing a decree for declaration to the effect that the suit land vests in Municipal Council, Jagadhri and entries in the revenue record contrary to this were wrong, null and void and not binding on its rights. The plaintiff also challenged the order dated 21.01.1997 passed by the Court of Deputy Commissioner-cum-Registrar, Yamuna Nagar allowing registration of lease deed in favour of the defendants, as illegal, null and void and not binding on its rights and also prayed for passing a decree for permanent injunction thereby restraining the defendants from alienating the suit land in any manner whatsoever and from changing its Kumar Parveen 2014.04.26 13:50 I attest to the accuracy and integrity of this document RSA No.530 of 2013 4 nature.
Defendants no.1 to 4 resisted the suit and filed joint written statement taking various preliminary objections including of limitation. On merits, it was pleaded that they were exclusive owners of the suit land and the plaintiff had no concern with the same. It was admitted that the suit land was described as 'charand gauan' i.e. grazing ground for cows. This land was under the management of defendants no.1 to 4 to the extent of half share and defendant no.7 to the extent of remaining half share. It was in possession of the owners and had always remained in the ownership of the original owner Baru Mal, who continued to derive the full usufruct of the same as an owner in his own right. No part of this property was ever utilized for any public purpose. This land had never been used as a grazing ground for cows. Defendant no.7 and Rulia Ram had inherited the suit land as next heirs of Baru Mal, who was original owner and they remained in possession. Defendants no.1 to 4 had inherited the share of Rulia Ram after his death and now defendants no.1 to 4 and 7 are in possession and enjoyment of the suit land as owners. They never acted as 'mohtmims'. The suit land was never gifted for 'charand gauan' nor the same was meant for public purpose. It was further pleaded that the judgment and decree dated 17.01.1979 passed in civil suit titled 'Gur Parshad and another vs. Rulia Ram etc.' has attained finality upto the High Court and same was binding upon the plaintiff also. Defendants no.1 to 4 had leased out their share Kumar Parveen 2014.04.26 13:50 I attest to the accuracy and integrity of this document RSA No.530 of 2013 5 in the suit land to defendant no.6 and had also handed over the actual, physical possession of the same to him on 18.07.1995. Registrar, Yamuna Nagar had accepted the appeal filed by the defendants and the said lease deed had been ordered to be registered. The dedication of the suit land by Baru Mal was only fictitious and paper transaction. Other averments in plaint were denied.
Defendant no.6 filed separate written statement taking various preliminary objections. It was pleaded that suit land was in possession of defendants no.1 to 4 and 7. This land had always been utilized for cultivation firstly by Baru Mal and thereafter by Rulia Ram and defendant no.7 and now by defendants no.1 to 4 and 7. The suit land had never been utilized as a grazing ground for cows. It never vested in Municipal Council, Jagadhri and plaintiff had no concern with the same. While taking same pleas as taken by defendants no.1 to 4, dismissal of suit was prayed for.
Defendant no.7 filed written statement and took preliminary objections to the effect that defendant no.5 had died more than 5 years ago and suit having been filed against a dead person was liable to be dismissed. While taking identical pleas as taken by defendants no.1 to 4, dismissal of suit was prayed for.
Defendant no.8 filed written statement taking similar pleas as taken by the remaining defendants.
Replication was filed controverting the pleas as taken by the Kumar Parveen 2014.04.26 13:50 I attest to the accuracy and integrity of this document RSA No.530 of 2013 6 defendants in their respective written statements and reiterating the same as taken in plaint. On the basis of pleadings of parties, the Court of first instance framed following issues:
"1. Whether the land in dispute vests in the Municipal Council, Jagadhri being 'Charand Gauan' , if so, its effect?OPP
2. Whether the entries in the revenue records are wrong, illegal and non est and not binding upon the rights of the plaintiff?OPP
3. Whether the suit has not been filed by competent person?OPD
4. Whether plaintiff has no locus standi to file the present suit?OPD
5. Whether the suit is time barred?OPD
6. Whether suit has not been properly valued for the purpose of court fee and jurisdiction?OPD
7. Relief."
After appreciating the evidence, the Court of first instance dismissed the suit. Feeling aggrieved, the plaintiff preferred an appeal which has also been dismissed by the lower Appellate Court. Hence, this regular second appeal.
I have heard learned counsel for the appellant and perused the record.
Learned counsel for the appellant has referred to following substantial questions of law formulated in the grounds of appeal for consideration by this Court:
Kumar Parveen 2014.04.26 13:50 I attest to the accuracy and integrity of this document RSA No.530 of 2013 7
(i) Whether the judgments and decrees passed by both the courts below are against the provisions of the CPC?
(ii) Whether the courts below failed to consider the relevant evidence Ex.P-3 and Ex.P-4 and statements of PW 3 and PW 4?
(iii) Whether both the courts below have failed to appreciate the evidence on record while passing the impugned judgments and decrees?
(iv) Whether the judgments and decrees passed by the courts below are illegal, arbitrary and without jurisdiction?
(v) Whether the courts below are erroneous for not
deciding the two applications moved by the
appellant while passing impugned judgments and decrees?
Learned counsel for the appellant has contended that both the courts below have misread the evidence and findings of both the courts below are based on surmises and conjectures. Learned counsel has further contended that copy of mutation (Ex.P-4), copy of jamabandi (Ex.P-3) and statements of PW 3 and PW 4 show that land in dispute was 'charand gauan' which earlier vested in Panchayat and now vests in Municipal Council, Yamuna Nagar. Learned counsel has further contended that order dated 21.01.1997 passed by Registrar, Yamuna Nagar is null and void and not sustainable in the eyes of law. Kumar Parveen 2014.04.26 13:50 I attest to the accuracy and integrity of this document RSA No.530 of 2013 8
I have considered the contentions of learned counsel for the appellant.
Both the courts below have recorded concurrent finding that revenue record relied upon by the plaintiff, itself, reveals that land in dispute always remained under the cultivation of tenants/gair marusians. Initially, the names of Bhangi Ram and Karim Baksh were recorded as Mujaras on the suit land and then in the subsequent jamabandi, suit land is shown to be in possession of different persons as Mujaras. As per jamabandi for the years 1963-64 onwards, this land was shown to be in possession of gair marusians and makbuja malkans etc. It has been rightly recorded that in fact, the suit land had not been used as grazing ground for cows, rather the same is shown to have been used for cultivation purpose on batai. It has been rightly recorded that plaintiff failed to produce any material on record to show that the batai money which was derived from the cultivation of this land was used for the benefit of the cows.
Both the courts below have dealt with the issue whether Baru Mal had in fact made a valid endowment of the disputed land by getting sanctioned the mutation no.529 in favour of 'charand gauan' or not. It has been rightly recorded that said divesting of by Baru Mal did not complete the act of dedication. Baru Mal and his descendents conducted themselves in a manner which was inconsistent with the original dedication. It is not proved that suit property was actually set apart Kumar Parveen 2014.04.26 13:50 I attest to the accuracy and integrity of this document RSA No.530 of 2013 9 forever for cow grazing. It has also been rightly recorded that land in dispute had continuously remained under cultivation of different persons/tenants under the defendants on payment of batai/chakota. Thus, both the courts below have rightly held that on the basis of testimony of PW 3 Raj Kumar and PW 4 Naveen Kumar, it is not satisfactorily proved that suit land was being used as a grazing ground for cattle.
It has also been rightly recorded that perusal of document (Ex.P-4) reveals that this mutation was got entered in favour of 'charand gauan' but at the same time, ownership rights were retained by Baru Mal and it is manifest that though he wanted that the suit land could be used for grazing of cows but there is a concurrent finding that if Baru Mal would have actually completely divested himself of the rights over the suit land, then only the suit land could have been deemed to be dedicated, however, it was not done and, thus, it cannot be said that Baru Mal wanted to relinquish or dedicate the proprietary rights in the land or partial rights in the land in favour of plaintiff. The defendants rebutted the evidence produced by plaintiff to prove the divesting of rights of Baru Mal over the suit property, by proving jamabandi entries from the years 1926-27 to 1999-2000. It has also been rightly held that since vide judgment and decree dated 21.02.1986 passed in civil suit No.542 of 1972 filed by Gur Parshad and Mado Ram against the predecessor-in-interest of defendants no.1 to 4 and 7 as well as one Kumar Parveen 2014.04.26 13:50 I attest to the accuracy and integrity of this document RSA No.530 of 2013 10 Gobind Ram, it has been held that suit land was not proved to have been donated by Baru Mal for the purpose of grazing ground for cattle and same had attained finality, therefore, they are binding on the plaintiff also. In Shiromani Gurdwara Parbandhak Committee vs. Mahant Harnam Singh C. (dead), M.N.Singh and others, A.I.R. 2003 S.C. 3349, it has been held that judgment passed in a representative suit binds not only the parties in the suit but also those who share the common interest and are interested in trust.
It has also been rightly recorded that there was no formal divesting of his rights on the part of the donor while creating endowment of the suit property and no written gift deed had been executed or registered. It has also been rightly recorded that Baru Mal sough to create a charitable endowment in favour of ''charand gauan ahle hanood', but he never dedicated the land for the purpose of endowment and it was simply a fictitious transaction and it was never acted upon. It has also been recorded by both the courts below that the plaintiff failed to prove that suit property had been permanently gifted/donated by Baru Mal or that it vested in the Municipal council, therefore, the plaintiff had no right or authority to challenge validity or otherwise of the order dated 21.01.1997 passed by the Registrar, Yamuna Nagar. It has also been rightly concurrently recorded that the plaintiff failed to prove that any approval had been obtained from the Deputy Commissioner in respect of filing of suit or the matter had been Kumar Parveen 2014.04.26 13:50 I attest to the accuracy and integrity of this document RSA No.530 of 2013 11 reported to the committee in the next meeting for taking approval from the Deputy Commissioner.
Learned counsel for the appellant could not show that the said findings are perverse or illegal or based on misreading, non-reading or misappreciation of the material evidence on record. Consequently, concurrent findings of fact recorded by both the courts below do not warrant interference in regular second appeal. No question of law, muchless substantial question of law, as alleged, arises for adjudication in this second appeal.
No other point has been urged.
Dismissed in limine.
03.04.2014 (Paramjeet Singh)
parveen kumar Judge
Kumar Parveen
2014.04.26 13:50
I attest to the accuracy and
integrity of this document