Punjab-Haryana High Court
Bhupinder Singh vs Gram Panchayat on 16 January, 2014
Author: Paramjeet Singh
Bench: Paramjeet Singh
RSA No.3115 of 1986 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No. 3115 of 1986
Date of Decision: January 16, 2014
Bhupinder Singh
... Appellant
Versus
Gram Panchayat, Sandhwal and others
... Respondents
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. R.K.Joshi, Advocate for
the appellants.
Mr. G.S.Jaswal, Advocate for
the respondents.
Paramjeet Singh, J.
This second appeal arises from a suit for permanent injunction filed by plaintiff-appellant against the defendants- respondents which was decreed by the Court of first instance whereby defendants were restrained from blocking the passage Kumar Parveen 2014.02.21 15:37 I attest to the accuracy and integrity of this document RSA No.3115 of 1986 2 bearing Kh. No.1073, shown in red colour and marked with letters 'ABCD' in the site plan Ex.P-1, and appeal preferred by the defendant no.3/respondent no.1 has been allowed and suit of the plaintiffs has been dismissed.
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 this second appeal are that the plaintiffs filed a suit for permanent injunction restraining the defendants from blocking the passage comprised in khasra No.1073, fully detailed in the head-note of the plaint. It was pleaded that suit property is a passage which is being used by the plaintiff along with other inhabitants of the village. The said passage also exists in the revenue record. The plot bearing khasra No.273, khewat no.972, khatauni no.689 is 'Rafia Aam' and is for the use of whole village community. There exist two wells in khasra no.273 and the inhabitants of the village use the water of these wells for drinking purpose. The passage shown red in the site leads to khasra no.273. The plaintiff is the owner of the land compromised in khasra no.781 in which he has constructed his house. The said khasra no.273 is near to khasra no.781 and the plaintiff uses the passage in dispute comprised in khasra no.1073. The passage bearing khasra No.1073 has been in existence for the last so many years. It was also pleaded that defendant wants to Kumar Parveen 2014.02.21 15:37 I attest to the accuracy and integrity of this document RSA No.3115 of 1986 3 block the passage to which it has no right.
Defendant no.3 resisted the suit by taking preliminary objections that civil court has no jurisdiction to try the present suit; that the plaintiffs have no locus standi to file the present suit; that the suit between the plaintiff and defendants no.1 and 2 is collusive and the site plan submitted by the plaintiff is wrong. On merits, it was pleaded that khasra no.1073 is a rasta and its portion shown in green colour in the site plan attached with the plaint has never been used by any person. The water supply scheme has been in existence in the village for the last so many years and all the inhabitants of the village are taking water from the water tap and not from the well in question. Khasra no.1073 is the ownership of the Gram Panchayat and khasra no.781 is being used for agricultural purposes and plaintiff resides in other house marked by letters DEFG in the site plan Ex.D-1.
On the basis of pleadings of parties, the Court of instance framed the following issues:
"1. Whether the site shown as ABCD in the site plan filed by the plaintiff with the plaint is passage as has been alleged in the plaint?OPP
2. Whether the plaintiff is entitled to the injunction prayed for?OPP
3. Whether the civil court has no jurisdiction to hear the suit?OPD
4. Whether the plaintiff has no locus standi to file Kumar Parveen 2014.02.21 15:37 I attest to the accuracy and integrity of this document RSA No.3115 of 1986 4 the suit?OPD
5. Whether site plan filed by the plaintiff is correct?OPP
6. Relief."
Parties were afforded opportunity to lead their respective evidence. After appreciating the evidence, the Court of first instance decreed the suit vide judgment and decree dated 19.10.1985. Against that, defendant no.3-Gram Panchayat preferred an appeal which has been accepted by the lower Appellate Court and suit of plaintiff has been dismissed, vide judgment and decree dated 11.08.1986. Hence, this regular second appeal.
When the appeal was admitted, no substantial question of law was framed. No substantial question of law has been placed on record during the pendency of appeal or at the time of final hearing. However, since appeal has been pending since 1986, I have heard learned counsel for the parties on merit and perused the record.
Learned counsel for the appellant has contended that khasra no.1073 is a passage and 'Jumla Malkan Wa-Digar Haqdaran Hasab Rasad Khewat' has been recorded as owner and 'sare aam' has been recorded in the column of cultivation in the revenue records and nature of land has been shown as 'gair mumkin rasta'. In Ex.P-4, plaintiff and others have been shown as owner of khasra no.781 which is an agricultural land measuring 3 kanals 16 marlas. Learned counsel for the appellant has further contended Kumar Parveen 2014.02.21 15:37 I attest to the accuracy and integrity of this document RSA No.3115 of 1986 5 that lower Appellate Court has wrongly reversed the findings of the Court of first instance by misreading the evidence and relying upon case law Bashember Dayal vs. State of Haryana AIR 1986 (Pb. & Har.) 203 which is not applicable to the facts of this case.
Per contra, learned counsel for the respondents has vehemently opposed the contentions raised by learned counsel for the appellant and contended that property in dispute is in the control of Panchayat and it has power to change the nature and user of it. In support of his contentions, he has also relied upon Bashember Dayal (supra).
I have considered the rival contentions of learned counsel for the parties.
From the arguments of learned counsel for the parties, following substantial question of law arises in the appeal which needs consideration:
1. Whether findings of the lower Appellate Court are perverse due to non-reading and misreading of revenue records specifically Ex.P-4 and P-5?
Admittedly, plaintiff along with others is owner of the agricultural land comprised in khasra no.781 which adjoins the passage comprised in khasra no.1073, marked with letters ABCD in the site plan Ex.P-1. In the revenue records, 'Jumla Malkan Wa- Digar Haqdaran Hasab Rasad Khewat' has been recorded as owner of khasra no.1073. Meaning thereby, residents of the village are Kumar Parveen 2014.02.21 15:37 I attest to the accuracy and integrity of this document RSA No.3115 of 1986 6 owners of the property of said khasra according to their respective shares. It means this passage was carved out during the consolidation after deducting the land of the owners. Such land does not vest in the Panchayat and reference can be made to Gram Panchayat Gowara vs. Commissioner, Patiala Division, 1989 PLJ 8.
There is no dispute regarding the proposition of law laid down in Bashember Dayal (supra). However, the same is found to be distinguishable on the facts and circumstances of the present case. The said case law is applicable to the property which is 'shamilat deh' as per the provisions of Punjab Village Common Lands (Regulation) Rules (1964). In that case, the passage allegedly to be used was within the abadi deh and other passage was also in existence. As per the law laid down in Bashember Dayal (supra), the Gram Panchayat has power to change the user of shamilat deh vesting in it and can transfer the same for any other purpose except when it is proved that this is a mala fide. Here in the present case, the property in dispute is not the 'shamilat deh, rather this is the property of right holders of the village from whose land this passage was carved out and ownership has been shown as 'Jumla Malkan Wa-Digar Haqdaran Hasab Rasad Khewat'. Otherwise also, the passage leads to the agricultural fields of the plaintiff and others, therefore, the Gram Panchayat has no right to block this passage. The lower Appellate Court has misread the Kumar Parveen 2014.02.21 15:37 I attest to the accuracy and integrity of this document RSA No.3115 of 1986 7 documents Ex.P-4 and Ex.P-5.
The substantial question of law raised above is, thus, answered in affirmative.
No other point has been urged.
In view of above, the instant appeal is allowed, judgment and decree of the lower Appellate Court are set aside and suit of plaintiff is decreed and findings recorded by the Court of first instance are restored. Decree-sheet be prepared.
No order as to costs.
January 16, 2014 (Paramjeet Singh)
parveen kumar Judge
Kumar Parveen
2014.02.21 15:37
I attest to the accuracy and
integrity of this document