Punjab-Haryana High Court
Balbir Singh vs Gram Panchayat/Gram Sabha Of Village ... on 13 February, 2014
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
RSA No.895 of 2014 (O&M)
Date of decision: 13.02.2014
Balbir Singh
-----Appellant(s)
Vs.
Gram Panchayat/Gram Sabha of Village Roshan Patti
Jhungian & another
-----Respondent(s)
CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG
1. Whether reporters of local newspapers may be allowed to
see judgment?
2. To be referred to reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. S.S. Antal, Advocate
for the appellant.
---
RAKESH KUMAR GARG, J.
The plaintiff-appellant had filed the instant suit seeking permanent injunction against the defendant-respondents restraining them from shifting the site of cremation ground from the existing place to near the plot of plaintiff and further restraining them from removing the cremation shed from the existing cremation ground.
It is the case of the plaintiff-appellant that he is the owner in possession of plot bearing Khewat/Khatoni No.251/251, Khasra No.338/1-19. The defendant no.2 is the husband of Ex- Sarpanch of the Gram Panchayat having influence in the village and the plaintiff was having litigation with him and the ex-Sarpanch Kumar Ashwani 2014.02.19 16:31 I attest to the accuracy and integrity of this document Chandigarh RSA No.895 of 2014 2 of the village. The existing cremation ground was being used by the villagers since time immemorial and the same is at a distance from the residential area of the village. The said cremation ground was developed by the villagers and iron sheets/shed has been constructed over the same. It was alleged in the suit that the defendant Gram Panchayat wanted to shift the said cremation ground to a place near to the plot of the plaintiff. The said action was being taken by the Panchayat members in collusion with defendant no.2 to harass the plaintiff. It was alleged that cremation of dead bodies near the populated area would be injurious to the health of the villagers. The plaintiff requested the defendants not to proceed with their illegal act, but they declined the request of the plaintiff. Hence, the suit.
Upon notice, the defendants appeared and filed written statement, raising various preliminary objections. On merits, it was stated that the plaintiff is a chronic litigant and is in the habit of filing false suits. In fact, the plaintiff was in unauthorized possession of the phirney of the village. Wife of defendant no.2, being the Sarpanch, wanted to remove the said unauthorized possession of the plaintiff. As such, the plaintiff was having a grudge against defendant no.2 and his wife. It was further denied that the present cremation ground was continuously used by the villagers for the last 150 years or that it was at a distance of about 3-4 killas from the residential area of the village. It was claimed that the cremation ground is situated in Khasra No.127 and 129. A Kumar Ashwani 2014.02.19 16:31 I attest to the accuracy and integrity of this document Chandigarh RSA No.895 of 2014 3 temporary shed was constructed in the land of Gurudwara Sahib for the purpose of cremation during rainy season. There was no pucca passage leading to the cremation land in the Gurudwara Sahib, therefore, the cremation ground in Khasra No.127 was developed. It was further claimed that there was no plot of the plaintiff adjoining Khasra No.127 and the actual cremation ground is half kilometer away from the abadi of the village and about 200 meters away from the Phirney of the village. There are no residential houses near the cremation ground and the plaintiff had no right to stop the shifting of the cremation ground or construction of any shed in the same. The villagers had already spent more than Rs.2 lac for construction of road and for filling earth in the plot in Khasra No.127. The aforesaid Khasra No.127 is only one killa away from the existing shed built in the land belonging to the Gurudwara. In view of the aforesaid pleadings, dismissal of the suit was prayed for.
On the basis of pleadings of the parties, following issues were framed:-
"1) Whether the plaintiff is entitled to permanent injunction as prayed for? OPP
2) Whether the suit is not maintainable? OPD
3) Whether the plaintiff has not approached to the court with clean hands and suppressed material and true facts from the court? OPD
4) Whether the plaintiff has no locus-standi to file the present suit? OPD
5) Whether the suit is bad for mis-joinder of parties?
OPD Kumar Ashwani 2014.02.19 16:31 I attest to the accuracy and integrity of this document Chandigarh RSA No.895 of 2014 4
6) Relief."
In order to prove his case, the plaintiff examined Joginder Singh as PW-1 through his duly sworn affidavit Ex.PW1/A, however, said PW did not turn up for his cross- examination. Accordingly, testimony of PW-1 shall not be taken into consideration. Thereafter, the plaintiff further examined PW-2. Piara Singh through his duly sworn affidavit Ex.PW.2/A and then the plaintiff himself stepped into witness box as PW-3 through his duly sworn affidavit Ex.PW.3/A and the plaintiff also tendered into evidence certified copy of Misal Haqiat of village Roshanpur Jhungian Ex.PX, copy of jamabandi for the year 2006-07 Ex.PY and site plan Mark PA and evidence on behalf of the plaintiff was closed vide statement of Id. Counsel for the plaintiff dated 15.02.2012.
On the other hand, the defendants examined DW-1 Jarnail Singh through his duly sworn affidavit Ex.DW.1/A, DW- 2 Baljit Singh through his duly sworn affidavit Ex.DW.2/A and also tendered into evidence copy of Panchayat Resolution Ex.D1, photographs Ex.D2 to Ex.D4 and Jamabandi for the year 2006-07 Ex.D5 and evidence on behalf of the defendant closed by order dated 8.09.2012.
After hearing learned counsel for the parties and considering the evidence on record, the trial Court dismissed the suit of the plaintiff-appellant.
Kumar Ashwani2014.02.19 16:31 I attest to the accuracy and integrity of this document Chandigarh RSA No.895 of 2014 5
Feeling aggrieved from the aforesaid judgment and decree of the trial Court, the plaintiff filed an appeal before the first Appellate Court which was also dismissed vide impugned judgment and decree dated 5.10.2013. While dismissing the appeal, the lower Appellate Court observed as under:-
"15. The respondents/defendants have placed on record copy of jamabandi for the year 2006- 2007 EXPY/EXD5, in which Khasra No. 127 and 128 have been shown as ownership of "Shamlat Patti Fatehpur Hasab Rasad Hisa Khewat", which is being used as Gair Mumkin Marriyan. EXD1 is the copy of resolution proved by the respondents/ defendants for shifting of cremation ground from the present place to Khasra No. 127 and 129. The appellant/plaintiff Balbir Singh, when appeared into witness box as PW3, he in his cross-
examination has admitted that the land comprising Khasra No. 127 and 129 is shamlat land and is in possession of gram panchayat of village Roshanpur Jhuggian. He admitted that khasra No. 127 is reserved for cremation ground, but khasra no. 129 is not reserved. He has also admitted that gram panchayat has now filled the earth and made a pucca passage. This fact has also been admitted by PW2 Piara Singh in his cross-examination that the temporary cremation ground is in existence in Khasra No. 79//13 i.e. at the present place. He admitted that Khasra No. 127 and 129 is shamlat land, but he cannot tell whether the land comprising Khasra No. 127 and 129 is reserved for cremation ground or not. He admitted that the gram panchayat has filled the Kumar Ashwani 2014.02.19 16:31 I attest to the accuracy and integrity of this document Chandigarh RSA No.895 of 2014 6 earth and made a pucca passage for approaching that land, by collecting money from the villagers and appellant/plaintiff has no right to restrain the respondents/ defendants from using the land in question for cremation purposes. He has not denied this fact that Administrator was appointed by. the DDPO, Patiala for filling the earth in these two khasra numbers.
16. As per revenue record and cross-examination of the appellant/plaintiff and of PW2 Piara Singh, it is clearly proved on record that khasra numbers 127 and 129 have been reserved for cremation ground and a pucca passage has been made by the gram panchayat for approaching that land. Evidence has also come on the file that cremation ground at the present place was temporary arrangement, which was made after receiving the grant from the Government. Evidence has also come on the file that gram panchayat is going to shift the cremation ground after passing a resolution.
17. Ld. Trial Court has rightly held that the appellant/plaintiff has no right to restrain the gram panchayat in performing the function for the residents of the village and he is not entitled to permanent injunction restraining the respondents/ defendants from shifting the cremation ground from the present place to some other place. The findings of the evidence, which do not call for interference by this Court and as such are upheld on all the issues."Kumar Ashwani 2014.02.19 16:31 I attest to the accuracy and integrity of this document Chandigarh RSA No.895 of 2014 7
Still not satisfied, the plaintiff has filed the instant appeal submitting that following substantial questions of law arise in this appeal for consideration of this Court:-
"a) Whether the findings recorded by the courts below are illegal and perverse ?
b) Whether the judgments and decrees passed by courts below are unsustainable in the eyes of law?"
In support of his case, learned counsel for the appellant has vehemently argued that the Courts below have not considered the fact that the existing cremation ground was being used by the villagers since the time immemorial and the same was at a distance from the residential area of the village and the Gram Panchayat is shifting the said cremation ground in collusion with defendant/respondent no.2 with an intention only to harass the appellant and moreover, the cremation of the dead bodies near the populated area will be injurious to the health of the villagers.
According to learned counsel for the appellant, the Courts below have misread and misinterpreted the evidence on record and thus, the substantial questions of law, as raised, do arise in this appeal.
I have heard learned counsel for the appellant and perused the impugned judgments and decrees of the Courts below. Kumar Ashwani 2014.02.19 16:31 I attest to the accuracy and integrity of this document Chandigarh RSA No.895 of 2014 8
As per jamabandi for the year 2006-07 (Ex.PY/Ex.D5), Khasra No.127 has been shown to be the ownership of shamlant patti Fatehpur Hasab Rasad Hisa Khewat which is being used as Gair Mumkin Marriyan. Ex.D1 is the copy of resolution proved by the respondents for shifting of cremation ground from the present place to Khasra Nos.127 and 129. The appellant, in his cross- examination, has admitted that the land comprising in Khasra Nos.127 and 129 is a shamlat land and is in possession of the Gram Panchayat of Village Roshanpur. He further admitted that Khasra No.127 is reserved for cremation ground. He also admitted the fact that the Gram Panchayat has filled the earth and made a pucca passage. Further, it could not be disputed that evidence has come on record that the cremation ground at the present place was a temporary arrangement and the Gram Panchayat was going to shift the same after passing a resolution. Thus, the appellant has no right to restrain the Gram Panchayat in performing of its statutory functions. Moreover, there is nothing on record to prove that the cremation ground is being shifted only to harass the appellant.
No other point has been raised.
In view thereof, this Court finds no perversity in the findings recorded by the Courts below.
Kumar Ashwani 2014.02.19 16:31 I attest to the accuracy and integrity of this document Chandigarh RSA No.895 of 2014 9
Thus, no substantial questions of law, as raised, arise in this appeal.
Dismissed.
February 13, 2014 [RAKESH KUMAR GARG]
ak JUDGE
Kumar Ashwani
2014.02.19 16:31
I attest to the accuracy and
integrity of this document
Chandigarh