IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CR No.7778 of 2012
Date of Decision:12.11.2013.
Gram Panchayat, Jalalabad (Basti Tiwana)
...Petitioner
Versus
Madan Lal and another
....Respondents
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
Present: Mr. R.K.Girdhar, Advocate,
for the petitioner.
Mr. S.K.Arora, Advocate,
for respondent no.1.
PARAMJEET SINGH, J.
Instant civil revision has been filed under Article 227 of the Constitution of India for setting aside the order dated 22.10.2012 passed by learned Additional District Judge, Ferozepur whereby order dated 12.10.2011 passed by learned Civil Judge (Jr. Divn.), Jalalabad dismissing the application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 (in short "the Code") filed by respondent no.1-plaintiff, has been set aside.
Shorn of unnecessary details, the facts relevant for disposal of the present petition are to the effect that respondent no.1-plaintiff filed suit for declaration to the effect that he is in possession of the suit land situated within the village abadi. The suit land was in possession of his father Mani Raj and after his death, he (respondent no.1) is in possession of the suit land. Respondent no.2 which is a religious institution forcibly occupied the suit land and consequently respondent no.1 filed civil suit against respondent no.2 in which compromise was effected and possession of land measuring 4 kanals 14 marlas was given to respondent no.1 and he gave up his claim qua the remaining land. Respondent no.1 moved application for correction of revenue record which was declined by the revenue authorities on the ground that abadi deh is not within their domain. Upon notice, the petitioner put in appearance and filed written statement alleging that as per the revenue records, Gram Panchayat is owner in possession of the suit land. The land measuring 6 kanals 6 marlas has been given on lease to Dera Baba Khaki Shah i.e. respondent no.2 and 1 kanal 4 marlas is within abadi deh.
Along with the suit, respondent no.1-plaintiff also filed application under Order XXXIX Rules 1 and 2 of the Code which was dismissed by the trial Court vide order dated 12.10.2011. Feeling aggrieved by the said order, respondent no.1 preferred an appeal before learned Additional District Judge, Ferozepur which has been allowed vide impugned order dated 22.10.2012 and the order dated 12.10.2011 passed by the trial Court has been set aside. Hence, this revision petition.
I have heard learned counsel for the parties and perused the record.
Perusal of record shows that respondent no.1 has not been recorded in possession of the suit land. The name of his father has been recorded as 'gair marusi' and mere entry as 'gair marusi' does not clothe a person with the status of tenant. Since the possession of father of respondent no.1 was not lawful, the private agreement between respondent no.1 and respondent no.2 would not entitle respondent no.1 to seek any relief of injunction. Since the suit property has been shown as 'abadi deh' , name of father of respondent no.1 has been recorded as 'gair marusi' and the revenue record does not show any possession of respondent no.1 in the suit land. The basic three ingredients for getting the temporary injunction i.e. existence of prima facie case, balance of convenience and irreparable loss, are not fulfilled by respondent no.1.
Moreover, in Jagpal Singh & Ors. vs. State of Punjab and Ors. 2011 (1) R.C.R (Civil) 912, the Hon'ble Supreme Court has held as under:
"22. Before parting with this case we give directions to all the State Governments in the country that they should prepare schemes for eviction of illegal/unauthorized occupants of Gram Sabha/Gram Panchayat/Poramboke/Shamlat land and these must be restored to the Gram Sabha/Gram Panchayat for the common use of the villagers of the village. For this purpose the Chief Secretaries of all State Kumar Parveen 2013.11.19 17:38 I attest to the accuracy and integrity of this document High Court, Chandigarh Governments/Union Territories in India are directed to do the needful, taking the help of other senior officers of the Governments. The said scheme should provide for the speedy eviction of such illegal occupant after giving him a show cause notice and a brief hearing. Long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularizing the illegal possession. Regularization should only be permitted in exceptional cases e.g where lease has been granted under some Government notification to landless labourers or members of Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land."
In view of the settled position of law that the order of the trial Court cannot be lightly set aside as long as view of the trial Court is possible, the Appellate Court should not have interfered in the order of the trial Court, as has been held by the Hon'ble Supreme Court in Mohd. Mehtab Khan vs. Khushmima Ibrahim 2013 (2) RCR (Civil) 295.
In view of above, the instant revision is allowed, the impugned order dated 22.10.2012 is set aside and the order dated 12.10.2011 passed by learned Civil Judge (Jr. Divn.), Jalalabad is restored.
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