IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
RSA No. 768 of 2013 (O&M)
Date of Decision : 08.04.2016
Kashmir Singh and another ....Appellants
Versus
Balbir Singh and others ....Respondents
CORAM: HON'BLE MR. JUSTICE SURINDER GUPTA
Present: Mr. Sarju Puri, Advocate
for the appellants.
Surinder Gupta, J.
This is second appeal against the judgment and decree passed by Additional Civil Judge (Senior Division), S.B.S. Nagar, whereby suit of plaintiffs seeking the relief of permanent injunction to restrain the defendants from interfering in possession of plaintiffs over suit property measuring 1 kanal 0 marla, bearing khasra no. 84, khewat no. 258, khatauni no. 1394 situated in village Mahil Gehlan, was dismissed.
2. Plaintiffs-appellants claimed to be in possession of suit property under agreement dated 09.04.2010, executed by Chanchal Singh son of Dhanna Singh, a proprietor of the village Mahil Gehlan. They alleged that Chanchal Singh was earlier in possession of suit land and transferred the rights of possession in favour of plaintiffs.
3. The defendants alleged that suit land is 'maqbuja abadi deh' and vests in gram panchayat. The jurisdiction of Civil Court is barred under Section 13 of the Punjab Village Common Lands (Regulation) Act, 1961. Defendants denied that Chanchal Singh was in possession of suit land, rather claimed that it was 1 of 5 under the control and supervision of village panchayat and is being used for disposal of waste water of houses in village and rainy water.
4. Learned Additional Civil Judge (Senior Division), S.B.S. Nagar observed on perusal of jamabandi for the year 2004-2005 (Ex. P-5) that in column of ownership land in dispute is recorded as owned by 'abadi deh' and 'maqbuja abadi deh' has been recorded in column of possession. Plaintiffs failed to prove that Chanchal Singh was proprietor of the village or transferred possession of the same in favour of plaintiffs vide agreement dated 09.04.2010.
5. Ist Appellate Court also declined the appeal of plaintiffs with the observation that plaintiffs are not proved to be in settled possession of suit land.
6. Learned counsel for plaintiffs-appellants has argued that even if the land is owned by abadi deh of the village, the village gram panchayat has no concern with suit land. On the basis of their possession over suit land plaintiffs are entitled to relief of injunction.
7. Admittedly, suit land vests in abadi deh. Defendants contended that it is being used for disposal of waste water of the houses in village and also of rainy water. As to whether gram panchayat has any concern with the suit land is not a question which calls for any answer in this appeal as gram panchayat was not arrayed as party by plaintiffs. The basis of claim of plaintiffs is that they have purchased possessory rights over suit land from one Chanchal Singh, a proprietor of village. However, they have 2 of 5 failed to produce on record any evidence to support their contention.
8. It has become a trend to encroach upon common land in villages with active connivance of influential persons, political clouts, musclemen including members and officials of gram panchayat. The Apex Court took note of this fact in the case of Jagpal Singh and others vs. State of Punjab and others, 2011 (22) SCC 396 wherein it has been observed in paras 19 and 20 as follows:-
"19. In this connection we wish to say that our ancestors were not fools. They knew that in certain years there may be droughts or water shortages for some other reason, and water was also required for cattle to drink and bathe in, etc. Hence they built a pond attached to every village, a tank attached to every temple, etc. These were their traditional rain water harvesting methods, which served them for thousands of years. 20 Over the last few decades, however, most of these ponds in our country have been filled with earth and built upon by greedy people, thus destroying their original character. This has contributed to the water shortages in the country. Also, many ponds are auctioned off at throw away prices to businessmen for fisheries in collusion with authorities/Gram Panchayat officials, and even this money collected from these so- called auctions is not used for the common benefit of the villagers but misappropriated by certain 3 of 5 individuals. The time has come when these malpractices must stop."
9. This Court in the case of Mohan Lal vs. Mohan Singh, 1995 (3) PLR 564 observed in para 5 of the judgment as follows:-
"5. Apart from the three ordinary ingredients which must be satisfied for grant of injunction in favour of a plaintiff/petitioner, namely, a strong prima facie case, balance of convenience and irreparable injury, in cases involving public properties and public interest, the Courts have to bear in mind as to whether the grant of injunction would be conducive or detrimental to public interest. The Courts have to take note of the fact that Government lands belonging to the public at large and the community as a whole is entitled to enjoy the properties belonging to the Government. In fact, the Government holds property as a trustee of the people and, therefore, where any attempt is made by an individual or a group of individuals to misappropriate/misuse or otherwise interfere with the enjoyment of public property by the people in general, the Courts have to be extremely cautious in granting injunction in favour of such person only on the ground that he is in possession of the property. Possession of public property by such an individual or a group of individuals is no possession in the eyes of law. Such a person cannot claim any right whatsoever on the basis 4 of 5 of unlawful occupation of the public property and Courts would be justified in declining any assistance to such a person. In such like cases, a plaintiff cannot claim parity with a person who has a dispute with another individual over a private property. Moreover, the Courts have to act as guardian of the public property and should not pass an order of injunction in favour of a person who has made unauthorised encroachment of the public property.........."
10. On eastern side of suit property there is house of plaintiffs. It is evident that taking the benefit of location of their house adjoining the land belonging to abadi deh, plaintiffs have tried to take possession of suit land. Taking into account all these facts and circumstances, the Courts below have committed no error of law and fact while declining the relief of injunction as claimed by plaintiffs.
11. No substantial question of law, requiring determination, arises in this appeal, which has no merits.
Dismissed.
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