Hari Singh vs Gram Panchayat And Ors

Punjab-Haryana High Court

Hari Singh vs Gram Panchayat And Ors on 8 May, 2024

                                       Neutral Citation No:=2024:PHHC:064897




RSA-6153-2017 (O&M)                     -1-

      IN THE HIGH COURT OF PUNJAB & HARYANA
                   AT CHANDIGARH

104                                            RSA-6153-2017 (O&M)
                                               Date of decision:08.05.2024

Hari Singh                                           ... Appellant
                      Vs.
Gram Panchayat & others                              ... Respondents

CORAM: HON'BLE MRS. JUSTICE SUKHVINDER KAUR.

Present:     Mr. Ajay Singla, Advocate for the appellant.
                         ...

SUKHVINDER KAUR, J.

1. Instant regular second appeal has been filed by the appellant/plaintiff against the concurrent findings recorded by both the Courts below vide which suit of the plaintiff for mandatory injunction was dismissed.

2. Brief facts of the case as per plaint are that the plaintiff is owner in possession of land measuring 11 kanal 16 marlas comprised in killa No.60/3/2 and 60/8/2 at Village Karyal, Tehsil Ajnala. There is a pond adjoining the land of the plaintiff bearing khasra No.134 which has been kept for rainy water and for bathing of animals of the village. People of the village are also throwing the dirty water in the said pond which has totally polluted the water of the pond and cause many diseases in the village. It is 1 of 5 ::: Downloaded on - 13-05-2024 23:17:39 ::: Neutral Citation No:=2024:PHHC:064897 RSA-6153-2017 (O&M) -2- also not possible for the animals to bathe in the said pond. It was alleged that dirty water of the pond enters in to the fields of the appellant/plaintiff and resultantly cause damage to the standing crop and thus cause monetary loss to the appellant/plaintiff. The plaintiff/appellant requested the respondents/defendants many times to stop the flow of dirty water in the fields of the plaintiff and also requested the defendants to stop the people of the village from throwing dirty water in the pond, but they had refused to do so. Hence, the instant suit has been filed by the plaintiff.

3. On notice, defendant No.1 - Gram Panchayat appeared and filed the written statement admitting the existence of the pond but denying the stand of the plaintiff. It was alleged that there is a sakki nala adjoining the village and water channel has been constructed by the Gram Panchayat for passing the waste water of the village from pond to sakki nala so that the pond does not overflow. It was also averred that the plaintiff was neither residing in the village nor cultivating the suit land.

4. On the basis of the pleadings on the parties, the following issues were framed:

1. Whether the plaintiff was entitled to relief of mandatory injunction as prayed for? OPP 2 of 5 ::: Downloaded on - 13-05-2024 23:17:39 ::: Neutral Citation No:=2024:PHHC:064897 RSA-6153-2017 (O&M) -3-

2. Whether the suit of the plaintiff is not maintainable? OPD

3. Whether the plaintiff has got no locus standi to file the present suit? OPD

4. Whether the plaintiff has got no cause of action to file the present suit? OPD

5. Whether the plaintiff is estopped by his own act and conduct from filing the present suit? OPD

6.Whether the plaintiff has not come to the Court with clean hands and has suppressed the material facts from the Court?

OPD

7. Relief."

5. Vide judgment and decree dated 09.11.2015, suit of the plaintiff was dismissed. An appeal was preferred before the First Appellate Court which was also dismissed vide judgment and decree dated 29.11.2016. Hence, feeling aggrieved of the same, plaintiff/appellant has knocked the doors of this Court by way of filing the present regular second appeal.

6. Learned counsel for the appellant has contended that the plaintiff has fully proved his case by examining PW1 Hari Singh, PW2 Surjit Singh and PW3 David Masih. But the trial Court has wrongly dismissed the case of the plaintiff/appellant on the ground that Aks Shijra and masavi was not produced. He has further contended that even defendant No.1 has admitted in the written statement regarding existence of the pond and it is proved from the site plan that half acre land of the 3 of 5 ::: Downloaded on - 13-05-2024 23:17:39 ::: Neutral Citation No:=2024:PHHC:064897 RSA-6153-2017 (O&M) -4- plaintiff/appellant is adjoining to the said pond. By throwing dirty water into the pond of the village the water level of the pond rises and enters into the adjoining fields of the plaintiff/appellant which cause damage to the standing crops of the plaintiff/appellant, so, suit of the plaintiff has been wrongly dismissed by the Courts below and the impugned judgments under appeal are not sustainable in the eyes of law.

7. I have heard learned counsel for the appellant and have gone through the record.

8. This fact has not been disputed and is also evident from the jamabandi for the year 2005-06 Ex.P1 that khasra No.134 is a pond. Again this fact is not disputed that khasra No.60//3/2 and 60//8/2 is under ownership of the plaintiff to the extent of his share. In order to prove that fields of the plaintiff are adjoining to the said pond, plaintiff has produced on record site plan Ex.P4 regarding position of the suit land. As per the site plan Ex.P4, on the northern side there is a land of Waqf Board in possession of Karaj Singh, on western side there is a road going to village Othian, on eastern side there is land of one Hari Singh and on the southern side, there is a passage. But the aforesaid description of the suit property as given in the site plan has not been disclosed in the plaint. So, the Courts below have rightly held that this evidence is beyond the pleadings. Moreover, when the revenue record numbers are available then it is the best evidence. But the Aks Shijra and masavi have not been produced on record. So, in the absence of aks Shijra and masavi, directions of the drain cannot be ascertained that how the dirty water goes into the pond.

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                                         Neutral Citation No:=2024:PHHC:064897




RSA-6153-2017 (O&M)                      -5-

9. No question of law much less substantial question of law arises for determination in the present second appeal. The appeal is without any merits and is hereby dismissed.

10. Pending application(s), if any, shall also stand disposed of.

( SUKHVINDER KAUR ) JUDGE 08.05.2024 harjeet

1. Whether speaking/reasoned? Yes/No

2. Whether reportable? Yes/No 5 of 5 ::: Downloaded on - 13-05-2024 23:17:39 :::