Mangat Ram Son Of vs Gram Panchayat
2021 Latest Caselaw 3883 HP

                            Reserved On:- 6th August, 2021

                           Reportable
       IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
                  ON THE     DAY OF AUGUST, 2021
                            BEFORE




                                                       .
           HON'BLE MR. JUSTICE SURESHWAR THAKUR





            REGULAR SECOND APPEAL No. 114 of 2013
    Between:-





      1.   MANGAT RAM SON OF
           SADHU RAM, R/O
           VILLAGE RAINSARY, TEHSIL




           & DISTRICT UNA, H.P.
      2.   LAL CHAND SON OF
           SADHU RAM, R/O


           VILLAGE RAINSARY, TEHSIL
           & DISTRICT UNA, H.P.
      3.   URMILA DEVI, WIFE



      4.   SUMAN LATA,
      5.   BANDANA DEVI,




      6.   REKHA DEVI, DAUGHTERS
      7.   VARINDER KUMAR, SON OF





           RAM SWAROOP





      8.   MOHAN LAL SON OF
           SADHU RAM, R/O
           VILLAGE RAINSARY, TEHSIL
           AND DISTRICT UNA, H.P.


                                                 .....APPELLANTS
       (BY MR. NEERAJ K. SHARMA, ADVOCATE)




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                                                             .

            AND





           GRAM          PANCHAYAT,          RAINSWARY
           THROUGH ITS PRADHAN, TEHSIL AND
           DISTRICT UNA, H.P.





                                                  .....RESPONDENT.


          (BY MR. ANUP RATTAN, ADVOCATE)


               This Regular Second Appeal coming on for orders


    this day, the Court passed the following:-

                            JUDGMENT

The plaintiffs instituted a Civil Suit bearing No. 121

of 2006 before the learned Civil Judge (Senior Division), Una,

District Una, H.P. In the afore Civil suit, the plaintiffs, prayed

for, the, making of a decree for permanent prohibitory

injunction against the defendant, and, vis-a-vis, the suit land

measuring 0-03-63 hecatres situated in Khewat No.283, Khatauni

No.480, 481, Khasra Nos. 1310 and 1311. Upon the afore drawn

suit, the learned trial Court made a verdict of dismissal. The

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.

aggrieved plaintiffs instituted thereagainst a Civil Appearing

bearing No. 36-XIII of 2011 before the learned First Appellate

Court, and, the learned First Appellate Court, upon, the afore

drawn civil appeal, made a verdict on 31.05.2012,

wherethrough, it affirmed the judgment and decree of dismissal

concerned.

r to of the plaintiffs' suit, as, made by the learned trial Court

2. The plaintiffs/appellants herein, are aggrieved from

the afore concurrently drawn verdicts of dismissal of their suit,

and, hence are led to institute the extant Regular Second Appeal

before this Court.

3. When the appeal came up for hearing before this

Court, it became admitted, on 14.03.2013. However, no

substantial question of law became formulated on the afore

stage by this Court. Consequently, with the consent of the

learned counsel appearing for the contesting litigations, the

hereinafter extracted substantial questions of law, are

formulated for answers being meted thereon:-

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               1.   Whether      the   document     which      is   under




                                                                   .

challenge can be relied upon to deny the relief

claimed?

2. Whether the impugned judgments and

decrees are result of misreading and mis interpretation of Exhibit Dz?

3. Whether the learned courts below have

misread and mis-appreciated the oral and documentary evidence on record and findings recorded are perverse and liable to be set

aside?

4. Whether the findings are based on mere conjectures and surmises and are liable to be

set aside?

Substantial questions of Law No.1 to 4.

4. From a perusal of the entries carried in Ex.P-1, P-2,

D-2 and Dz, it is apparent that in the column of cultivation, the

suit land is described as Zumla Mustarka Malkaan. The

significance of the afore occurring entires in the jamabandis, is

that the suit land is usable for a common purpose rather by all

the inhabitants of the village. Even though, in the column of

possession, the plaintiffs are recorded to be holding possession

of the suit khasra numbers. However, their possession over the

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suit khasra numbers, described in the revenue records, as,

Zumla Mustarka Malkaan, connotation whereof, is that the suit

land is meant for common user(s) of the inhabitants of the

village, rather for a common purpose, is hence merely

personificatory that they are only Hissedars or cosharers upon

the suit land. The implication of the plaintiffs being co-sharers

of the suit land, carrying the afore description, is that they are to

be concluded, to be in concurrence with the enumeration of the

apposite rights, as, carried in the "Wazib Ul Arz" or in other

corresponding records or in tandem with the statute enabling

the manner of common user thereof(s), by the inhabitants of the

village, hence, make user of the suit land, rather obviously not

exclusively, but as co-sharers thereins rather along with other

inhabitants of the village, whose names occur in the list of

Bartandaran(s). Any latitude or leverage to the plaintiffs, to

completely arrogate to their exclusive user, any land described

in the revenue records as village common land, as, is the suit

land, described in the apposite revenue records as Zumla

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Mustarka Malkaan, would be contrary to the mandated user

.

thereof, inasmuch as the user of village common land, is, meant

not only, for, one amongst the Bartandarans, as, the plaintiffs

maybe, but its user is also meant for all other inhabitants of the

village concerned, whose names occur in the list of

Bartandaran(s).

Since, the plaintiffs have chosen the Gram

Panchayat, through its Pradhan, as the defendant, and, hence,

accept that the entire village community to hence hold rights of

user, upon, the suit village common land. Therefore, unless they

had put forth evidence, suggestive that the neither the

defendant representing the village community, nor any other

member of the village community is empowered, to use the suit

land, for its or their joint user, thereupon, may be the plaintiffs,

could succeed in proving that they hold exclusive rights, to

exclusively use the afore common land. However, the plaintiffs

had not brought on record either the list of Bartandaran, nor

obviously they have been able to sustain their plea that, dehors

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theirs being recorded as co-sharers in the village common land,

yet they alone hold exclusive right over the village common land.

5. Therefore, this Court concludes that the effort of the

plaintiffs to arrogate only to his user, the village common land,

would defeat and frustrate the statutory concept of user of

village common land, by the entire village community or by the

bartandarans concerned, and, would also perpetrate grave

prejudice, and, also suffocate the rights, if any, of other

Bartandarans, whose names occur in the list of Bartandarans,

rather along with the plaintiffs, and, who all hold joint rights to

use the suit land, described in the apposite jamabandis, as

village common land. Consequently, this Court does not deem

it fit, and, appropriate to interfere with the concurrently

recorded verdicts, as made by both the learned courts below,

wherethrough, the plaintiffs' suit stood concurrently dismissed.

6. Be that as it may, since, a presumption of truth is

attached to the entries carried in the revenue records, and,

though the afore presumption of truth is rebuttable. However,

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the plaintiff has not been able to bring on record any evidence,

hence, rebutting the afore presumption of truth carried in the

revenue records, especially, vis-a-vis, the descriptions therein, of

the suit land being Zumla Mustarka Malkaan, in respect

whereof, the plaintiff has only a right of sharing it along with

other inhabitants of the village, for all the purposes, as, become

pronounced in the apposite revenue records.

r The afore

description of the suit land in the revenue records hence

acquires, unflinching conclusivity. Therefore, reiteratedly, it is

concluded that the exclusivity of possession, as, claimed to the

suit land or village common land, cannot become countenanced,

by this Court, nor also the plaintiffs can claim the making of a

decree for permanent prohibitory injunction, hence against an

entity representing the village community. However, the

plaintiff can only use the village common land along with the

other co-sharers therein, in the manner as pronounced by the

apposite revenue records.

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.

7. The above discussion, unfolds, that the conclusions

as arrived by the learned first Appellate Court as also by the

learned trial Court, are based, upon a proper and mature

appreciation of evidence on record. While rendering the

findings, the learned first Appellate Court as well as the learned

from consideration.

r to trial Court, have not excluded germane and apposite material

All the substantial questions of law are

answered in favour of the respondent, and, against the

appellants.

8. In view of the above discussion, there is no merit in

the extant appeal, and, it is dismissed. In sequel, the judgments

and decrees, rendered by both the learned Courts below, are

affirmed and maintained. Decree sheet be prepared accordingly.

All pending applications also stand disposed of. No order as to

costs.

(Sureshwar Thakur) Judge August, 2021.

(jai)