Hawa ;Singh vs Inder And Ors
2022 Latest Caselaw 2360 P&H

RSA No.1550 of 2008(O&M)                                          -1-

        IN THE HIGH COURT OF PUNJAB AND HARYANA
                     AT CHANDIGARH


                                               RSA No.1550 of 2008(O&M)
                                               Date of decision:31.03.2022

Hawa Singh(since deceased) through his LRs                    ...Appellant

                                    Versus

Inder and others                                             ...Respondents

CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL

Present: Mr. Vivek Khatri, Advocate for the appellant.

Mr. Ramesh Hooda, Advocate for the respondents.

ANIL KSHETARPAL, J (Oral)

The appellant is plaintiff no.1 in a suit for grant of decree of

permanent injunction, restraining the defendants from interfering in his

possession and for recovery of Rs.9,000/- on account of loss and damages

caused by the defendants.

While assailing the concurrent findings of fact arrived at by the

courts below, the plaintiff has filed the present appeal.

In substance, the plaintiffs claim that their predecessors-in-

interest were proprietors of 'Pana Dhalan' of village Sanghi and they are

owners in possession of the land comprised in khasra no.8849 and 8851

being the co-sharers. They further claim that they have constructed a

boundary wall and a room for tethering cattle and the defendants have

caused loss by demolishing the construction.

The defendants contested the suit and asserted that they are

proprietors of the village and the property in question is part of 'Shamlat

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Deh". The plaintiffs are in possession of the land which is part and parcel of

a village pond and there is neither any boundary wall nor any room.

In the first round, the learned trial court granted limited decree

of injunction in favour of the plaintiffs protecting the plaintiffs' possession

on the ground that the plaintiffs cannot be dispossessed except in due course

of law. However in appeal, the aforesaid judgment was set aside and after

remand, the trial court dismissed the suit.

During the pendency of the proceedings, the revenue official

was directed to demarcate the disputed land and submit a report. As per the

report, the plaintiffs are in possession of land comprised in khasra no.8849

and 8851, however, the aforesaid property is at a distance from the suit

property. It was found that there were some remains of foundation of

construction in khasra no.8856 and 8778, which is part of the village pond.

The plaintiffs filed an objection to the report of Local Commissioner but did

not lead any evidence to prove incorrectness. The Court has found that the

land comprised in khasra no.8851 is part of the pond, whereas 8760 is a part

of 'Gair Mumkin Rasta'.

This Bench has heard the learned counsel representing the

parties at length and with their able assistance perused the paper book along

with the record which was requisitioned.

The learned counsel representing the appellants contends that

once the plaintiffs have been found in possession of the property, therefore,

they cannot be dispossessed except in due course of law.

Per contra, the learned counsel representing the respondents has

submitted that the village pond vests with the Gram Panchayat and since the

panchayat has not been impleaded as party, therefore, the plaintiffs being

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encroacher of a public land cannot be granted any protection.

This court has considered the submissions while elaborating the

evidence.

As regards the land comprised in Khasra no.8849 and 8851, the

First Appellate Court has recorded findings in favour of the plaintiffs. As

per the report submitted by the Local Commissioner, the plaintiff wants to

protect his possession over the land which is at a distance from the land

comprised in khasra no.8849 and 8851. The property where certain remains

of the foundation of some construction were found is not part of the land

comprised in khasra no.8849 and 8851. In fact, there is a positive report that

it is not only part of pond but also 'Gair Mumkin Rasta'.

In such circumstances, no ground to grant injunction in favour

of the appellants, is made out.

Dismissed.

All the pending miscellaneous applications, if any, are also

disposed of.

March 31, 2022                                        (ANIL KSHETARPAL)
nt                                                          JUDGE

Whether speaking/reasoned               : Yes/No
Whether reportable                      : Yes/No




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