Raj Bala And Another vs State Of Haryana And Others
2023 Latest Caselaw 3993 P&H

                                                       Neutral Citation No:=2023:PHHC:051839-DB




                                Neutral Citation No.: 2023:PHHC:051839-DB

CWP-22904-2019                                                     1

        IN THE HIGH COURT OF PUNJAB AND HARYANA
                     AT CHANDIGARH

219                             CWP-22904-2019
                                Date of Decision : April 13, 2023

RAJ BALA AND ANOTHER                                       -Petitioners

                                     V/S

STATE OF HARYANA AND OTHERS                                -Respondents

CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
       HON'BLE MR. JUSTICE KULDEEP TIWARI

Present :   Mr. Vivek Lamba, Advocate
            for the petitioners.

            Mr. P.P. Chahar, DAG, Haryana.

                                      ***

SURESHWAR THAKUR, J.(ORAL)

1. Despite co-respondent No.6 being served, the said respondent is

not appearing through any validly authorized counsel. Therefore, the co-

respondent No.6 is ordered to be proceeded against ex parte.

2. The present petitioners are the owners of Khasra No.154. A

'Gair Mumkin Street' exists on Khasra No.131. The above referred khasra

numbers are comprised in Khewat No.570, Khatauni No.777, Rect. and

Killa No.131(2-5), in the revenue estate of Village Soldha, Tehsil

Bahadurgarh, District Jhajjar. The Gram Panchayat concerned, as revealed

by Annexure P-7, instituted a suit for permanent injunction, before the ld.

Civil Judge concerned, impleading thereins, one Rajbala, one Manjeet, and,

one Naveen, as defendants. However, the dispute as reared in the said suit

for permanent injunction, did relate, to the defendants (supra) making an

encroachment upon Khasra No.131, which as above stated, is designated as

a 'Gair Mumkin Street', and, which is owned and possessed by the Gram

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Panchayat concerned. However, the learned Civil Judge, through a decision

made on 22.02.2019, upon the said civil suit, did not grant the espoused

relief to the plaintiff, but yet, proceeded to make observations in its

judgment and decree dated 22.02.2019, to the effect, that the plaintiff Gram

Panchayat concerned had raised some construction on Khasra No.154,

which is admittedly owned and possessed by the defendants, who are the

petitioners before this Court.

3. It is fairly stated at the bar, by the learned counsel for the

petitioners, that the judgment and decree (supra) has not been assailed

before the learned first appellate court concerned, therefore, obviously the

said judgment and decree of dismissal, as made on the civil suit concerned,

besides, the observations (supra) as carried therein, do but acquire a

conclusive, and, a binding effect.

4. It appears that on the basis of the said binding, and, conclusive

observations, as occur in the judgment and decree (supra), as, made by the

learned Civil Judge concerned, the petitioners proceeded to access the

revenue authorities concerned, including the ld. Collector concerned, for

ensuring that the Gram Panchayat concerned, causes the removal of the

encroachments, as are made by it, on the Khasra No.154, hence owned and

possessed by the petitioners herein. Since the said endeavours, have not

yielded the requisite results, thus the petitioners are led to institute the

instant writ petition before this Court, with a prayer that a mandamus be

made upon the respondent(s) concerned, to enforce the observations, which

have acquired a binding, and, a conclusive effect, and, which are carried in

the judgment (supra) of the learned Civil Judge concerned.

5. However, the petitioners herein were defendants in the said

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civil suit, and as such, they cannot, in the said capacity, institute any

petition for execution of the observations (supra), as are carried in the

judgment (supra), as under law, the capacity to execute a judgment and

decree, if any, which becomes passed in favour of the plaintiff, is always

vested in the plaintiff, and obviously, the competence to enforce any

observation(s) favourable to the defendants, as, occur in the judgment of

dismissal, as, made upon the plaintiff's suit, cannot be furthered through the

defendants casting an execution petition, before the ld. court of first

instance, or, before the executing court concerned. Therefore, the apposite

observations favourable to the defendants, who are the petitioners herein,

and which but reveal, that the Gram Panchayat concerned has encroached

upon Khasra No.154, owned and possessed by the petitioners herein, cannot

be enforced at the instance of the petitioners, through theirs instituting an

execution petition, before the court of the first instance or before the learned

executing court concerned.

6. If that be so, the remedy which is now available to the

petitioners is also not through this Court, on their request, directing the

B.D.O. concerned, to institute a petition under Section 7 of the Haryana

Village Common Lands Act, nor can this Court direct the petitioners herein

to move such a petition, under the said provision, as the availment of the

remedy prescribed under the said Section, is subject to the suit lands being

admittedly 'shamlat deh' lands. Since the suit land is comprised in Khasra

No.154, and, it is owned by the present petitioners, therefore, obviously it

does not become 'shamlat deh' land, and, nor the above asked for request

can be acceded to, by this Court.

7. Therefore, essentially the only remedy available to the

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petitioners to enforce the observations (supra) is not through this Court

making a mandamus upon the respondent(s) concerned to draw warrants of

possession against the Gram Panchayat concerned, for enforcing the said

observations, as are carried in the judgment and decree (supra), as the said

direction for the drawing of warrants of possession, for all the above stated

reasons, rather would be grossly impermissible. Therefore, yet for carrying

forward the ends of justice, this Court reserves liberty to the petitioners to,

on the basis of the said unchallenged observations, as are carried in the

judgment and decree (supra), as, made by the ld. Civil Court concerned,

hence institute a suit for possession, but as plaintiffs, under Section 9 of the

CPC, against the Gram Panchayat concerned, but, only before the Civil

Court of competent jurisdiction.

8. Disposed of accordingly.

                                           (SURESHWAR THAKUR)
                                                  JUDGE




                                               (KULDEEP TIWARI)
April 13, 2023                                      JUDGE
devinder
             Whether speaking/reasoned.    :       Yes/No
             Whether Reportable            :       Yes/No




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