Punjab-Haryana High Court
Zile Singh vs Gram Panchayat And Ors on 3 April, 2024
Neutral Citation No:=2024:PHHC:045083
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IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
RSA-5271-2017 (O&M)
Date of reserved:29.02.2024
Date of Pronouncement: 03.04.2024.
Zile Singh ...Appellant.
Versus
Gram Panchayat and others ....Respondents.
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CORAM: HON'BLE MRS. JUSTICE SUKHVINDER KAUR
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Present: Mr. Vikram Singh, Advocate
for the appellant.
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Sukhvinder Kaur, J.
The instant Regular Second Appeal has been filed by appellant/
plaintiff No.3 against the concurrent findings recorded by both the Courts
below, vide which the suit of the plaintiffs was dismissed.
2. The plaintiffs by way of present suit sought decree of
permanent injunction restraining the defendant from interfering into the
possession, user of the plaintiffs and other co-sharers and from constructing
any drain forcibly over the Gair Mumkin plot comprised in Khewat No.04
Khatoni No.06 Khasra No.127/1 Kita 01 measuring 0 Kanal 14 Marlas Gair
Mumkin Abadi, situated within the revenue estate of Village Janjariwas,
Tehsil and District Mohindergarh, as per jamabandi for the year 2002-03
(hereinafter referred to as the suit property).
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3. Brief facts of the case as per plaint are that the plaintiffs and
other co-sharers are owners in possession over the suit property and they are
using the same for storing the fuel wood and for tethering of their cattle.
The same is being used by them as 'guwara'. It was alleged that the
defendant-Gram Panchayat has no concern with the suit property but due to
political grudge of present Sarpanch with the plaintiffs, the defendant wants
to construct drain through the suit property and to occupy the same forcibly
and to change the nature and user of the same, for which the defendant has
no right. In case the defendant succeeds in doing so then the plaintiffs will
suffer irreparable loss and injury which can not be compensated in any
manner and will also give rise to multiplicity of proceedings.
4. The suit of the plaintiffs was dismissed by the trial Court, vide
judgment and decree dated 07.11.2014. The appeal preferred by the
appellant/ plaintiff No.3 before the First Appellate Court was also
dismissed, vide judgment and decree dated 20.03.2017. Hence, the present
Regular Second Appeal has been filed by the appellant/ plaintiff No.3.
5. Learned counsel for the appellant/ plaintiff No.3 has contended
that the plaintiffs have proved that they are owners in possession over the
disputed land alongwith other co-sharers by producing oral as well as
documentary evidence, which has been wrongly ignored by both the Courts
below. He has further contended that the jamabandi Ex.P1, also strengthens
the case of the plaintiffs but both the Courts below have erroneously the
same. The plaintiffs also produced on record report of Local Commissioner
Ex.P2, site plan prepared by Local Commissioner Ex.P3, which also proved
that except the area within the constructed boundary walls, the remaining
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area is in possession of the plaintiffs, but no relief has been granted to the
plaintiffs qua the open area owned and possessed by them. He has further
argued that as the possession of the vacant land goes with the owner, so the
plaintiffs should have been granted the relief qua the said area and has
contended that the impugned judgments and decrees are liable to be set
aside.
6. I have heard learned counsel for the appellant and gone through
the record thoroughly.
7. In the instant case on the basis of jamabandi for the year 2002-
03 Ex.P1 the plaintiffs have sought the injunction, as per which, Surajbhan
son of Natha, the father of the present appellant/plaintiffs had 657/3943
share in total land measuring 172 Kanal 4 Marla and the land comprised in
Khasra No.127/1 measuring 0 Kanal 14 Marla gair mumkin abadi also
formed part of this total land and after death of Surajbhan, the share of
Surajbhan was inherited by the plaintiffs.
8. But the plaintiffs have concealed the fact of earlier litigation
qua the same land. Father of appellant/plaintiffs had earlier filed a suit for
injunction against Gram Panchayat and the said suit was dismissed as
withdrawn. Gram Panchayat, Janjariwas also filed one civil suit against
Surajbhan, father of plaintiffs, and his brother Devdutt and three other
persons Matadin, Surajbhan son of Kalu Ram and Ram Narain. The written
statements Ex.D2 and Ex.D3, which were filed in the said suit, by Matadin
son of Kalu Ram as well as Surajbhan and Devdutt have been produced on
record. The perusal of the aforesaid written statements reveals that there is
admission of Surajbhan, father of plaintiffs, in the said written statement
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that Gram Panchayat had constructed a water tank in Khasra No.127/1 and
the same be got dismantled and decree of possession be granted to the
defendants. Copy of judgment dated 15.12.2008 Ex.P4 in suit bearing No.76
RT of 2000/05 titled 'Gram Panchayat, village Janjariwas vs. Matadin and
others' has also been produced on record. So when the possession of
defendant has been admitted by the Court in the previous suit filed by the
predecessor of the plaintiffs then the plaintiffs cannot agitate the matter
again regarding the same subject matter. The plaintiffs have also not come
to the Court with clean hands when they have concealed the previous
litigation, regarding the same property, filed by their predecessor and have
thus suppressed the material facts.
9. Otherwise also, the relief claimed by the plaintiffs is
contradictory. On the one hand, they are claiming to be in exclusive
possession over the Khasra No.127/1 and have sought injunction for
restraining the defendant from interfering into the possession and on the
other hand, they have sought the relief of possession alleging that if during
pendency of the suit, the defendant succeeds in raising construction of drain
then the same be got dismantled and decree of possession be passed. PW1-
Jagrup had admitted that there was water tank in the land of the Gram
Panchayat.
10. As per the report of Local Commissioner Ex.P2 also wall on
area 47 feet x 6 inches x 4 feet has been shown and a passage of Gram
Panchayat has also been shown. Nothing has been produced on record to
prove that the said construction was raised by the defendant during
pendency of the suit. Rather this construction appears to be old one, as in
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the previous suit filed by the Gram Panchayat, the construction by Gram
Panchayat was accepted and injunction was granted, vide judgment Ex.D4
and decree Ex.D5 and predecessors of plaintiffs were restrained from
interfering into possession of the plaintiffs of that suit. PW1-Jagrup firstly
denied filing of any suit by the Gram Panchayat against Matadin, Surajbhan
son of Kalu Ram, Devdutt son of Natha and Ram Narain, but thereafter in
the later part of his cross-examination, he has admitted that in the said suit,
Devdutt son of Natha his father, was party and he was the only son of
Devdutt. PW7-Zile Singh also feigned ignorance in his cross-examination
regarding civil suit bearing No.76 RT of 2000/05 titled as 'Gram Panchayat,
village Janjariwas vs. Matadin and others' decided on 15.12.2008 but then
he admitted that defendant No.3 Surajbhan son of Natha, was his father.
PW3-Rohtash, who is also one of the co-sharers, had also admitted
regarding filing of suit bearing No.76 RT of 2000/05 titled 'Gram
Panchayat, village Janjariwas vs. Matadin and others' decided on
15.12.2008.
11. So it has been proved that earlier also a suit was filed by the
Gram Panchayat regarding the same property. From judgment Ex.D4, it is
proved that earlier the suit was filed by the predecessor of plaintiffs, which
was dismissed as withdrawn. So when the plaintiffs have concealed the facts
of this previous litigation qua suit property and have not come to the Court
with clean hands, then they are not entitled to relief of permanent
injunction.
12. It has been rightly held by the Courts below that when plaintiffs
are not in possession of Khasra No.127/1 and when construction of
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respondent/defendant is existing in the property in dispute, then plaintiffs
should have sought the relief of possession instead of injunction. When the
plaintiffs are not in possession of the suit property, then they are not entitled
to the relief of injunction.
13. For the reasons recorded above, the present Regular Second
Appeal fails as it does not raise any question of law much less substantial
question of law.
14. Appeal stands dismissed.
15. All pending applications, if any, also stand disposed of
accordingly.
(SUKHVINDER KAUR)
JUDGE
03.04.2024.
komal
Whether speaking/ reasoned : Yes/ No
Whether Reportable : Yes/ No
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