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
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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
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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
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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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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
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