Punjab-Haryana High Court
Nirmal Singh And Anr vs Janga Ram And Ors on 11 February, 2025
RSA-1011-2021 (O&M) Page 1 of 7
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
117 RSA-1011-2021 (O&M)
Date of decision: 11.02.2025
Nirmal Singh and another ...Appellant(s)
Vs.
Janga Ram and others ...Respondent(s)
CORAM: HON'BLE MS. JUSTICE NIDHI GUPTA
Present:- Mr. Munfaid Khan, Advocate for the appellants.
***
NIDHI GUPTA, J.
The defendants No. 1 and 2 are in second appeal before this
Court against the concurrent judgments and decrees of the learned Courts
below, whereby the suit of the plaintiff/respondents No. 1 and 2 herein,
for permanent injunction has been decreed by both the courts below.
2. The brief facts of the case as set out in the plaint are that the
suit property is a Gair Mumkin Rasta/Gali measuring 07 Marla comprised in
Khewat No.143/136 Khatoni No.236 Khasra No.201(0-7) situated within the
revenue estate of village Rattangarh Kakrali, Tehsil Pehowa, District
Kurukshetra vide jamabandi for the year 2007-08. The plaintiffs are the
permanent residents of village Rattangarh Kakrali and have right to protect
the property of Gram Panchayat i.e. rasta vests in defendant No.3 Gram
Panchayat Rattangarh Kakrali which is its true owner. Defendants No.1 and
2 are in unauthorized possession over some portion of the suit property as
shown in demarcation report dated 09.09.2009 conducted by Revenue
Officials. Defendants No.1 and 2 colluded with the Sarpanch of Gram
Panchayat/ defendant No.3 and are bent upon to encroach upon portion of
the suit property by raising construction. Plaintiffs and other inhabitants of
the village shall suffer irreparable loss and injury if the defendants are not
restrained from encroaching the suit property and from raising construction
over it. Plaintiffs requested the defendant No.3 to initiate legal proceedings
against defendants No.1 and 2 but to no avail as there is collusion between
them. Defendants came on the spot and tried to raise construction but
could not succeed due to timely intervention of the plaintiffs and other
respectable persons of the locality. Defendants have threatened to raise
construction over the suit property. Hence, the suit.
3. Upon notice defendants no.1 and 2 appeared and filed their
written statement resisting the suit on multiple grounds by submitting that
Balkar Singh and Lal Singh are residents of village Rattangarh Kakrali who
have filed a suit under Section 7(2) of P.V.C.L Act before Assistance Collector
1" Grade, Pehowa which is still pending. The Assistant Collector 1" Grade,
Pehowa had ordered demarcation on 05.12.2013. On 12.06.2014 Shri
Sumer Singh retired Kanoongo demarcated the suit property. It was
mentioned in the report that Khasra No.201 is a Rasta which has been
encroached by Jagga Ram, Karnail Singh, Nehal Singh and Satbir Singh sons
of Musadi. Defendants filed a suit for possession against plaintiff which is
still pending. The defendants denied that the disputed land vests in Gram
Panchayat. After denying the rest of the averments of the plaint, they
prayed for dismissal of the suit. Subsequently, defendants No.2 and 3 were
proceeded against exparte before the learned trial Court. No replication
was filed.
4. Vide order dated 15.09.2015, following issues were framed:-
1. Whether the plaintiff is entitled for a decree for permanent
injunction thereby restraining the defendants no.1 and 2 from
further encroaching upon the portion of street in question and
from raising further construction over the portion of street,
forcibly and illegally or in any manner as prayed for ?OPP
2. Whether the suit of the plaintiff is not maintainable? OPD
3. Whether the plaintiff has no locus standi and cause of action
to file and maintain the present suit? OPD
4. Relief.
5. Upon appraisal of the pleadings and the evidence led by the
parties, the learned trial Court decided issue No.1 in favour of the plaintiffs
and against the defendants; issues No. 2 and 3 against the defendants and
in favour of the plaintiffs; and accordingly decreed the suit of the
respondents/plaintiffs vide judgment and decree dated 11.05.2017. The
appeal filed by the present appellant No.1 was dismissed by the learned
Additional District Judge, Kurukshetra vide judgment and decree dated
05.03.2020. Hence, the present second appeal.
6. Learned counsel for the appellants submits that the suit of the
respondents/plaintiffs has been wrongly decreed on the basis of incorrect
facts. It is submitted that the learned courts below have erred in passing the
impugned judgments and decrees as they had failed to consider the fact
DIVYANSHI that proceedings under section 7 (2) of Punjab Village Common Lands Act
are still pending in the court of Id. A.C. Ist Grade, Pehowa and are not finally
decided yet. Thus, finding given by both the ld. Courts below that SDM
Pehowa has ordered the dispossession of the appellants from the suit
property is erroneous and illegal and against the fact as the same is still
pending adjudication. It is further argued that as per latest demarcation
report dated 12.06.2014, conducted on the directions of AC 1 st Grade
Pehowa vide order dated 05.12.2013, clearly shows that it is the plaintiffs
and their brothers namely Karnail Singh and Satbir Singh, who are in
unauthorized and illegal possession over the suit property and not the
present appellants. However this fact of the lis is not considered by both
the ld. Courts below and as such impugned judgments and decrees are
liable to be set aside. It is accordingly prayed that the present appeal be
allowed.
7. No other argument is raised on behalf of the appellants.
8. I have heard learned counsel for the appellants and also
perused the case file in minute detail.
9. I find no merit in the submissions advanced on behalf of the
appellants. The learned courts below upon appraisal and evidence before
it concluded that the appellants/defendants No. 1 and 2, had filed a case
under Section 7(2) of Punjab Village Common Lands Act, before the
Assistant Collector 1st Grade Pehowa, regarding the suit property which is
still pending in which the learned Assistant Collector 1st Grade, Pehowa
had appointed retired Kanungo as Local Commissioner and directed for
demarcation of the suit property. The said land was demarcated on
12.06.2014 mentioning therein khasra No. 201 is an aam rasta.
10. Furthermore, the plaintiffs have placed on record the copy of
jamabandi for the year 2007-08 (Ex.P1) which reflects that the suit
property is gair mumkin rasta measuring 0 K 7 Marlas comprised in khasra
No. 201.
11. Further, the defendants No.1 and 2 in their cross-examination
as DW1 and DW2 had admitted that suit property i.e. gali in question was
owned by defendant No.3 Gram Panchayat and SDM had ordered their
dispossession from the suit property. In this regard, relevant findings are
contained in para Nos. 17 and 18 of the judgment dated 05.03.2020
passed by the ld. lower appellate court which read as under:-
"17. Even otherwise also, Balkar Singh and Lal Singh
residents of the same village Rattangarh @ Kakrali have also
filed an application under Section 7 (1) (2) of the Punjab
Village Common Lands Act seeking ejectment of present
defendants No.1 & 2 by way of removal of the encroachment
made by them over an area of 165 sq. feet (55 feet x 6 feet
divided by 2) of the Gair mumkin gali comprised in khasra
No.201. It is the case of the defendants that during the said
proceedings, DW3 Sumer Singh, retired Kanungo was
appointed as Local Commissioner for conducting the
demarcation of the suit property i.e. gali in question, by Sub
Divisional Magistrate-cum-Assistant Collector 1 Grade,
Pehowa. As per the order of SDM, Pehowa, DW3 Sumer Singh
demarcated the suit property on 12.6.2014 and proved his
demarcation report as Ex.DW3/A, wherein, it is mentioned
that khasra No.201 is a Raasta and this rasta is
encroached 11 feet in North, 9 feet in south and 10 karm (55
feet) in East and west, area 0-2M by Janga Ram, Nehal Singh
(present plaintiffs). Karnail Singh, Satbir Singh sons of
Masuddi son of Biru. Feeling aggrieved with the said
demarcation report Ex.DW3/A, applicant Balkar Singh filed
objections against the said demarcation report in the Court of
SDM, Pehowa, Ex.P4, to the effect that the demarcation has
not been conducted as per the instructions of the Financial
Commissioner Revenue, and that the respondents got
procured a false report, in collusion with the private Kanungo.
It is pertinent to mention here that the objection filed by
application Balkar Singh had been allowed vide order Ex.P5
passed by the SDM, Pehowa. Even otherwise also, in their
cross-examination, both the present defendants No.1 & 2
have admitted that the Court of SDM Pehowa has ordered
their dispossession from the suit property and the identity of
the suit property is not disputed.
18. As above, since defendants No.1 & 2 while
appearing in the witness-box as DW1 and DW2 themselves
admitted that the Court of SDM Pehowa has ordered their
dispossession from the suit property clearly proves that they
are in unauthorized possession of the suit property and the
said fact is also vividly proved from the demarcation report
Ex.P2. So, the learned trial Court has rightly held that the
Court of SDM, Pehowa had ordered that they be dispossessed
from the suit property. It is clear from the evidence Ex.P2 that
defendants had illegally encroached upon the suit property
which is admittedly the property of Gram Panchayat and the
plaintiff has been able to discharge his onus, thus, issue is
decided in favour of the plaintiffs and against the
defendants."
12. Learned counsel for the appellants has been unable to
dispute or controvert the above said findings.
13. Hence, the present regular second appeal is hereby
dismissed.
14. Pending applications, if any, stand disposed of.
11.02.2025 (NIDHI GUPTA)
Divyanshi JUDGE
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
