Judgment:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Rs.No.1059 of 2008 (O&M) Date of decision: 20th January, 2014 Mangat Rai Appellant Versus Gurmail Singh and others Respondents CORAM: HON’BLE Mr.JUSTICE RAKESH KUMAR GARG1 Whether Reporters of Local Newspapers may be allowed to see the judgment?.
2.
Whether to be referred to the Reporters or not?.
3.
Whether the judgment should be reported in the Digest?.
Present: Mr.Harkesh Manuja, Advocate for the appellant.
Mr.Vikas Bahl, Advocate for respondent No.3.
RAKESH KUMAR GARG, J.
CM No.10120-C of 2011 Application is allowed subject to all just exceptions and the documents (Annexures A-1 and A-2) are taken on record.
CM No.10121-C of 2011 Application is allowed subject to all just exceptions and the Legal Representatives of respondent No.3, as mentioned in the application, are ordered to be brought on record for the purpose of pursuing this appeal only.
Office is directed to amend the memo of parties accordingly.
Singh Rattan Pal 2014.01.24 16:55 I attest to the accuracy and integrity of this document Punjab & Haryana High Court Rs.No.1059 of 2008 (O&M) 2 CM No.12585-C of 2008 Application is allowed subject to all just exceptions.
CM No.3127-C of 2008 Application is allowed subject to all just exceptions.
CM No.3128-C of 2008 Application is allowed subject to all just exceptions and the document (Annexure P-1) is taken on record.
Rs.No.1059 of 2008 (O&M) This is plaintiff’s second appeal challenging the judgments and decrees of the Courts below whereby his suit for permanent injunction restraining the defendant-respondents from interfering into his possession and further restraining them from encroaching upon any part of the land in question and removing the trees standing therein, was dismissed.
Appellant and proforma respondent No.4 filed the instant suit seeking permanent injunction restraining the defendant- respondents from interfering into their possession of the suit land on the averments that they were owners in possession of the suit land whereas the defendant-respondents had no right, title or interest in the suit property.
The defendant-respondents contested the suit by filing written statement and denying the title of the plaintiffs over the suit land.
It was specifically averred by the defendant-respondents that the suit land is Gair Mumkin Charand and is meant for use of the inhabitants of the village and thus, no injunction can be granted at the Singh Rattan Pal 2014.01.24 16:55 I attest to the accuracy and integrity of this document Punjab & Haryana High Court Rs.No.1059 of 2008 (O&M) 3 asking of the plaintiffs against the defendants and other inhabitants of the village.
After appreciating the evidence on record and hearing learned counsel for the parties, the trial Court dismissed the suit vide its judgment and decree dated 03.08.2006 observing as under: “13.
Keeping in view the above discussion and documents, defendants have successfully proved the fact that the suit property was kept as Charand land vesting in the Shamilat Deh.
Plaintiffs at the time of institution of the suit, have brought the present suit with tampered Jamabandi which means that they have approached the Court with soiled hands and also kept concealed the fact in regard to the fact that they are neither owners nor in possession over the suit property.
The contention raised by learned counsel for defendants referring to celebrated judgment reported as Shish Ram and others Versus The State of Haryana and otheRs.2000(2) – PLJ – 72 and Bachna Ram and others Versus State of Haryana and otheRs.2003 (3) PLR-208 clear the fact that when the property has been depicted as ‘Charand land’, then it falls in the definition of ‘Shamlat Deh’.
As such, contention advanced by learned counsel for the defendants on this score carries weight, whereas the argument advanced by learned counsel for the plaintiff is bereft of any substance.
14.
During arguments, learned counsel for the plaintiffs contended with great vehemence that the Jamabandi produced by the plaintiffs, Ex.P1 was correct, whereas the copy of Jamabandi Ex.D4 produced by the defendants was incorrect, but the above contention raised by learned counsel for plaintiffs has been rightly rebutted by the defendants by producing another copy of Singh Rattan Pal 2014.01.24 16:55 I attest to the accuracy and integrity of this document Punjab & Haryana High Court Rs.No.1059 of 2008 (O&M) 4 Jamabandi, Ex.D5 for the year 1993-94, whereas the copy of Jamabandi Ex.P1 produced by the plaintiffs pertains to the year 1998-99.
As such, the defendants have produced copies of Jamabandis of both distinct periods i.e.1998-99, as well as 1993-94, Ex.D5 and D4 respectively and the same clear the fact that the property is recorded as Maqbooza Bashindgan Deh kept as Charand, which vests in the Shamilat Deh.
Accordingly, the law cited at the Bar by learned counsel for the defendants on this score in order to establish conflict between the old and the new Jamabandi, referring to the authority cited as Gurdip Singh versus Manmohan Singh and otheRs.2001(1) Civil Court Cases-338 (P&H).also strengthens the case of the defendants.
Both the jamabandis produced by the defendants also clear the fact that the plaintiffs have tampered with the record in connivance with the Halqa Patwari to grab a big chunk of land, which vests in the Shamilat Deh.
Accordingly, plaintiffs have not come to the Court with clean hands and the suit of plaintiffs is also not maintainable in the present form.
As such, plaintiffs are not entitled for permanent injunction as prayed for by them.
Accordingly, all these issues shall stand decided against the plaintiffs and in favour of the defendants.”
.
The aforesaid findings of the trial Court were affirmed by the fiRs.appellate Court vide its judgment and decree dated 13.12.2007 observing as under: “So far as the authority relied upon by the counsel for the appellant is concerned, the same is not applicable to the facts of the present case because facts of the present case are quite different.
In the said authority, the trial Court declared the appellants to be owner and in possession of Singh Rattan Pal 2014.01.24 16:55 I attest to the accuracy and integrity of this document Punjab & Haryana High Court Rs.No.1059 of 2008 (O&M) 5 the suit land.
However, in the present case, just an incidental observation regarding ownership had been made by the trial Court and no relief at all has been given and the suit of the plaintiff was dismissed.
Mangat Ram (PW1) in his cross-examination categorically admitted the fact that there is a drain on the suit property and the said property was previously irrigated through this drain.
He further deposed that this drain is having depth of about 5/7 feet and there is a bridge constructed on the said drain.
This cross-examination of the plaintiff himself gives an inference that the property vests in the Gram Panchayat.
The plaintiff in support of his case could examine only Charan Dass but he did not appear for his cross- examination.
As such, his statement cannot be read into evidence.
Meaning thereby that the claim of the plaintiff has not been supported by any other evidence.
So far as the Jamabandi relied upon by the plaintiff is concerned, the same has been rebutted by the defendants/respondents by bringing on record the copy of Jamabandi for the year 1998-99 (Ex.D4).The evidence of Harbans Singh (DW1) who is Sarpanch of village Rakasan, Sarat Chander Gupta (DW2) who is Panchayat Secretary of the village and of Harnam Dass (DW3) defendant, categorically proves the fact that the suit land belongs to the Gram Panchayat and the plaintiffs/appellants are not in possession of the same.
The evidence of the defendants has further been supported by revenue documents such as copy of Jamabandi for the year 1998-99 (Ex.D4).copy of Fard Jamabandi for the year 1993-94 (Ex.D5).certified copy of the scheme of consolidation (Ex.D6).Khatoni Paimaish (Ex.D7).Khatoni Istemal (Ex.D8).The perusal of the Jamabandi for the year 1998-99 (Ex.D4) shows the entries in the name of ‘Maqboozan Bashindgaah Deh’ whereas Singh Rattan Pal 2014.01.24 16:55 I attest to the accuracy and integrity of this document Punjab & Haryana High Court Rs.No.1059 of 2008 (O&M) 6 the Jamabandi produced by the plaintiff shows the entry maqbooza Malkan.
It is manifest on record that this change in the revenue record is without any authority and it has been done by the Patwari without getting any proper instructions from any authority and without adopting the due procedure.
The resolution dated 6.5.79 (Ex.D1) and 13.3.1984 (Ex.D2) clearly shows that the plaintiffs/appellants are not in occupation/possession of the suit land.
The revenue record coupled with the Khatoni Istemal (Ex.D8) and its translation copy (Ex.D9) clearly shows that the suit land was reserved as Charand land.
To decide this appeal, reliance is placed on an authority titled as Shish Ram and others versus State of Haryana and otheRs.2000(2) PLJ72wherein honourable Supreme Court categorically held that Charand land vests in the Gram Panchayat.
Similarly, in another authority titled as Bachna Ram and others versus State of Haryana and others 2003 (3) PLR208honourable Punjab and Haryana High Court categorically observed that the land recorded as Charand in the revenue record falls under the definition of Shamlat Deh.
Yet in another authority titled as Gurdip Singh versus Manmohan Singh and others 2001 (1) Civil Court Cases 338 (P&H) it has been held that in the event of a conflict between the old and new jamabandis, the presumption of law is that more importance should be given to the previous Jamabandi unless it is shown that the new Jamabandi has been entered on the basis of some valid documents.
In another authority titled as Gram Panchayat Baldan Kalan versus The Joint Development Commissioner and others 2003 (4) RCR Civil, 193 (P&H).where the land was recorded as Shamlat Deh, it was held that burden lies on the person to prove Shamlat land who asserts title over the land.
Since in the present case, the plaintiffs have Singh Rattan Pal 2014.01.24 16:55 I attest to the accuracy and integrity of this document Punjab & Haryana High Court Rs.No.1059 of 2008 (O&M) 7 knocked at door of the Court, therefore, it was for the plaintiffs to prove their possession over the suit land.
The evidence led by the defendants including the revenue record clearly shows that the suit land was reserved as Charand land.
Meaning thereby that the ownership of the suit land vests in the Gram Panchayat.
The plaintiff/appellants have failed to show their right over the suit land.
Since the suit land vests in the Gram Panchayat, the Gram Panchayat should have been made party in the present case, but the same has not been done by the plaintiffs.
Even the evidence of Sarpanch of the village namely Harbans Singh (DW1) and Panchayat Secretary namely Sarat Chander Gupta (DW2) coupled with the revenue record shows that the plaintiffs are not in possession of the suit land.
The relief of injunction is a discretionary relief and it is for the trial Court to see whether the plaintiffs are entitled for the relief as claimed for or not.
In an authority titled as Rekha Mukherjee versus Ashish Kumar Dass, 1999 (2) RCR (Civil) 404, it has categorically been observed that injunction is a discretionary relief and the appellate Court generally will not interfere with the discretion exercised by the trial Court unless it has wrongly applied the principles.
In the present case, the discretion exercised by the trial Court appears to have been exercised in a judicious manner and this Court finds no justification to interfere with the same.
Resultantly, the finding given by the learned trial Court on all the issues along with the relief clause is held to be correct.
As such, the present appeal is without merit and the same is hereby dismissed with costs.
Decree sheet be prepared accordingly.
Appeal file be consigned to record room, whereas the trial Court file be returned forthwith along with a copy of this judgment.”
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Singh Rattan Pal 2014.01.24 16:55 I attest to the accuracy and integrity of this document Punjab & Haryana High Court Rs.No.1059 of 2008 (O&M) 8 Learned counsel for the appellant has vehemently argued that the suit land has been found to be Shamlat Deh and thus, the same has vested into the Gram Panchayat and therefore, the plaintiffs were well within their rights to protect their possession seeking permanent injunction against the defendant-respondents except the Gram Panchayat i.e.the true owner; and thus, the courts below have erred at law while dismissing the suit.
However, learned counsel for the respondents has vehemently argued that the entries in the revenue record clearly depict that the suit land was Charand and reserved for the use of Bashindgan Deh i.e.all the inhabitants of the village, and therefore, the respondents were also having interest in the suit property and injunction could not have been granted in favour of the plaintiffs and thus, no fault can be found with the judgments and decrees of the Courts below.
Learned counsel for the respondents has further referred to the findings of the courts below whereby it has been held that the plaintiffs have not come to the Court with their hands clean and have relied upon wrong documents.
Even before this Court learned counsel for the appellant could not dispute the fact that as per the revenue record, the land in dispute is Gair Mumkin Charand and meant for Bashindgan Deh.
Even as per his own pleadings, the land in question is Gair Mumkin Charand.
In these circumstances, learned counsel for the appellant was at a loss to prove as to how the instant suit was maintainable in view of the fact Singh Rattan Pal 2014.01.24 16:55 I attest to the accuracy and integrity of this document Punjab & Haryana High Court Rs.No.1059 of 2008 (O&M) 9 that jurisdiction of the Civil Court is barred under the provisions of The Punjab Village Common Lands (Regulation) Act, 1961.
In view thereof, no fault can be found with the findings recorded by the courts below.
Thus, no substantial question of law arises at all in this appeal.
Dismissed.
(RAKESH KUMAR GARG) JUDGE January 20, 2014 rps Singh Rattan Pal 2014.01.24 16:55 I attest to the accuracy and integrity of this document Punjab & Haryana High Court