Judgment:
Vinod K. Sharma, J.
C.M. No. 6580-C of 2006
1. Allowed as prayed for.
C.M. No. 6579-C of 2006
2. This is an application under Section 5 of the Limitation Act for condoning the delay of 80 days in filing the appeal.
3. It has been averred in the application that authorised person i.e. Sarpanch of the Gram Panchayat was not well and, therefore, the appeal could not be filed within time. Thereafter, due to procedural requirement, delay of 80 days has occurred in filing the appeal. Notice of the application was given. However, no reply has been filed. The application is supported by an affidavit.
4. The averments made, therefore, remain unrebutted. The averments made, make out sufficient cause for condoning the delay. C.M. is accordingly allowed and the delay of 80 days in filing the appeal is ordered to be condoned.
R.S.A. No. 2734 of 2006
5. This regular second appeal is directed against the judgment and decree dated 8.10.2005 passed by the learned lower appellate Court, vide which counter claim filed by the defendant/appellant, has been ordered to be dismissed and the appeal filed by the plaintiff/respondent was allowed.
6. The plaintiff/respondent No. 1 filed a suit for declaration with consequential relief of permanent injunction restraining the defendants, including Gram Panchayat, from interfering in his possession over plot mearing 181 sq. yds. purchased by him by way of registered sale deed dated 26.10.1998. The plaintiff had even constructed a shop over the plot sold to him which is in khasra No. 189 measuring 9 marlas.
7. The suit was contested wherein claim of the plaintiff/respondent qua ownership and possession over khasra No. 189 was admitted. A positive stand was taken that the Gram Panchayat or the defendants had no intention to interfer with the possession of the plaintiff/respondent. A plea was also raised that in the garb of purchase of khasra No. 189, the plaintiff/respondent was, in fact, trying to encroach upon khasra No. 130 which is under the ownership of the Gram Panchayat.
8. The appellant also raised a counter claim seeking injunction against the plaintiff/respondent from interfering in possession of the Gram Panchayat over khasra No. 130.
9. In reply filed, the plaintiff/respondent did not dispute the possession of the Gram Panchayat over khasra No. 130, and took a positive stand that he was not interfering in the possession of the defendant/appellant qua khasra No. 130 and was to protect his possession over khasra No. 189, which was purchased by him.
10. The learned trial Court decreed the suit of the plaintiff/respondent qua khasra No. 189. However, counter claim filed by the Gram Panchayat was also accepted and the plaintiff/respondent was restrained from interfering in possession of Gram Panchayat over khasra No. 130.
11. The plaintiff/respondent challenged the decree of the learned trial Court passed in favour of the defendant/appellant primarily on the plea that Gram Panchayat has failed to prove their ownership over khasra No. 130 and, therefore, they were not entitled to injunction.
12. The learned lower appellate Court accepted the appeal primarily on the ground that the Gram Panchayat has failed to produce on record any document to prove its ownership over khasra No. 130.
13. The learned lower appellate Court further held that mere oral statement of the defendant witnesses could not be used to hold that the Gram Panchayat was owner of khasra No. 130 and, thus, reversed the finding on issue No. 6.
14. The learned Counsel for the appellant contends, that the appeal raises the following substantial question of law:
Whether the judgment and decree passed by the learned lower appellate Court is outcome of misreading of evidence and is otherwise contrary to the settled law and, thus, perverse?
15. In support of the substantial question of law, the learned Counsel for the appellant contends that the learned lower appellate Court committed an error in law in reversing the finding of the learned trial Court on issue No. 6 by holding that the defendant/appellant has failed to prove its ownership.
16. The contention of the learned Counsel for the appellant deserves to be accepted. In a suit for injunction, question of title was not to be determined and in any case the dispute regarding the title of Gram Panchayat could only be adjudicated under the Punjab Village Common Lands (Regulation) Act and not in the civil suit. For the purpose of injunction, the Court was only to see the possession of the parties. Once the plaintiff/respondent had not raised any claim over khasra No. 130 and had taken a stand that he had no intention to interfere with the possession over khasra No. 130, and was only to protect his possession and ownership over khasra No. 189, the learned trial Court was justified in accepting the suit as well as counter claim in view of the admission made by the respective parties.
17. The judgment and decree passed by the learned lower appellate Court is, therefore, outcome of mis-reading of the pleadings, evidence and is also contrary to established law that in a suit for injunction, question of title was not to be determined.
18. For the reasons stated, the appeal is allowed. The judgment and decree passed by the learned lower appellate Court is set aside and that of learned trial Court is restored, but with no order as to costs.