Judgment:
Hemant Gupta, J.
1. Defendant Nos. 1 and 2 are in second appeal aggrieved against the judgment and decree passed by the learned first Appellate Court directing the said defendants to remove ruri and foundation as shown in site plan Ex.PW-7/A.
2. The plaintiff-respondent Nos. 1 to 6 have filed the present suit for declaration to the effect that the plot shown by words ABCD in the site plan Ex.PW-7/A, is the common property of the proprietors of Pati Chehlan, Village Mardanpur, and is being used for common purposes. The plaintiffs also sought the relief of mandatory injunction directing defendant Nos. 1 and 2 to remove the foundation marked EF; defendant Nos. 3 and 4 to remove the ruri; and defendant No. 5 to remove the small construction raised in the suit property in an unauthorizedly manner.
3. It is the case of the plaintiffs that there are four patties in Village Mardanpur, whereas the plaintiffs are residents of Pati Chehlan. Each patti has separate Dharamshala and vacant chowk. The proprietors of Patti Chehlan constructed a Dharamshala and in front of that Dharamshala, the suit property was left for common use by the proprietors of the Patti Chehlan, for common purposes of parking bullock carts etc. The marriage parties use to stay in the said Dharamshala. The plaintiffs alongwith other proprietors have been using the suit property i.e. land in front of Dharamshala for common purposes, but the defendants have got no right to occupy the suit property exclusively for the purpose of their personal use. The said suit was filed in the representative capacity. Earlier a suit for injunction was filed, which was decreed by the learned trial Judge, but was dismissed in appeal by the learned Addl. District Judge on 29.11.1995. It was, thus, alleged that on account of encroachment by the defendants, the property in front of Dharamshala is not available for common use, which led to filing of the present suit.
4. Defendant Nos. 1 and 2 contested the suit and raised a plea that the Civil Court has no jurisdiction in the matter, and that the suit is hit by the principle of constructive res judicata. Defendant Nos. 1 and 2 asserted that they are in exclusive possession of the suit property. It was asserted that defendant Nos. 1 and 2 are continuing in possession for long time and that they have become owner by adverse possession.
5. The plaintiffs have led voluminous evidence to prove that the property in front of Dharamshala was reserved for common purposes. The learned trial Court dismissed the suit, but in appeal a finding was returned that the site in dispute is situated in front of Dharmshala and it is situated within the Lal Lakir of the Village. There is no documentary evidence of the ownership. The Court considered that none of the defendants has claimed the title over the suit property. Defendant Nos. 1 and 2 claimed adverse possession. It was found that the defendants have not stated against whom title by way of adverse possession was asserted.
6. On merits, learned first Appellate Court found on the basis of statement of Kuldip Singh (DW-3), defendant No. 3, that the site in dispute has been continuing in the possession of his ancestors and thereafter in the possession of the defendants. He has admitted that the site in dispute is in front of Dharamshala across the street. From his statement, a finding was returned that the site in dispute is not owned by any person, but is a common property outside the Dharamshala for permanent use by the residents of Chehlan Pati. Similar is the statement of Ajaib Singh-defendant No. 5, admitting that the land in front of Dharmshala is common.
7. The Court has also considered judgment Ex.DZ passed by Sub Judge, Ist Class, Rajpura in a suit for injunction filed by the present appellants. There was restrained order, but the said judgment was set aside in appeal vide judgment dated 29.11.1995 (Ex.DZ-B). Defendant No. 1 has appeared as DW-1 and asserted possession over the suit property from the time of his ancestors. Baljinder Singh DW-2, asserted possession of defendant Nos. 1 and 2 over the suit property. On the other hand, the plaintiffs have produced resolution Ex.P-2 dated 20.4.1996 that the site in front of the Dharamshala of Chehlan Parti has been kept for common use. Sucha Singh PW-8 has deposed that defendant Nos. 1 and 2 started placing ruri over the site in 1988. After considering the entire evidence, a finding was returned that the site in dispute is a common site in front of Dharamshala and no resident of Village Mardanpur has got any exclusive right over it. In view of the said fact, a decree as aforesaid was granted in favour of the plaintiffs.
8. Learned Counsel for the appellants has vehemently argued that the Civil Court has no jurisdiction as the land in dispute is a land reserved for common purposes and not falls in abadi deh of the village Mardanpur. Therefore, the question whether the plaintiffs are entitled to any declaration or mandatory injunction cannot be examined by the Civil Court.
9. The appellants have set up title in the suit land by adverse possession. Such adverse possession has not been proved on record, as for adverse possession it has to be asserted to the knowledge of the true owner. There is no such assertion. The land is in front of Dharamshala and is meant for common purposes. Earlier, the suit for injunction filed by the present appellants has been dismissed in appeal on 29.11.1995. It is a question of unauthorized possession over the common property, which is sought to be removed by intervention of the Civil Court. The jurisdiction of Civil Court is barred to entertain or adjudicate upon any question, whether any property or any right to or interest in any property is or is not shamilat deh vested or deemed to have been vested in a Panchayat. There is no plea by any of the parties that the land is shamilat deh and the question regarding vesting of land in Panchayat being shamilat deh has not been examined by the authorities and by the Courts below. Therefore, the plea of bar of jurisdiction is not available to the defendants in the present appeal.
10. In view thereof, I do not find that any substantial question of law arises for consideration of this Court in view of the findings of fact recorded by the learned first Appellate Court.
Dismissed.