Tarsem Singh Vs. Gram Panchayat of Village Sheikhe Pind and ors. - Court Judgment

Excerpt:
- - the afore-mentioned documents clearly show that the father of the plaintiff-appellant had encroached upon a portion of the land meant for the village pond and still wanted to carry on with the encroachment.m.m. kumar, j. 1. this is plaintiff's appeal filed under section 100 of the code of civil procedure, 1908 challenging concurrent findings of facts recorded by both the courts below holding that the land is abadi-deh and in possession of the residents of the village on the basis of jamabandi for the year 1977-78. the land vests in gram panchayat defendant-respondent and is also being managed by it. that was not the only evidence to conclude that father of the plaintiff-appellant had made encroachment which lead to the passing of resolution ex.d1 and d2. thereafter a compromise ex.d3 was entered into by allowing him to raise a wall around his house. by virtue of the wall raised he even included the encroached portion in this house. the aforementioned finding has been extracted by the learned district judge, jalandhar, in the impugned order, which reads as under:- 'ex.d1 is the copy of the resolution showing that in the village pond, the father of the plaintiff was going to make an encroachment and it was resolved in the presence of father of the plaintiff that dd & po be again moved for help and father of the plaintiff should be restrained from making encroachment. ex.d2 is again a resolution to the effect that the father of the plaintiff had made an encroachment in the night time and the said encroachment should be got removed. then ex.d3 is another resolution showing that there was a compromise between the parties whereby a portion of the pond which was encroached upon by the father of the plaintiff was left to him and he was allowed to raise a wall by which he included the portion encroached by his father and included the same in his house. that portion has been shown by yellow colour in the site plan, ex.d4 some other open space was also left to be used as a passage for the father of the plaintiff and the remaining portion of the pond was left to be used by the gram panchayat or the other villagers. to avoid further encroachment on the pond land by the plaintiff or his father, the defendant raised a wall so that the pond land and the house of the plaintiff should be separated and the portion of the pond beyond that wall should be used by the villagers. it is that wall which the plaintiff now wants to get demolished by filing the present suit. in the present suit the question is not that as to who is the owner of the suit land. even the plaintiff is not the owner of the suit land but it was agreed by the father of the plaintiff with the gram panchayat that he will retain the portion of pond encroachment upon by him so that other portion of the pond should not be encroachment upon by the plaintiff or his father. it seems that the lust of the plaintiff did hot end even by encroaching upon a part of the pond land and simply by taking the benefit of the entries in the jamabandi of abadi deh regarding the suit land he wants to oust the gram panchayat. the plaintiff cannot be allowed to do so with the common property and to use the same to his benefits whereas the plaintiff is not the owner of the suit land.' 2. mr. sandeep punchi, learned counsel for the plaintiff-appellant has argued that once it has been found that the land is not shamilat-deh and that the residents of the village are in possession, then the suit land has to be treated as abadi-deh. according to the learned counsel, the plaintiff-appellant is entitled to retain the possession of the suit land in accordance with the jamabandi of the year 1977-78, which shows the possession of the residents of the village. the learned counsel has further urged that the suit land is not covered by the punjab village common lands (regulation) act, 1961 (for brevity 'the act') and cannot be used for common purposes. 3. having heard the learned counsel at a considerable length, i do not feel persuaded to interfere with the findings of facts recorded by both the courts below holding that the suit land is abadi-deh and is shown to be in possession of the residents of the village. both the courts have also found that by virtue of ex.d1 to d4, the land in dispute vests in the gram panchayat. the afore-mentioned documents clearly show that the father of the plaintiff-appellant had encroached upon a portion of the land meant for the village pond and still wanted to carry on with the encroachment. it was by the intervention of the defendant-respondent gram panchayat that a compromise was entered into as is revealed by ex.d3 whereby a portion of the pond encroached upon by the father of the plaintiff-appellant was left to him and he was allowed to raise a wall by including the encroached portion in his house. still further some more open space was also left to be used by the father of the plaintiff-appellant as a passage. 4. it is true that land is described as abadi-deh has not been defined as shamlat deh by section 2(g) of the act. it is equally true that no-one can claim exclusive possession of this land except the proprietor in his dwelling house in the village. the ownership rights in abadi-deh as a general rule' are vested in the proprietary body, at this stage, it is necessary to make reference to section 2(g)(1) and (4) of the act. '2. definitions:- (g) 'shamlat deh or charand' includes (1) land described in the revenue records as shamilat deh or charand excluding abadi deh. (2) xx xx xx (3) xx xx xx 4. lands used or reserved for the benefit of the village community including, streets, lanes, playgrounds, schools, drinking wells, or ponds within abadi deh or gora deh.' 5. a perusal of the afore-mentioned provisions makes it patent that the land used or reserved for the benefit of the village community including drinking wells or ponds has been abadi-deh and is included in the definition of 'shamilat-deh'. therefore, the land which is part of the village pond would necessarily vest in gram panchayat defendant-respondent. 6. moreover, in para 225 of rattingan's digest, it has been recorded that in the absence of a custom none of the proprietors or a co-sharer in abadi-deh could do thing, which alter the condition of joint property without the consent of all the co-sharers. the sites, which are reserved for common purpose cannot be encroached upon by a co-sharer. if any individual co-sharer makes an attempt to encroach upon, he can be ejected and can be asked to restore the site to its original condition. therefore, a proprietor may be restrained by his co-sharer appropriating a vacant site to his own exclusive use as has been held in the case of joint hindu family hazuri mal malawa mal v. ghulam hissain and anr., a.i.r. 1923 lahore 289 and also in the case of amar singh and ors. v. the crown, (1949)51 p.l.r. 110. 7. further more, both the courts have returned pure findings of facts that the plaintiff-appellant has been encroaching upon the abadi-deh land and does not have any right to do so. under section 100 no interference in the afore-mentioned finding is called for. the appeal is thus without merit and is liable to be dismissed. 8. for the reasons recorded above, this appeal fails and the same is dismissed.