R.S.A. No. 3071 of 1986 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH R.S.A. No. 3071 of 1986 (O&M) Date of decision : 16.8.2010 ... Sher Singh and others ................Appellants vs. Sadhu Singh and others .................Respondents Coram: Hon'ble Mr. Justice K.C. Puri Present: Sh. H.P.S. Gill, Advocate for the appellants None for the respondents. ... K.C. Puri, J. This is an appeal directed by defendant-appellants against the judgment dated 5.9.1986 passed by Sh. Padam Kumar Jain, Additional District Judge, Bhatinda, vide which the appeal preferred by the defendant-appellants against the judgment dated 29.3.1985 passed by Sh. Joga Singh, PCS, Sub Judge Ist Class, Mansa, was dismissed. The plaintiffs have filed a suit for mandatory injunction directing the defendants to restore the passage leading from Khasra No. 435 to their field bearing killa Nos. 60//21/1(3-7), 22 min (7-0), situated in the area of village Ram Nagar Bhattal. R.S.A. No. 3071 of 1986 -2- The case of the plaintiffs is that they are heirs of Dan Singh s/o Bakhtour Singh and mutation No. 1330 in respect of his estate has been sanctioned in their favour, as per jamabandi for the year 1979- 80. Plaintiffs are owners in possession of land bearing Khasra No. 60//21/1 and 22 min. A passage 3 karams in width bearing khasra No. 435 has been provided during consolidation from the joint land to their above said land. Defendants are not the owners of the above said passage nor the same has been carved out from the land. They are using the said passage for going to their land and taking carts, tractors and cattle through the same. About four months ago, the defendants cultivated the passage and amalgamated the same in their own land illegally and forcibly. The defendants have also constructed a water course through the same and thereby obstructed them from passing through the said passage. On 15.8.1983, plaintiffs obtained demarcation and defendants were requested to restore the passage but they refused to do so. Hence this suit. Defendants filed written statement contesting the claim of the plaintiffs. All the averments made in the plaint were denied. It is pleaded that there is no passage in khasra No. 435 nor the plaintiffs have been provided passage to their land through the said khasra number. Defendants have further pleaded that their father Inder Singh son of Hira Singh filed petition No. 1030 of 1984 before the Additional Director Consolidation, Punjab. The same was decided on 14.2.1984 and it was decided that passage in khasra number 66//4/1 3/2/2 is unnecessary and the land equivalent to the said passage was given to the Gram Panchayat from khasra number 10/23 and the area R.S.A. No. 3071 of 1986 -3- of the passage was joined by defendants No. 1 to 4 in their own land. The plaintiffs have no locus standi to file the present suit. In replication, plaintiffs denied the contents of written statement and reiterated the stand taken in the plaint. From the pleadings of the parties, following issues were framed:- 1. Whether there is a pahi in khasra number 435? OPP 2. If issue No. 1 is proved, whether the defendants have illegally and forcibly encroached upon the site of the pahi? OPP 3. Whether the plaintiffs have no locus standi and cause of action to file the present suit? OPD 4. Whether the suit is bad for mis-joinder and cause of action of necessary parties? OPD 5. Whether the plaintiffs are entitled to the injunction prayed for OPP. 6. Relief. Sadhu Singh – plaintiff himself appeared as PW-1 and also examined PW-2 Banta Singh, PW-3 Gurdarshan Singh, Field Qanungo, PW-4 Labh Singh and PW-5 Gurtej Singh, Panchayat Secretary and closed the evidence after tendering certain documents. In rebuttal, defendants examined DW-1 Baldev Singh, DW-2 Mohinder Singh and closed the evidence. Learned trial Court has taken issues No. 1 and 2 together and returned the finding on both these issues in favour of plaintiffs. Issues no. 3, 4 and 5 were also decided in favour of the plaintiffs and against R.S.A. No. 3071 of 1986 -4- the defendants. Consequently, the suit of the plaintiffs was decreed. Feeling dissatisfied with the abovesaid judgment dated 29.3.1985, passed by Sh. Joga Singh, Sub Judge Ist Class, Mansa, the defendant-appellants filed the Ist Appeal. The said appeal was dismissed by Sh. Padam Kumar Jain, Additional District Judge, Bhatinda, vide judgment dated 5.9.1986. Still feeling dissatisfied with the judgments dated 5.9.1986 and 29.3.1985, referred to above, the defendant-appellants have preferred the present regular second appeal. Learned counsel for the appellants has submitted that following questions of law have arisen in the present appeal:- 1. Whether a matter decided by High Court in Civil Writ Petition can be raised and adjudicated upon by the civil court below subsequently in a pending civil suit? 2. Whether Additional Director Consolidation of Holdings Punjab exercising the powers of the State Government can be prevented from passing any order authorized to pass under Sec. 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, when a civil suit is pending? Learned counsel for the appellants has submitted that the Consolidation Officer vide judgment Exhibit D-2 deleted the passage in question being unnecessary and in lieu of the land given by the Gram Panchayat, the said order was upheld by the Additional Director DH, Punjab, Chandigarh. Both the orders were challenged in the writ petition and the writ petition was dismissed in limine by R.S.A. No. 3071 of 1986 -5- this Court. Since, the competent authorities have decided the case in favour of the appellants and as such both the Courts below have committed an error in decreeing the suit of the plaintiffs. I have carefully considered the said submission, but do not find any force in that submission. According to the case of the appellants, the application for deleting the passage/Pahi was filed after the filing of the present suit. It has been further observed by the trial Court that Gurcharan Singh was not the Sarpach of Gram Panchayat and as such he was not able to exchange the land. The passage is meant to go to the fields of plaintiffs. It has not been disputed during the course of arguments that said passage was provided during the consolidation. The same has been encroached upon by the defendant- appellants. The plaintiffs were not arrayed as party in the petition for deleting the passage. So, the order Exhibit D-2 is not binding upon the plaintiffs. It is a basic principle of law that in case any order is to be passed against a party, that party should be heard. There is nothing on the file that Exhibit D-2 was passed in the presence of the plaintiffs. There is nothing on the file that land out of the khata of plaintiffs was actually given to Gram Panchayat. There is a concurrent finding of fact recorded by both the Courts below that documents Exhibits D-2 and D-3 does not effect the rights of the plaintiffs. That being a finding of fact, does not call for any interference. The questions of law raised above, in fact does not exist at all. Consequently, I have no hesitation in holding that no R.S.A. No. 3071 of 1986 -6- substantial question of law has arisen in the present appeal and as such, the regular second appeal stands dismissed. ( K.C. Puri ) 16.8.2010 Judge chugh