IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3570 of 2011 (O&M) Date of decision : 02.09.2011 Amar Singh … Appellant Versus State of Haryana and others …Respondent CORAM : HON’BLE MR.JUSTICE K.C.PURI Present: Mr.Vivek Khatri, Advocate for the appellant. K.C.Puri, J. This is an appeal directed by the plaintiff-appellant against the judgment and decree dated 31.5.2011, passed by Shri Y.S.Rathor, Additional District Judge, Hisar vide which the appeal preferred by the plaintiff against the judgment and decree dated 18.9.2008 passed by Mrs.Sonika Goel, Civil Judge (Jr.Divn.), Hisar, was dismissed. The plaintiff-Amar Singh filed a suit for declaration that he is owner in possession of the plot, mentioned in the head-note of the plaint, situated in the abadi deh, Tehsil and District Hisar. It is pleaded that he has constructed his residential house on the Northern Western corner of the plot and two rooms are under construction on Southern Western corner. He has raised boundary wall by collecting the bricks and other raw material has been collected on the spot for further construction. He used to put his fodder, cow dung cakes, manure etc. on the suit property besides tethering his cattle. He has inherited the property in question from his forefathers and some of the property was purchased by him from Risala. Due to partition, the defendant Gram RSA No.3570 of 2011 (O&M) Panchayat moved a false complaint before the police under Section 145 Cr.P.C. The said proceedings were illegal, void as there was no apprehension of breach of peace. The order passed by Sub Divisional Magistrate against the appellant is illegal. Gram Panchayat never remained in possession of the suit property. The said Magistrate himself inspected the site in dispute and found that the plaintiff was in possession of the land in question. The plaintiff filed a revision against the order of Sub Divisional Magistrate which was also dismissed on 1.4.2002. The plaintiff is entitled to restoration of the possession of the portion which has been illegally taken by the defendants. Now, the defendants want to take the possession of all said land. Hence, this suit. Defendant Nos.1 and 3 in their written statement, besides taking preliminary objections on the grounds of locus standi, cause of action etc., resisted the suit of the plaintiff, on the ground that the plaintiff is neither the owner nor in possession of the suit property. Possession of the suit property has already been taken by the Gram Panchayat on 20.3.2002. Order passed by Sub Divisional Magistrate is legally valid. Defendant Nos.4 and 5 filed a separate written statement pleading that Gram Panchayat is the owner and proceedings under Section 145 Cr.P.C. were initiated which were decided in favour of the Gram Panchayat. Revision filed by the petitioner was dismissed. Only a small kotha was constructed on the land which was owned and possessed by the Gram Panchayat. From the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff is entitled to the relief of declaration as prayed for? OPP. 2. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for? OPP. 3. Whether the suit of the plaintiff is not maintainable? OPD 2 RSA No.3570 of 2011 (O&M) 4. Whether the plaintiff has no locus stnadi to file present suit? OPD. 5. Whether the plaintiff has no cause of action to file the present suit? OPD 6. Whether the plaintiff is estopped from filing the present suit by his own act and conduct? OPD 7. Whether the jurisdiction of the civil court is barred? OPD 8. relief.” The plaintiff in order to prove his case, examined Zile Singh as PW1, Guddi as PW2, Banwari Lal as PW3, Shakuntala as PW4, Chattar Singh as PW5, Satyawan as PW6, Baljeet as PW7 and Amar Singh as PW8 and closed the evidence after tendering certain documents. In rebuttal, defendants examined Tajinder Pal as DW1 and Pawan Kumar as DW2 and closed the evidence after tendering certain documents. Learned trial Court has taken up the issues No.1 and 2 together and returned a finding that the plaintiff is in possession of 9’X’9’ portion of the room but has failed to prove his ownership and possession, in respect of remaining suit property. Other issues were decided in favour of the plaintiff. However, in view of the finding on Issues No.1 and 2, the suit of the plaintiff was partly decreed in respect of land measuring 9’X9’ and dismissed the suit in respect of the rest portion of suit property. Feeling dissatisfied with the above judgment, the plaintiff preferred the first appeal. Learned first appellate court after appraisal of the evidence, dismissed the appeal vide judgment and decree dated 31.5.2011, passed by Shri Y.S.Rathor, Additional District Judge, Hisar Feeling dissatisfied with the judgment and decree dated 31.5.2011 passed by Addl.District Judge, Hisar and judgment and decree dated 18.9.2008 3 RSA No.3570 of 2011 (O&M) passed by Civil Judge, (Jr.Divn.) Hisar, the plaintiff-appellant has preferred the present regular second appeal. The appellant in para No.14 of the grounds of appeal has mentioned that the following substantial questions of law have arisen in the present case:- “i. Whether the land which is recorded as abadi deh in the jamabandi can comes under the parameters of shamlat deh? ii. Whether the land which is vacant and not used for the common purposes can fall within the definition of shamlat deh? iii. Whether the court yard which is unward can also be presumed to be vacant land and the same can be termed as shamlat deh? iv) Whether the decision of Criminal Court is binding on the civil Court while especially its relates to question of title?” Learned counsel for the appellant has submitted that the suit property is situated in the abadi deh and it does not fall within the ambit of shamlat deh. The suit property is not being used for common purposes and as such, does not fall within the definition of shamlat deh. The suit property is a courtyard of the house of plaintiff and cannot be presumed as vacant land. The decision of Criminal court under Section 145 Cr.P.C. is not binding on the civil court. The report and order of Sub Divisional Magistrate have no probative value. Both the courts below have misread and misinterpreted the evidence on the record. I have carefully considered the said submissions but do not find any force in those submissions. The points as referred above, by the appellant are not involved in the present lis for decision. The case of the plaintiff is that he is owner in possession of the suit land and the proceedings resorted to section 145 Cr.PC have no value. Both the courts below, after appraisal of the evidence, reached to the conclusion that except the property measuring 9’X9’ 4 RSA No.3570 of 2011 (O&M) regarding which suit of the plaintiff has been decreed, the plaintiff has not been able to prove his ownership or possession. The concurrent finding of fact recorded by both the courts below in this regard cannot be interfered in view of Section 100 CPC. Both the courts below have returned a clearcut finding that the suit land except 9’X9’ is not covered by the boundary wall and that plaintiff has failed to prove his possession over the suit property. Both the courts below have held that mere tethering the cattle or throwing rubbish does not prove the possession over the suit property. It is a settled law that the plaintiff has to prove his case by pleading cogent evidence. The plaintiff has failed to prove his case in respect of ownership and possession over the suit property, except possession over 9’X 9 land’ In authority Ajaib Singh and Kaka Singh Vs. Sub Divisional Officer, Civil Kharar and others, reported in L.J.R.(Rev)1950 to 1988, it has been held that abadi deh does not fall within the ambit of shamalt deh. In authority Commissioner of Wealth-tax Vs. Officer-in-charge (Court of Wards), Paigah, reported in 1977AIR (SC) 113, it has been held that entries in revenue records are, however, good prime facie evidence, if unrebutted. There is no dispute to that proposition of law. However, the appellant has failed to connect that the suit property is covered by the jamabandi (Exhibit P-2). So, the above said authorities are not helpful to the appellant. In authority Sarwan Singh Vs. Gram Panchayat & Gram Sahba, Gurugarh, reported in 1993(2) PLR 230, this court has held that 5 RSA No.3570 of 2011 (O&M) presumption of truth attaches to entries in record of right. In absence of any rebuttal, it has to be presumed that entries are correct. The said authority is distinguishable on the same ground mentioned above. In authority Asu (Died) (Through) 11th RECN LRs) Vs. Collector Kurukshetra and others, reported in 1995(2) LJR, 270 lays down that house include a courtyard whether walled or not. This authority is also not helpful to the appellant as there is a finding of both the courts below that house of the plaintiff is not near the suit property, and there is no boundary wall around the dispute land. In authority Jasbir Vs. Commissioner Ambala Division, Ambala and others, reported in 2011 (1) RCR (Civil) 160, it has been laid down that under Section 2(g)(3) of Punjab Village Common Lands (Regulation) Act, 1961, the land cannot described as shamlat deh, unless it is used for common purposes. However, the said authority is not applicable to the facts of the present case as according to the plaintiff himself, the Gram Panchayat has made pavement of brick in some portion of the suit land. In authority Sunder Vs. Gram Panchayat Adhoya, reported in LJR (Rev) 1950 to 1988, it has been held by this Court that Banjar qadim land if not used for the common purpose of village, is not covered by the definition of shamlate deh. The said authority is also distinguishable as even according to the appellant, on some portion of the land, a street has been constructed. 6 RSA No.3570 of 2011 (O&M) In authority Raghbir Singh Vs. Balak Ram and another, reported in 2011 (2), Law Herald (Punjab and Haryana) 983, it has been held that report by SDM, is not binding upon the Civil Court in respect of controversy of possession. There is no dispute to that proposition of law. Criminal proceedings are not binding upon the civil court. However, the fact remains that the appellant has failed to prove his ownership in possession in respect of the suit property except possession in respect of property 9’ X 9’. He has taken a stand that portion of the land was purchased from one Rasala but no sale deed has been produced on the file. A similar view was taken by Hon’ble Apex Court in authority Lakshmi & another Vs. Chinnammal @ Rayyammal & Ors, reported in 2009 (4) LJR 807. The said authority is also distinguishable on the ground mentioned above. So, in view of the above discussion, all the points for determination stands determined against the appellant. Consequently, the appeal is without any merit and the same stands dismissed. A copy of this judgment be sent to the trial court for strict compliance. ( K.C. Puri) Judge 02.09.2011 sd 7