RSA No.2707 of 1988 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No. 2707 of 1988 Date of Decision: 7 - 12 - 2010 Ram Karan and others ....Appellants v. Mahinder and others ....Respondents CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA *** Present: Mr.L.N.Verma, Advocate for the appellants. Mr.Amit Jain, Advocate for the respondents. *** KANWALJIT SINGH AHLUWALIA (ORAL) Ram Karan, his brother Karam Chand and Barat Pal filed a suit for permanent injunction against the defendant-respondents, wherein it was prayed that the chowk in front of their house is integral part of their house and the defendant-respondents be restrained from interfering in the same. In the plaint, it is stated that in front of the house, there is no permanent chowk, rather a temporary chowk is being used by the plaintiff-appellants for tethering the cattle and parking their rehras (bullock cart) and the same was also used for sleeping and sitting. It is further stated that area of the chowk was purchased by the plaintiff-appellants from the Gram Panchayat by paying Rs.210/- and the Gram Panchayat had passed a resolution to this RSA No.2707 of 1988 [2] effect on 10.3.1964. To explain it, it was pleaded that earlier the plaintiff- appellants had filed a suit for possession against the Gram Panchayat and a compromise was effected and in lieu of that the payment was made and thereafter the Gram Panchayat passed the resolution. The case set up by the plaintiff-appellants is that on 14.6.1985, the defendant-respondents came and left a threat that they intended to take forcible possession of the chowk, therefore, the cause of action arose them to file the suit. Notice was issued. In the written statement filed, a preliminary objection was taken by the defendant-respondents that the land in dispute was shamlat deh, therefore, the civil court had got no jurisdiction to try the suit under Section 13 of the Punjab Village Common Land Regulation Act, 1961. Further it was averred that the Gram Panchayat, being a necessary party, was not impleaded. Furthermore, in the rough site plan attached, the description of the property given was wrong and did not tally with the numbers given in the earlier suit. The trial Court after completion of the pleadings, formulated the following issues:- 1. Whether plaintiffs are owner in possession of the property mentioned in the heading of the plaint? OPP 2. Whether this Court has got no jurisdiction? OPD 3. Whether the suit is barred by principle of res judicata? OPD 4. Whether the suit is bad for non-joinder of necessary parties? OPD 5. Whether defendants are entitled for special costs? OPD 6. Relief. The trial Court held that it was an admitted case of the plaintiff- appellants that the property in dispute was owned by the Gram Panchayat RSA No.2707 of 1988 [3] and they failed to prove on record the alleged compromise. The trial Court further held that after perusing the un-exhibited documents, it is proved that the previous suit between Sarjit and the Gram Panchayat was not about the land in dispute and the dimensions given in the earlier suit and of the present suit do not tally. Therefore, it was held that the plaintiff-appellants have failed to prove their ownership on the land in dispute. Even if no reliance is placed on un-exhibited documents, the matter of fact remains that the plaintiff-appellants have failed to prove that description of the property given in the head note of the plaint and allegedly purchased by them from the Gram Panchayat was one and the same. Furthermore, the Court held that since the property belonged to the Gram Panchayat, it was necessary for the plaintiff-appellants to implead the Gram Panchayat as a party. Aggrieved against the same, the plaintiff-appellants filed an appeal and the lower Appellate Court affirmed the findings of the trial Court and it further held that earlier compromise was not registered and, therefore, the plaintiff-appellants had failed to get the earlier compromise registered, therefore, they cannot be held to be owner in possession. According to this Court, the substantial question of law which arises for consideration is “Whether the plaintiff-appellants have proved their exclusive possession over the chowk to the exclusion of others?” Apparently, the plaintiff-appellants have failed to prove their ownership over the property in dispute as the same is a public place. Their claim over the property was based on the compromise which was arrived at between them and the Gram Panchayat in the earlier suit. The alleged compromise and the resolution have not been proved on record. It is the RSA No.2707 of 1988 [4] case of the plaintiff-appellants that the chowk is used by them to tether their cattle and for parking their bullock carts. It is further stated that they used to sit and sleep in the disputed land. What is material to be noticed is the following translated para of the plaint:- “That the plaintiffs had raised a kacha boundary wall over the chowk which had fallen down due to rain in the last year.” If that is so, it cannot be held that the plaintiff-appellants exclusively enjoyed the property which is a public place. Others can also use the public premises for the purpose of sitting and sleeping. Until the plaintiff-appellants prove that they were the only one who were in possession of the suit property, no injunction as prayed for can be granted. Mr.L.N.Verma, learned counsel appearing for the plaintiff- appellants has contended that Kanungo has proved the report Ex.D3. It is stated therein that Khasra No.119/1 is owned by the Gram Panchayat and Bakhshi Ram is in possession of the same. So far as Khasra No.119/1/1 is concerned, it is stated that part of it is in possession of the plaintiffs but the spot it is lying vacant. DW3 Kalyan Singh, Halqa Patwari has proved the report Ex.D3. He stated that Des Raj, Kanungo has retired. A perusal of Ex.D3 reveals that the same was prepared by Des Raj, Kanungo. However, DW3 Kalyan Singh, Halqa Patwari had also signed the same. Even from a perusal of Ex.D3, it is revealed that in the street Khasra No.119/1/1, seven feet of the area has been occupied by the plaintiff-appellants. The defendant-respondents have also proved on record an application dated 16.6.1984, Ex.D1, moved by defendant-respondent No.2-Des Raj that the plaintiffs have illegally and forcibly occupied a portion of the chowk. Mr.Verma has further stated that even if it is a chowk and from the last 50 years of the filing of the suit, the plaintiff-appellants have been RSA No.2707 of 1988 [5] using the same, they cannot be dispossessed from the suit property except by due process of law. Counsel has relied upon a judgment of Hon'ble Apex Court in Samir Sobhan Sanyal v. Tracks Trade Private Limited and others, 1996 HRR 395 to contend that no person can be dispossessed from the property without due process of law. Further reliance has been placed on Rame Gowda (D) by Lrs. v. Mr.Varadappa Naidu (D) by Lrs. and Anr., 2004(1) S.C.C. 769 to contend that even if a trespasser is in a settled possession, he cannot be dispossessed except by due process of law. This contention of learned counsel cannot be accepted until it is proved on record that the area of the chowk was only used by the plaintiffs to the exclusion of other members of the public. Furthermore encroachers have no right to persist with the possession over the chowk. It was necessary for the plaintiff-appellants to prove that they were in exclusive possession of the property which they have failed to do so. Therefore, the judgments cited by the learned counsel are not attracted to the facts of the present case. Hence, the concurrent findings of fact recorded by both the Courts below call for no interference and the present regular second appeal is hereby dismissed and the substantial question of law formulated is answered against the appellants. ( KANWALJIT SINGH AHLUWALIA ) December 7, 2010. JUDGE RC