RSA No.741 of 2009 (O & M) - 1 – IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.741 of 2009 (O & M) Date of Decision: 07.04.2011 Giri Raj and another ……Appellants Versus Gram Panchayat …...Respondent Coram: HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. O. P. Sharma, Advocate for the appellants. None for the respondent. L.N. MITTAL, J (ORAL) Plaintiffs-Giri Raj and Desh Raj sons of Popal have filed the instant second appeal, having failed in both the Courts below. Appellants-plaintiffs filed suit against defendant-respondent- Gram Panchayat alleging that plaintiffs are in cultivating possession of the suit land measuring 12 kanals 16 marlas and prior to them, their father and ancestors were in possession thereof the last more than 100 years. The defendant threatened to interfere in peaceful possession of the plaintiffs over the suit land. Accordingly, plaintiffs sought permanent injunction restraining the defendant from interfering in plaintiffs’ possession over the suit land and from dispossessing the plaintiffs therefrom in any manner. RSA No.741 of 2009 (O & M) - 2 – The defendant broadly denied the plaint allegations and pleaded that defendant is owner in possession of the suit land. It was also pleaded that suit is bad for want of notice under Section 205 of the Haryana Panchayati Raj Act, 1994 (in short, the Act). Various other pleas were also raised. Learned Civil Judge (Junior Division), Gurgaon vide judgment and decree dated 29.07.2008 dismissed the plaintiffs’ suit holding that plaintiffs are proved to be in possession of the suit land, but the suit is not maintainable for want of mandatory notice under Section 205 of the Act. First appeal preferred by the plaintiffs has been dismissed by learned District Judge, Gurgaon vide judgment and decree dated 01.12.2008 holding that plaintiffs are not proved to be in possession of the suit land and also that the suit is bad for want of notice under Section 205 of the Act. Feeling aggrieved, plaintiffs have filed the instant second appeal. I have heard learned counsel for the appellants and perused the case file whereas none is appearing for the respondent inspite of service, although the case was also adjourned many times to await appearance on behalf of respondent. Perusal of the trial Court file reveals that in jamabandis for 1963-64 Ex.P-1, 1968-69 Ex.P-2, 1978-79 Ex.P-3, 1998-99 Ex.P-4 and 2003-04 Ex.P-5 and also in khasra girdwaris Ex.P-6 since kharif 1974 till Rabi 1979, Ex.P-7 since kharif 1999 till Rabi 2004, Ex.P-8 since Kharif 2004 till Kharif 2005, plaintiffs’ father Popal has been continuously recorded to be in possession of the suit land. Entries in jamabandi carry presumption of correctness. The said presumption has RSA No.741 of 2009 (O & M) - 3 – not been rebutted in the instant case. On the contrary, the said presumption stands strengthened by the fact that the same entries continued for 40 years. It is correct that plaintiffs’ father Popal died in the year 1986 and entries even thereafter continued in his name. However, it would not mean that the defendant-Gram Panchayat automatically came in possession of the suit land on the death of Popal. On the contrary, the plaintiffs being sons of Popal came in possession of the suit land and are, therefore, proved to be in possession thereof. The defendant never ejected or dispossessed the plaintiffs or their father from the suit land. Consequently, finding of the lower appellate Court that plaintiffs are not proved to be in possession of the suit land is patently perverse and illegal and is based on misreading and misappreciation of evidence. Substantial question of law to this effect arises for adjudication in this second appeal and the same is accordingly answered in favour of the plaintiffs. The trial Court rightly held the plaintiffs to be in possession of the suit land. The said finding is restored by setting aside the finding of the lower appellate Court to the contrary. As regards notice under Section 205 of the Act, such prior notice is required when the suit is filed in respect of anything done under the Act. In the instant case, the plaintiffs in the suit did not challenge any action being taken by the defendant under the Act. On the contrary, the plaintiffs sought permanent injunction against their illegal and forcible dispossession from the suit land at the hands of the defendant. It is not the case of the defendant that the defendant sought to dispossess the plaintiffs from the suit land under the provisions of the Act. Consequently, no notice under Section 205 of the Act was required to be served before filing the RSA No.741 of 2009 (O & M) - 4 – instant suit. Finding of both the Courts below to the contrary is illegal and against the provisions of the Act. The said finding also, therefore, gives rise to substantial question of law to this effect and the same is answered in favour of the plaintiffs. For the reasons aforesaid, the instant second appeal is allowed. Judgments and decrees of the Courts below are set aside and suit filed by the plaintiffs is decreed to the extent that defendant is restrained by way of permanent injunction from interfering in possession of the plaintiffs over the suit land and from dispossessing the plaintiffs therefrom except in due course of law. (L. N. MITTAL) JUDGE 07.04.2011 A.kaundal