RSA No.151 of 2008 (O & M) ::1:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.151 of 2008 (O & M) Date of decision: 08.04.2010 Chaman .. Plaintiff/Appellant Versus Jaswant .. Defendant/Respondent CORAM: HON'BLE MR.JUSTICE AJAY TEWARI a). Whether Reporters of Local Papers may be allowed to see the judgment ? b). To be referred to the Reporters or not ? c). Whether the judgment should be reported in the Digest ? Present:- Mr.Ashish Aggarwal, Advocate for the appellant. AJAY TEWARI J. (ORAL) . . . This appeal has been filed against the judgment of the learned Lower Appellate Court reversing that of the learned Trial Court and thereby dismissing the suit of the appellant for permanent injunction restraining the respondent from forcibly demolishing a wall which has been constructed by the appellant. Even the Trial Court found that the appellant was in an unauthorized occupation of land belonging to the Gram Panchayat but held that since he was in possession, his possession had to be protected against forcible demolition. The learned Lower Appellate Court also held that the appellant had trespassed on land belonging to the Gram Panchayat. He, however, held that a trespasser could not be granted the relief of injunction and consequently dismissed the suit. The following questions have been proposed:- (i) Whether the plaintiff-appellant who is admittedly, in settled possession of the residential house in question RSA No.151 of 2008 (O & M) ::2:: since the time of his forefathers is entitled to injunction to restrain the defendant-respondent from forcibly dispossessing him from the property in dispute and except in due course of law ? (ii) Whether in view of the law laid down by the Hon'ble Supreme Court in Rame Gowda (D) by Lrs. Vs. Mr.Varadappa Naidu (D) by Lrs. And Anr., 2004 (1) RCR (Civil) 519, the appellant is entitled to injunction even it is presumed that he is in unauthorised possession of the land in question as it has been held that a person in settled possession of the land in question cannot be dispossessed by the true owner or any other person except in due course of law ? (iii) Whether the report of the Local Commissioner (Ex.DW-3/B) is inadmissible in evidence as the Local Commissioner exceeded his jurisdiction and went beyond the order of the trial court dated 29.07.2002 by demarcating the land although there was no such order in view of the law laid down by this Hon'ble Court in Dhoom Singh Vs.Baisakhi Ram, 1997 (1) RCR (Civil) 147 ? (iv) Whether the impugned judgment and decree is liable to be set-aside as the Objections filed by the appellant to the report of the Local Commissioner have neither been decided nor dealt with by the learned court below and whether it was incumbent upon the court below to have considered and decided the objections to the report of the Local Commissioner under Order 26, Rule 10 C.P.C. In view of the law laid RSA No.151 of 2008 (O & M) ::3:: down by the Division Bench of this Hon'ble Court in Balbir Dewan Cold Storage and General Mills Vs. Naveen Chander, 1989 PLJ 247 (DB) ? (v) Whether the appellant can be ejected from the land in question only by resorting to the remedy under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 for ejectment of alleged unauthorised occupants ? (vi) Whether the impugned judgment and decree is patently illegal, ultra-vires, void and without jurisdiction and is liable to be set-aside ? (vii) Whether grave and manifest injustice has been caused to the appellant in the matter ? As regards question No.(i), learned counsel has relied upon the statement of DW-2, who stated that the appellant had been in possession for the last 10 to 15 years. This statement does not establish question No.(i). As regards question No.(ii), the judgment in case titled as Rame Gowda (D) by Lrs. Vs. Mr.Varadappa Naidu (D) by Lrs. And anr., 2004 (1) RCR (Civil) 519, (the decision relied upon in this question), the relief sought was between two persons both of whom made competing claims over the land in dispute. The present case is one where the land belonging to the Gram Panchayat and forming part of public way has been taken into possession and consequently, the said judgment is completely distinguishable. As regards questions No.(iii) and (iv) , even though it cannot be denied that the Naib Tehsildar as Local Commissioner was not given mandate to demarcate the land yet nothing has been shown which would tend to discredit the actual finding of encroachment found by the Local Commissioner. As regards question No.(v), the present is not a case where the Gram Panchayat is seeking to evict the appellant but a case RSA No.151 of 2008 (O & M) ::4:: where a co-resident has objected to encroachment on a public street. Thus, it cannot be held that the present suit is not maintainable. Questions No.(vi) and (vii) are general questions. Apart from this, learned counsel has argued that by a latest amendment in Rule 12 of the Punjab Village Common Lands (Regulation) Rules, 1964, the Gram Panchayat can sell certain categories of land to residents with the prior sanction of the State Government. Learned counsel has argued that under this provision, the appellant is entitled to apply for purchasing the land in dispute. It is made clear that the dismissal of this appeal would not stand in the way of the appellant moving an application to purchase the land under the said Rules. With these observations, this appeal is dismissed. Since the main appeal has been decided, the stay application along with Civil Miscellaneous Application, if any, shall stand disposed of accordingly. April 08, 2010 (AJAY TEWARI) Sukhpreet JUDGE