RSA No.1266 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 1266 of 2009 (O&M) Date of Decision: October 07, 2009 Khazan Singh and others ...........Appellants Versus Gurdeep Singh & others ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.Chaman Lal, Advocate for the appellants ** Sabina, J. Plaintiffs filed a suit for declaration to the effect that the land in dispute measuring 7 bighas 18 biswas comprised in Khasra no. 309 situated in the revenue estate of village Shahpur Arrian, Tehsil Rajpura, District Patiala is gair mumkin pond and meant for the user and enjoyment of the plaintiffs and other residents and proprietors of village Shahpur Rian Tehsil Rajpura, District Patiala for the common purpose and the entries in the jamabandi 1996-97 and 1997-98 in the name of the defendants and Maan Singh deceased are wrong and illegal and for permanent injunction restraining the defendants from alienating, transferring and from cutting and removing the standing kikar trees from the suit land. The said suit of the plaintiffs was decreed by the Civil Judge (Junior Division) Rajpura vide judgment and decree dated 23.3.2004. Aggrieved by the same, defendants filed an appeal and the same was dismissed by the Additional District Judge, Patiala vide judgment and decree dated 22.10.2008. Hence, the RSA No.1266 of 2009 (O&M) 2 present appeal by the defendants. The case of the parties, as noticed by the learned Additional District Judge, in paras 2 to 3 of its judgment reads as under:- “ 2.The factual matrix of the case as per the averments is that the plaintiffs are residents and proprietors of village Shahpur Rayian, Tehsil Rajpura, District Patiala. They own agricultural and other properties in the said village. The suit land measuring 7 bighas 18 biswas comprised in Khasra no.309 is Banjar Khadim Pond and the same is meant for the user of the plaintiffs and other residents and proprietors of the village. The defendants have no right, title or interest in the suit land. Initially, they had wrongly got the land in dispute allotted in their favour but on appeal by the plaintiffs and other residents allotment in their name was cancelled vide order dated 30.5.1977 passed by Sh.Tejinder Singh, Chief Settlement Commissioner, Jalandhar. However, revenue entries are wrongly continuing in the name of the defendants, which are liable to be deleted after cancellation of the allotment. Now in the garb of the said revenue entries, defendants have threatened to cut the kikkar trees standing in the land in dispute without any right, title or interest. In this premise, it was prayed that the land in dispute comprised in Khasra No.309 be declared as gair mumkin pond meant for use by the plaintiffs and other proprietors of village Shahpur Rayian and the revenue entries wrongly continuing in the names of the defendants be ordered to be corrected and the defendants be restrained from cutting/removing the standing kikkar trees from the land in dispute and from RSA No.1266 of 2009 (O&M) 3 interfering in peaceful user and enjoyment of the said land by the plaintiffs and other residents and proprietors of the village. 3. The defendants contested the suit with preliminary objections regarding locus standi, limitation, jurisdiction and that the plaintiffs have not come to the Court with clean hands. On merits, it has been stated that the land in dispute is not Banjar Khadim Pond, rather they are in possession of the suit land. A previous suit was decided in favour of the defendants and mutation has been sanctioned in the name of the defendants. The entries in the revenue record are factually correct as per the possession of the defendants on the spot. In the light of these averments, a prayer was made for dismissal of the suit. On the pleadings of the parties, the following issues were framed by the trial Court:- “1.Whether the land in dispute is a pond. If so, its effect? OPP 2.Whether the revenue entries as alleged are illegal and liable to be deleted?OPP 3.Whether the plaintiffs are entitled to declaration as prayed for?OPP 4.Whether the plaintiffs are entitled to permanent injunction as prayed for?OPP 5.Whether the suit is not maintainable in the present form?OPD 6.Whether the suit is time barred?OPD 7.Whether the plaintiffs have no locus standi to file the present suit?OPD 8.Whether the Court has no jurisdiction to try the present RSA No.1266 of 2009 (O&M) 4 suit?OPD 9.Whether the plaintiffs are estopped from filing the present suit?OPD 10. Relief.” Learned counsel for the appellants has submitted that the Courts below had not given any finding with regard to issue No.1 as to whether the land in dispute was a pond or not and, hence, the impugned judgments and decrees of the Courts below were liable to be set aside. The suit property was in possession of the appellants. Hence, the appellants could not be dispossessed from the suit property. After hearing the learned counsel for the appellants, I am of the opinion that this appeal is devoid of any merit. The Courts below have rightly held that it was not very material as to whether the suit land was a pond or not but the important aspect was as to whether the suit land in question was being used for the common purposes of the proprietors of the village or not. In the column of ownership in the revenue record, the names of the defendants have been described. Khasra number in dispute is 309. The Courts below, after appreciating the evidence on record led by the parties, had held that Khasra No. 309 was meant for use and enjoyment of the proprietors of the village and, hence, the revenue entries are liable to be corrected. Vide order dated 30.5.1977 (Exhibit P1), allotment made in favour of the defendants regarding Khasra No.309 was cancelled by Assistant Settlement Commissioner, Punjab Jalandhar. Vide order Exhibit P2 passed by the Assistant Collector IInd Grade Rajpura dated 29.7.1977, it was held that Maan Singh, Khajan Singh, Gurnam Singh, Sucha Singh and Baz Singh RSA No.1266 of 2009 (O&M) 5 had never remained in possession of Khasra No. 309. It was ordered that the entries in the revenue record with regard to Khasra No. 309 be corrected as banjar khadim and gair mumkin chhapar. Despite this, the entries in the revenue record were not corrected. In these circumstances, the Courts below rightly held that the appellants had no right, title or interest in the suit land as allotment in their favour already stood cancelled. No substantial question of law arises in this regular second appeal which would warrant interference by this Court. Accordingly, this appeal is dismissed. ( Sabina ) Judge October 07, 2009 arya