RSA No.2173 of 2006 (1) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: 17.8.2009 (i) RSA No.2173 of 2006 Gurmeet Singh and others ......Appellants Versus Ajaib Singh and others .......Respondents (ii) RSA No.2195 of 2006 Gurmeet Singh and others ......Appellants Versus Ajaib Singh and others .......Respondents CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Shri Amarjeet Markan, Advocate, for the appellants. Shri Jasbir Rattan, Advocate, for the respondents. HEMANT GUPTA, J. (Oral). This order shall dispose of RSA Nos. 2173 and 2195 of 2006, as both these appeals arise out of the judgment and decree passed by the Courts below, whereby suit filed by the plaintiffs for declaration, mandatory injunction and permanent injunction, was dismissed. I have heard learned counsel for the parties on the following substantial question of law:- “Whether the plaintiffs, the non-proprietors, can claim any right, title or interest in Abadi property?” RSA No.2173 of 2006 (2) The plaintiffs have filed the present suit for declaration, mandatory injunction and permanent injunction in respect of Abadi land measuring 38 bighas 19 biswas. The suit was filed in representative capacity. It is the case of the plaintiffs that defendant No.5 wrongly claimed himself to be owner in possession of the land measuring 12 biswas forming part of abadi deh and has sold the same illegally in favour of defendant Nos. 1 to 4 on 21.12.1993. The sale of the said land was challenged on the ground that the said area is reserved for common use of the inhabitants of the village. The learned trial Court dismissed the suit holding that the suit for mandatory injunction is not maintainable, though a finding was returned that defendant No.5 was neither owner nor in possession of the plot in dispute nor the sale deed would confer any title qua the suit property in favour of defendant Nos.1 to 4. The plaintiffs and defendants both filed separate appeals before the Appellate Court. However, the first Appellate Court accepted the appeal filed by the defendants and dismissed the suit holding that the plaintiffs have failed to prove themselves to be as proprietors of the village, therefore, they cannot challenge the sale deed executed by defendant No.5 in favour of defendant Nos. 1 to 4. It was thus held that the plaintiffs cannot be permitted to challenge the sale executed by defendant No.5 in favour of the other defendants. Having heard learned counsel for the parties at some length, I am of the opinion that the judgment and decree passed by the learned first Appellate Court is not sustainable in the eyes of law. The learned first Appellate Court has dismissed the suit by holding as under:- “As already discussed, the plaintiffs have failed to prove themselves proprietors of the village. Therefore, they RSA No.2173 of 2006 (3) have no right in the suit property and they cannot challenge the sale deed executed by defendant No.5 in favour of defendants No. 1 to 4. The sale deed can be challenged only by a person, who has interest in the suit property. As the plaintiffs have no interest in the suit property, therefore, they have no right to challenge the said sale deed. Therefore, from the above discussion, I find that the sale deed executed by defendant No.5 in favour of defendants No. 1 to 4 is legal and valid and defendants No.1 to 4 are bona-fide purchaser for consideration of the disputed property.........” A perusal of the above finding would show that the suit has been dismissed only on the ground that the plaintiffs have failed to prove themselves as proprietors of the village. The first Appellate Court failed to take into consideration the fact that the interest claimed in the suit land is not that of the proprietors but as that of inhabitants in Abadi land. Therefore, the finding recorded by the learned first Appellate Court suffers from patent illegality and irregularity, which cannot be sustained in the eyes of law. Consequently, the present appeals are allowed. The judgment and decree passed by the learned first Appellate Court are set aside and the matter is remanded back to the learned first Appellate Court for decision afresh in accordance with law. Parties, through their counsel are directed to appear before the learned first appellate Court on 5.10.2009, for further proceedings in accordance with law. (HEMANT GUPTA) 17.8.2009 JUDGE ds