C. R. No. 1825 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : C. R. No. 1825 of 2009 Date of Decision : April 01, 2009 Babu Lal .... Petitioner Vs. Gram Panchayat and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. P. R. Yadav, Advocate for the petitioner. * * * L. N. MITTAL, J. (Oral) : Plaintiff Babu Lal has approached this Court by way of instant revision petition under Article 227 of the Constitution of India assailing order dated 15.11.2008 (Annexure P-1) passed by learned Civil Judge (Junior Division), Rewari thereby dismissing plaintiff's application for temporary injunction under Order 39 Rules 1 and 2 of the Code of Civil Procedure (in short – the CPC), as affirmed in appeal by learned Additional District Judge, Rewari vide judgment dated 03.03.2009 (Annexure P-3). The plaintiff's case is that he is in possession of the suit property since long and prior to him, his ancestors were in possession thereof since prior to 1947. The plaintiff has thus claimed ownership by adverse possession. It is also pleaded that defendant nos. 3 and 4, who were muslims, were recorded to be owners of the suit property, but they had left before 1947. C. R. No. 1825 of 2009 2 Defendant no.1 Gram Panchayat has inter alia pleaded that Gram Panchayat is running a cattle pound in the suit property since long and the plaintiff was appointed as caretaker thereof, but on account of misconduct, he was removed and Gram Panchayat is owner in possession of the suit property. Both the courts below dismissed the plaintiff's application for temporary injunction finding no prima facie case for the same. I have heard learned counsel for the petitioner and perused the case file. Learned counsel for the petitioner vehemently contended that plaintiff is in possession of the suit property since before 1947 and has, therefore, become owner thereof by adverse possession . However, there is not even an iota of material on record to substantiate this contention. Admittedly, in the record of 1960-61, defendant nos. 3 and 4 were recorded to be owners in possession of the suit property. There is no document or other material on record to even remotely suggest that plaintiff is in possession of the suit property since 1947 or even for 12 years before the filing of the suit. Learned counsel for the petitioner emphatically argued that even Gram Panchayat has admitted possession of the plaintiff and Gram Panchayat has not placed on record any document to depict that the plaintiff was appointed as caretaker and was removed as such on account of misconduct. However, the plaintiff-petitioner cannot take advantage of weakness, if any, of the case of defendants. On the other hand, if the property was owned by muslim owners (defendants no.3 and 4), who migrated to Pakistan, then the same would vest in Custodian as evacuee property and if it is part of shamlat deh, the same would vest in Gram Panchayat. Consequently, the plaintiff has not made out a case for grant of temporary injunction. Learned counsel for the petitioner has placed reliance on a judgment of Hon'ble Supreme Court in the case of Ramji Rai and another vs. Jagdish Mallah (Dead) through L. Rs. and another C. R. No. 1825 of 2009 3 reported as 2007 (3) R.C.R. (Civil) 680 and also on a judgment of this Court in the case of Naurata Ram vs. Ruldu Ram and others reported as 2007 (3) R.C.R. (Civil) 1. However, in the facts and circumstances of the case, these judgments are not applicable to the instant case. Suit against Gram Panchayat cannot be instituted without serving prior notice under Section 205 of the Haryana Panchayati Raj Act, 1994 (in short – the Act). The instant suit was filed without serving any such notice, which was mandatory. The courts below have, thereefore, observed that the suit itself is not maintainable. Learned counsel for the petitioner, however, contended that the petitioner had moved application for exemption from service of the requisite notice. However, there is no provision in the Act for granting exemption from service of the mandatory notice required under Section 205 of the Act. Faced with this situation, learned counsel for the petitioner contended that service of notice could be dispensed with by exercising inherent power under Section 151 CPC. The contention is bereft of any merit because inherent power under Section 151 CPC cannot be invoked to nullify a mandatory provision of another statute. In addition to it, the plaintiff had ample time to serve the requisite notice on Gram Panchayat before filing the suit. Defendant no.1 had issued notice dated 24.04.2007 against the plaintiff, but the instant suit was filed on 08.11.2008 i.e. more than 1½ years thereafter, and therefore, in the intervening period, the petitioner had ample time to serve the requisite notice on Gram Panchayat. In view of the aforesaid, finding no merit in the instant revision petition, the same is hereby dismissed. However, nothing observed herein above shall influence the trial court at the time of final decision of the suit. April 01, 2009 ( L. N. MITTAL ) monika JUDGE