R.S.A.No. 2945 of 2007 {1} In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 2945 of 2007 Date of Decision:August 07, 2009 Mohan Lal and others ---Appellants versus Municipal Committee and another ---Respondents Coram: HON'BLE MRS. JUSTICE SABINA *** Present: Mr.V.K.Jain, Senior Advocate, with Mr. Prashant Vashisht, Advocate, for the appellants Ms. Monisha, Advocate, for the respondents *** SABINA J. Plaintiffs had filed a suit for declaration with consequential relief of permanent injunction. Civil Judge ( Senior Division), Sonepat vide judgment and decree dated 14.10.2005 dismissed the suit of the plaintiffs. Aggrieved by the same, plaintiffs preferred an appeal and the same was dismissed by Additional District Judge, Sonepat vide judgment and decree dated 14.3.2007. Hence, the present appeal. R.S.A.No. 2945 of 2007 {2} The facts of the case as noticed by the learned Additional District Judge, in paras 2 to 7 of its judgment read as under:- “Agricultural land measuring 5K-13 M comprised in Khewat No. 1305 min, khata No. 1801 min 1812, Rect. No. 120 Killa No. 5/1(1-8), 5/2(3-8), 5/4(0-12), situated within the revenue estate of village Kharkhoda, Tehsil and District Sonepat as per Jamabandi for the year 1993-94 detailed in Para No. 1 of the plaint. Said land was at one time owned and possession by proprietors of Shamlat Panna Hinduvan Hasab Rasad Arazi Khewat. According to the plaintiffs (now appellants) their forefathers were in old possession of land comprised in Rect. No. 120 killa No. 5/2, 5/4 and 5/5 measuring 4K-5M as owner thereof since time immemorial. Said possession is continuing with the plaintiffs till date, whereas the remaining land comprised in killa No. 5/1 was owned and possessed by the proprietors of the Panna. It is alleged that without providing an opportunity of being heard to any of the proprietors of Panna Hinduvan or the forefathers of the plaintiffs, revenue authorities sanctioned a mutation No. 2853 in favour of the Gram Panchayat on the basis of a letter No. 6658-R-II-61-6239- 57 dated 22.9.1961 issued by the Punjab Government. As per plaintiffs, the mutation was to be sanctioned only regarding the ‘Shamlat Deh Hasab Rasad Arazi Khewat’ and nor regarding the lands owned and possessed by the proprietors of Thola and Panna. It is alleged that it is due to the mischief and fraud of R.S.A.No. 2945 of 2007 {3} the revenue officials that land of proprietors of the Panna/Thola was incorporated in the revenue record as having been vested in the Gram Panchayat. Further case of the plaintiffs is that defendant No. 1 Municipal Committee Kharkhoda (now respondent No. 1) came into existence in the year 1980 in place of Gram Panchayat and that in a routine manner, mutation No. 3771 was sanctioned and the lands of Panna/Thola with the Shamlat deh land were also mutated in favour of said Municipal Committee. A civil suit was earlier filed by the plaintiffs in the year 1991, which was dismissed as withdrawn on 9.5.2001 with permission to file a fresh suit as and when cause of action arise. That suit was withdrawn since Municipal Committee had been abolished. However, as Municipal Committee has recently been revived, so the present suit has been filed. Plaintiffs submit that taking benefit of the illegal entries, defendant No.1- Municipal Committee is bent upon to dispossess the plaintiffs from the land in dispute. Defendant No. 1 has also filed a case under Public Premises Act on the basis of mischievous and fraudulent entries, vesting the land in the name of Gram Panchayat despite the fact that no title has been settled. With the aforesaid averments, plaintiffs prayed for a decree of declaration that incorporation of order of the revenue officer dated 4.6.1962 regarding vesting of land in dispute of Panna/Thola Hinduvan in favour of the Gram R.S.A.No. 2945 of 2007 {4} Panchayat in the entire revenue record is based on fraud and mischief and so, it is nonest, null and void. Similarly, subsequent mutation No. 3771 in favour of Municipal Committee is also null and void. Plaintiffs further prayed for a decree of permanent injunction to restrain defendant No. 1 from dispossessing them from the suit land on the basis of the said fraudulent entries in favour of Gram Panchayat/Municipal Committee. In written statement filed by defendant No. 1, certain preliminary objections are raised submitting that suit is barred by principle of res-judicata as plaintiff No. 3 and mother of plaintiffs No. 1 and 2 had earlier filed a civil suit regarding suit land which was dismissed on 12.2.1994. They filed another suit in respect of the suit land which was dismissed on 19.4.1995. Thereafter, Gram Panchayat Kharkhoda had filed an application for ejectment under Sections 4, 5 and 7 of the PP Act in the Court of Collector, Sonepat, which was accepted and plaintiffs were ordered to be ejected from the suit land. Appeal filed by them before Commissioner Rohtak was dismissed on 30.5.2002 and thus, dispute has since been settled in favour of defendant No. 1. Further preliminary objection raised is that the suit is not maintainable without serving notice under Section 52 of the Haryana Municipal Act; that plaintiffs have no locus standi and cause of action to file the present suit and that they have suppressed the material facts from the court and R.S.A.No. 2945 of 2007 {5} also that civil court has no jurisdiction to entertain the matter. On merits, it is submitted that mutation No. 2853 was rightly entered and sanctioned in favour of Gram Panchayat. Said mutation was never challenged by the plaintiffs. Said mutation was sanctioned in open public proceedings and that unauthorized possession of the plaintiffs over the suit property was brought to an end vide ejectment order passed by learned Collector and upheld by the Commissioner. It is submitted further that suit property was being used for common purposes and so land was rightly vested in Gram Panchayat and then in defendant No. 1. Mutation No. 2853 is defended to be legal and binding upon the plaintiffs and all general public. Similarly Mutation No. 3771 is stated to be in accordance with law. With this stand and controverting all other averments of the plaintiffs, defendant No. 1 prayed for dismissal of the suit. Defendant No. 2 (now respondent No. 2) Panna Hinduwan Kharkhoda, sued through one of its proprietor Ram Mehar, submitted in its written statement that the suit property belongs to ‘Panna Hinduvan Hasab Rasad Arazi khewat’ and so, mutation No. 2853 sanctioned in the name of Gram Panchayat is illegal and void and so not binding on the rights of the proprietors of Panna Hinduvan, as no opportunity of hearing was given to them before ordering the vesting of the suit property in the Gram Panchayat. It has been admitted that plaintiffs are in physical cultivating possession of the suit R.S.A.No. 2945 of 2007 {6} property since the time of their forefathers. It is also submitted that said possession is illegal and unauthorized. It is pleaded that suit property should have been in the ownership and possession of the proprietors and Panna Hinduvan. Since Gram Panchayat never had any right, title or interest in the suit property, so question of Municipal Committee Kharkhoda having acquired any title in the suit property does not arise. With this stand, defendant No. 2 prayed that it had no objection in case the suit of the plaintiffs is decreed.” On pleadings of the parties following issues were framed by the trial Court:- 1. Whether the mutation No. 3771 was sanctioned in favour of Municipal Committee is nonest, null and void? OPP 2. Whether the order of revenue officer dated 4.6.1962 regarding vested or land in dispute in favour of G.P. is passed by fraud and mischief? OPP 3. If issues No. 1 and 2 are proved, then whether the plaintiffs are entitled to relief as prayed for?OPP 4. Whether the suit of the plaintiff is barred by the principle of res judicata?OPD 5. Whether suit of the plaintiffs is not maintainable in the present form?OPD 6. Whether the civil court has no jurisdiction to try and entertain the present suit? OPD 7. Whether plaintiffs have no cause of action to file the R.S.A.No. 2945 of 2007 {7} present suit?OPD 8. Whether the plaintiffs have come in the court with unclean hands? OPD 9. Whether the suit of the plaintiffs is bad for non- joinder and mis-joinder of the parties? OPD 10. Whether the ownership has already been decided as alleged in preliminary objections? OPD 11. Whether the plaintiffs are entitled for special costs under section 35-A CPC? OPD 12. Relief Learned counsel for the appellant has argued that the Bachat land did not vest in the Gram Panchayat and as such the suit of the plaintiffs was liable to be decreed. In support of his arguments learned counsel has placed reliance on Full Bench Judgment of this Court in the case of Jai Singh vs. State of Haryan 2003(2) P.L.R. 658. Learned counsel for the respondents, on the other hand, has submitted that the plaintiffs have failed to establish that they were in possession of the suit property as proprietors. Hence, their suit for permanent injunction had been rightly dismissed by the courts below. During consolidation proceeidngs, some part of the land of the proprietors by applying prorata cut on their holdings is kept for common use of the villagers. The said land is utilized for making paths, school, Dharamshala, temple etc. for the common use of the villagers. The land which remains unutilized after utilizing the land for common purposes, is known as Bachat land. It was held by Full Bench inter alia that the land which has R.S.A.No. 2945 of 2007 {8} been contributed by the proprietors on the basis of prorata cut on their holdings imposed during the consolidation proceedings and which have been earmarked for any common purposes in the consolidation scheme and is entered in the column of ownership as Jumla Mustarka Wa Digar Haqdaran Hasab Rasad Arazi Khewat and in the column of possession with the proprietors, shall not vest the Gram Panchayat or the State Government, as the case may be. There is no quarrel with the proposition of law settled by the Full Bench. However, in the present case, the plaintiffs had failed to establish that they were in possession of the suit property as a proprietor. Possession of Chandgi @ Lilu, admittedly, the predecessor-in-interest of the plaintiffs was on account of the reason for maintaining the dharamshala and keeping a piau. The possession of Chandgi was not in capacity of a proprietor or a member of the Shamlat Panna Hinduvan who was originally recorded to be owner of the suit land. Learned Additional District Judge, in its judgment has observed that the plaintiffs have failed to disclose the basis on which they claim ownership of the land. It appeared that the proprietor of the Shamlat Panna Hinduvan might have inducted Chandgi in the suit land so as to maintain the piau and take care of Dharamshala. The possession of Chandgi was not recorded as that of tenant or individual proprietor. The possession of Chandgi on behalf of the proprietors would be considered as possession of the entire proprietary body for common purposes. Learned counsel for the appellants has failed to controvert the factual observations made by the learned Additional District Judge. The judgment of the Full Bench, relied upon by the learned counsel for the R.S.A.No. 2945 of 2007 {9} appellants fails to advance the case of the appellants. No substantial question of law arises in this appeal. Accordingly, this appeal is dismissed. (SABINA) JUDGE August 07, 2009 PARAMJIT