IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 1668 of 2008 Date of decision: 4th December, 2008 Nathu Singh … Appellant Versus State of Haryana and others … Respondents CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Kulbhushan Sharma, Advocate for the appellant. Mr. Jayender Singh Chandail, Addl. AG Haryana for the State. Mr. Vimal S. Mann, Advocate for respondent No. 3. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Nathu Singh appellant-plaintiff filed a suit against State of Haryana through Collector, Faridabad; Block Development Panchyat Officer, Ballabgarh and Gram Panchayat, Village Bukharpur, Tehsil Ballabgarh, District Faridabad seeking a decree of permanent mandatory injunction. It was pleaded in the plaint that he is resident of the village and having his residential house, details and description of which have been given in the plaint. It was further submitted that appellant-plaintiff is owner to the extent of 10 marlas of plot No.68 and 69 and 16 marlas of plot No.70 from the last many years and he has made no encroachment on the circular road of the village i.e. Firni. He had applied for the measurement of these plots to the AC (2nd Grade), Ballabgarh and on the order of AC (2nd Grade), Ballabgarh, retired Kanungo was appointed to make the measurement. The measurement was made on 6th October, 2000 and it was found by the retired Kanungo in the presence of the villagers that on the eastern side, only one feet land is in khasra No.70 but khasra No.42 Regular Second Appeal No. 1668 of 2008 was not measured, which belonged to Harbir Singh and the defendants intend to demolish the construction made by the plaintiff without any reason. It was stated that the defendants had not admitted the commission report and have demolished some part of the plot No. 68, 69 and 70 with the help of police and they are now trying to construct drain from the middle of the plot of the plaintiff illegally and forcibly. Notice was issued. Defendants appeared. Preliminary objections regarding maintainability of the suit were taken. It was further stated that plaintiff has not come with clean hands in the Court and has concealed material facts and has no cause of action and that the jurisdiction of the Civil Court is barred. On merits, it was submitted that the Gram Panchayat is owner of the passage bearing khasra No.55 as per the jamabandi for the year 1993-94 and the plaintiff had occupied some part of the passage forcibly and this fact has surfaced in the demarcation report dated 23rd September, 2000. It was further submitted that defendants are duty bound to remove the encroachment from the public passage in the public interest. It was further stated that the drain for outlet of sullage and storm water is to be constructed. After concluding the evidence, following issues were framed by the trial Court: 1. Whether plaintiff has not encroached on the thoroughfare (Phirni) and no area of Phirni is in Khasra No. 70, 68, 69 which is in ownership and possession of plaintiff? OPP 2. Whether defendant wants to encroach and construct a drain from the middle of the plot of the plaintiff illegally and forcibly? OPP 3. Whether plaintiff is entitled for injunction as prayed for? OPP 2 Regular Second Appeal No. 1668 of 2008 4. Whether the suit of the plaintiff is not maintainable? OPD 5. Whether this Court has no jurisdiction and same is barred by Section 13 of Punjab Village Common Land Act, 1961? OPD 6. Relief. Trial Court examined the evidence, considered the testimony of PW-1 Likhi Ram, who stated that Sarpanch, due to political reasons, is inimically deposed. Similar statement was made by Rajan PW-2. Plaintiff himself appeared as PW-3. Trial Court held that from appreciation of the evidence and two reports of the Local Commissioners, it is evident that the plaintiff has made the encroachment over the public passage. Aggrieved against the same, an appeal was filed. Appellate Court not only affirmed the findings of the trial Court, but also gave an opportunity to the plaintiff to get the land demarcated afresh. Statement of the plaintiff was recorded, which as reproduced in para 20 of the appellate Court judgment, reads as under: “The appellant shall not in any event raise any claim for compensation or damage against the panchayat in respect of the demolition carried out earlier by the Gram Panchayat. The plaintiff does not and shall not claim any relief of mandatory injunction against the Gram Panchayat and other respondents. There are conflicting reports of various local commissions and the interest of justice will be served in case a senior official of the revenue department is appointed as a local commission to carry out demarcation of killa No. 55 of phirni viz a viz killa no.68, 69 and 70 of the plaintiff at the spot is carried out strictly in accordance with the Rules and Orders of the Hon'ble High Court. In case any encroachment on killa No. 55 is found at the spot the plaintiff shall voluntarily remove and withdraw the present litigation and if in case the demolished portion or any part of it is found to be the part of 3 Regular Second Appeal No. 1668 of 2008 his land even then the plaintiff shall not claim any compensation and damage from the respondents. Both the parties will abide by the report of such commission and the demarcation of the spot.” A similar statement of Karan Singh, Law Officer was also recorded. Sadar Kanungo was appointed as Local Commissioner. He carried fresh demarcation. Counsel for the appellant states that he had filed an objection that the report of Sadar Kanungo is not in consonance with the High Court rules and parameters spelled by Financial Commissioner. On the observations made by this Court that three authorities have done demarcation and they have found that appellant has made encroachment on the public passage and some day, demarcation has to attain finality, counsel for the appellant has failed to advance any meaningful argument to dislodge the same. I am of the view that two courts below have appreciated the evidence and have arrived at a conclusion, which is just and appropriate, in view of the facts and circumstances of the case. Hence, no substantial question of law arise in the present Regular Second Appeal and the same is dismissed. [KANWALJIT SINGH AHLUWALIA] JUDGE December 4, 2008 rps 4