R.S.A. No. 3204 of 2008 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No. 3204 of 2008 Date of Decision: January 12, 2011 Harchand Singh …..Appellant Vs. Gram Panchayat, Village Bhakatgarh and others …..Respondents CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI. -.- Present:- Mr.Ashok Singla, Advocate for the appellant. Mr.Arihant Jain, Advocate for the respondents. -.- M.M.S. BEDI, J. (ORAL) Suit of the plaintiffs for declaration that he is owner in possession of 1/4th share of the land measuring 6 kanals 9 marlas in Khewat No. 472 Khatouni No. 779, situated within the review limits of Village Bhakatgarh and that defendant- respondent No.1 Gram Panchayat has got no concern with the said land with a consequential relief of permanent R.S.A. No. 3204 of 2008 [2] injunction that Gram Panchayat, Bhakatgarh should be restrained from taking forcibly possession of the property in dispute stands dismissed by the Courts below. The claim of the plaintiff for declaration that he is joint owner and in possession of 3 kanals 4 marlas of land bearing Khewat No. 472 Khatauni No. 779, Khasra No. 14//7/1(3-4) situated within the revenue limits of Village Bakhatgarh being owner of 1/4th share and for permanent injunction to restrain the Gram Panchayat defendant- respondent No.1 from taking forcible possession of the land or from interfering in the peaceful possession of the plaintiff over the said land except by due course of law, has also been rejected by both the Courts below. Learned counsel for the plaintiff- appellant Mr.Ashok Singla, has vehemently urged that the Gram Panchayat of Village Bakhatgarh has got no concern with 6 kanals 9 marlas of land mentioned in heading of the plaint and 3 kanals 4 marlas of land mentioned in heading B of the plaint and that the finding of the Courts below is perverse having ignored the plaintiff’s evidence especially Exs. P1 to P7. The main contention of learned counsel for the appellant is that vide order dated January 11, 1972 passed by the Additional Director, Consolidation, Punjab, a mutation No. 4208 dated February 10, 1995 was entered. The suit land measuring 6 kanals 9 marlas was mutated in favour of the plaintiff-appellant and land measuring 10 kanals 13 marlas of plaintiff- appellant comprised in Killa No. 72//2/2 (3-16) and 9 (6-17) was mutated in favour of the Nagar Panchayat- defendant/ respondent. As the said 10 kanals 13 marlas area was withdrawn from the plaintiff and was ordered to be allotted in the Khewat of Gram R.S.A. No. 3204 of 2008 [3] Panchayat and the area measuring 6 kanals 9 marlas suit land which was earlier allotted in the Khewat of Jumla Mushtarka Malkan was mutated in favour of Panchayat and was withdrawn from the Gram Panchayat and given to the plaintiff- appellant. He argued that neither the said order dated January 11, 1972 nor the mutation had been challenged by the Gram Panchayat or by Jumla Mushtarka Malkan. He vehemently urged that the plaintiff- appellant is ready to return 6 kanals 9 marlas of land to the Gram Panchayat provided he is returned the ownership and possession of the land measuring 10 kanals 13 marlas which was withdrawn from him and that the Gram Panchayat cannot be allowed to sail in two boats at the same time. It was urged that the plaintiff- appellant is being shown, after the mutation of February 10, 1995 nor jamabandies and Khasra girdwaries, as owner of the suit land and presumption of truth is attached to the said revenue record. I have heard counsel for the appellant as well as counsel for the respondent and carefully gone through the judgments and decrees of the Courts below, the order of the Additional Director, Consolidation and the mutation of exchange of land, Ex.R3. It is pertinent to observe here that the Courts below after fair appreciation of evidence have arrived at a conclusion that plaintiff is neither the owner nor in possession of the suit property on the basis of the order of the Additional Director, Consolidation of Holdings dated January 11, 1972 and that the claim of three real brothers of the plaintiffs seeking the same relief of permanent injunction on the basis of the order dated January 11, 1972 stands finally decided in Civil Suit No. 997 of 1993 decided on September 18, 1997 in case Harkaran Singh and others Vs. R.S.A. No. 3204 of 2008 [4] Gram Panchayat, Bakhatgarh, Ex.D4. In the said case , the three brothers of plaintiff- appellant, namely, Harkaran Singh, Nika Singh and Bir Singh sons of Aagam Singh had claimed that the land in dispute had been given to Angam Singh, their father as owner in possession and after his death, the brothers of plaintiff- appellant, namely, Harkaran Singh and others were owners in possession of the suit land. There was a specific issue framed regarding the ownership and possession of the plaintiff’s brothers on the basis of the order of Additional Director, Consolidation of Holdings vide order dated January 11, 1972. Mr.Kuljitpal Singh, Civil Judge (Junior Division), Barnala, vide his judgment and decree dated September 18, 1997 had found that the suit filed by the brothers of the plaintiff- appellant deserve to be dismissed as Gram Panchayat, Bakhatgarh was neither made a party nor it was heard. I have gone through the order dated January 11, 1972 passed by the Additional Director, Consolidation which shows that without impleading Gram Panchayat, Aagam Singh as petitioner and Chuhar Singh and others as respondents were able to get an order of exchange of land belonging to Gram Panchayat without impleading Gram Panchayat as a party. The said order is not binding on the rights of the Gram Panchayat as the order had been obtained at the back of Gram Panchayat. The claim of Harkaran Singh etc., the brothers of the plaintiff- appellant, was declined specifically observing that they were not entitled to the benefit of decision of the order dated January 11, 1972 passed by Additional Director, Consolidation. The judgment and decree Exs.D4 and D5 were affirmed in R.S.A. No. 3204 of 2008 [5] appeal by Additional District Judge, Barnala, vide judgment and decree Exs. D6 and D7. Though the plaintiff was not a plaintiff in a suit filed by his brothers-Harkaran Singh and others against the Gram Panchayat but the similar issue deciding the similar rights of the brothers of the plaintiff- appellant against the Gram Panchayat stands already adjudicated upon. Even if it is presumed that the judgments passed on the similar issue will not operate as resjudicata yet the said judgments will have the effect of jeopardizing the rights of the plaintiff- appellant as an attempt has been made by the plaintiff- appellant to conceal the adjudication of the rights of the parties through Civil Suit No. 997 of 1993. The Courts below have held that the judgment passed in earlier suit will operate as constructive resjudicata. A finding of fact has been arrived at by both the Courts below that the plaintiff- appellant is not owner in possession of the suit property on the basis of the order dated January 11, 1972 of the Additional Director, Consolidation of Holdings. No substantial question of law is involved in the present appeal as such the same is dismissed. January 12, 2011 (M.M.S.BEDI) sanjay JUDGE