R.S.A. No.1510 of 2005 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** R.S.A. No.1510 of 2005 Date of Decision:29.09.2008 Khushi Ram and others .....Appellants Vs. Gram Panchayat, Bithwana, Tehsil and District Rewari and another .....Respondents CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. Jai Vir Yadav, Advocate for the appellants. **** HARBANS LAL, J. The genesis of the case is that the plaintiffs are the owners in possession of house bearing No.196 situated within the abadi of Village Bithwana shown in blue colour in the marked letters `ABCDEF' in the site plan. This house is recorded in the name of Nand Ram son of Udda Ram Ahir in the Shajra Abadi of the aforesaid village for the year 1867. Nand Ram was the father of grandfather of the plaintiffs, namely, Bhoop Singh. The western side of this house was a little bit oblique, while proceeding from South to North. While constructing the house, the plaintiffs had left a small portion of Western side towards the rasta and had constructed a platform on the portion after filling the same with earth and had constructed the Western side of their house straight as to remove the obliqueness and that portion of the platform as shown in the site plan, which is part and parcel of the aforesaid house and the plaintiffs have been using the same as platform. The defendant No.2- Sarpanch of the Village nursed a grudge against the plaintiffs due to the party faction and thus, he wants to dismantle R.S.A. No.1510 of 2005 -2- the platform outrightly. On these allegations, the suit has been filed for restraining the defendants from demolishing the platform in dispute. In the written statement, the defendant- Gram Panchayat has alleged that the platform constructed by the plaintiffs on the land of Gram Panchayat has already been demolished as the villagers used to feel hardship because of that encroachment. The encroachments of all the persons on the land of the Gram Panchayat were removed by the order of the Block Development and Panchayat Officer with the assistance of police. Lastly, it has been prayed that the suit may be dismissed. The following issues are framed:- 1. Whether the plaintiffs are owner in possession of the house No.196 shown in blue colour marked by letters ABCDEF in the site plan as shown in para No.1 of the plaint? OPP 2. Whether the portion shown in red colour in the site plan is part and parcel of the house of the plaintiffs? OPP 3. If issue No.2 is proved, whether the plaintiffs are entitled to the injunction as prayed for? OPP 4. Whether the plaintiffs have no cause of action to file the present suit? OPD 5. Whether the suit is bad for want of notice? OPD 6. Whether the Civil Court has no jurisdiction to try the present suit? OPD 7. Whether the suit is bad for non-joinder of necessary parties? OPD 8. Relief. After hearing learned counsel for the parties and examining the R.S.A. No.1510 of 2005 -3- evidence on record, the Court of learned Additional Civil Judge (Senior Division), Rewari dismissed the suit vide his judgment and decree dated 8.4.2004. Feeling aggrieved therewith, the plaintiffs went up in appeal, which has also been dismissed by the Court of learned Additional District Judge, Rewari vide his judgment and decree dated 16.2.2005. Being dissatisfied therewith, the plaintiffs have preferred this appeal. I have heard learned counsel for the parties, besides perusing the findings returned by both the Courts below with due care and circumspection. Mr. Jai Vir Yadav, Advocate appearing on behalf of the appellants maintained with a good deal of force that even DW.1 examined by the defendant had admitted that the appellants/ plaintiffs have made a pacca house which was earlier kachcha. Even in the site plan Ex.DW4/A filed by the Gram Panchayat- respondent, Western side has been shown as oblique boundary, which is the case of the plaintiffs. Thus, the Courts below have erred in non-suiting the plaintiffs/ appellants. I have well considered these submissions. Learned Additional District Judge, Rewari in his impugned judgment dated 16.2.2005 has observed as under:- Vide my separate order of this date, an application for appointment of Local Commissioner for demarcation of the property has been dismissed on the grounds that the Court of Additional District Judge, Rewari Dr. S.K. Kapoor, in his order dated 29.03.2001 has directed the parties to get the suit land located and demarcated at their own level or any of the party may apply to the learned Trial Court for location and R.S.A. No.1510 of 2005 -4- demarcation of property No.196 and the passage, as per the record and position existing on the spot. But, plaintiffs who is the master of this case have failed to move any application for demarcation nor he has got the Ahata No.196 demarcated. Now, in appeal, he is debarred from getting the suit land demarcated and for allowing this application is only to prolong the litigation further. Therefore, in the circumstances of the case and the law relied upon by learned counsel for the appellants- plaintiffs in case titled as Shreepat Versus Rajendra Prasad and others, reported in 2000(3) Civil & Rent Judicial Reports 160, in this authority, there was no such direction to parties to move an application to get the suit land demarcated. Therefore, this authority cannot be made applicable to the facts and circumstances of the present case. Moreover, there is no document or pedigree table placed on the file to show that the plaintiffs are the successor of Sh. Nand Ram. Therefore, without any documents regarding the ownership of property No.196, it cannot be said that the plaintiffs are the owner of the property No.196 adjoining to the Rasta in dispute. Moreover, DW-3 Shri Sunder Lal as well as DW-4 Shri Chander Bhan have also stated that there is no Chabutra in existence and that has already been included in the land of Gram Panchayat. There is also no ground of grant of any injunction to the plaintiffs. Moreover, plaintiff himself has admitted that there is no pucca Chabutra at the site in dispute and there is only kachai sand lying at the site. Whereas, on the other hand, Gram R.S.A. No.1510 of 2005 -5- Panchayat wants to make the Chabutra pucca for the public purposes. Therefore, on this ground also, plaintiffs are not entitled for restraining the Gram Panchayat from making the land in dispute pucca, when the construction material is already lying there as it is settled law that the Gram Panchayat may declare any land lying vacant for the public use. Moreover, plaintiffs cannot take the benefits of the weakness of the defendants' case and he should stand on his own legs. As plaintiffs have failed to prove that they are owner of the portion shown in red colour. Therefore, learned Trial Court has rightly held the status of the plaintiffs as a trespasser.” Obviously, on the basis of the above referred documentary evidence, no contrary view can be taken. A glance through the concurrent findings returned by both the Courts below would reveal that the same do not suffer from any illegally or infirmity. Consequently, no interference is warranted therein. More to the point, no substantial question of law arises for determination by this Court. Resultantly, this appeal is dismissed. September 29, 2008 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? Yes/No