R.S.A.No. 2462 of 2009(O&M) {1} In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 2462 of 2009(O&M) Date of Decision:July 15, 2009 Parkasho Devi and others ---Appellants versus Gram Panchayat Leda Khas. ---Respondent Coram: HON'BLE MRS. JUSTICE SABINA *** Present: Mr.S.S.Dinarpur ,Advocate, for the appellants *** SABINA, J. Plaintiffs had filed a suit for permanent injunction restraining the defendant from interfering in their actual physical possession. Additional Civil Judge (Senior Division), Yamuna Nagar at Jagadhari vide judgment and decree dated 12.1.2009 dismissed the suit of the plaintiff. Aggrieved by the same, plaintiffs preferred an appeal and the same was dismissed by Additional District Judge, Jagadhri vide judgment and decree dated 16.4.2009. Hence, the present appeal. The facts of the case as noticed by the learned Additional District Judge, in paras 2 to 4 of its judgment read as under:- “The gist of the lis can be summoned up as under:- R.S.A.No. 2462 of 2009(O&M) {2} That Banwari Lal son of Chhotia Mal resident of village Leda Khas was the owner of the suit property i.e. a plot marked as ABCDEF shown in red colour in the suit land Ex. P-4 situated in village Leda Khas detailed and described in the head note of the plaint. That said Banwari Lal gifted the portion marked CDEF shown in red colour in the site plan to plaintiff No. 1 vide registered gift deed dated 13.7.1993 and he gifted the remaining portion marked ABCD shown in blue colour in the site plan to plaintiffs No. 2 to 5 vide the registered gift deed dated 13.7.1993 in this way plaintiff No. 1 is owner in possession of the suit property marked CDEF shown in red colour in the site plan and plaintiffs No. 2 and 5 are owners in possession of the suit property marked ABCD shown in blue colour in the site plan attached with the plaint. That the defendants have no right, title or interest in the suit property detailed above. That a Pipal tree is standing in the portion marked ABCD shown in blue colour owned by plaintiffs No. 2 to 5 which is being worshiped by the plaintiffs since the time of their fore-fathers and their religious sentiments are attached to the said tree. Besides that four brick stacks are lying in the property marked ABCD and one brick stack is lying in the property shown with letters CDEF. The plaintiffs are also using their respective plots for storing fuel wood and for tethering cattle etc. The defendant-gram panchayat without any right, title or interest wants to interfere in the actual, physical possession of the plaintiffs over the suit property due to the R.S.A.No. 2462 of 2009(O&M) {3} party fraction in the recent panchayat elections. If the defendant-gram panchayat is not restrained from achieving the aforesaid illegal act the plaintiffs will suffer irreparable loss and injury. Hence, this suit for permanent injunction restraining the defendants from interfering in the actual, physical possession of the plaintiffs over their respective portions and also restraining the defendants from cutting and removing the Pipal tree of the plaintiffs, their brick stacks from the suit property. Respondent-defendant/Gram Pnachayat contested the suit by raising the preliminary objections that the civil court has no jurisdiction to try and entertain the present suit as the property in dispute is owned and possessed by the gram panchayat, that the suit is not maintainable in the present form, that the suit is barred by the principles of res judicata because the civil courts as well as the revenue courts have already decided the dispute, that the plaintiffs have not come to the court with clean hands and have concealed the true and material facts from the court, that the suit property vests in the gram panchayat. On merits, the respondent gram panchayat pleaded that the gram panchayat has got prepared the site plan of the village abadi. The property in dispute is marked and identified as property No. 139 in the field book and the site plan of the gram panchayat. The suit property is owned and possessed by the defendant-gram panchayat. The father of plaintiff No. 1 R.S.A.No. 2462 of 2009(O&M) {4} and grand father of plaintiffs No. 2 to 5 had filed the civil suit regarding the suit property which was dismissed by the civil court and in that case it was held that the property in dispute vests in the gram panchayat and is owned and possessed by the defendant-gram panchayat. The appeal against that judgment was also dismissed. Then Banwari Lal, the father of plaintiff No. 1 and grand father of plaintiffs No. 2 to 5 filed the appeal before the Hon'ble High Court and the Hon'ble High Court held that the civil court has no jurisdiction to try and entertain the suit. Thereafter, the father of plaintiff No. 1 and grand father of plaintiffs no. 2 to 5 filed the suit under section 13 of the Punjab Village Common Lands (Regulations)Act, 1961 (hereafter called the Act) in the court of A.C.Ist Grade. The said suit was also dismissed by the A.C.Ist Grade on 19.7.1990. The A.C. Ist Grade also held the property in dispute to be owned and possessed by the gram panchayat. The appeal against the order passed by the A.C.Ist Grade was dismissed by the Collector, Yamuna Nagar and the revision was also dismissed by the Commissioner, Ambala Division, Ambala. It is further pleaded that in order to mislead the court and the gram panchayat, Banwari lal alleged to have executed the gift deed in favour of plaintiff/appellant Mangat Ram and another gift deed in favour of plaintiff/appellants No. 2 to 5 only to usurp the property in dispute. It is further pleaded that the defendant-gram panchayat is owner in possession of the suit property. The suit property is a vacant plot situated within the R.S.A.No. 2462 of 2009(O&M) {5} abadi deh of village and is being used for common purpose of the village. The gram panchayat wants to erect a Vridh Ashram in the suit property according to the policy of the government. The plaintiffs are trying to obstruct the construction of said Virdh Ashram by filing the present suit. As the defendant-gram panchayat is owner in possession of the suit property, the same is authorized to use the suit property in any manner whatsoever. Defendant-gram panchayat also raised certain additional objections and pleaded for dismissal of the suit.” On the pleadings of the parties, trial court framed the following issues:- “(1)Whether the plaintiffs are owners in possession of the suit property?OPP (2)Whether the plaintiffs are entitled for the relief of permanent injunction as prayed ? OPP (3)Whether suit of the plaintiffs is not maintainable? OPD (4)Whether the plaintiffs have not come to the court with clean hands? OPD (5)Whether the civil court has no jurisdiction to entertain and try the present suit? OPD (6)Whether the plaintiffs have concealed the true and material facts from the knowledge of court?OPD (7)Whether the plaintiffs have no locus standi to file the present suit? OPD (8)Whether suit of the plaintiff is time barred? OPD (9)Relief R.S.A.No. 2462 of 2009(O&M) {6} After hearing learned counsel for the appellant, I am of the opinion that the present appeal deserves to be dismissed. Plaintiffs had filed a suit for permanent injunction restraining the defendants from interfering in their physical possession. The case of the plaintiffs was that they were in possession of the suit property as owners and had placed reliance on gift deeds Ex. P-1 and P-2 dated 13.7.1993 in their favour executed by Banwari Lal. So far as the defendant-Gram Panchayat is concerned, it has taken up the plea that the suit land vested in the Gram Panchayat and hence the jurisdiction of the civil court was barred under provisions of Section 13 of the Punjab Village Common lands (Regulation), Act, 1961 (hereinafter referred to as “the Act”) and the plaintiffs should avail the remedy under Section 13A of the Act. Section 13 and 13-A of the Act read as under:- “13. Bar of jurisdiction of civil courts:- No civil court shall have jurisdiction- (a) to entertain or adjudicate upon any question whether any property or any right to or interest in any property is or is not shamlat deh vested or deemed to have been vested in a Panchayat under this Act; or (b) to question the legality of any action taken by the Commissioner or the Collector or the Panchayat under this Act; or ( c) in respect of any matter which the Commissioner or the Collector is empowered by or under this Act to determine. 13-A. Penalties and procedure . 1 No person shall, unless entitled or authorised so to do by law, or by an instrument or an R.S.A.No. 2462 of 2009(O&M) {7} order executed or issued by a competent authority under law, enter into the possession of any land vested or deemed to have been vested in a Panchayat under this Act, or having lawfully entered into possession of such land, unlawfully remain in possession thereof on or after the expiry of the term of such lawful possession, if any. (2)Any person who contravened the provisions of sub-section (1) shall notwithstanding anything contained in any other law, be punishable with imprisonment for a term which may be extended to two years or with fine which may be extend to one thousand rupees, or with both. (3)Any person who abets an offence punishable under this Act shall be punishable with the punishment provided for the offence. (4)Notwithstanding anything contained in the Code of Criminal Procedure, 1973 an offence under this Act shall be cogniable.” A perusal of the said provisions reveals that whether any land is shamlat deh or not or whether it vests and does not vest in the Gram Panchayat, the said question is to be determined by the Collector. In these circumstance, the courts below had rightly held that the question of title was left open and would be determined in case either party if so advised, approaches the Collector for determination in that behalf. So far as the present suit is concerned, the plaintiffs have sought relief of only permanent injunction restraining the defendants from interfering in their possession. Learned Additional District Judge in its judgment has observed that it was R.S.A.No. 2462 of 2009(O&M) {8} not disputed fact that the land in dispute was an open plot and had not been encircled by any boundary was or fence. The case of the plaintiffs was that they were storing fuel wood and were tethering their cattle in the plot in dispute. It is a settled proposition of law that mere use of the open site/plot cannot be said to establish factum of possession. This court in the case of Bhan Singh and others vs. Tej Singh and others 1996(3) PLR 153 has held as under:- “The onus to prove issue No. 1 was upon the plaintiff. No doubt, if the plaintiff failed to prove his ownership over the Bara in question still he was entitled to get a decree for injunction on the basis of the established possession. The evidence, which has been led by the plaintiff was so unsatisfactory that it has to be concluded that by mere user in the shape of the throwing rubbish does not establish the possession of the plaintiff, who has come to the Court to claim the injunction. Mere acts of user, such as throwing rubbish, placing dung cakes, tethering cattle, installation of pegs may be weak links to say that a particular litigant is using the property but such user has to be secluded separately from the acts of possession, for which overt act is necessary for such litigant to establish that he had been exercising his possession with the intention to retain it by excluding others over the Bara in question. The plaintiff in this case has miserably failed to establish his ownership by leading any documentary or oral satisfactory evidence. Even otherwise the oral evidence regarding possession is too weak, which may be relied upon in R.S.A.No. 2462 of 2009(O&M) {9} order to establish the possession. P.W. 5 Bishna, when appeared in the witness-box, categorically stated that the property in question was situated in the Abadi and that it is a part of the Shamilat Deh. Also it is admitted by Dassa Lambardar (P.W.2) that the Bara is lying vacant. The case set up by the plaintiff in the trial Court was that he had been putting rubbish/refuse of the house in the Bara and, therefore, it should be inferred that the Bara in question was in his established possession. In my opinion, while dealing with the type of property such as Bara in dispute, the act of putting rubbish or refuse of the house is not enough.” Since in the present case, the plot in dispute is an open plot and can be used by any person, it cannot be said that the plaintiffs were in exclusive possession of the plot in dispute to the exclusion of others. It has further been observed by learned additional District Judge that gift deeds relied upon by the plaintiffs had not been proved in accordance with law as the attesting witness of these gift deed had not been examined. Moreover, the question of title could not be decided by the civil court as the Gram Panchayat had claimed that the suit land was shamlat Deh and vested in the gram panchayat. While dealing with the aspect of gift deeds, learned Additional District Judge had observed in paras 37 and 38 as under:- “ It is alleged that Banwari Lal has executed the gift deed Ex. P2 dated 13.7.1993 in favour of plaintiff/appellants No. 2 to 5 with respect to the portion shown with letters ABCD in the site plan Ex. P.4. He also executed the gift deed Ex. P-3 in favour of the plaintiff/appellant Mangat Ram qua the portion shown R.S.A.No. 2462 of 2009(O&M) {10} with letters CDEF in the site plan Ex. P.4. These gift deeds have not been proved in accordance with law as none of the attesting witness of these gift deeds have been examined. Moreover, as already mentioned the question of title of the suit land was never decided in favour of Banwari Lal, the executant of these gift deeds. The civil suit for injunction filed by Banwari Lal, the predecessor in interest was dismissed by the Sub Judge, Jagadhri vide judgment and decree dated 31.1.1979. The appeal against that judgment and decree was also dismissed by the learned Addl. District Judge, Ambala in civil appeal No. 24/13 of 30.3.1979 vide judgment dated 7.11.1979, copy of judgment Ex. D8. In regular second appeal the Hon'ble High Court has ordered the return of the plaint as the civil court had no jurisdiction. Thereafter Banwari Lal approached the revenue courts and filed the suit under Section 13-A of the Act. The said suit of Banwari Lal was dismissed by the A.C.Ist Grade Jagadhri vide judgment dated 19.7.1990, copy Ex. D7. The appeal against this judgment was also dismissed by the Collector, Yamuna Nagar vide judgment dated 26.3.1991, copy Ex. D.6. In the revision filed by Banwari Lal, the predecessor in interest of the plaintiffs, the Commissioner, Ambala Division Ambala held that the Assistant Collector was not competent to entertain the suit and Banwari Lal should approach the civil court and with these observations the said revision was dismissed. In this way, the question of title was never decided in favour of Banwari Lal, the donor of the R.S.A.No. 2462 of 2009(O&M) {11} plaintiffs. Thus, he was not competent to execute the gift deeds Ex. P-2 and Ex. P-3. Moreover, these gift deeds can have no binding effect on the rights of the gram panchayat. The delivery of the actual possession is an essential ingredient of the gift. Once Banwari Lal himself was not found to be in possession of the land in dispute then how he can deliver the possession of the suit property to the present appellant/plaintiffs. On that ground also the gift deeds Ex. P-2 and Ex. P-3 are invalid.” Learned Additional District Judge further observed that the plaintiff had concealed the previous litigation between the parties before the civil court as well as the revenue courts and since the plaintiff had not come to the court with clean hands, they were not entitled to discretionary relief of injunction. Learned counsel for the appellants during the course of arguments has failed to point out any error in the observations made by learned Additional District Judge. No ground for interference by this court is made out. No substantial question of law arises in this appeal. Accordingly, this appeal is dismissed. (SABINA) JUDGE July 15, 2009 PARAMJIT