RSA No.430 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.430 of 2010 (O&M) Date of Decision: 09 .11.2011 Manjit Kaur & Ors. ...Appellants Vs. Sham Sunder & Ors. .....Respondents BEFORE: HON'BLE MR.JUSTICE A.N.JINDAL 1. Whether Reporters of local papers may be allowed to see the judgment? 2. Whether to be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest. --- Present: Mr.A.S.Bhatti, Advocate, for the appellants. Mr.K.S.Dadwal, Advocate, for respondents No.1 to 3. Mr.S.S.Hira, Advocate, for respondent No.4. --- A.N.Jindal, J. The plaintiffs/respondents (herein referred as the plaintiffs) filed a suit for possession of the area shown in red colour in the site plan by letters ABCD comprised of Khasra numbers 717- RSA No.430 of 2010 2 718 and also an area measuring 3 marlas 6 Sarsahi out of Khasra No.715 and for recovery of damages on account of cutting of trees out of the aforesaid khasra numbers situated in village Koi, Tehsil and District Hoshiarpur and for mandatory injunction directing the defendant/appellants (herein referred as the defendants) to restore the premises to the plaintiffs. The trial court vide judgment dated 8.3.2006 decreed the suit of the plaintiffs for possession of land shown in red in the site plan and marked as ABCD and directed the defendants to remove the encroachment from the suit land within three months. However suit qua recovery of Rs.10,000/- as damages and on account of the value of trees cut from the suit land, was dismissed. Appeal filed by the defendants was also dismissed by the Additional District Judge, on 28.10.2009. Factual matrix of the case is that respondents No. 1 to 3 filed a suit for possession and mandatory injunction claiming themselves to be the owners in possession of land measuring 8 kanals 17 marlas out of khasra numbers 717 and 718. They also alleged that the house of Smt. Kanta Devi plaintiff No.3 is situated in the suit land which though is an agricultural land. Khasra No. 716 is on the western side of khasra No.717 and there is a village path abutting khasra No.716. Khasra No.711 is owned by defendant No.2. Being Kandy area, the area of Khasra Nos. 717 and 718 is higher in level by 10-12 feet than the path situated at Khasra No. 716. Khasra No.711 is also at a higher level than khasra number 716. Plaintiffs RSA No.430 of 2010 3 had planted 10 trees along side the western boundary of their khasra number to control the soil erosion which included three mango trees, 4 resin, one Dek, One Sarin, and one Sheesham tree. The plaintiffs No.1 and 2 being the government employees are residing at Hoshiarpur, whereas plaintiff No.3 has been residing in the village. The defendants had forcibly cut the trees and excavated the soil from the suit land steeply from top to bottom rendering the height of the suit land to the level of khasra No. 716 i.e. village path. Thus, the plaintiffs have sought the possession of the suit land owned by them and have also sought mandatory injunction directing the defendants not to encroach upon the said land. Notice of the suit was given to the defendants, pursuant to which they appeared and filed written statement raising objections, inter alia, that the suit is barred under section 13 of the Punjab Village Common Lands (Regulations) Act, 1961; civil court has no jurisdiction to try the suit; the plaintiffs have no locus standi to file the suit; disputed site is a passage vesting in the Gram Panchayat and the suit is bad for mis-joinder and non-joinder of necessary parties. On merits, it was submitted that no damage could be caused to the house of the plaintiffs by levelling the passage and their houses are situated at a distance of 8-9 karams away from the passage and there are some vacant plots by the side of the passage. It is submitted that on the western side of abadi, there is a passage 3 karams comprising of khasra No.716 and on further western side of RSA No.430 of 2010 4 the passage, khasra No.711 is situated which is ownership of defendant No.2. The land in dispute being a passage is not owned by the plaintiffs. While denying about the cutting and removal of the trees, it was also added that Gram Panchayat is paving the passage. Replication was also filed. From the pleadings of the parties the trial court framed the following issues:- 1. Whether the plaintiffs are entitled to the possession of the suit land? OPP 2. Whether the plaintiffs are entitled to the recovery of Rs.10000 as damages for value of the trees? OPP 3. Whether the plaintiffs are entitled to mandatory injunction as prayed for? OPP 4. Whether the suit is barred under section 13 of Punjab Village Common Lands Regulations Act, 1961 and Civil Court has got no jurisdiction to try the suit? OPD 5. Whether the plaintiffs have got no locus standi to file the present suit? OPD 6. Whether the suit is bad for mis-joinder of parties? OPD 7. Whether the suit is not properly valued for the purposes of court fee and jurisdiction? OPD 8. Whether no cause of action has arisen to the plaintiffs to file the present suit? OPD RSA No.430 of 2010 5 9. Relief. There is no denying a fact that Gram Panchayat is the owner of passage comprised in khasra No.716 which is in dispute and there is evidence that the Gram Panchayat had got the said passage paved. The case of the plaintiffs is almost proved by DW 5 Smt.Manjeet Kaur Ex-Sarpanch of Gram Panchayat who has admitted about levelling of passage with the tractor owned by a resident of village Sansarpur. She has also admitted that she does not remember as to how much amount was paid to the tractor owner for levelling the passage and that panchayat did not do any earth work on the western side of disputed khasra number. Copy of Jamabandi for the year 1996-97 (Ex.P.10) reveals that the land comprised in Khasra Nos. 718, 719, 720, 994 and 1111 is shown to be owned and possessed by Sain Dass, Bansi Lal, Bishambar Dass (now represented by Smt.Kanta Devi and Sham Sunder and Bansi Lal sons of Jagat Ram, all the plaintiffs, in equal shares, whereas Jamabandi for the same year pertaining to Khata No.312/490 shows that khasra Nos.715 and 716 are owned and possessed by Gram Panchayat. As regards eroson and the encroachment over the land, it is not proved on record by any cogent evidence that earth was removed from the disputed land from top to bottom in a perpendicular manner but it is a matter of common experience that kandi area RSA No.430 of 2010 6 have the slopes of earth which can only be removed along the slopes and if it is so done then the existence of stump and the trees on the slope does not falsify the case of the plaintiffs/respondents. Since the ownership of the plaintiffs on the disputed khasra numbers stands established by the relevant revenue record Ex.P.10 on the file and the encroachment made by the defendants, on the disputed site has also been established on file by the report of Local Commissioner Ex.P.3 and the site plan Ex.P.7. Hence there is no doubt left with regard to the factum that the defendants have encroached upon the land of the plaintiffs as mentioned above. Thus, taking the case from any angle the defendants/appellants have failed to establish if they have any right, tittle or interest in the suit land and they are bound to vacate the area encroached by them. Consequently, the plaintiffs/respondents are also entitled to injunction as prayed for. This court is of the opinion that the case is merely based on facts and no substantial question arises for determination in this appeal. Dismissed. (A.N.Jindal) 9.11.2011 Judge rp