IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A.No. 244 of 1997. Reserved on : 6.6.2008 Decided on: 20.6.2008. Smt. Malwi …Appellant. Versus Shri Satya Dev Gupta & Others. ..Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting ? No. For the Appellant : Ms. Vidushi Sharma , Advocate. For respondents No.1 to 3 : Mr. Ajay Kumar, Advocate. __________________________________________________________ Rajiv Sharma, Judge A challenge has been laid in this Regular Second Appeal to the judgment and decree passed by the learned District Judge, Kangra at Dharamshala in Civil Appeal No.101-J/XIII/96 dated 26.06.1997. The brief facts necessary for the adjudication of the Second Appeal are that the respondents/plaintiffs No.1 to 3 (hereinafter referred to as the ‘plaintiffs’ for convenience sake) had filed a suit in the Court of learned Sub Judge 1st Class, Jawali, District Kangra, H.P. for permanent injunction and vacant possession. The learned trial Court dismissed the suit on 26.4.1996. The plaintiffs aggrieved by the judgment and decree dated 26.4.1996, preferred an appeal before the learned District Judge, Kangra at Dharamshala. The learned District Judge, Kangra at ______________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? 2 Dharamshala accepted the appeal on 26.6.1997. This Regular Second Appeal has been preferred by the appellant/defendant (hereinafter referred to as the ‘defendant’ for convenience sake) against the judgment and decree dated 26.6.1997. The Regular Second Appeal was admitted on the following substantial question of law: “Whether the defendant/appellant can be dispossessed from the house constructed on the land in dispute, without payment of adequate compensation?” Ms. Vidushi Sharma, Advocate had strenuously argued that the judgment and decree passed by the learned 1st Appellate Court dated 26.6.1997 is not sustainable in the eyes of law. She then contended that the defendant could not be dispossessed from the suit land without payment of adequate compensation. Mr. Ajay Kumar, Advocate had supported the judgment and decree passed by the learned 1st Appellate Court dated 26.6.1997. I have heard the learned counsel for the parties and also perused the record carefully. Shri Satya Dev Gupta, plaintiff had appeared as PW-1. He had deposed that the disputed land in Tika Jawali and it is Abadi Deh. He has further stated that by the side of the land, there are Abadies of Lohars, Ghirths, Mahajans and Brahmins. According to him, the disputed land was being used by the plaintiffs for the purpose of latrine, urinating and for throwing the dead bodies of the animals. Besides, the land was also being used for grazing by the cattle. He further deposed that the Panchayat had no right to allot the land in favour of the defendant. The Gram Panchayat was proceeded ex-parte by this Court on 24.4.1998. 3 PW-2 Subhash Chand had supported the version of PW1. He has further deposed that 4 marlas of land was allotted by the Gram Panchayat to defendant illegally and the Panchayat has no right to allot the land of Abadi Deh. PW-3 Anil Kumar had also supported the plaintiffs. PW-4 Kartar Singh, Secretary, Gram Panchayat, Jawali had placed on record the copy of Resolution dated 3.6.1987 (Ex.PW4/A). PW-5 Daljeet Singh is the Patwari. He had deposed that Khasra Number of the disputed land is 555 and is a Tika Abadi deh in Jawali. He has further stated that the land falling in Khasra No.555 is being used by Brahmins, Mahajans, Ghirth of Gaglian and Lohars for grazing the cattle. The defendant had appeared as DW-1. She has testified that the disputed land measuring about 4-5 marlas was allotted to her by the Gram Panchayat to construct the house. According to her, her in- laws are resident of Jawali. She has denied that the land is used by the plaintiffs as stated in the plaint. However, she has admitted that in Tika Jawali there are different Mohallas and different Basties of different castes. DW-2, Dev Raj has testified that the suit land is 4-5 marlas and the defendant had constructed the house about 7 years back. He also in his cross-examination had admitted that the defendant is resident of Mohalla Jheewar. Similarly, DW-3 Munshi Ram, has stated that the defendant had constructed the house about 6/7 years back and the suit land is about 4-5 marlas. It is clear from the copy of Jamabandi for the year 1984-85 (Ex.P-3) that the land comprised in Khasra No.555 is Abadi Deh. According to Ex.P-4 i.e. copy of Wazib-ul-Arz, the owner of one Mohalla has no right in another Mohalla. Ex.PW-4/A is the copy of Resolution dated 3.6.1987 placed on record by Shri Kartar Singh, Secretary whereby the land in question has been allotted to the 4 defendant by the Gram Panchayat for the construction of the house. The land in question could not be allotted by the Gram Panchayat to the defendant. It is evident from the entries in Wazib-ul-Arz, as noticed above, the residents of one Mohalla cannot use the Abadi of other Mohalla. The land can only be allotted as per the established procedure. The appellant/defendant has failed to prove under what law the land in question, has been allotted to her by the Gram Panchayat. In jamabandi of the year 1984-85 (Ex.P-3), the land is shown as Abadi Deh. The Panchayat had no authority to change the nature of the land in question. She has no right whatsoever to use the Abadi falling in another Mohalla. She belongs to Mohalla Jheewar. The plaintiffs belong to Mohalla where the suit land is situate. All the PWs have stated that the land in question is being used for common purpose by the plaintiffs and other residents of the Mohalla. Since the land has been allotted to the defendant illegally by the Gram Panchayat, she is not entitled to any compensation. Ms. Vidushi Sharma had also argued that the suit filed by the plaintiffs was not maintainable in view of Order 1 Rule 8 of C.P.C. read with Section 91. This contention has been made merely to be rejected in view of the law laid down by the Hon’ble Supreme Court in Kalyan Singh Vs. Smt. Chhoti and Others, , 1990 (1) SCC 266, Ramghulam Khatik and others vs. Ramkhelawan Ram and Another, AIR 1937 Patna 481, Kadarbhai Mahomedbhai and another Vs. Haribhai Ranchhodbhai Desai and another, AIR 1974 Gujarat 120, Purna Chandra Ghose and another vs. Durlav Chandra ghosh and others, AIR 1980 Calcutta 10, Onkar Singh vs. Kapur Singh and others, 1993 (1) S.L.J. 892 and Mohinder Singh and another vs. Pirthipal Singh and others, AIR 1997 P & H 13. 5 In view of the observations made hereinabove, there is no substantial question of law involved in the Second Appeal and the same is dismissed with no order as to costs. ( Rajiv Sharma ), Judge. 20th June, 2008. (GR)