IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. (1) R.S.A. No.1361 of 2009 (O.&M.) Jai Singh. ....... Appellant through Shri Maharaj Kumar, Advocate. Versus Gram Panchayat and another. ....... Respondents through Nemo. (2) R.S.A. No.1349 of 2009 (O.&M.) Jai Singh. ....... Appellant through Shri Maharaj Kumar, Advocate. Versus Ram Kumar and another. ....... Respondents through Nemo. Date of Decision: 15.4.2009 CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. C.M. Nos. 4067-C and 4068-C of 2009 in R.S.A.No.1361 of 2009. For the reasons stated therein, the applications are allowed and R.S.A.No.1361 of 2009 -2- .... delay of one day in filing and of forty five days in refiling of the appeal is condoned. C.M. Nos. 4018-C and 4019-C of 2009 in R.S.A.No.1349 of 2009. For the reasons stated therein, the applications are allowed and delay of 56 days in filing and 46 days in refiling of the appeal is condoned. R.S.A.Nos.1361 and 1349 of 2009 Both these Regular Second Appeals are being disposed of together as they relate to one property in dispute and are inter se between almost the same parties. Moreover, they have been directed against common judgments and decrees dated 22.3.2007 and 11.8.2008 passed respectively by the Civil Judge (Junior Division), Karnal (hereinafter referred to as `the trial Court') and the Additional District Judge, Karnal (described hereinafter as `the First Appellate Court') whereby the suit of the plaintiff-appellant was dismissed and that of Ram Kumar & Hukam Chand filed against him was decreed and the appeals preferred by him were dismissed. The appellant had filed a suit for permanent injunction against Gram Panchayat, Fajalpur, Ram Kishan son of Hirda and Hukam Chand son of Sadhu Ram (Gram Panchayat and Hukam Chand have been impleaded as respondent nos. 1 & 2 herein). It was pleaded that he was owner in possession of a Bara-cum-House of seven marlas situated in abadi deh of village Fajalpur, District Karnal comprised in Khewat No. 95, Khatoni No.129, Khasra No.14/17/7 (0-2), 86/(0-5) (for short, `the suit property') as per jamabandi for the year 2001-2002. It was further pleaded R.S.A.No.1361 of 2009 -3- .... that he was in occupation of the suit property for the last more than 12 years after passing a civil court decree which was suffered by Sardara Singh. It was claimed that since then he was residing in the suit property and also used to tether his cattle and except this, he was not having any other house in the village and his possession thereon was continuous and to the knowledge of every one and thus, has ripened into ownership being hostile. It was alleged that on 24.7.2004, respondent no.2 and Ram Kishan (who was impleaded as defendant no.2 in the suit) along with some other bad elements of the village came at the spot and tried to dig mud in front of his house and they also collected the building material and intended to demolish the construction forcibly over the portion as shown in the red colour in the site plan attached with the plaint. It was pleaded that the attempt of respondent no.2 and Ram Kishan was foiled due to timely intervention of the respectables of the village. According to the appellant, in this regard, a meeting of the Gram Panchayat was also convened and respondent no.2 and Ram Kishan were requested not to play with law and not to interfere with his settled possession, but all efforts ended in fiasco. The appellant had averred that six months before the instant occurrence, respondent no.2 and Ram Kishan had also tried to encroach upon the suit property and he had to move an application before the Deputy Commissioner, Karnal, whereupon they were directed not to demolish any construction. Since they did not desist from interfering in his possession over the suit property, the appellant had filed the suit for restraining them from dispossessing him illegally and forcibly and except in due course of law. R.S.A.No.1361 of 2009 -4- .... Notice of the suit was given to the defendants arrayed therein. Gram Panchayat, Fajalpur did not appear despite service and, therefore, it was proceeded against ex parte, whereas Ram Kishan, who was impleaded as defendant no.2, was given up by the appellant. Respondent no.2, in response to the notice, appeared and filed his written statement contesting the suit. A number of preliminary objections were taken and on merits, it was pleaded that towards western side of his house, there was a pucca gali share-am of 22” in width which goes to south to north and on the western side of this gali, the house/bara was the appellant exists. It was further pleaded that in the gali, the electricity wire goes to the houses of respondent no.2 and other inhabitants of the village. Respondent no.2 had averred that the door of his house and those of other villagers open in the said gali and there are Nalis on both sides of the gali and he was not having any evil eye over the property of the appellant and rather it was a gali share-am and the appellant wanted to grab the same forcibly and illegally without any right, title or interest. On the pleadings of the parties, the following issues were framed by the trial Court:- 1. Whether the plaintiff is entitled for decree for permanent injunction as prayed for?OPP 2. Whether the plaintiff has no locus standi to file and maintain present suit?OPD 3. Whether the suit is not maintainable?OPD 4. Whether the plaintiff has no cause of action to file and R.S.A.No.1361 of 2009 -5- .... maintain present suit?OPD 5. Relief. It is pertinent to mention here that respondent no.2 and Ram Kumar son of Hirda Ram had also filed a suit for permanent injunction against the appellant. It was pleaded therein that towards the western side of their house, there was a pucca gali share-am of 22” wide which goes from south to north and towards western side thereof, there was house of the appellant. It was further pleaded that the appellant was a strong headed person and he wanted to encroach upon the gali share-am and, therefore, they prayed for restraining him from doing so. In his written statement, the appellant had denied the averments made in the plaint and reiterated his claim what was made in his own suit. The trial Court framed the following issues:- 1. Whether plaintiffs are entitled to a decree for permanent injunction as prayed for?OPP 2. Whether suit is not maintainable?OPD 3. Whether plaintiffs have no locus standi to file the present suit?OPD 4. Whether plaintiffs have no cause of action?OPD 5. Relief. Both these suits were consolidated by the trial Court vide its order dated 26.10.2006. After affording opportunities to both the parties for leading their evidence and perusing the same, the trial Court dismissed the suit of R.S.A.No.1361 of 2009 -6- .... the appellant and decreed that of respondent no.2 & Ram Kumar. It was concluded that Sardara Singh had no right to transfer the suit property in favour of the appellant as the gram Panchayat was the owner thereof. Feeling aggrieved against the judgment & decree of the trial Court, the appellant filed two separate appeals, which were dismissed by the First Appellate Court. Hence, the appellant has filed these Regular Second Appeals challenging the judgments & decrees of the trial Court and the First Appellate Court. Learned counsel for the appellant has contended that the findings of the Courts below are erroneous and perverse and deserve to be set aside. He further contended that except for a stray entry which depicts the disputed as a gali share-am, there is no other record existing to that extent. I have thoughtfully considered the contentions of the learned counsel for the appellant and have perused the impugned judgments. The appellant had pleaded that he was owner in possession of the suit property on the basis of decree dated 24.3.1983 allegedly suffered by Sardara Singh in his favour, but the record belied this fact absolutely. The said Sardara Singh was not the owner of the suit property and was merely a tenant in the capacity of Gair Morushi and even if it is to be accepted, he could have transferred the possessory rights in favour of the appellant as has been determined by the Courts below. There is evidence in the shape of demarcation report, Exhibit P1, prepared by a Kanungo, who R.S.A.No.1361 of 2009 -7- .... had demarcated Khasra Nos. 85 and 86 at the instance of the appellant and it reveals that he had encroached upon the gali by six feet towards the eastern side. In respect of Khasra no.86, this Kanungo while appearing in the witness box, testified that the appellant had encroached upon upto 7 feet and 3 inches and similarly, there is encroachment in this very khasra number up to the extent of 14 feet towards northern side by Hukam Chand and 7 feet 3 inches by Ram Kumar. In this view of the matter, the contention of the learned counsel for the appellant that there is no record to substantiate the existence of gali is totally incorrect. In any eventuality, this is a pure finding of fact which has been determined on the basis of the report of a revenue official against which the appellant has not been able to show any material which could lead to an inference contrary to what has been recorded by the Courts below. Therefore, the questions of law which have been framed by the appellant in the grounds of appeals and which are reproduced below, do not arise at all as only questions of fact have been determined by the lower Courts:- 1. Whether in view of the admitted case of the private respondents in their written statement that the appellant is owner in possession of the suit land as admitted by the respondents, the appellant is entitled for permanent injunction against the private respondents? 2. Whether stray entry in the jamabandi for the year 1996-97 Ex.P can be relied upon while deciding the issue of passage R.S.A.No.1361 of 2009 -8- .... (Rasta)? 3. Whether the respondents who in the demarcation report Ex.P are shown to have encroached upon a part of the alleged passage can seek an injunction against the appellant? 4. Whether by mis-reading the evidence brought on record, prejudice has been cause to the appellant? There is, thus, no merit in the appeals and the same are dismissed. April 15,2009 ( Mahesh Grover ) “SCM” Judge