R.S.A.No. 1416 of 2004 {1} In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 1416 of 2004 Date of Decision:July 17, 2009 Darshan Singh ---Appellant versus Ujjagar Singh and others ---Respondent Coram: HON'BLE MRS. JUSTICE SABINA *** Present: Mr.R.S.Modi,Advocate, for the appellant None for respondent No. 1 and 2 *** SABINA, J. Plaintiffs had filed a suit for declaration, permanent injunction and mandatory injunction. Civil Judge (Jr. Division),Malerkotla vide judgment and decree dated 28.5.2003 decreed the suit of the plaintiffs. Aggrieved by the same, defendant preferred an appeal and the same was dismissed by Additional District Judge, Sangrur vide judgment and decree dated 13.12.2003. Hence, the present appeal by the defendant. The facts of the case as noticed by the learned Additional District Judge, in paras 3 and 4 of its judgment read as under:- “ Case of the plaintiffs, in brief is that suit land measuring 0-5 biswas comprised in Khasra No. 823 is owned by Nagar R.S.A.No. 1416 of 2004 {2} Panchayat. It is public passage. It is measuring 2 karms x 50 karms. Defendants No. 1,2, and 5 who have got their agriculture land adjoining the suit property had encroached upon the same and merged the same into their land and thereby they had closed the passage thereby the plaintiffs and other villagers have been deprived from enjoying the same as passage. Land in question is shown in possession of Pritam Singh son of Uttam Singh from 1974-75 onwards. Said entries are wrong and illegal and are liable to be corrected. Pritam Singh died about 14-15 years ago. Notice of the suit was given to the defendants. Defendant No. 4 contested the suit, filed written statement raising preliminary objections that the suit is not maintainable. The plaintiffs have no cause of action to file the suit. The plaintiffs or any other resident of village Saraud has got no right, title or interest in the suit land. The provisions of Order 1 Rule 8 CPC are not attracted. Plaintiffs are estopped by their Act and conduct from filing the present. Defendants No. 4 and 5 are owners of the suit land. Suit of the plaintiffs is barred under principle of res judicata. Suit was not properly filed. On merits it is admitted that the plaintiffs are residents of village Saraud. Suit land is not rasta. Defendants No. 4 and 5 are owner in possession of the suit land. Gram Panchayat of village Saraud has no right, title or interest in the suit land. The answering defendant filed suit No. 264 of 27.5.1994 against Gram Panchayat Saraud regarding suit land which was R.S.A.No. 1416 of 2004 {3} decreed, vide judgment and decree dated 25.11.1994 passed by Shri Sudharshan Singh then learned Sub Judge Ist Class, Malerkotla. Said judgment and decree has become final. Sh. Pritam Singh son of Uttam Singh has died. Originally suit land was possessed by Pritam Singh grand father of defendant No. 4. On his death suit land came in possession of Gurdev Singh and after his death defendants No. 4 and 5 came in possession of the suit land. Mutation was also sanctioned in favour of defendants No., 4 and 5. Other averments were denied. Additional objections were raised that the suit land is bad for non-joinder of necessary parties. Defendants No. 4 and 5 became owner of the suit land by way of adverse possession. The possession of defendants No. 4 and 5 over the suit land is continuous, open hostile, notorious un-interrupted for a period of more than 12 years. Prior to defendants No. 4 and 5, their grand father was in possession and earlier to their grand father Pritam Singh was in possession of the suit land and ultimately it is prayed that the suit be dismissed. On the pleadings of the parties, trial court framed the following issues:- “(1)Whether the property in dispute is a Gair Mumkin Rasta? OPP (2)Whether defendant No. 4 and 5 are in possession of the suit land, if so its effect? OPD (3)Whether suit is not maintainable in the preset form? OPD (4)Whether the plaintiffs have no cause of action ? OPD R.S.A.No. 1416 of 2004 {4} (5)Whether suit is barred by the principle of res judicata? OPD (5-A) Whether defendants No. 4 and 5 have become owners of the suit land by way of adverse possession, if so its effect? OPD (6)Relief. After hearing learned counsel for the appellant, I am of the opinion that the present appeal deserves to be dismissed. Plaintiffs filed a suit for declaration, permanent injunction and , mandatory injunction seeking a direction that the suit land was a common passage and the same had been illegally encroached upon by the defendants. Plaintiffs proved on record the jamabandis for the years 1962- 63 onwards up to the year 1994-95. As per the same, Gram Panchayat was owner of the property in question. The court below had noticed that as per the entries in the jamabandis up to the year 1974-75 (Ex. P-3), the suit property has been described as Gair Mumkin passage. However, in the column of cultivation, name of Pritam Singh was mentioned as Gair Marusi. In column No. 9, possession of Pritam Singh has been described as illegal and bila lagan. Similar entries continued in the later jamanbandis Ex. P-4 to P-7. The courts below had further observed that no plea was taken by the defendants that possession of defendant No. 4 was by way of adverse possession to the true owner i.e. Gram Panchayat. It had further been observed by the learned Additional District Judge that Pritam Singh grand father of defendant No. 4 – Darshan Singh had died in the year 1990. The name of Darshan Singh was not incorporated in the revenue record. In these circumstances, the entries to the effect that Pritam Singh was in R.S.A.No. 1416 of 2004 {5} possession of the suit property after the year 1990 were not correct. Defendant No. 4 in the suit filed by him had taken the plea that Pritam Singh, grand father of Darshan Singh had purchased the suit land in the year 1957. However, if he had purchased the suit land, then the plea of adverse possession could not be taken. Both the said pleas are mutually destructive. Moreover, the suit property was Gair Mumkin passage and vested in the Gram Panchayat and in these circumstances, the courts below rightly came to the conclusion that defendant No. 4 had failed to establish that he was owner of the suit property by way of adverse possession. There is also no force in the arguments raised by learned counsel for the appellant that since Gram Panchauyat had not been impleaded as a party in the suit, the suit of the plaintiffs was liable to be dismissed. The plaintiffs were not claiming any relief against the Gram Panchayat. Although the suit property was owned by the Gram Panchayat, the suit was maintainable in the present form. Earlier, the appellant had filed a suit and the same was decided on 25.11.1994 vide Exs. D-1 and D-2 In the said suit, Gram Panchayat was restrained from dispossessing the appellant and defendant No. 2 from the suit property forcibly and illegally. However, in the earlier suit, plaintiffs were not a party and the lis involved in the earlier suit was different. In these circumstances, suit of the plaintiffs had been rightly decreed. No substantial question of law arises in this appeal. Accordingly, this appeal is dismissed. (SABINA) JUDGE July 17, 2009 PARAMJIT