R.S.A. No. 2571 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.2571 of 2007 Date of Decision:06.11.2008 Lachhman Singh .....Appellant versus Gram Panchayat Village and another .....Respondents CORAM: HON'BLE MR.JUSTICE AJAY KUMAR MITTAL. Present: Mr.K.S.Chahal, Advocate, for the appellant. **** AJAY KUMAR MITTAL, J. Having lost before the Courts below, one of the plaintiffs, namely, Lachhman Singh has approached this Court by way of present regular second appeal against the judgment and decree dated 07.09.2006 passed by the Additional District Judge, Sangrur, affirming that of the trial Court dated 02.06.2005 whereby the suit of the plaintiffs for mandatory and permanent injunction, was dismissed. Shorn off the unnecessary details, the facts of the case are that the appellant and others filed a suit for mandatory injunction directing the defendants to remove the cremation shed illegally constructed in Khasra No.965 situated within the revenue estate of village Palasour and further directing to make proper arrangements for cremation of the dead bodies in Khasra No.969 and 1171 earmarked for the cremation ground in consolidation proceedings. The plaintiffs had also sought a decree for permanent injunction against the defendants restraining them from cremating the corpse/dead bodies in the shed illegally constructed in khasra No.965. It was pleaded that co-plaintiff Ujjagar Singh had R.S.A. No. 2571 of 2007 2 purchased the land measuring 15 biswas comprised in Khasra No.1159 min/0-15 vide registered sale deed dated 04.12.1985 and constructed his residential house in the year 1986. It was also pleaded that Major Singh (plaintiff No.2) also purchased the land measuring 2 bighas 10 biswas 10 biswasies along with his brother Nachhatar Singh bearing Khasra No.1159 vide sale deed dated 19.05.1988 and raised the construction of residential house thereon and was residing along with his brother. Plaintiff No.3 (the appellant herein) was owner in possession of the property measuring 10 biswas comprised in Khasra No.1143 wherein he constructed his house. According to the plaintiffs, Khasra Nos.969/6-5 and 1171/2-10 were reserved for cremation grounds whereas Khasra No.965/8-11 was earmarked for village pond but the same was not used for the purpose for which it was reserved in the consolidation proceedings. It was also pleaded that defendant No.2 during his tenure as Sarpanch of village Palasour, got constructed a cremation shed in the said Khasra No.965 illegally and forcibly and without getting the prior approval of the competent authority to change the nature of the land in dispute. The houses of the plaintiffs were situated opposite to the cremation shed and the cremation of dead bodies in the aforesaid shed was a continuing source of nuisance to the plaintiffs and nearby inhabitants. The plaintiffs preferred a petition under Section 133 of the Code of Criminal Procedure before the Sub- Divisional Magistrate, Dhuri, and the same was dismissed. The averments made in the plaint were controverted by both the defendants by filing two separate written statements and raising various preliminary objections therein. It was pleaded by defendant No.1 that Khasra No.1159 min/0-15 was an agricultural land and the plaintiffs had no right to construct their houses without prior permission of the concerned authorities and that plaintiff No.1 had raised residential house at about 250 yards away from the cremation shed. It was further pleaded that plaintiff R.S.A. No. 2571 of 2007 3 No.3 (the appellant herein) was owner in possession of the property measuring 10 biswas bearing Khasra No.1143 purchased vide sale deed dated 09.06.1994, which was very far away from the shed in dispute. According to defendant No.1., Khasra No.965 was being used as cremation ground for the last more than 60 years and Khasra No.969 being a low lying area was only used as cremation ground. The other averments made in the plaint were denied and a prayer for dismissal of the suit was made. Defendant No.2 filed the written statement on the same stand as had been set up by defendant No.1. The trial Court framed various issues and on appreciation of the oral as well as the documentary evidence held that shed in question was constructed in Khasra No.965 and the said Khasra was being used as cremation ground since time immemorial. Further, the suit of the plaintiffs was held to be not maintainable. Accordingly, the suit of the plaintiffs was dismissed by the trial Court vide judgment and decree dated 02.06.2005. Feeling aggrieved, the plaintiffs approached the lower appellate Court which vide judgment and decree dated 07.09.2006 dismissed the appeal holding the same to be without any merit. Hence, the present regular second appeal. I have heard learned counsel for the appellant and perused the record with his assistance. Learned counsel for the appellant has made valiant efforts to persuade this Court to re-appreciate the findings recorded by the courts below on the basis of the evidence available on record. However, he failed to show any illegality or perversity in the concurrent findings of fact recorded by the Courts below warranting interference by this Court in the regular second appeal. The Courts below had recorded a finding of fact that Khasra No.969 was a low lying area whereas Khasra No.1171 was R.S.A. No. 2571 of 2007 4 being used for cremating/burying the dead bodies of the children since time immemorial and the houses of the plaintiffs were at a distance of more than 70 yards. No question of law much less the substantial question of law arises in this appeal for consideration of this Court. In view of what has been stated above, the present appeal fails and the same is hereby dismissed with no order as to costs. November 06, 2008 (AJAY KUMAR MITTAL) gbs JUDGE R.S.A. No. 2571 of 2007 5 C.M. No. 7219-C of 2007 IN RSA No. 2571 of 2007 **** Present: Mr. K.S. Chahal, Advocate for the applicant-appellant. **** This is an application under Section 151 of the Code of Civil Procedure for condonation of 178 days' delay in refiling the appeal. After hearing the learned counsel for the applicant-appellant and perusing the application, the delay of 178 days in refiling the appeal is condoned. CM stands disposed of accordingly. November 06, 2008 (AJAY KUMAR MITTAL) gbs JUDGE