IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH R.S.A. No. 1265 of 2009 (O&M) Date of decision: December 14, 2011 Jagtar Singh .. Appellant Vs. Shingara Singh and another .. Respondents Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. S.C. Khunger, Advocate for the appellant. Mr. A.S. Jattana, Advocate for the respondents. A.N. Jindal, J This is defendant's regular second appeal against the judgment dated 4.4.2008 passed by the learned Additional District Judge, Ludhiana, whereby the appellate court while reversing the judgment dated 3.8.2006 passed by the trial court, decreed the suit of the plaintiffs. This suit filed by the plaintiff under Order 1 Rule 8 CPC against the defendant is regarding the property situated within the red line of village Kalsian. There is Aramgah situated in Turf Massandan (Patti Massandan) used for the common purpose. It has been pleaded that the suit property being “gair mumkin aramgah gair jari” by nature has also a room and a boundary wall which is located for the last 35 years. Since the inhabitants of the village Massandan including the plaintiffs had been using the property for the common purpose for holding meetings and resting, therefore, the defendant has no right to encroach upon the same. The house of the defendant abuts the property in dispute. Now the property is in dilapidated condition. On being threatened to encroach upon the said property, the plaintiffs had to file the suit. On being notified, the defendant appeared and contested the cause. Besides some preliminary objections, it was also submitted by the defendant that the property was not left for the common purpose or common use by the inhabitants of Turf Massandan of village Kalsian, but the same has been sold by its owners namely Jagdev Singh and many others to him for a consideration of `33,750/- and `8500/- vide agreements dated 15.9.1997 and 17.9.1997 respectively. He had been delivered the R.S.A. No. 1265 of 2009 (O&M) -2- *** possession of the same. Thus, he has become owner in possession of the same. In any case, he being in exclusive possession of the suit property is entitled to seek protection under Section 53-A of the Transfer of Property Act. From the pleadings of the parties, the trial court framed the following issues :- 1. Whether the plaintiffs are entitled to injunction as prayed for?OPP 2. Whether plaintiffs have got no locus standi to file the instant suit?OPP 3. Whether the suit is not maintainable in the representative capacity?OPD 4. Relief. Both the parties led evidence. The trial court, on perusal of the evidence decided the issues No.1 and 2 in favour of the defendant and issue No.3 was disposed of being not pressed by the defendants. Consequently, it dismissed the suit of the plaintiff, however, while reversing the findings on issues No.1 and 2, the first appellate court decreed the suit of the plaintiff, while concluding as under :- “...... I have come to the conclusion that disputed property is neither part of house of the defendant and nor in his possession, but Aramgah of inhabitants of turf massandan. As such defendant has no right to interfere in use of the disputed property and to cause hindrance in repair thereof or to encroach upon the same merely because it abuts his house. Since learned lower court has failed to appreciate these facts, therefore, findings returned by the lower court on this issue are not sustainable. Resultantly, this issue is decided in favour of the plaintiffs and against the defendant.” R.S.A. No. 1265 of 2009 (O&M) -3- *** While deciding issue No.3, the appellate court observed that the suit was maintainable in a representative capacity. Feeling aggrieved by the impugned judgment, the defendant has come up in appeal. The substantial questions of law framed by this Court on 7.7.2009 are reproduced as under :- 1. Whether an injunction could have been issued against the appellant in view of the recital in the agreements dated 15.9.1997 and 17.9.1997 Exs.D-1 and D-3 that possession had been delivered to the appellant? 2. Whether the appellant is entitled to protect his possession by invoking the provisions of Section 53-A of the Transfer of Property Act? Before proceeding to decide the aforesaid substantial questions of law framed by this Court, it may be observed that the site in dispute is admittedly a plot having no khasra number and there is a room and a boundary wall over the said plot. The room is in a dilapidated condition. The Local Commissioner appointed by the Court in his report Ex.P3 has reported that the disputed site is correctly shown in the site plan Ex.P1. He has further submitted that there is a wall in the northern side, major portion of which is about 17' x 12' long and the remaining portion measuring about 13' x 12' on an eastern side, there is about 33' x 7' long wall. He has also submitted that in the remaining portion, there is a room measuring about 27'x32', the height of which is 12' and it has two doors and windows as shown in the site plan. He has also stated that the construction raised over the plot is very old and in a dilapidated condition. The defendants never raised any objection over the said report. DW-1 Darshan Singh has stated that there is a aramgah on “turf massandan”. It is about 15 years old and it has been constructed by its inhabitants. He has also stated that on the eastern side of the said Aramgah, there is a house of the defendant and on the two sides there is passage and on the fourth side there is an open land. This boundary, as given by DW-1 Darshan Singh tallied with the R.S.A. No. 1265 of 2009 (O&M) -4- *** description of the disputed side given in the heading of the plaint. DW-2 Jagtar Singh has also conceded that there is Aramgah of “turf massandan” in the disputed area. The defendant has not produced any record in order to establish the ownership of the persons who had sold him the said site vide agreements Ex.D1 and Ex.D3. The defendant is not the inhabitant of “turf massandan” and it is admitted fact that he belongs to turf khallu, therefore, he being not resident of turf massandan cannot be treated as a patti holder, in other words, co-sharer in the plot in dispute. The agreements Ex.D1 and Ex.D3 being unregistered documents do not confer any title upon the defendant. The aforesaid evidence led by the parties do not land this court to hold that the plot in dispute is not in actual possession of the defendant- appellant. The recitals in the agreements appear to be ceremonial in nature, but these agreements were never implemented in the revenue record or in the panchayat record in order to show his possession. No bias or prejudice could be imputed to the report of the Naib Tehsildar dated 24.11.2005 which concludes that the site in dispute is not in possession of the defendant- appellant and it is lying in a dilapidated condition. The alleged agreements dated 15.9.1997 and 17.9.1997, in the absence of proof of ownership of the persons who had executed the same, the defendant cannot be said to have attained any valid right, title or interest in the same. Even otherwise, those few persons of patti were not competent to transfer the village common land used for the purpose of village community. Even otherwise, these agreements are unregistered are bearing no khasra numbers. It is also not established that the proposed vendors of the defendant No.1 are the only proprietors of the “patti massandan”. Consequently, this question of law is decided against the defendant- appellant. Now coming to the other plea raised by the appellant that it may be observed that there is no denying a fact that the land is of turf massandan and falls within the definition of shamlat deh as described in Section 2 (g) of the Punjab Village Common Lands (Regulation) Act, 1961 which reads as under :- R.S.A. No. 1265 of 2009 (O&M) -5- *** “(g) “shamilat deh” includes - (1) lands described in the revenue records as Shamilat Deh or Charand excluding abadi deh; (2) shamilat tikkas; (3) lands described in the revenue records as shamilat, tarafs, pattis, pannas and tholas and used according to revenue records for the benefit of the village community or a part thereof or for common purposes of the village; (4) lands used or reserved for the benefit of village community including streets. Lanes, playgrounds, schools, drinking wells or ponds situated within the sabha area as defined in clause (mmm) of Section 3 of the Punjab Gram Panchayat Act, 1952, excluding lands reserved for the common purposes of a village under Section 18 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (East Punjab Act 50 of 1948), the management and control whereof vests in the State Government under Section 23- A of the aforesaid Act. xx xx xx” From the bare reading of the section it transpires that the land admittedly is a turf massandan used as a resting or meeting place, may be by patti massandan, but the said land certainly falls within the definition of Section 2 (g) of the Punjab Village Common Lands (Regulation) Act, 1961 and the same vests in the Gram Panchayat in view of Section 85 of the Punjab Panchayati Raj Act, 1994, which reads as under :- “85. Property of Gram Panchayat – (1) A Gram Panchayat shall have power to acquire, hold and dispose of property and to enter into contract: Provided that in all cases of acquisition or disposal of immovable property by the Gram Panchayat, it shall obtain the R.S.A. No. 1265 of 2009 (O&M) -6- *** prior approval of the State Government. (2) All property within the local limits of the jurisdiction of Gram Panchayat of the nature hereinafter in this section specified, other than property maintained by the Central Government or the State Government or a local authority or any other Gram Panchayat, shall vest in and belong to the Gram Panchayat, and shall, with all other property of whatsoever nature or kind which may become vested in the Gram Panchayat, be under its direction, management and control, that is to say -- (a) all common properties; (b) to (g) xx xx” It is also not disputed that the entire common land falling within the jurisdiction of the village would be treated as common land vesting into gram panchayat and the present site in dispute is also a common land, though it may have been used by the proprietors of the patti. Common land has been defined in Section 2 (l) of the Act which reads as under :- “2(l) “Common land” means land which is not in the exclusive use of any individual and has by usage, custom or prescription been reserved for the common purposes of village community or has been acquired for such purposes;” All this goes to show that though the land may have been reserved or used by the proprietors of the patti for the purpose of resting, convening meetings, but the same having been not for the purpose of exclusive use of any individual and it having been reserved for the common purpose of the community, is the common land vesting in the gram panchayat, therefore, vendors of the defendant could not transfer the site in dispute to the defendant treating the same to be their own. They have not claimed that the land bears any khasra number or that the same was ever owned by the proprietors of the patti. Had it been outside the red line, then the status could be treated as different but the land falling within the red line R.S.A. No. 1265 of 2009 (O&M) -7- *** of the village and used for the common purpose could not be said to be the ownership of the proprietors of the patti. Consequently, the agreements Ex.D1 and D3 executed by some of the owners of the patti are of no consequence and did not confer any title upon the defendant- appellant. As such, the defendant cannot seek protection under Section 53-A of the Transfer of Property Act, to protect his possession. No other argument has been advanced. Finding no perversity or illegality in the judgment, the appeal being devoid of any merit is dismissed. December 14, 2011 (A.N. Jindal) deepak Judge