RSA No.1250 of 2008 (O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 1250 of 2008 (O&M) Date of Decision: September 02, 2009 Jaibir Singh and others ...........Appellants Versus Gram Panchayat,Badhana and others ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.Ramesh Hooda, Advocate for the appellants. ** Sabina, J. Plaintiffs filed a suit under Order 1 Rule 8 of the Code of Civil Procedure for declaration under Section 45 of Punjab Land Revenue Act and for permanent injunction as a consequential relief. The said suit of the plaintiffs was dismissed by the Additional Civil Judge (Senior Division) Jind vide judgment and decree dated 26.9.2005. Aggrieved by the same, plaintiffs filed an appeal and the same was dismissed by the Additional District Judge Jind vide judgment and decree dated 18.12.2007 Hence, the present appeal by the plaintiffs. The case of the parties, as noticed by the learned Additional District Judge, in paras 3 and 4 of its judgment reads as under:- “ 3. Briefly stated facts of the suit are that the land comprising in Khasra numbers 762, 763, 764, 766, 1300 to 1305, 1299, 1306, 1494, 1495, 1307 to 1311, 1312 min, 1313 min, 1314 min, 1478, RSA No.1250 of 2008 (O&M) 2 1484 to 1488 was agricultural land under the cultivation of the proprietors of the village Badhana according to their respective shares and in the year 1960-61 consolidation proceedings took place then a dispute arose between the proprietors regarding distribution of their land mentioned in Para no.2 of the plaint. The matter was agitated before the Director Consolidation, Haryana in year 1973 who ordered on 23.4.1976 that pre- consolidated land shall be distributed pro-rata amongst the proprietors as per their shares and further it was also ordered that suit land shall be allotted in one block and that would be treated as extra quarrah as per scheme framed by the consolidation department. While at the time of implementing the order dated 23.4.1976 mutation No.823 was sanctioned and at that time plaintiffs were told by the circle revenue officer that mutation had been sanctioned as pro-rata in their names on 30.4.1979 and possession was also delivered to them in compliance of the order dated 23.4.1976 by the Director of Consolidation. Thus, during the consolidation the land measuring 1217 kanals 15 marlas was allotted against the old khasra numbers as described in para No.2 of the plaint. But their new numbers were not mentioned in the order dated 23.4.1976. Though Director Consolidation ordered for distribution of the land measuring 1217 kanals 15 marlas amongst the proprietors. Thus, all the plaintiffs are in cultivating possession of the disputed land since the time of the allotment but in year 1994-95 in the column of ownership the name of the Gram Panchayat has been mentioned as owner. Though Gram RSA No.1250 of 2008 (O&M) 3 Panchayat has no concern with the suit land. Thus, as per the orders of the consolidation dated 23.4.1976 plaintiffs are owners in possession of the suit land and are entitled for making correction in the revenue records in their names but defendants on the basis of the wrong entries in the revenue records are adamant to interfere in peaceful possession of the plaintiffs and they are also adamant to dispossess the plaintiffs forcibly from the suit land for which defendants have no right to do so. Thus, plaintiffs have prayed for decree of declaration to the effect that entries made in the revenue records showing the defendant no.1 as owner of the suit land are illegal and void. The plaintiffs being owner in possession of the suit land are entitled to make the entries corrected in their names and further defendants be restrained from disposes the plaintiffs from the suit land forcibly. 4. Defendants have contested their case by filing their respective written statements. Their stand is that there is a question of vesting or non-vesting of the property to the Gram Panchayat so civil Court has no jurisdiction to try the present suit. Even plaintiffs have not served with the legal notice under Section 205 of the Gram Panchayat Act and Section 80 of the CPC upon the defendants before filing the suit so their suit is bad for want of notice. Even suit of the plaintiff is hopelessly time barred and the disputed land is vested in the Gram Panchayat and the mutation no.823 was sanctioned on the basis of the orders of the Director of Consolidation dated 23.4.1976. The plaintiffs have challenged the validity of the mutation after lapse of more than 30 years. So, RSA No.1250 of 2008 (O&M) 4 their suit is time barred and not maintainable. They further alleged that except 28 kanals of land entire suit land had been given to the Forest department for plantation but plaintiffs had not impleaded some persons namely, Kapoora and Randhir Singh who were also in possession of the some portion of the land. Plaintiffs have no common interest in the suit land rather they are interested to make encroachment in the suit land for which they have no right. Even the plaint is vague and it has not disclosed the cause of action between the parties. In fact, the mutation was sanctioned on the basis of the order dated 23.4.1976. There were Kiker trees in the suit land and the gram panchayat has auctioned the same. Even Jaibir and Leela Singh were members of the panchayat who participated in auction proceedings. So they are estopped by filing the suit on their act and conduct. Even Satbir, Phool Singh also took part in the auction proceedings. Thus, the suit land is under the control and supervision of the Gram Panchayat, as owner and plaintiffs and other proprietors of the village have no concern with the same. In this way, defendants have controverted the stand of the plaintiffs and have requested for dismissal of the suit. Thus, notice of the suit was served upon the defendants who appeared and filed their written statements and controverted the stand of the plaintiffs and requested for dismissal of the suit of the plaintiffs." On the pleadings of the parties, the following issues were framed by the trial Court:- “1. Whether the plaintiffs are owners in possession of the RSA No.1250 of 2008 (O&M) 5 property in dispute?OPP 2. Whether plaintiffs are entitled to the relief of permanent injunction?OPP 3. Whether the suit is bad for want of notice under Section 205 of Gram Panchayat Act?OPD 4. Whether the suit is bad for want of notice under Section 80 CPC?OPD 5. Whether the plaintiffs have no cause of action and locus standi to file the present suit?OPP 6. Whether the suit is not maintainable in the present form?OPD 7. Whether the suit is bad for non-joinder of necessary parties?OPD 8. Whether the suit has not properly valued for the purpose of court fee and jurisdiction?OPD 9. Whether the plaintiffs have not come to the court with clean hands and have concealed the material facts from the court. 10. Relief” After hearing the learned counsel for the appellants, I am of the opinion that this appeal is devoid of any merit. Admittedly, plaintiffs are the resident and proprietors of village Badhana. It has been observed by the learned Additional District Judge in its judgment that PW2 Arjan, PW3 Pirthi and PW4 Nihala in their examination-in-chief, alleged that they were owners in possession of the suit land being proprietors of the village. However, in their cross- examination, they admitted that since the year 1984, the Gram Panchayat was leasing out the suit land in auction for cultivation. Some of the land RSA No.1250 of 2008 (O&M) 6 had also been leased out to the Forest Department for plantation. It has been further observed by the learned Additional District Judge in its judgment, after appreciating the evidence on record, that the Gram Panchayat was owner in possession of the suit land and it was not possible to ascertain which of the land was under cultivation of the plaintiffs. During consolidation, new khasra numbers had been allotted and Gram Panchayat was recorded as owner of the new khasra numbers. The land, which was lying vacant and un-utilized, belonging to the proprietors of the village, could be got properly decided by approaching the revenue court. During consolidation, the land had been left for common purposes and,thus, it fell within the definition of shamlat deh in terms of the Punjab Village Common Lands (Regulation) Act, 1961. The fact as to whether the land left for common purposes had, in fact, been used for common purposes or not could be got resolved by the plaintiffs from the revenue Court. The land was under the control and supervision of Gram Panchayat. It has also been clarified by the learned Additional District Judge that in case the plaintiffs have any grouse then they could agitate the matter before the revenue Court, keeping in view the order of consolidation department dated 23.4.1976. But they could not get any relief from the Civil Court. Hence, no ground for interference is made out. No substantial question of law arises in this regular second appeal which would warrant interference by this Court. Accordingly, this appeal is dismissed. ( Sabina ) Judge September 02, 2009 arya