In the High Court of Punjab and Haryana at Chandigarh Civil Revision No. 2315 of 2008 (O&M) Date of decision: September 15, 2009 Gram Pacnhayat, Village Kurbanpur .. Petitioner Vs. Jasmer Singh and others .. Respondents Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. Pritam Saini, Advocate for the petitioner. Mr. Amit Jain, Advocate for the respondents. A.N. Jindal, J Assailed in this petition is the order dated 15.3.2008 passed by the learned Additional District Judge, Ambala, reversing the order dated 17.5.2006 passed by the Civil Judge (Sr. Division), Ambala, refusing temporary injunction to the plaintiffs-respondents (herein referred as 'the plaintiffs'). The plaintiffs being the resident of village Kurbanpur, Tehsil & District Ambala filed a suit for permanent injunction against the petitioner- defendant-Gram Panchayat (herein referred as 'the defendant') prohibiting it from leasing out, alienating or dealing with the suit land comprised in Khewat/ khatauni No.84/112 Khasra No.34//18 mn 23 , 24 Khatauni No.113 Khasra No.27/16/1/2/2- 15/2/2/9/2, 28//10/1/2 – 172/2, 10/2/2, Khewat/khatauni No.84 mn/114 Khasra Nos.34/118 mn, 23 mn, 381/3, 4, 6/2, 7, 8, 13, 14, 17, 18 Khewat No.84 min Khatauni No.110 Khasra Nos. 34//8/2, 13, 14/1, Khewat Khatauni No.Mn/113 khasra No.27/115/2/2 situated in village Kurbanpur H.Bo. No.259, Tehsil & District Ambala, on the ground that the mutation of the suit land was sanctioned in the names of the proprietors of the village including the plaintiffs vide order passed by the Financial Commissioner, Revenue, Government of Haryana vide letter No.28620-800 dated 6.9.2005, whereby, it was ordered that the ownership of real joint khata holders be restored to its original owners. Accordingly, Assistant Collector, (Grade II), Ambala sanctioned the mutation in the name of original Joint Khata Holders. Thus, now Gram Panchayat have no right Civil Revision No. 2315 of 2008 -2- to deal with the property. Reply to the suit as well as application for temporary injunction was filed wherein, the defendant contested the suit and controverted all the allegations. The defendant took the stand that the suit land belongs to the defendant and it is in possession and control of the same. It has been managing and leasing out the said land for benefit and welfare of the inhabitants of the villagers for the last more than 40 years. The land does not vest in the proprietors of the village. The plaintiffs themselves had been participating in the auction proceedings and had been taking the land on lease on yearly basis. The mutation has been changed incorrectly by the Financial Commissioner without notice and hearing the defendant. The mutation does not confer any title. Consequently, it prayed for dismissal of the suit as well as the application for ad-interim injunction. The trial court vide order dated 17.5.2006 declined to grant injunction for the reasons as referred hereunder :- 1. Several documents i.e. registered patta nama for the year 1983 to 2005-06 reveal that the land has been leased out to the village residents. Even Mohinder Singh one of the respondents participated in the auction of the land. 2. Mutation does not confer any title. 3. The Gram Panchayat was in continuous possession of land and there is nothing to show that how the possession was changed from Gram Panchayat to the plaintiffs. 4. The Gram Panchayat is managing and controlling the land in question and adding to the money to be utilized for the benefit and welfare of the village community. 5. The court while granting injunction should take into consideration the larger public interest than the individual. However, the Appellate Court while reversing the judgment did not bother to see the revenue records, if the entries of the same could lead the court to hold a prima facie case in favour of the plaintiffs. The court also did not properly examine and interpreted the judgment delivered in case Jai Singh and Ors. vs. State of Haryana, 2003 (2) RCR (Civil) 578 and also misinterpreted the provisions of Section 2 (g) (vi) of the Punjab Village Common Land (Regulation) Act, 1961 and the other ancillary Civil Revision No. 2315 of 2008 -3- provisions appended thereto. The court also did not hold that the order passed by the trial court was perverse, arbitrary, capricious, against the facts resulting into failure of justice and interfere with the discretion exercised by the trial court without any rhyme or reason. Now before I lay my hands to interpret the judgment delivered by the Full Bench of this Court in case Jai Singh & Ors. vs. State of Haryana, 2003 (2) RCR (Civil) 578, I need to refer some extracts of the revenue records relating to the land in dispute. The registered patta namas (lease deeds) brought on record by the defendant from the year 1983 to 2005-06 relate to the auction of the suit land to the inhabitants of the village and Mohinder Singh one of the plaintiffs is also shown as a participant. The other villagers are also recorded in some of the khasra numbers as pattedars (lessees). The land remained recorded in possession of the defendant and continued being leased. However, vide mutation No.190 dated 1.3.2006, the mutation was sanctioned by the Assistant Collector (2nd Grade) in favour of mushtarka malkan pursuant to the order passed by the Financial Commissioner, Revenue, Government of Haryana vide letter No.28620-800 dated 6.9.2005, on the basis of the judgment delivered in Jai Singh's case (supra). It may also be re-called that copy of the jamabandi for the year 2000-01 goes to show that Panchayat Deh is recorded as owner and in the column of cultivation maqbuja bashindgan is recorded in Khasra No.34//8/2, 13, 14/1 (23-4), whereas, rest of the suit land has been shown to be in possession of some private persons as gair marusi tenants on annual rent basis under Gram Panchayat. The plaintiffs have not produced any document on record in order to show if the suit land was a bachat land and vested in the gram panchayat on account of prorata cut on the holdings. No entry in the column of ownership showing the plaintiffs or the other proprietors of the village as “jumla mustarka malkan wa digar hasab rasad arazi khewat” is recorded. The Full Bench of this Court in order to remove all the ambiguities and misinterpretations as made by the Revenue Department or the Consolidation Department elucidated the meaning of shamlat deh for demarcating the land which could be taken from the purview of shamlat deh and vice versa. The case of the respondents is that the land in dispute as reflected from the Revenue Records is not vested in the gram panchayat and Civil Revision No. 2315 of 2008 -4- the same having been taken out of the holdings on the basis of the prorata cut is their ownership and the mutation has been sanctioned in their favour on the basis of Jai Singh's case (supra), therefore, the gram panchayat should be restrained from dealing with the property in any manner. However, the Full Bench of this Court after discussing the provisions of Section 2 (g) (6) of the Punjab Village Common Land (Regulation) Act, 1961, Haryana Amendment Act No.9 of 1992, Section 18 © of Punjab Consolidation Act read with Section 16 (ii) of the Consolidation Rules; and also under Section 23-A of the Punjab Consolidation Act, 1948, Sections 31 to 35 of Punjab Land Revenue Act and other provisions of Ceiling Laws, reached the following conclusions :- “(i) Elucidating clause – Section 2 (g) (6) of the Act, 1961 (as amended by Haryana Act No.9 of 1992) and Explanation appended thereto is an elucidating clause of the existing provisions of Act 1961 read with provisions of East Punjab Consolidation Act, 1948. (ii) Common purpose land before amendment – Unmended Section 2 (g) (i) of Act, 1961 read with Section 18 and 23-A of Consolidation Act, 1948 and Rule 16 (ii) of Punjab Consolidation Rules 1949 cover all such lands earmarked under the Scheme prepared under Sections 14, 20 and 24 read with rule 5 and 7 of the Rules, 1949. (iii) Prorata cut on holdings – The land contributed by proprietors of the village on the basis of prorata cut on their holdings but not earmarked for any common purpose during consolidation proceedings and are entered in the column of ownership as 'Jumla Mustarka Malkan Wa Digar Hasab Rasad Arazi Khewat' and are in possession of proprietors shall not vest in the Panchayat or State Government under the provisions of Section 2 (g) (6) of Act, 1961 or Act, 1948. (iv) Reservation of land – All land reserved for 'common purpose' whether utilized or un-utilized shall vest in the Government or the Gram Panchayat even though such lands are entered in the column as 'Jumla Mustarka Civil Revision No. 2315 of 2008 -5- Malkan Wa Digar Haqdaran Hasab Rasad Arazi Khewat' etc. (v) Such land shall vest in the Gram Panchayat irrespective of the fact that the mutation of land is in the name of the proprietors provided land is being used for common purpose. (vi) Relief - Cases will be decided on merits in the light of the observations made in this judgment and if mutations have been entered in view of Haryana Amending Act 9 of 1992 in the name of State or Gram Panchayat the same shall be set aside – Gram Panchayat may seek eviction of unauthorised occupant by invoking provisions of Section 7 or 13-A of the Act as the case may be, of the land earmarked for common purpose. (vii) Bachat land - Where the land is not earmarked for common purpose and is left out as Bachat land under the Consolidation Scheme, such land will not vest in Gram Panchayat and proprietors can file title suit and Panchayat has no concern with such land.” On perusal of the aforesaid conclusion, it transpires that the Full Bench of this Court was of the view that the revenue entries are misinterpreted in order to take out the land out of the purview of shamlat deh. The lands which are recorded in the column of ownership as Jumla Mustarka Malkan Wa Digar Hasab Rasad Arazi Khewat' and are in possession of the proprietors of the village and still these have not been utilized for the common purpose would not vest in the gram panchayat. The intention of the Full Bench was never to treat every land which is not used for the common purpose as land of proprietors. Their Lordship also never meant to outrightly sanction mutation in the name of the proprietors, where already the private owners are divested of the land which may be belonging to them but they could have recourse to the remedy by filing petition under Section 7 for ejectment of the private owners and the private owners also could file a suit for claiming their ownership over the land if the said land was covered within the definition of shamlat deh as defined under Section 2 (g) of the Act. Civil Revision No. 2315 of 2008 -6- In the instant case, the plaintiffs have pleaded nothing if the land was originally a bachat land and was in their possession. The entries also do not help the case of the plaintiffs so as to infer that the suit land fell within the purview of definition of shamlat deh as defined under the Act. Consequently, the land in question cannot be treated as shamlat deh as covered by the judgment delivered in Jai Singh's case (supra). It would be pertinent to mention here that the jurisdiction of the Appellate Court to interfere with the discretion exercised by the trial court is very limited and could be extended to the cases where the order is perverse. The extent and scope of jurisdiction of the Lower Appellate Court to interfere with the order passed by the trial court in exercise of its discretion under Order 39 Rules 1 & 2 CPC has been discussed in case Smt. Vimla Devi vs. Jang Bahadur, AIR 1977 Rajesthan 196 wherein the legal position was summarised as under :- “The order refusing the temporary injunction is if a discretionary character. Ordinarily the court of appeal will not interfere with the exercise of the discretion by the trial court and substitute for it its own discretion. The interference with the discretionary order, however, may be justified if the lower court acts arbitrarily, perversely, capriciously or in disregard of a sound legal principles or without considering all the relevant records. The mere possibility of the Appellate Court coming to a different conclusion on the same facts and evidence will also not justify interference.” Similar view was taken in case Guru Nanak Education Trust vs. Balbir Singh 1995 (2) PLR 625. Since the Lower Appellate Court has not properly appreciate the well established principles of law and having not given a definite findings that the order passed by the trial court is in any way apparently perverse, capricious, arbitrary, unreasoned or in disregard to the sound legal principles, therefore, the same could not be set aside. It may further be observed that the Apex Court while delivering the judgment in case Wander Ltd. And another vs. Antox India Pvt. Ltd. 1990 (Supp) SCC 727 went to the extent that the appellate court would not interfere with the exercise of discretion of the court at the first instance and Civil Revision No. 2315 of 2008 -7- substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily or capriciously or perversely or where the Court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. But, the appellate court has not made any such conclusion while reversing the orders. As such, it was not proper, reasonable and justifiable for the appellate court to interfere with the discretion exercised by the trial court in declining the application for grant of injunction. It may further be observed that mutation No.190 sanctioned in favour of the plaintiffs and other proprietors of the village sanctioned in the absence of gram panchayat could be said to confer no title when the gram panchayat was already in possession and the leasing it out to the inhabitants of the village, therefore, by entry in a revenue record in the shape of mutation, gram panchayat could not be divested of its rights to deal with the same. However, it is a matter of merits that the land did not vest in the gram panchayat and in that case the money collected by the gram panchayat could be transferred to those having rights in the property. As such, no balance of convenience lies in favour of the respondents and the defendant would suffer irreparable loss if it is stopped to deal with the property before the land is held to be ownership of the plaintiffs and other proprietors. The defendant being prima facie recorded in possession of the property dealing with it by way of auctioning the same to the village residents could be said to have a prima facie case in its favour as the plaintiff was not entitled to the injunction. The impugned order appears to have been passed in ignorance of the very provisions of law relating to the grant of injunction and its powers to interfere with the trial court order. As such, interference at my end has become inevitable. Resultantly, I allow this petition, set aside the impugned order dated 15.3.2008 and restore the order dated 17.5.2006 passed by the trial court. However, nothing observed here-in-above would amount an expression of opinion to effect the merits of the case. September 15, 2009 (A.N. Jindal) deepak Judge