RSA No.5606 of 2003 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 5606 of 2003 Date of Decision: September 18, 2009 Tara Chand and another ...........Appellants Versus Balwanti Devi and others ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.Amit Jain,Advocate for the appellants Mr.Ramesh Hooda, Advocate for the respondents ** Sabina, J. Plaintiffs filed a suit for declaration with consequential relief of permanent injunction. The said suit of the plaintiff was dismissed by the Civil Judge (Senior Division) Jhajjar vide judgment and decree dated 23.11.2000. Aggrieved by the same, plaintiffs filed an appeal and the same was dismissed by the Additional District Judge, Jhajjar vide judgment and decree dated 22.8.2003. Hence, the present appeal by the plaintiffs. The case of the parties, as noticed by the learned District Judge, in paras 2 to 5 of its judgment reads as under:- “ 2.Claiming themselves to be owners in possession since 1947 of the disputed plot as detailed and described in para no.1 of the plaint and as depicted with letter ABCD with red colour in the site plan attached, plaintiffs Tara Chand etc, have instituted the present suit for declaration with consequential relief of permanent injunction with the averments that originally one Ghansham, owner of the disputed property had sold away the same to one RSA No.5606 of 2003 2 Ramji Lal i.e. grand father of defendants No.1 to 3 on 1.3.1942. Said sale was pre-empted by another co-sharer Bhog Ram vide judgment and decree dated 26.8.1943. Subsequently said Bhog Ram alienated the disputed plot on 13.5.1947 to the father of the plaintiffs by way of gift deed and had also delivered the possession of the plot. Since Ramji Lal, grand father of defendants No. 1 to 3 had been nursing a grudge regarding the pre-emption of the sale, so he had filed an application under Section 7 of the Punjab Village Common Lands Act in the court of Assistant Collector Ist Grade, Jhajjar, against the father of the plaintiffs and the same was dismissed on 22.6.1988. Thereafter, said Ramji Lal also unfortunately expired and defendants no. 1 to 3 being his legal heirs preferred an appeal in the court of Collector, Rohtak, against the aforesaid order dated 22.6.1988 which was accepted on 6.5.1992. Aggrieved by the same, plaintiffs preferred a writ petition in the Hon'ble Punjab and Haryana High Court which was dismissed in limine. 3. Since the plaintiffs were exclusive owners in possession of the disputed plot, so they preferred an application in the proceeding under Section 7 of Punjab Village Common Lands Act, alleging that since the question of title was involved so the said proceedings be converted into a regular suit, but of no avail. By virtue of present suit the plaintiffs have challenged the legality and validity of the order dated 6.5.1992 handed down by Collector, Rohtak and as the defendants did not pay any heed to the request made by the plaintiffs in this regard, so this RSA No.5606 of 2003 3 necessitated the institution of the suit. 4. Upon notice, inspite of proper and legal service, none put up in appearance on behalf of respondents no.1 and 4 and they were accordingly proceeded against exparte. 5.However, the defendants no.2 and 3 in their joint written statement have resisted the suit on the grounds of locus standi, maintainability, jurisdiction, cause of action and special costs etc. On merit, the defendants denied the ownership as well as possession of the plaintiffs over the disputed plot and the disputed plot has been asserted to be part of a chowk shamalat vested in gram panchayat. Further, it has been averred that the site which had been gifted away to Bakhtawar by said Bhog Ram was different from that of disputed plot and on this count the appeal preferred by the defendants had been accepted by the Collector, Rohtak on 6.5.1992. In fact, the land got by way of decree in pre- emption suit was in side the house of Ghansham, whereas, the site mentioned in application under Section 7 of Punjab Village Common Lands Act was part of shamlat pana and was owned by gram panchayat. Since neither the plaintiffs nor the defendants had any concern with the disputed property so the writ preferred by the plaintiffs challenging the legality and validity of the order dated 6.5.1992 passed by the Collector, Rohtak had been dismissed in limine by the Hon'ble Punjab and Haryana High Court. This fact has been denied that the plea of question of title was not decided by Assistant Collector Ist Grade, Jhajjar. The defendants also prayed for the dismissal of the suit. RSA No.5606 of 2003 4 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 suit land as detailed in para no.1 of the plaint? OPP 2.Whether the order of the Collector dated 6.5.1992 is wrong, illegal, null and void etc?OPP 3.Whether the defendants are illegally interfering into the peaceful possession of the plaintiffs over the suit land?OPP 4.Whether the suit of the plaintiffs is not maintainable in the present form?OPD 5.Whether the civil court has no jurisdiction to try and entertain the present suit?OPR 6.Whether the plaintiffs have no cause of action to file the present suit?OPR 7.Whether the defendants are entitled to special costs under Section 35-A CPC?OPD 8. Relief.” After hearing the learned counsel for the parties, I am of the opinion that this appeal is devoid of any merit. Plaintiffs had filed a suit for declaration that they were owners in possession of the plot in dispute and the order passed by the Collector, Rohtak dated 6.5.1992 was wrong, illegal, null and void. Admittedly, Ghanshyam had alienated a piece of land in favour of Ramji Lal, grand father of defendants No. 1 to 3 vide sale deed dated 1.3.1942. Bhog Ram being co-sharer pre-empted the sale and his suit was decreed vide judgment and decree dated 26.8.1943. Bhog Ram RSA No.5606 of 2003 5 executed the gift deed in favour of the plaintiffs vide gift deed dated 13.5.1947. Bhana Ram son of Ramji Lal, father of defendants No. 1 to 3 filed an application under Section 7 of the Punjab Village Common Lands (Regulation) Act,1961 before Assistant Collector First Grade Jhajjar. The said application was partly dismissed vide order dated 22.6.1988 and the Collector Rohtak allowed the appeal filed by defendants No. 1 to 3 vide order dated 6.5.1992. Plaintiffs preferred a writ petition against the order passed by the Collector Rohtak and the said writ petition was dismissed by this Court vide order dated 27.11.1992. Learned counsel for the appellants has failed to establish that the property which was involved in the proceedings before the Revenue Authorities was different than the property in the hands of the plaintiffs by way of gift deed . The Court of Collector Rohtak vide order dated 6.5.1992 (Exhibit D2) had held that the disputed site was part of Shamlat Chowk Sunarwala which had been illegally encroached upon by the plaintiffs and, hence, it was ordered that the plaintiffs be evicted from the disputed site. Both the Courts below, after appreciating the evidence led by the parties on record, had,thus, rightly dismissed the suit of the plaintiffs. 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 18, 2009 arya