R.S.A.No.2149 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.2149 of 2007 Date of Decision : 24.08.2009 Charanjit ...Appellant Versus Nagar Panchayat Begowal and others ...Respondents CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr. G.S.Gandhi, Advocate, for the appellant. Mr. G.S.Attariwala, Advocate, for respondent Nos.1 and 2. HEMANT GUPTA, J. (ORAL) The plaintiff is in second appeal aggrieved against the judgment and decree passed by the learned first Appellate Court, whereby suit for injunction restraining the defendants, its employees, agents, contractors from demolishing the building located in khasra No.320/15, was dismissed. It is the case of the plaintiff-appellant that Mohinder Paul S/o Khushi Ram has purchased in auction an area of 25 ft. x 12 ft. out of khasra No.320/15 from the Gram Panchayat, Begowal. The auction money of Rs.310/- was deposited by Mohinder Paul on 5.2.1970. The balance amount of Rs.1000/- was paid in two installments i.e. Rs.400/- on 27.2.1970 and Rs.600/- on 5.4.1970. The said Mohinder Paul through his R.S.A.No.2149 of 2007 2 attorney Madan Lal, his brother, executed an agreement dated 5.12.1978 in favour of the plaintiff. It is thereafter, the plaintiff has raised construction of building after demolishing the dilapidated room earlier in existence. It was, thus, pleaded that the appellant is owner in possession of the suit property and the defendants cannot dispossess the plaintiff. In the written statement, the defendants have pleaded that Gram Panchayat was not competent to sell any property vested in it and the alleged auction, if any, is against the provisions of law. The Sarpanch cannot bound the Gram Panchayat by his illegal acts. It was also pleaded that the plaintiff has encroached upon the land of the Gram Panchayat and that the notice issued is perfectly legal and valid. In a rejoinder to the said written-statement, it was pleaded by the plaintiff that auction of the plot was made by the competent authority and it had did so by adopting due procedure of law and the Sarpanch was competent to issue the receipt. Though the learned trial Court decreed the suit, but the learned first Appellate Court found that the auction in favour of Mohinder Paul was in contravention of Rule 12 of the Punjab Village Common Lands (Regulation) Rules, 1964, as such, auction was without the approval of the State Government. It was also found that the plaintiff is relying upon an agreement to sell Ex.P-3/1 and such agreement with the wife of the plaintiff is not sufficient to convey the title of the suit property. In view of the said findings, the appeal was allowed and the suit dismissed. Alongwith the second appeal, the appellant has filed an application under Order 41 Rule 27 of the Code of Civil Procedure, so as R.S.A.No.2149 of 2007 3 to produce on record House Tax Bills and Receipts (Annexures A-1 to A- 5) as well as affidavit dated 11.1.2007 (Annexure A-6), executed by Mohinder Paul in respect of the property in dispute. Such documents are sought to be produced in evidence to show that the possession of the appellant is not that of a unauthorized occupant, but the appellant is in possession as owner. Learned counsel for the appellant has vehemently argued that the appellant has purchased the land in dispute vide agreement Ex.P-3/1 from Mohinder Paul through his attorney Madan Lal. It is thereafter, the appellant has raised construction of the building and, thus, the possession of the appellant is that of a owner, consequently, the notice directing the appellant to remove the encroachment is misconceived. It is contended that in the notice, the defendants have not specified that which of the area in possession of the appellant is unauthorized. Therefore, the notice itself is vague and cannot form basis of removal of encroachment. Reliance is placed upon a judgment of Hon'ble Supreme Court in Municipal Corporation, Ludhiana Vs. Inderjit Singh and another 2008(4) The Punjab Law Reporter 753. It is also argued that no issue regarding title of Gram Panchayat was framed and, therefore, no amount of evidence or arguments can be looked into in the absence of any pleadings. Reliance is placed upon a judgment of Hon'ble Supreme Court in Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs and others AIR 2008 S.C. 2033. I have heard learned counsel for the parties at some length, but do not find any merit in the present appeal. R.S.A.No.2149 of 2007 4 The appellant is claiming the property by virtue of purchase from Mohinder Paul. However, the appellant is relying upon an agreement to prove title though the value of the property is admittedly more than Rs.100/- which is evident from the receipts allegedly propounded by the plaintiff in support of the auction in favour of Mohinder Paul. In the absence of any registered document of purchase, the agreement Ex.P-3/1 cannot be relied upon by the appellant in proof of the title of the appellant. Even, Mohinder Paul is said to be owner by virtue of purchase in an auction, however, no document of title executed by Gram Panchayat in favour of Mohinder Paul has been produced. What is relied upon is receipts of payment of some of the auction amount. Even if, Mohinder Paul has deposited some amount towards the auction of Panchayat land, such deposit will not confer any right unless the appellant is able to bring on record that auction was conducted in accordance with the Rules. Rule 12 of the Punjab Village Common Lands (Regulation) Rules, 1964, contemplate that the sale of land of the Gram Panchayat is permissible only after approval from the State Government to the inhabitants. Rule 12 reads as under : “12. Purpose for which land may be sold. [Section 5 and 15 (2)(f) of the Act]. -- (1) A Panchayat may, with the previous approval of the Government, sell land in Shamilat Deh vested in it under the Act for :- (i)the purpose of constructing building for Block Samiti Office or any department of or institution recognized by the Government; (ii)the purpose of any industrial or commercial R.S.A.No.2149 of 2007 5 concern; or (iii)executing such a scheme as may be a source of recurring income for the benefit of the inhabitants of the village; (iv)residential purpose of the inhabitants of the village. (v)For the purpose of financing the construction of building for schools and for veterinary and civil dispensaries in the Sabha area. (2) Where it is proposed to sell the land in Shamilat Deh under sub-rule (1), the Panchayat shall forward to Government a copy of its resolution passed by a majority of the three-forth of its members proposing to sell the land through the Panchayat Samiti and [Divisional Deputy Director, Panchayati Raj] stating-- (a) the area and location of the land proposed for sale; (b) the estimated income from the sale and whether the income would increase, if the land is sold after some years; (c) the reasons as to why the panchayat wants to sell the land and the plans for utilization of the income from the sale. (3) the publicity for sale of land in Shamilat Deh by auction shall be made by the Deputy Commissioner in accordance with the procedure laid down in sub-rule (10) or Rule 6 on receipt of the approval of Government who shall also decide whether the land should be sold in one or more lots and the officer who should be present at the auction. In view of the Rule 12, the findings recorded by the learned first Appellate Court that the sale in favour of Mohinder Paul is not legal, for lack of approval of the statement, cannot be said to be suffering from R.S.A.No.2149 of 2007 6 any patent illegality or irregularity. The argument that notice calling upon the plaintiff to remove the encroachment is vague is again not tenable. In Inderjit Singh's case (supra), the building plan of the occupier was sanctioned by the Municipal Corporation, but some part of the building constructed was said to be unauthorized. It was, thus, held that unauthorized portion should have been specified. But where the entire property is in unauthorized possession of the appellant, it was not necessary for the defendants to specify that which part of the property is unauthorized. The judgment referred to by the learned counsel for the appellant is not applicable to the facts of the present case. The argument that there was no issue regarding title of Mohinder Paul is again not tenable. Issue No.1 is to the effect, whether the plaintiff is in possession over the house in dispute on the basis of auction dated 5.2.1970 and entitled for injunction as prayed for. The plaintiff has claimed possession on the basis of auction dated 5.2.1970. The right to seek injunction on the basis of auction was specifically required to be examined under Issue No.1. Therefore, it is not correct to say that there was no issue in respect of validity of auction dated 5.2.1970. Even otherwise, a Division Bench of this Court in Ram Niwas and another Vs. Rakesh Kumar and others AIR 1981 Punjab and Haryana 397, has held that framing of issue is immaterial, when the parties have understood the case and led evidence. From the pleadings itself, it is apparent that issue of validity of auction was raised and controverted by the appellant. The evidence has been led in respect of R.S.A.No.2149 of 2007 7 title of Mohinder Paul, when the plaintiff produced the receipts of purchase of land by Mohinder Paul. Therefore, the argument raised by the learned counsel for the appellant is without any substance. In view of the above, I do not find any patent illegality or irregularity in the judgment and decree passed by the learned first Appellate Court, which may give rise to any substantial question of law for consideration by this Court in second appeal. Dismissed. 24.08.2009 (HEMANT GUPTA) Vimal JUDGE