IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 18067 of 2010 Date of Decision: November 25, 2011 Amar Singh and others. …Petitioners Versus Collector, Hisar and others. …Respondents CORAM: HON’BLE MR. JUSTICE SATISH KUMAR MITTAL, HON’BLE MR. JUSTICE PARAMJEET SINGH. Present: Mr. Pirthi Singh Chauhan, Advocate, for the petitioners. Mr. D.D. Gupta, Addl. A.G., Haryana, for respondent Nos. 1 and 2. Mr. Pritam Saini, Advocate, for respondent Nos. 3 to 6. None for respondent No.7. Paramjeet Singh, J. CWP No.18067 of 2010 Present writ petition has been filed by the petitioners under Articles 226/227 of the Constitution of India for quashing of order dated 17.11.2008 (Annexure P/5) passed by the Assistant Collector Ist Grade, Hisar, whereby application filed by Amar Singh, one of the petitioners under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961, as applicable to Haryana, (hereinafter referred to as the Act) for removal of unauthorized, illegal and forcible possession on a public street has been dismissed, as well as, order dated 16.02.2010 (Annexure P/6) passed by the Collector, whereby appeal preferred by Amar Singh – petitioner No.1 has been dismissed. The brief facts of the present case are that respondent Nos. 3 to 6 are owners of Khasra Nos. 1210, 1211, 1213 and 1522. The said property is situated on Bhuna-Narwana Road and is the ownership of private respondents. They have illegally and forcibly merged the public street into their house constructed in Khasra No. 1522, in village Shankarpura, Tehsil and District Hisar. Earlier, street was in illegal possession of Giani Ram (father of respondent Nos. 3 to 6) and after the death of their father, respondent Nos. 3 to 6 are in illegal occupation of the street. It is also pertinent to mention that earlier Giani Ram, father of the private respondents, had filed a Civil Suit No. 423-C of 1998 for permanent injunction which has been decided by the Civil court on 12.12.2002 (Annexure P/1). The case set up by the private respondents is to the effect that the alleged street is not an independent street, rather, is part of Khasra No. 1522. As such, the petitioners have no right to allege illegal possession by the respondents over the public street. 2 CWP No.18067 of 2010 We have heard learned counsel for the parties and have perused the record. Admittedly, respondent Nos. 3 to 6 are the owners of Khasra Nos. 1210, 1211, 1213 and 1522. It is also admitted by the private respondents that house is constructed in Khasra No.1522. It is also admitted by the private respondents that civil suit was filed by their father, which has been decided against them. The demarcation report in that suit has also been taken into consideration by the learned Civil Judge while passing the judgment and decree dated 12.12.2002. In the Civil Suit, it has been specifically held that Giani Ram, father of respondent Nos. 3 to 6, was in illegal possession over the public street which is 10 feet wide and is on the eastern side of the plot of the private respondents. The perusal of Annexures P/5 and P/6 shows that the Civil Court judgment was referred during the course of the arguments. Both the authorities under the Act did not discuss about the effect of the Civil Court judgment. The judgment of the Civil Court is binding. How it is distinguishable in the facts of the present case, authorities must discuss. Admittedly, the Civil Court had recorded following findings with regard to the encroachment of public street while deciding issue No.1:- “17. I have given considered thought to the arguments advanced by the learned counsels and perused the record. The case of the plaintiff is that he is owner in possession of plot No. 1522 measuring 1 Kanal 1 Marla. This fact is not disputed by the defendant. It is admitted case of the defendant that the plaintiff is owner in possession of plot No.1522 and he has constructed his 3 CWP No.18067 of 2010 house on that plot. The dispute is in respect of a 10 feet wide street situated in Eastern side of the plot. The plaintiff is alleging it as a part of his house and the case of defendant is that it is a public street. The parties have produced oral evidence as well as documentary to prove their case. The material evidence produced by the plaintiff on which his case strongly depends is demarcation report which is on the record as Ex.P1. The ld. Counsel for the defendant has objected that it cannot be read in the evidence. But I am of the view that the report is well proved on the record. The attested copy have been duly produced on the record and the person who has demarcated the land has been examined as PW2. Therefore, it can be read into the evidence. It is clearly mentioned in the report that the house has been constructed in plot No. 1522 by Giani Ram plaintiff. It is mentioned in the record that the owner of plot No. 1522 has left a street of 10 feet wide in the Eastern side of the plot. He has installed a gate in that street. This report is interpreted by the plaintiff in such a manner that the alleged street of 10 feet is a part of plot No. 1522. I have perused the report carefully. The report reveals that the plaintiff has constructed his house in plot No. 1522 only. A perusal of the report that the street of 10 feet is not a part of plot No. 1522. It is a separate piece of land. Therefore, it is not owned by the plaintiff. This factum is further strongly supported by the report of local 4 CWP No.18067 of 2010 commissioner which is on the record as Ex.D2. It is well mentioned in the report that the plaintiff has constructed a house of 649 square yards while the area of the plot measuring 1 Kanal 1 Marla comes to 635.95 square yards. Therefore, the plaintiff has raised construction on the plot exceeding his share. It is also mentioned in the report that there is a 13 feet wide street in the eastern side which is not calculated in the measurement of house. It means that the street is out of the share of the plaintiff. It is further mentioned in the report of the Local Commissioner that the public water supply line has been installed underneath in the street. The electric wires also passed through the street and the electric poles have also been installed in the street. In such circumstances, I am of the view that it appears a clear cut case of encroachment by the plaintiff on the street. Therefore, the plaintiff is not entitled for any injunction because the defendants are not demolishing his house constructed on plot No. 1522 and he has no apprehension from defendants for demolition of his hosue. Resultantly, he has no cause of action in respect of house. As far as the street is concerned he is not entitled for any injunction because he has encroached upon the street. Further he has filed a suit in respect of plot No. 1522 only and the street is beyond the purview of the subject matter of the suit. Therefore, he cannot claim injunction in respect of street.” 5 CWP No.18067 of 2010 From the reading of the impugned orders, it is clear that the Assistant Collector Ist Grade and the Collector have not considered the Civil Court judgment while recording a finding and rejecting the application of Amar Singh, petitioner No.1 under Section 7 of the Act. It is admitted on record that Giani Ram, father of respondent Nos. 3 to 6 had filed a suit against the present petitioners, where the same issue was involved. In that suit, a specific finding of encroachment of a public street has been recorded by the Civil Court. The findings of the Civil court are binding on the revenue authorities. We are of the view that since the Assistant Collector Ist Grade and the Collector have not considered the effect of the judgment of the Civil Court, only reference to judgment and decree dated 12.12.2002 has been made. Thus, authorities have failed to consider material evidence which has resulted into failure of justice and impugned orders suffer from material irregularities. Thus, impugned order dated 17.11.2008 (Annexure P/5) of Assistant Collector Ist Grade and order dated 16.02.2011 (Annexure P/6) of Collector are set aside. We deem it fit and proper to remand the case to the Assistant Collector First Grade to decide the application under Section 7 of the Act afresh in the light of the Civil Court judgment dated 12.12.2002 (Annexure P/1). (PARAMJEET SINGH) JUDGE November 25, 2011 (SATISH KUMAR MITTAL) vkd JUDGE 6