IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 3253 of 2010 Date of decision: 19th July, 2011 Shyam Sunder … Appellant Versus Gram Panchayat, Vill. Jakholi … Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Shilak Ram Hooda, Advocate for the appellant. Mr. J.S. Sandhu, Advocate for the respondent. KANWALJIT SINGH AHLUWALIA, J. (ORAL) This is plaintiff’s regular second appeal. He filed a suit for permanent injunction praying that the defendant Gram Panchayat be restrained from leasing out the suit land by way of auction and from interfering in his peaceful possession. It was further prayed that he be not dispossessed forcibly and illegally. Case as set out by the appellant-plaintiff in the suit was that he was in continuous possession of the suit property, details and description whereof were given in the plaint. He further stated that being a proprietor of the village he was a co-proprietor of the land which has been described in the revenue record as Shamlat Deh Hasab Rasad Rakba Khewat and the Gram Panchayat was recorded as its owner in pursuance of the amendment made in the Punjab Village Common Lands (Regulation) Act, 1961. Regular Second Appeal No.3253 of 2010 Notice of the suit was issued. The Gram Panchayat caused appearance and filed a written statement. It was stated therein that the plaintiff was in an unauthorized possession and he had no right or interest in the suit property. It was stated that the land was leased out by way of auction to one Ishwar son of Khazan, being the highest bidder and on the same day the plaintiff was dispossessed and possession of the land in dispute was handed over to the successful bidder. The trial Court dismissed the suit on the ground that in jamabandi in the column of ownership the Gram Panchayat is recorded as the owner of the suit land. The Court further held that the plaintiff has failed to place on record any legal document to show his possession over the land in dispute. It further held that the plaintiff has not stated as to on which date and on what basis he took possession of the suit property. The Court further held that the plaintiff has not taken any stand as to whether he was a tenant or a licencee or his possession over the suit land was adverse. Aggrieved against the findings returned by the trial Court, the appellant-plaintiff filed an appeal. The lower appellate Court gave its finding as under: “15. It is established that the land comprised in Rect. No.110 and 129 measuring 48 kanals is in actual physical possession of the Gram Panchayat and the lessees and that plaintiff Sham Sunder is in unauthorized possession of land comprised in Khewat No.141, land measuring 15 kanal 4 marlas. Since plaintiff Sham Sunder is a trespasser in unauthorized possession of the Gram Panchayat property, he cannot be granted injunction against the true owner. He claims to be a proprietor of the Village who is in possession of the shamlat deh to the 2 Regular Second Appeal No.3253 of 2010 extent of his share in the joint holding of the proprietors whereas the record of rights records him as a Gair Marusi in unauthorized possession of the panchayat property. He has not approached the Court with clean hands and he does not deserve the discretionary relief of injunction.” The finding given by the lower appellate Court that the appellant-plaintiff is in possession of 15 kanals and 4 marlas of land has not been assailed by the Gram Panchayat. Mr. Silak Ram Hooda, Advocate appearing on behalf of the appellant-plaintiff, has stated that even a trespasser, who is in continuous possession of the property, cannot be dispossessed except by following due course of law. Learned counsel has formulated the following substantial question of law for consideration of this Court: Whether a person who is in continuous peaceful possession can be evicted forcibly or by following due course of law? Mr. J.S. Sandhu, Advocate appearing on behalf of the respondent, in spite of making best efforts, has not been able to dislodge the findings recorded by the lower appellate Court as the Gram Panchayat has opted not to assail these findings by filing an appeal. Therefore, this Court has to accept the finding returned by the lower appellate Court that appellant-plaintiff Shyam Sunder is in possession of 15 kanals and 4 marlas of land comprised in Khewat No.141. Therefore, the relief clause is modified to the extent that the Gram Panchayat shall not dispossess the appellant-plaintiff from 15 kanals and 4 marlas of land comprised in Khewat No.141 except by following due process of 3 Regular Second Appeal No.3253 of 2010 law. A decree to this effect be drawn. Present appeal is accordingly accepted to the above extent. [KANWALJIT SINGH AHLUWALIA] JUDGE July 19, 2011 rps 4