SHAMSHER SINGH Vs. GRAM PANCHAYAT, JHINVERHERI AND OTHERS

JUDGEMENT

(1.) KANWALJIT Singh Ahluwalia, J. -By this common judgment RSA No. 4685 of 2009 titled as 'Shamsher Singh v. Gram Panchayat, Jhinverheri and others' and RSA No. 367 of 2010 titled as 'Shamsher Singh v. State of Haryana through Collector Kurukshetra and others' shall be decided together. The lower appellate Court had decided Civil Appeal No. 100 of 2008 preferred by appellant -Shamsher Singh and Civil Appeal No. 119 of 2008 preferred by the State of Haryana through Collector Kurukshetra vide a common judgment dated 31st August, 2009. RSA No. 4685 of 2009 has been preferred against the decision in Civil Appeal No. 100 of 2008, whereas RSA No. 367 of 2010 challenging the decision in Civil Appeal No. 119 of 2008.

(2.) APPELLANT -Shamsher Singh had instituted a suit for permanent and mandatory injunction. It was prayed in the suit that Gram Panchayat, Jhinverheri, Tehsil Pehowa, District Kurukshetra; State of Haryana through Collector Kurukshetra; SDO, PWD (B&R), Pehowa; Range Forest Officer, Pehowa; and Block Development and Panchayat Officer, Pehowa be restrained by issuing a permanent injunction from raising further construction of Nullah (drain) in the land of the plaintiff and the defendants be further restrained from removing Safeda (eucalyptus) trees standing in the suit land and further a mandatory injunction be issued directing defendants to the suit to remove the illegal encroachments which they had made by constructing incomplete Nullah (drain). It was pleaded in the suit that the appellant -plaintiff was recorded as a co -owner being the co -sharer of agricultural land measuring 262 Kanals 6 Marias comprised in Khewat No. 2 Khatoni No. 3 min, total kittas 37 (whole Khewat) situated in village Jhinverheri, Tehsil Pehowa, District Kurukshetra, vide jamabandi for the year 1997 -98 It was stated that the appellant -plaintiff was recorded as a co -sharer in possession of the suit land and he was in exclusive possession of Khasra numbers 19/1,24/1 and 25/1. The southern portion of these Khasra numbers is the suit land having a width of 16.9 feet in west side and 4 feet in east side with a length of 616 feet. It was further stated that the respondent -defendants have no concern with the suit property. Gram Panchayat, Jhinverheri being inimical had passed a resolution for constructing the Pucca Nullah (drain) for discharge of the dirty water including sewer water of the village in the pond situated near Ban Jhinverheri. The appellant -plaintiff had earlier filed a suit in the Court of Mr. R.P. Goyal, Additional Civil Judge (Senior Division), Pehowa seeking permanent injunction against the defendants restraining them from constructing the said Nullah. The application for ad -interim injunction filed by the appellant -plaintiff under Order 39 Rules 1 and 2 read with Section 151 CPC was dismissed on 24th December, 2002. However, the suit was pending and after dismissal of the application for injunction, the defendants along with the official machinery came to the spot on 29th December, 2002 and started digging the Nullah and raising construction of the same in the land of plaintiff and other co -sharer on war footing. On the request made by the appellant -plaintiff that the defendants have got no concern whatsoever with the land owned and possessed by him as a co -sharer and they have no right to construct Nullah in the portion of suit land, the defendants totally refused to admit the claim of the appellant -plaintiff and asserted that his application for ad -interim injunction has been dismissed and the Gram Panchayat, Jhinverheri has received a grant from the Government and therefore, they have every right to construct the Nullah in the said land. It was further stated that construction of Nullah is going on and has not completed, therefore, the defendants have not started discharging the dirty water through this Nullah to the pond of the village, as this will create nuisance and will also pollute village Jhinverheri.

(3.) A joint written statement was filed by defendants No. 2 and 3. They denied the averments made in the plaint and on merits in para No. 2 of the written statement, took a definite stand, which reads as under: