GRAM PANCHAYAT Vs. BUDHA RAM

JUDGEMENT

(1.) CHALLENGE in this petition filed under section 115 of the Code of Civil Procedure (for brevity "the Code") is to the order dated 1.3.2001, passed by the Additional District Judge, Faridabad, accepting the appeal of the plaintiff-respondents, in which the order dated 12.12.2000, was impugned. The Civil Judge (Junior Division), Faridabad in his order dated 12.12.2000 has declined the prayer of the plaintiff-respondents for issuance of an interim order under Order 39 Rules 1 and 2 of the Code.

(2.) THE facts, in brief, necessary for deciding the legal controversy raised in the present petition may, first be noticed. The Plaintiff-respondents instituted Civil Suit No. 411 on 12.8.2000 for permanent injunction alleging that they are residents of village Badarpursaid, Tehsil and District Faridabad. According to the averments made in the plaint, it is claimed that a pipe exists towards the pucca road on the Eastern and Western wings through which the waste water of the dwelling houses of the plaintiff-respondents is being discharged since long time and the waste batter carried through the pipe falls in the village pond after passing through the two karams passage. The houses of the plaintiff-respondents are connected with the two karams passage through that pipe. The two karams passage is shown red in the site plan which has been placed on record by the defendant-petitioner and is marked "A". It is further pleaded that at one stage, one Lakhi Singh along with others made an attempt to remove the said pipe with an intention to encroach upon the two karams passage, which resulted into initiating proceedings under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (for brevity "the Act") through the Sarpanch and the Assistant Collector Ist Grade, Faridabad held that the encroachment upon the passage was illegal. Thereafter, Lakhi Singh filed a civil suit against the Gram Panchayat in respect of the same passage and sewerage. However, the prayer of Lakhi Singh for issuance of an interim injunction was declined vide order dated 19.5.1988. Even the appeal against the order dated 19.5.1998 was dismissed by the Additional District Judge on 3.12.1999. It is further alleged that the defendant-petitioner Lakhi Singh again in collusion with the present village Panchayat has been threatening to remove the cemented pipe and to encroach upon the passage of two karams in question forcibly and illegally, which has resulted into filing of the suit by the plaintiff-respondents along with the application under Order 39, Rules 1 and 2 read with Section 151 of the Code.

(3.) AFTER hearing, the Civil Judge dismissed the application of the plaintiff-respondents 1 to 9. The Civil Judge recorded the finding that the Rasta measuring two karams wide existing on the spot is for the common use of the people. He further held that the pipe which has been affixed on the Rasta of the plaintiff-respondents had already been removed by order of the Sub Divisional Magistrate. He also referred to a copy of the Jamabandi in which the land in dispute is shown to be Shamilat Deh and the same is being used as Rasta of defendant-respondents 10 to 13 and the other inhabitants of the village. The civil Judge also referred to the site plan marked "A" to conclude that the defendant-petitioner has planned to construct the outlet of waste water for the villagers and after construction of the proposed Nali (drain) shown in yellow colour, the water would fall in the "Filing water- Panchayat land-Deep area". The existence of two karams Rasta being used by the residents of the village along with defendants-respondents 10 to 13 is also proved by Aksh-Shizra. Further, reliance has been placed by the Civil Judge on the order dated 1.8.2000 passed by the B.D. and P.O., where directions were issued to uproot the cemented pipe installed by plaintiff-respondents 1 to 9 with the help of the police. The Panchayat was also directed to make pucca road and to ensure further that there may not be any wrongful installation of such pipe. The land in dispute is claimed to be Shamilat Deh which is meant for all the residents of the village and the defendant- petitioner Gram Panchayat was held to be owner of the land in dispute. On the basis of the aforementioned reasons, the application for ad interim injunction was rejected.