BALBIR SINGH Vs. UMED & OTHERS

JUDGEMENT

(1.) A suit seeking a declaration filed by the plaintiff Balbir Singh to the effect that he is owner in possession of the suit property and that the order dated 27.12.2007 passed by the Assistant Collector 1st Grade, Hansi and order dated 6.1.2009 passed by the Collector, Hisar being bad in law and further seeking the consequential relief of permanent injunction restraining the defendants from taking possession of the suit property, was dismissed by the Trial Court vide judgement dated 30.9.2010. Even a civil appeal preferred by the appellant has met the same fate in terms of judgement dated 3.3.2012 passed by the Additional District Judge, Hisar. Accordingly, the plaintiff-appellant is in second appeal before this Court. I have heard Mr. R.N. Lohan, learned counsel appearing for the appellant at length.

(2.) Briefly noticed, the plaintiff instituted a suit in terms of pleading that he is a permanent resident of village Dharam Kheri and was stated to be residing in the village since his birth. It is pleaded that the forefathers of the plaintiff had constructed the house in question over an area measuring 170 sq. yards. It was further stated that the land upon which RSA No. 2390 of 2012(O&M) -2-the house was constructed was situated outside the Abadi Deh of the village. Plaintiff pleaded that he was in continuous and peaceful possession of the suit property since a long stretch of time and only on account of the fact that the plaintiff had supported one Satya Narain in the Panchayat Elections and who lost to Jage Ram for the post of Sarpanch and accordingly due to such rivalry in the village the defendants had obtained a demarcation report dated 8.1.2001/20.1.2001 in respect to the suit property and such demarcation report was without following due procedure and contrary to the instructions issued by the Financial Commissioner, Haryana. It was pleaded that on the basis of such demarcation report the defendants had filed a petition under Section 7 of the Punjab Village Common Lands Act and the Assistant Collector 1st Grade, Hansi vide impugned order dated 27.12.2007 had ordered the ejectment of the plaintiff. Even the appeal filed by the plaintiff before the Collector, Hisar stands dismissed vide order dated 6.1.2009 and the defendants were threatening to take possession of the suit property. Plaintiff pleaded that the impugned orders regarding his ejectment are illegal in as much as question of title regarding the suit property has not been gone into and adjudicated upon.

(3.) The suit was contested and it was stated that the land in dispute upon which the plaintiff was stated to have encroached upon and raised construction was part of Phirni in Khasra No. 163, which was in the ownership and possession of the Gram Panchayat. As there had been encroachment at the hands of the plaintiff as also the other villagers, an application had been moved before the B.D.P.O concerned and a demarcation was conducted by Halqa Kanungo as per procedure and after effecting Munadi in the village through Chowkidar. It was stated that at the RSA No. 2390 of 2012(O&M) -3-time of demarcation the Patwari Halqa, Sarpanch as also various other residents of the village had been present. In terms of the demarcation report 48 persons including the plaintiff had been found to have encroached the land comprised in Khasra No. 163, which was the common passage/Phirni. Despite the repeated requests to the plaintiff the encroachment had not been removed and which in turn had necessitated the filing of the petition before the Assistant Collector 1st Grade, Hansi, wherein the ejectment order had been passed and the same has been affirmed by the Collector.