BALDEV SINGH Vs. STATE OF HARYANA & OTHERS

JUDGEMENT

(1.) The present appeal has been filed by plaintiff No.2 who is aggrieved against the concurrent findings of the Courts below whereby his suit for permanent and mandatory injunction has been dismissed.

(2.) The suit filed by three plaintiffs was that the defendants be restrained from digging out any drain/nala in the suit land as detailed in para No.1 of the plaint and a decree for mandatory injunction in the alternative, if the Court comes to the conclusion that digging of drain/nala in the suit land was in the benefit of the public at large, that the defendants be directed to dig out the nala starting it from tail, i.e., revenue estate of village Mangna. The case of the plaintiff was that the suit land as detailed was Malkiat Mahaji Malkan as per Jamabandi for the year 1940-41 and lateron the mutation of the same was made in the name of Gram Panchayat Kheri Shishgarhan, Tehsil Pehowa, during consolidation but no compensation was paid to the Mahaji Malkan including the plaintiffs nor any exchange was given. The suit land was left for gair mumkin khal as per the revenue record after consolidation. Before consolidation, the suit land as mentioned in para No.2 of the plaint was also Mahaji Malkan and during consolidation, it was allotted to the Mahaji Malkan and no gair mumkin khal was left in the village Gumthala Garhu because there was no need of such like khal. The suit land, mentioned in para No.1 of the plaint which is now shown as gair mumkin khal was never used as khal for the last more than 70 years and there was no flow of any excess water and during consolidation, the Mahaji Malkan of village Gumthala Garhu got the land in their shares but in the village of Kheri Shishgarhan, Guldera, Dhulgarh and Mangna it remains as gair mumkin khal in the revenue record but was never used as gair mumkin khal and the suit land in all the four villages was never used as agricultural land for the last more than 50 years. Accordingly, it was pleaded that the entries in the revenue records are wrong, null and void and the Gram Panchayat, Kheri Shishgarhan, Tehsil Pehowa leased out the suit land in open auction in the year 2000-01 and the land in the revenue records it is shown as agricultural land. There was no necessity to dig out the nala in the suit land as there was no way of discharge of the water and the defendants were, in collusion with each other, threatening to dig out nala in the suit land forcibly for which they have no right to do so and if they are allowed to do so,the water will be filled in the nala and it will not flow further and it will be stopped at the boundary of the village Guldera and the land of the plaintiffs will be damaged and in case of over-flowing of the water, the crops of the plaintiffs will be destroyed. In the alternative, it was prayed that the defendants be permitted to start digging it out from tail, i.e., from the end of the revenue estate of village Mangna so that the nala will fall in the Saraswati drain. Accordingly, it was prayed that the suit had been filed in representative capacity. Defendants No.1 & 2 filed joint written statement stating that Kashmir Singh and Sahab Singh of village Kheri Shishgarhan had filed another suit seeking injunction against the defendants from digging out the drain and the defendants had been restrained from digging out the drain vide order dated 17.05.1999. The civil Courts jurisdiction being barred, preliminary objection was taken. Defendants No.4 to 9, private respondents and Gram Panchayat, Kheri Shishgarhan filed their written statement stating that the land was reserved for gair mumkin drain and was not agricultural land and the suit land was Saraswati drain and lying vacant and was low lying area and the Gram Panchayat wanted to dig out the nala to drain out the surplus rainy water of the area but the plaintiff obstructed the construction work without any right or title. Defendants No.10 & 11 being Gram Panchayat, Guldera also pleaded on the same lines regarding encroachment in the suit property and that the plaintiffs were trying to grab the property owned by the Gram Panchayat. Defendant No.14, Block Development and Panchayat Officer, Pehowa, filed separate written statement taking preliminary objections and on merits, submitted that the suit land was not agricultural land but it was gair mumkin as mentioned in the revenue record which was correct and binding. The Gram Panchayat passed a resolution to dig the nala and to dig the nala and to plant trees on the banks of both sides of the nala. Replication was also filed alleging violation of the rules of the Haryana Panchayati Raj Act, 1994 and Punjab Village Common Land (Regulation) Act, 1961 and that the defendants were digging out the drain not in accordance with the designs submitted by the defendants No.15, 16 & 17 who were the Officers of the Water Supplies Division and Irrigation Department. It was also contended that the defendants, in collusion with each other, had dug out the drain in the suit property forcibly and illegally in violation of the order of this Court dated 11.11.2003. The defendants also removed the earth from the land owned by the plaintiffs which was adjacent to the suit land and separate proceedings are also pending in the Court. On the basis of the pleadings of the parties, the trial Court framed the following issues:

(3.) Plaintiffs examined as many as 12 witnesses whereas the defendants examined 5 witnesses and after examining the evidence on record, the trial Court came to the conclusion that the drain was being dug out by the defendants adjacent to the land of the plaintiffs and the land of the plaintiffs was on both sides of the drain and the villagers had filed separate suits to stop the work of the defendants which was as per the approval given of the proposed drain vide Exhibit P1. It was noticed that the purpose of the drain was to drain out the village waters and to save the fields of the village and the water was to flow into the Saraswati drain and take away the excess rainy water and would prevent causing of floods in village Kheri Shishgarhan. It was accordingly held that the plaintiffs had no revenue record in their favour and being villagers, were unnecessarily approaching the Courts time and again and the drain was being constructed by the defendants as per the approved sanction. Accordingly, it was held that the plaintiffs had no right over the suit property and cannot be allowed to misappropriate and misuse the public property. The fact that the land of the plaintiffs was 2 fit higher from the drain which was to be constructed and that the land of the plaintiffs itself would be protected as the excess water would fall into the drain and would fall in the Saraswati drain, was taken into note of, and accordingly, injunction was declined by deciding issues No.1 & 2 against the plaintiffs. Issues No.3 to 8 & 10 were not pressed by the defendants. Under issue No.9 that the plaintiffs were harassing the defendants and obstructing development work and had delayed the matter by number of years as the suit was filed in the year 2002 and thus caused loss to the Government, the suit was dismissed with special cost of Rs.5000/-.