GIAN CHAND Vs. MURARI LAL AND OTHERS

JUDGEMENT

(1.) The defendant has preferred this second appeal aggrieved by the orders passed by the Courts below partly decreeing the suit of the plaintiff- respondents restraining the defendant-appellant from preventing the plaintiffs and other inhabitants of the village from using the land comprised in khasra No. 901 measuring 58 sq. yards for common purposes as Koodhi for collection of Gober, waste of catties, agricultural manures and from raising any construction over the suit land, claiming that the said land has been used for common purposes and in enjoyment by all the inhabitants of Village Hirapur as Koodhi for collecting of Gober, dank-cakes etc. shown as ABCD in Aksh Shijra. The defendant-appellant had allegedly fabricated a false document in the form of Ikrarnama dated October 21, 2001 vide which the defendant-appellant Nos. 3 to 6 had allegedly sold the suit land to defendant Nos. 1 and 2. It was claimed that the defendants are neither the owners of in possession of the suit land and that they have no right or title in the suit land. The defendant-appellant had threatened to stop the plaintiff-respondent and other inhabitants from putting gober and agricultural manure and waste of catties over the Koodhi in question. The defendant-appellant had denied that the property in dispute was used as Koodhi or that it was shamlat Deh or was being used for common purposes and enjoyment by all inhabitants of Village Hirapur. It is claimed that the suit land was gitwar of defendants 3 to 6 who were the owners being co-sharers, in the actual physical possession of the property in dispute alongwith plaintiff- respondents. On appreciation of evidence, the Courts below have arrived at a conclusion that the suit land is shamlat deh used for Koodhi i.e. for collection of Gober, dank-cakes etc. by all the inhabitants of Village Hirapur and that the plaintiff-respondents and the defendants have a right to use the suit land but not to the exclusion of each other and other inhabitants of the village. It has been held that suit land is shamlat deh and that the Gram Panchayat can change its nature subject to rules and regulations by adopting due procedure of law as such no perpetual injunction could be granted. In view of the said finding, the suit of the plaintiff-respondents has been partly decreed as prayed for.

(2.) Learned counsel for the defendant-appellant has vehemently contended that the suit for injunction is not maintainable as the property in dispute is admittedly a shamlat land vesting in Panchayat. It has been argued that in view of Section 41H of the Act, injunction cannot be granted when equally efficacious relief can certainly be obtained by any other usual mode of proceedings except in case of breach of trust. It has also been argued that the remedy which was available to the defendant-appellant was to file a petition under Section 7 of the Punjab Village Common Land (Regulation) Act, 1961 as applicable to Haryana. Following substantial question of law was sought to be raised by counsel for the defendant-appellant.

(3.) Counsel for the appellant has placed reliance on the judgment of Jai Parkash v. Ram Narain, 2010 157 PunLR 571, wherein it has been held that a public Street falls within the definition of shamlat deh from which any encroachment can be removed or illegal possession can be removed under provisions of Section 7 of the Act and that a suit regarding shamlat deh is not maintainable in view of Section 13B of the Punjab Village Common Land (Regulation) Act. Counsel for the appellant has referred to Section 7 and Section 13B of the Act.