JAGIR SINGH Vs. GURDIAL SINGH

JUDGEMENT

(1.) THIS Regular Second Appeal has been filed by the defendant- appellant Jagir Singh against the judgment and decree dated 23.8.1990 passed by the learned Additional District Judge, Ropar, whereby the appeal filed by the plaintiffs/respondents against the judgment and decree dated 17.2.1988 passed by the learned Sub-Judge Ist Class, Kharar, has been accepted and the judgment of the trial Court has been set aside. The defendant-appellant Jagir Singh who filed this appeal for setting aside the judgment and decree of the learned Additional District Judge, Ropar died during the pendency of the appeal and his LRs were impleaded in his place on 20.3.2001.

(2.) THE plaintiffs-Gurdial Singh and others filed a suit for permanent injunction for restraining the defendants from taking forcible possession by encroaching upon the land which was being used as common site 'ABCD', including a well as detailed in the head note of the plaint. It is alleged that the suit property is owned and possessed by the Mazhbi community from time immemorial of village Batta. Since the members of the village community were huge in number and all of them could not be joined, the suit was filed in a representative capacity in terms of Order 1 Rule 8 of the Code of Civil Procedure (CPC, for short) on behalf of the village community. It is alleged that Jagir Singh (defendant No. 1) and Surjit Singh (defendant No. 2) who are also Mazhbi Sikhs had revolted against the village community and with their help, defendant Nos. 2 and 3 want to demolish the wall 'AD' in order to usurp the site 'ABCD' with their site or they want to open a door through the wall 'AD', in order to encroach upon the site in dispute and to put the same to their exclusive use. It is further alleged that the wall 'AD' was constructed by the village Mazhbi Sikh community about 15 years back to safeguard the proper user of the site in dispute. Of late, the wall had cracked down and feeling that the present site is just adjoining to the site of the defendant Nos. 2 and 3, they have felt allured and under that greed they want to usurp the said site and annex it with their own site.

(3.) THE learned trial Court, after considering the evidence and material on record, decided issue No. 1 in favour of the plaintiffs-respondents and held that the suit property was owned and possessed by the Mazhbi Sikh community of village Batta. Insofar as the judgment, Ex. D-1, i.e. the judgment dated 9.12.1985 passed by the learned Sub Judge Ist Class, Kharar, in favour of Jagir Singh (defendant No. 1) is concerned, it was held while deciding issue No. 3 that the same did not have any affect as the plaintiffs were not party to the ex parte decree obtained by Jagir Singh (defendant No. 1). The suit was, however, held to be not maintainable in the present form as no leave of the Court had been taken to file the suit in a representative capacity and the suit could be filed only with the permission of the Court. Accordingly, issue No. 4 was decided in favour of the defendants-appellants. The plaintiffs were held not to have any locus standi to file the suit and issue No. 6 was accordingly decided in favour of the defendants. Issue Nos. 5 and 8 were not pressed. Therefore, the same were decided accordingly against the defendants. Issue No. 2 was decided against the plaintiffs and it was held that they are not entitled to the injunction prayed for. Accordingly, the suit was dismissed.