BEHARI Vs. HIGHNESS MAHARAJ HARRINDER SINGH

JUDGEMENT

(1.) A representative suit which culminated in this second appeal, was instituted by some landowners on behalf of all the landowners of the village Ballabgarh under Order 1, Rule 8, Code of Civil Procedure. It was for mandatory injunction for demolition of the constructions alleged to have been raised by Behari, Tej Ram and Narain Dass (now the appellants,) Baldev Raj (now respondent No. 5), and Devi Ram (now respondent No. 7) on a portion of the land comprised in Field No. 200, Khatauni No. 262, Khewat No. 170, located within the municipal limits of village-Ballabgarh (hereinafter called the land) and to restrain them from raising any construction thereon in future. The plaintiffs succeeded in the suit. Behari, Devi Ram, Tej Ram and Narain Dass carried appeal which was dismissed by the learned Additional District Judge, Gurgaon. Hence, Behari, Tej Ram and Narain Dass came to this Court in second appeal.

(2.) The material facts, relevant for decision of the controversy, are that the land belonged to all the proprietors of the village and was reserved for the resting of the cattle of the village (baithak mewashian); that the plaintiff respondents and Behari, Devi Ram, Tej Ram and Narain Dass and other residents of the village were proprietors; that Behari, Devi Ram, Tej Ram and Narain Dass had given a portion of the land to Baldev Raj and all of them, viz., Behari, Devi Ram, Tej Ram, Narain Dass and Baldev Raj, had raised certain constructions and thereby debarred the proprietors of the village to use the land for the purpose for which it had been reserved. The suit was resisted by the appellant and other defendant respondents. They admitted that the land was shamilat-deh, but controverted the allegation that it was reserved for resting of the cattle of the village (baithak mewashian) and pleaded inter alia that the appellants and Devi Ram were in possession of portion of the land not exceeding their share as co-sharers and, as such, the suit was no maintainable. Hence, the suit was tried on the following issues :-

(3.) Mr. Daljit Singh Chahl, learned counsel for the appellants, relying on Sukhdev V. Parsi and others, 1940 AIR(Lah) 473 a and Sant Ram Nagina Ram V. Daya Ram Nagina Ram and others, 1961 AIR(P&H) 528 has contended that since they (the appellants) were co-sharers in the land being landowners in the village, they could use it for any purpose till partition was claimed by the other proprietors and suit for mandatory injunction was not maintainable against them. In my opinion, his contention is not well founded. Sukh Dev's and Sant Ram Nagina Ram's case relied upon by him relate to joint property held by co-owners. These cases were not respecting the land which was reserved for the common purpose of the village. Even at No. (9) in Para 78 (at page 539) in Sant Ram Nagina Ram's case it has been observed that where a portion of the joint property is, by common consent of the co-owners, reserved for a particular common purpose, it cannot be diverted to any inconsistent user by a co-owners; if he does so, he is liable to be ejected and the particular parcel will be liable to be restored to its original condition. It is not necessary in such a case to show that special damage has been suffered. The said observations are contrary to the contention raised by Mr. Chahl and go a long way to support the judgments and decrees recorded by the Courts below. The learned counsel appearing for the contesting respondents referred to me to Ghan Singh and 41 others V. Sadda Singh and 2 others, 73 P.R. 1882, Ishwar Singh and another V. Atma Singh and others, 117 PR 1894, and Sunder Singh and others V. Harnam Singh and others, 1939 AIR(Lah) 514 The rule laid down in the said judgments is to the effect that when any land is by consent reserved for a common purpose, i.e. for the use of the village cattle, or as dharamsala, mosque, graveyard or public bays, no individual proprietor can come forward and occupy the same or use it against the public purpose. Whenever some land is reserved by all the proprietors of the village for common advantage, no proprietor can claim a right to individual possession or obstruct the user of the same for the common advantage for which it has been reserved. It has been held on the evidence present on record by both the Courts below that the land had been reserved for resting of the cattle of the village and admittedly that was a common purpose for which the proprietors of the village had reserved the land. Exhibit P.3 is copy of the jamabandi for the year 1954-55. It is clearly mentioned therein that the land alongwith the land comprised in Field No. 201 measuring 9 kanals 1 marla in all had been reserved for resting of the cattle. A presumption of truth or at least correctness is attached to the said entry recorded in that jamabandi. The said presumption has not been displaced by any material on the record. Therefore, the finding of the Courts below on issue No. 3 that the land was reserved for the common advantage of the proprietors of the village is unassailable, and I affirm the same. As soon as it is held, as I do, that the land had been reserved for common advantage of the proprietors of the village, the mandatory injunction granted by the Courts below is fully warranted in view of the rule laid down in the above referred to three judgments cited by Mr. K.C. Puri, learned counsel for the plaintiff-respondents, and the appellants had no right whatsoever to raise any construction on a portion of the land because by doing so they would be denying the common advantage for which the land had been reserved by the proprietors of the village.