Gram Panchayat Village Garhi Balab vs Dalip and Others

L.N. Mittal, J.—Defendant Gram Panchayat village Garhi Balab has filed this second appeal. Respondents/plaintiffs Dalip etc. filed suit in representative capacity under Order 1 Rule 8 of the CPC against defendant-appellant. The dispute relates to a pond existing in the suit land in village Anwal are entitled to use the pond for drinking of water by cattle and for other purposes, but the defendant wanted to lease it for fish farming, thereby obstructing rights of plaintiffs and other biswedars of the village to use the pond. Accordingly, plaintiffs sought permanent injunction restraining the defendant from interfering and obstructing the use and enjoyment of the pond by plaintiffs and other biswedaran and getting the pond water filled with water and from leasing out the same for fish farming.

Defendant admitted that the pond is common pond and all villagers are using it. However, the defendant pleaded that the pond is leased out for fish farming by the defendant Gram Panchayat. It was also pleaded that Government has given grant of Rs 10 lacs for improvement of the pond and construction of retaining wall etc. and for repairs. Various other pleas were also raised.

Learned Additional Civil Judge (Senior Division), Rohtak vide judgment and decree dated 20.2.2009 dismissed the plaintiffs'' suit. However, first appeal preferred by plaintiffs has been allowed by learned Additional District Judge, Rohtak vide judgment and decree dated 15.6.2009 and thereby suit filed by the plaintiffs stands decreed restraining the defendant from interfering and obstructing in user and enjoyment of the disputed pond and from filling up water therein, by the plaintiffs and other inhabitants of village Anwal and from leasing out the pond for fish farming. However, the defendant has been given liberty to make improvement in the pond without obstructing the right of user and enjoyment of the plaintiffs and other inhabitants of village Anwal. Feeling aggrieved, defendant has filed the instant second appeal.

I have heard learned counsel for the parties and perused the case file.

At the outset, counsel for the appellant stated that the appellant - defendant now does not intend to lease out the disputed pond for fish farming and plaintiffs and other inhabitants of the village would be allowed to use the same as hereto before. In view of this submission, grievance of the plaintiffs stands redressed.

Counsel for the appellant, however, contended that lower appellate court in paragraph 14 of its judgment has held that Gram Panchayat of village Anwal is entitled to income of lease of the pond which would be used for benefit of inhabitants of village Anwal only. Counsel for the appellant contended that the appellant Gram Panchayat of village Garhi Balab is aggrieved by aforesaid finding of the lower appellate court. Suffice to observe that the said finding shall have no bearing on the rights of the defendant-appellant because said issue was not involved in the suit and Gram Panchayat Anwal is also not party to this lis. Consequently, the said issue is left open to be adjudicated upon in appropriate proceedings. Subject to the aforesaid observation, the instant second appeal is dismissed.