Tale Ram (died) by his Legal Representatives vs Assistant Collector, Ist Grade Bahadurgarh and anr.

D.V. Sehgal, J.—The petitioner claims that he is the owner in possession of a plot of land within the abadi deh of village Rohad, marked `ABCD'' in the site plan which he had filed along with his suit with the Assistant Collector, respondent No. 1. He states that the possession of the same is from his forefathers since the times immemorial. In the year 1951, one Birkhe Ram son of Ram Kala filed a suit against Pohpa father of the petitioner, for possession of the said plot, which was, however, dismissed by the learned Sub Judge, 3rd Class, Rohtak, vide judgment and decree dated 25.4.1952 (Annexure P.1). It was inter alia held therein that Pohpa, father of the petitioner, and Pirthi, brother of Pohpa, have built some kothas on the land and, as they are proprietors in the village, they have, therefore, got the right to take exclusive possession of a portion of village common land and their possession cannot be disturbed till partition. More than a decade later, Tek Chand etc. had filed a suit for injunction restraining Pohpa from interesting with the alleged possession of the plaintiffs on the plot, in dispute, and from making constructions on the vacant site. The suit was, no doubt, decreed by Sub Judge, Ist Class, Jhajjar, but on an appeal, the learned Senior Sub Judge Rohtak, exercising enhanced appellate powers vide his judgment dated 29.7.1964 (Annexrue P.2), set aside the aforesaid judgment and decree. The petitioner thus submitted that, after the death of his father Pohpa, he has been in continuous and uninterrupted possession of the plot, in dispute, and his construction stood there. On 5.1.1976, the Gram Panchayat Rohad. Respondent No. 2, in collusion with some other residents of the village and in the absence of the petitioner, demolished the pucca walls of his Gher at the plot, in dispute. He filed a suit in the Court of respondent No. 1 by invoking his powers under Section 13B of the Punjab Village Common Lands (Regulation) Act, 1961, as applicable to the State of Haryana (for short the Act) seeking a decree for permanent injunction to restrain respondent No. 2 from dispossessing him from the site, in dispute. Respondent No. 1, vide judgment dated 26.9.1978 (Annexure P.3) dismissed the suit, holding that the land, in dispute, though in possession of the petitioner, is meant for common purposes of the village as on three sides it is surrounded by thoroughfares and on the fourth side there is Chaupal of the village. The petitioner preferred an appeal before the Collector, Rohtak, but it was held to be not maintainable, vide order dated 21.1.1979 (Annexure P.4). He, therefore, filed this writ petition praying for quashing the order Annexure P.3.

After hearing the learned counsel, I find that this petition must succeed. Shamilat deh as defined in Section 2(g) of the Act includes lands described in the revenue records as Shamilat deh or Charand excluding abadi deh. It, no doubt, includes lands used or reserved for the benefit of the village community including streets, lanes, playgrounds, schools, drinking wells, or ponds within the abadi deh or gorah deh. The plot, in dispute, in possession of the petitioner is undisputedly in the abadi deh. Since it has been in the uninterrupted possession of his forefathers and himself since before 1951, it cannot be said that it is used or reserved for the benefit of the village community. In fact, his construction existed on the plot, in dispute. The Gram Panchayat, respondent No. 2, therefore, could not claim possession of the same or demolish his construction, thereon. The view taken by respondents No. 1 that the plot, in dispute, is meant for common purposes, runs counter to the finding recorded in the judgment Annexure P.1.

Resultantly, I allow this petition and quash the order dated 26.9.1978 (Annexure P.3) passed by respondent No. 1. There shall, however, be no order as to costs.