Permanent injunction cannot be granted to protect any unlawful construction obstructing public land.

JUDGMENT :

MANDEEP PANNU, J.

1. The present Regular Second Appeal has been filed by Kanshi Ram, defendant no. 4/appellant, challenging the judgment and decree dated 20.02.1998 passed by the learned Lower Appellate Court, whereby the appeal of the plaintiff– Krishan Lal was allowed, reversing the judgment and decree dated 10.02.1995 passed by the learned Trial Court, which had dismissed the suit of the plaintiff.

Brief Facts

2. The case set up by the plaintiff was that he is owner in possession of a plot, marked as Bara, ABCD shown in red colour in the site plan, situated in village Bakhra, Tehsil and District Bhiwani. It was pleaded that about four years prior to the institution of the suit, the plaintiff had constructed a well at a cost of Rs.30,000/- on the suit land, which is owned and possessed by him. The well had been constructed to provide drinking water to the inhabitants of the village. The grievance of the plaintiff was that due to political rivalry, the defendants, particularly Om Prakash, Sarpanch of the Gram Panchayat, who had no concern with the disputed well, threatened to remove the same. It was alleged that the defendants had no right to do so, and thus, the plaintiff prayed for a decree of permanent injunction restraining the defendants from damaging or removing the well.

3. The defendants contested the suit by filing a written statement wherein it was pleaded that the plaintiff had no locus standi to file the suit as he was neither the owner nor in possession of the land in question. According to the defendants, the plaintiff had encroached upon a thoroughfare and constructed the well therein. It was stated that Gram Panchayat had earlier filed an application under Section 7 of the Punjab Village Common Lands (Regulation) Act before the SDM, Bhiwani, who inspected the spot, demarcated the land, and passed an order dated 02.04.1992 holding that the well in dispute was situated in the thoroughfare (phirni). It was further pleaded that the plaintiff had even agreed to remove the well at that stage, but by concealing these facts, he filed the present suit with a mala fide intention to grab the Panchayat land. The defendants, therefore, sought dismissal of the suit.

4. From the pleadings of the parties, the following issues were framed:

1. Whether the well in question has been sunk by the plaintiff on his own land? OPP

2. Whether the suit is not maintainable in the present form? OPD

3. Whether the plaintiff is estopped by his own act and conduct from filing the suit? OPD

4. Whether this Court has no jurisdiction to entertain and try this suit? OPD

5. Relief.

5. In support of his case, the plaintiff examined himself as PW1, besides examining Mohar Singh as PW2, Nanar Singh as PW3, and Ram Kumar as PW4, and thereafter closed his evidence.

6. On the other hand, the defendants examined Om Prakash as DW1 and Kanshi Ram (defendant no. 4) as DW2. They also tendered in evidence documents Ex. D1 (copy of plaint in earlier proceedings), Ex. D2 (copy of the judgment of the SDM, Bhiwani), and Ex. D3 (site plan). After tendering the said documents, the defendants closed their evidence.

Findings of the Trial Court

7. The learned Trial Court, on appreciation of oral and documentary evidence, observed that the plaintiff had led oral evidence to the effect that he had constructed the well on his own land at a cost of about Rs.25,000/- to Rs.30,000/-. It was further deposed that he tethered cattle in the Bara where the well was situated. On the other hand, the defendants placed reliance upon Exs. D1, D2, and D3. DW1 Om Prakash deposed that the land was not private property but formed part of shamlat/common land. Ex.D2, a copy of the judgment of the SDM, Bhiwani, clearly held that the land in dispute was shamlat land and that the well had been constructed in the thoroughfare (phirni). DW2 Kanshi Ram also supported the case of the defen