CHAHI Vs. RAJINDER SINGH

JUDGEMENT

(1.) Chhotu (dead) son of Ramji Lal represented by his legal heirs Rajinder Singh, Ram Saroop, Nafe Singh sons and Krishna Kumari daughter resident of village Kharbala, Tehsil Hansi, filed suit for declaration against Smt. Chahi widow of Mathura son of Tokha, Hari Kishan son of Mathura son of Tokha, resident of village Kharbala, Tehsil Hansi and Gram Panchayat of village Kharbala through its Sarpanch Sangat Ram to the effect that he (Chhotu) and others inhabitants of the village have been using the land measuring 35 kanals 10 marlas as detailed in the heading of the plaint shown as red in the plan attached thereto Ex. P-1, situated within the phirni of the village since the village was founded and the entries recorded in the revenue record so far as its ownership goes are wrong and are liable to be corrected and further the auction of the land held by the Custodian was illegal, null and void, ab initio, against facts and without jurisdiction and so is the order of the Deputy Secretary (Rehabilitation) Department, Haryana dated 19-4-1978 passed in appeal (Bhartu v. Smt. Chahi etc.) and the same is not binding on his rights and by way of permanent injunction restraining Smt. Chahi and Hari Kishan-defendants Nos. 1 and 2 from obstructing in any manner whatsoever his right to use that land or pass through that land by raising fence or construction.

(2.) It was alleged in the plaint that the land in suit is gair mumkin 'Johar' (gair mumkin pond) and gair mumkin rasta and is lying vacant/unsown at the spot. He and other inhabitants of the village are using the land in suit for their common purposes since village was founded. Land in suit is not in any one's ownership or possession. Six streets of the village pass through this land which have been shown in the site plan Ex. P-1 attached to the plaint. He and all other inhabitants of the village pass through these streets. Their cattle pass through these streets and they after passing through these streets/this land reach their fields, pond and well. In some part of the land in suit, there is a big pond in which he and the other inhabitants of the village water their cattle. In other portion of this land his and the cattle of the other inhabitants of the village stand in wait for their turn of water. A bigger portion of the land is being used as a grazing ground for the cattle. He and the other inhabitants of the village bake dung cakes and have set up dung hills there. His sheep and gotas stand in this land and graze grass. People of the village collect dung cakes from this land. Under the orders of the Government of Haryana, Gram Panchayat has set up manure pits in this land in which he and the other inhabitants of the village dump their dung and manure. He and the other inhabitants of the village excavate earth from the point and mould bricks. They set up kilns in the land in suit and bake bricks. He and the other inhabitants of the village have been using the land in suit without any let or hindrance since the village was founded. The land in suit belongs to the Gram Panchayat and is a gair mumkin johar.

(3.) Defendants Smt. Chahi and Hari Kishan conspired with the Rehabilitation Authorities and got the land in suit auctioned in favour of Smt. Chahi-defendant from the Rehabilitation Department. Objections were filed against the auction order but they were rejected. Appeal was filed before the Deputy Secretary (R) which was also dismissed on 19-4-1978. Entry recorded in the roznamcha-waqe-ati that possession had been delivered was a fake entry. In fact, no physical possession was delivered to the defendants. Tehsildar (Sales) had no authority to issue warrant of possession. It was further alleged that they had acquired right of easement to pass through those streets/land. Some people of the village filed objections to the auction. Defendants Nos. 1 and 2 got these objections dismissed in collusion with the Rehabilitation Authorities. Defendant Nos. 1 and 2 got the appeal filed by them dismissed which was again the result of collusion between defendants Nos. 1 and 2 and the said appellants. That appeal was dismissed by the Deputy Secretary (Rehabilitation) Department, Haryana. Defendants Nos. 1 and 2 are influential persons. They are in league with certain members of the Panchayat. They want to raise fence and construction, and thus to deprive them of the use of those streets and passage.