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BALWINDER SINGH & ORS versus STATE OF PUNJAB & ORS

High Court of Punjab and Haryana, Chandigarh

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Balwinder Singh & Ors v. State of Punjab & Ors - CR-3952-2006 [2006] RD-P&H 4624 (21 July 2006)

In the High Court of Punjab and Haryana at Chandigarh

C.R. No.3952 of 2006

Date of decision:27-7-2006

Balwinder Singh & others ..........Petitioners Versus

State of Punjab and others ..........Respondents CORAM: Hon'ble Mr.Justice Vinod K.Sharma
Present: Mr.B.S.Guliani, Advocate, for the petitioners.

VINOD K.SHARMA,J.

2006 passed by the Additional District Judge, Fast Track Court, Ropar, affirming the order dated 15-6-2005 passed by the Civil Judge (Jr.Divn.), Ropar, rejecting the application moved under Order 39 Rules 1 & 2 read with Section 151 of the Code of Civil Procedure seeking temporary injunction restraining defendant Nos.6 and 7 namely Gurmukh Singh and Hakam Singh from raising a grave-yard by way of raising boundary wall or any other construction over the suit land measuring 2 kanals 14 marlas, situated within the Lal Lakir of village Bhagwantpur, Tehsil and District Ropar.

The claim of the petitioners was that they are Sikhs by religion and believe in Shri Guru Granth Sahib and for the betterment of Gurudwara Sahib and its Sangat they have filed the present suit.

The case of the plaintiff-petitioners was that they were not aware of Annexure P-1 i.e. site plan, and order dated 22-5-12997 (Annexure P-2) passed by the Deputy Commissioner, Roop Nagar, directing the B.D.P.O. Roop Nagar, to remove the illegal occupation of graveyard by seeking police help if required. It was the further C.R. No.3952 of 2006

case of the petitioners that order dated 7-11-2000 (Annexure P-3) which is a letter from the Deputy Commissioner addressed to the Sub Divisional Magistrate, and B.D.P.O. Roop Nagar, was also not in their knowledge . By way of the said order a reference was made to the order passed by this Court in Civil Writ Petition No.816 of 2000 filed by Roshan Ali S/O Majid Ali seeking removal of unauthorised possession over the grave-yard land. The order was passed on the basis of Annexure P-2 dated 22-5-1997 for removal of unauthorised possession by Sarvshri Didar singh and Parmatma Singh son of Ujjagar Singh from the land meant for grave-yard.

Against the said order Sarvshri Parmatma Singh and Ujjagar Singh had filed a civil suit in the Court of Civil Judge (Sr. Divn.), Roop Nagar and obtained a stay order on 18-11-1998. On appeal filed against the stay order, the learned District Judge, Roop Nagar vide his order dated 19- 1-2000 had set aside the order passed by the Civil Judge (Sr.Divn.), Roop Nagar.

Against the aforesaid order, a writ petition was filed in this Court for getting the order dated 22-5-1997 implemented. This Court vide order dated 24-01-2000 ordered that necessary order be passed on the application within three months. It was in pursuance of the direction issued by this Court that the Deputy Commissioner, Roop Nagar vide order dated 5-11-2000 issued directions for removal of unauthorized possession from the aforesaid land

The present petitioners filed CWP No.3724 of 2005 in this Court. However, the said writ petition was withdrawn by the petitioners with liberty to file a civil suit. The order passed by this Court reads as C.R. No.3952 of 2006

under:-

"The learned counsel for the petitioners prays that the writ petition be dismissed as withdrawn with liberty to the petitioners to challenge the Order Annexure P-1 by way of civil suit, if so advised.

Allowed as prayed.

Dismissed as withdrawn with liberty aforesaid." After withdrawal of the writ petition, the present suit was filed in which the application referred to above was filed. The learned trial Court on noticing the fact that the orders impugned were passed in the years 1997- 2000 and the validity of the said orders was yet to be gone into, therefore held that the petitioners had not a prima facie case in their favour. The Court also took notice of the fact that defendant Nos. 8 and 9 were respondent Nos. 6 and 7 in CWP No.11338 of 2002 which was disposed of by this Court on 15-1-2004. The Court also took notice of the finding recorded by the Qanungo in his report dated 5-5-1997 that it was established that the Kabristan was identified at the spot. It was also noticed that respondent Nos.6 & 7 had failed in the Civil Courts on earlier occasion.

Therefore, the Court declined the injunction. The trial Court also took note of the fact that in pursuance to the order passed by this Court, respondent Nos.6 & 7 i.e. defendant No. Nos. 8 & 9 in the present case were removed from the possession of the said grave-yard and in this regard a report was made on 17-9-2004. The Court also came to the conclusion that merely because the plaintiffs were not parties to earlier litigation, did not give them any right to claim the relief of temporary injunction against respondent Nos.6 & 7 when this Court had already passed an order directing the C.R. No.3952 of 2006

official respondents to decide their representation.

The petitioners herein filed an appeal against the order rejecting the application under Order 39 Rules 1 & 2 of the CPC before the Additional District Judge, Ropar. The learned lower Appellate Court came to the conclusion that order dated 22-5-1997 was passed by the Deputy Commissioner, Ropar, for vacation of the land of grave-yard from the possession of defendant Nos.8 & 9. It was further held that the said order was passed by the competent authority and thereafter an order was passed by the Deputy Commissioner, Roop Nagar, on 7-11-2000 directing the Sub Divisional Magistrate, Roop Nagar and Block Development and Panchayat Officer to implement order dated 22-5-1997 and report its compliance within one week.

The learned lower Appellate Court also took note of the fact that the injunction order obtained by defendant Nos.8 & 9 from the Civil Court was vacated by the then learned District Judge, Ropar on 19-1-2000.

The Court also took notice of the fact that the order directing the vacation of the grave-yard was upheld by the this Court vide order dated 24-1-2000. In view of this, it was held by the Appellate Court that the plaintiff -petitioners had no prima facie case nor the balance of convenience was in their favour.

It also took note of the fact that the order was implemented on 17-9-2004 and accordingly the appeal was dismissed.

Mr. B.S.Guliani, learned counsel for the petitioners, vehemently argued that the disputed property was not used as a grave-yard since 1947 and, therefore, it was not open to treat it as a grave-yard. He further contended that the plaintiff-petitioners had the right to challenge C.R. No.3952 of 2006

the impugned orders as it was yet to be proved on record whether there existed any grave-yard. The learned counsel for the petitioners placed reliance on the judgment of this Court in The Punjab Wakf Board, Ambala Vs. The Panchayat Deh and another, 1971 PLR 224 to contend that the property could not be treated to be a Wakf property as the burial had discontinued since 1947. He made a special reference to the findings recorded by this Court which read as under:- "Held, further that evidence of a stray burial or two cannot establish a Wakf by user in the absence of any express dedication. Where a large tract of land is studed with a grave there without forming a cluster anywhere, the circumstantial evidence may fail to establish a wakf by user. If the Muslim proprietors formed a negligible proportion of the village population and had taken up residence in another town, they may not have always been bringing their dead for burial in the village. The discontinuation of user as a graveyard at particular point of time can cure the land of its consecrated character and it can be used for the benefit of the residents of the village." I have considered this argument of the learned counsel and do not find any force in the same.

In the present case, it was not claimed by the defendant- respondents that the property be declared as graveyard or Wakf property and it was the suit filed by the plaintiffs challenging the orders which were passed long back, in which the persons adversely affected had contested the same and lost in the Civil Courts. However, in pursuance to the orders passed by the Deputy Commissioner, Roop Nagar, this Court had issued directions for deciding their representation and on the basis of order passed C.R. No.3952 of 2006

by the Deputy Commissioner, the possession was taken by removing unauthorised occupation of defendant Nos. 8 & 9. Under these circumstances, no benefit can be drawn from the judgment referred to above by the petitioners, who have no direct interest except to the effect that they claim to be followers of Sikh Panth and a Gurdwara was in existence in the said village.

It was then contended by the learned counsel for the petitioners that the Deputy Commissioner, Roop Nagar had no authority to pass any such order. This contention can also be not accepted in view of the fact that once it is proved on record that the property in dispute was a graveyard, the Deputy Commissioner, being the administrative head, was bound to restore the possession to a rightful person. In any case, as already observed, the persons directly affected by the said decision had failed in the Civil Court to get an injunction. Their fight could not be taken over by the present plaintiff-petitioners to re-agitate the matter.

It was then contended by the learned counsel that there are only one or two Muslim families in the village. Therefore, they have no right to claim the property to be a graveyard. This contention is also devoid of any force. The Muslim families were not claiming that the property be given to them for the purpose of using it as a grave-yard, but only sought possession of the property, which was in fact a grave-yard and illegally encroached upon by the persons, who were dispossessed.

Lastly, it was contended by the counsel for the petitioner that the learned Courts below have misread the orders passed by this Court, as according to him, this court directed the petitioners herein to file a civil suit.

C.R. No.3952 of 2006

He made a special reference to order dated 7-3-2005 ( Annexure P-5) passed by this Court allowing the petitioners to withdraw the writ petition with liberty to file a civil suit if so advised. I fear that this contention can also not be accepted because this Court had merely refused to interfere with the orders passed and liberty was granted to the petitioners to file a suit if so advised. This Court did not adjudicate upon the matter nor gave any right to the parties in the property in dispute. The civil Court was to decide the matter on merit. The contention of the learned counsel is misconceived that there is misreading of the order passed by this Court. The orders passed by the learned Courts below show that in fact the reference was made to the earlier order whereby directions were given to the Deputy Commissioner to decide the representation filed by the petitioners and act accordingly.

Therefore, I find no force in the contentions raised by the learned counsel for the petitioners. . Further it may be noticed that there is no error in the exercise of jurisdiction by the learned Courts below in refusing the injunction to the petitioners which may call for any interference by this Court under Article 227 of the Constitution of India Accordingly, the revision petition being without any merit is dismissed.

July 27 ,2006 (VINOD K.SHARMA)

'dls' JUDGE


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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