Regular Second Appeal by a defendant found to have encroached on a Gram Panchayat-owned public passage. The court held dismissal of prior Section 133 Cr.P.C. proceedings does not operate as res judicata and affirmed concurrent findings of illegal possession, dismissing the appeal.
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
133
RSA-887-2024 (O&M) Date of Decision.:01.10.2024
Baljit Kumar Beeru Ram and Another
Vs.
…..Appellant
.….Respondents
CORAM:HON'BLE MR. JUSTICE DEEPAK GUPTA
Present:Mr. G.P. Vashisht, Advocate for the appellants.
DEEPAK GUPTA, J. (ORAL)
Defendant No.1 of the suit is before this Court in the present Regular Second Appeal against the concurrent findings of the Court below.
2.1 As per the case pleaded by the plain(ff Beeru Ram (respondent No.1 herein) , defendant Baljit Kumar N: 1 (appellant herein) had encroached upon the 02 Karam wide i.e., 11 /. public passage forming part of Khasra No.66 (0-11) comprised in Khata No.215/287 as per Jamabandi for the year 2012-13 situated within the abadi area of Village Chahal, Hadbast No.202, Tehsil Balachaur, District Shaheed Bhagat Singh Nagar. Said passage is owned by defendant N: 2 - Gram Panchayat (respondent N: 2 herein) of the village and it abuts to the house of the plain(ff on the Northern side. By raising construc(on of wall in the said passage, defendant had encroached upon the same.
2.2 Defendant resisted the suit by denying any encroachment. Trial Court decreed the suit on 25.07.2022 and the appeal filed by the defendant- appellant was dismissed on 10.01.2024 by the first appellate court.
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“16. Precisely, the only grouse that has been demonstrated before this Court against the impugned judgment is that the ld. trial Court has ignored that the applica(on under Sec(on 133 Cr.P.C. was dismissed by the SDM, Balachaur vide his order dated 28.01.2016 and therefore, the plain(ff was estopped from bringing any suit for mandatory injunc(on, as no ma>er can be re-agitated by way of alterna(ve remedy, once one of the remedies has already been availed by the plain(ff/respondent. In this regard, it is observed that it is the se>led law of the land that criminal and civil proceedings can go simultaneously and the findings of the Civil Court would be binding on the Criminal Court, whereas vice a versa is not true. Therefore, this Court finds that there was no illegality in filing the civil suit for seeking mandatory injunc(on against the defendant/appellant, as the criminal proceedings under Sec(on 133 Cr.P.C. would not operate as res-judicata as contemplated under Sec(on 11 of the CPC.
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pe((on under Sec(on 133 Cr.P.C., was that the said possession was old and no fresh construc(on have been raised by the defendant/appellant and the plain(ff Beeru Ram does not suffer any difficulty for ingress and egress to his house. As such, no ac(on was required to be taken under Sec(on 133 Cr.P.C. This Court would though refrain from making any observa(ons with regard to the aforesaid findings recorded by the S.D.M., Balachaur, as that ma>er is not under considera(on of this Court. Yet, it can be culled out from the aforesaid facts and circumstances that even the SDM had observed in his order that the defendant had encroached upon public street alongside his house to the extent of 2½ feet and 10 feet in length. Therefore, a legal ques(on arises as to whether such encroachment can be legalized only on the ground that the same was made many years ago especially when it is a public passage. However, before expressing any opinion, or findings qua the age of the encroachment, this Court would deem it appropriate to firstly refer to the pleadings, i.e. para no.3 of the wri>en statement filed by defendant Baljit Kumar, who is the appellant in the present appeal. In his reply to the averments made in para 3 of the plaint, the defendants had pleaded that the wall was constructed by his father in the year 1972 and the passage was concrete paved by the Gram Panchayat, but it did not keep any drains on the sides of the street, as such, daily and rainy water of the house of plain(ff moved along the said boundary wall of the house of defendant no.1, which had fallen down. The defendant no.1 therea/er re-constructed the said wall.
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also constructed four-walls around the same.
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on civil side. Any order passed in proceedings under Sec(on 133 Cr.PC may be relevant but not binding on the court.
Dismissed.
( DEEPAK GUPTA ) JUDGE
October 01, 2024 Nee(ka Tuteja
Whether Speaking/reasoned Yes/No Whether Reportable Yes/No
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2 issues framed by the court
Does dismissal of a petition under Section 133 Cr.P.C. bar a subsequent civil suit for mandatory injunction against encroachment on a public passage?
Whether the defendant's encroachment over the public street was established by the concurrent findings below?
Colour shows how this judgement treated each authority
Bheem Sain v. Arjun SinghDistinguished¶6
2009(3) RCR(Criminal) 248
2 provisions across 2 enactments
Baljit Kumar
Beeru Ram
Gram Panchayat
Deepak Gupta
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
