Plaintiff Must Prove Private Right Over Consolidation Rasta — Not Defendant’s Duty to Disprove Public Use: Punjab & Haryana High Court

“Both Courts Below Ignored the Statutory Presumption: Passages Carved During Consolidation Vest in Panchayat Unless Proved Otherwise”, In a significant judgment Punjab and Haryana High Court clarified a vital legal principle surrounding land rights and rural infrastructure under the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948. Justice Virinder Aggarwal ruled that the burden of proving exclusive rights over a Rasta (passage) carved out during consolidation lies solely with the plaintiff who asserts such a claim. The Court held:

“The onus to prove a fact is always on a party whose cause would fail in the absence of proof of that fact.”

The decision partially reversed concurrent findings of two lower courts that had granted full relief to the plaintiff, misapplying the burden of proof and ignoring key statutory provisions.

The plaintiff, Jugal Kishor, sought a permanent injunction restraining the defendants from interfering with his alleged peaceful possession of agricultural land and from preventing the reconstruction of a boundary wall from Point I to F. He claimed the land included a Rasta left during consolidation proceedings which was not a public way but exclusively meant for co-sharers of a well numbered 27. He had allegedly installed a tubewell there and constructed a boundary wall that fell during the 2008 monsoons.

On the other hand, Om Parkash, the defendant-appellant, contended that the Rasta was a public way, used by multiple plot holders who had purchased land from the plaintiff himself. The defendants argued that blocking the passage would effectively restrict access to their homes, which the plaintiff had deliberately attempted to do under the guise of a private right.

Court Framed Issues and Proceedings Below

The Civil Judge framed several issues, including the maintainability of the suit, the nature of the Rasta, suppression of material facts, and whether the plaintiff had a cause of action or locus standi. After evidence and arguments, the Civil Judge decreed in favour of the plaintiff. The Additional District Judge, Panipat, dismissed the first appeal.

Before the High Court, only one issue was pressed — whether the plaintiff had proven the Rasta to be of a private nature carved for his exclusive use during consolidation.

Legal Reasoning and Statutory Interpretation

Justice Aggarwal extensively analysed the relevant provisions of the Consolidation Act, 1948, including Section 2(bb) and Section 23A, stating:

“Passages carved out during consolidation proceedings primarily vest in the local authority and are meant for use by the public at large.”

Section 2(bb) defines “common purpose” to include roads and paths, and Section 23A provides that such lands vest in the Panchayat unless clearly carved out for specific use. The Court noted that:

“There is no evidence, whatsoever, to prove that the passage in question is a public passage and the appellant and other persons have right to use the same.”

However, the burden was on the plaintiff — not the defendant — to prove otherwise. Referring to the judgments below, Justice Aggarwal observed:

“Both the Courts below ignored the provisions of Section 2(bb) and Section 23A... and are certainly erroneous and are liable to be set aside.”

“If the plaintiff fails to prove that the passage in dispute was carved out in consolidation proceedings, exclusively for the family of the plaintiff, the suit... would fail.”

Findings on Evidence and Conduct

The High Court found that no document from consolidation records had been produced by the plaintiff to show that the Rasta was carved out solely for his family. The lower courts had placed undue reliance on oral admissions by defence witnesses and shifted the burden improperly:

“The findings recorded by the learned Courts below are certainly erroneous… the onus was upon the appellant-defendant to prove that the passage in dispute is a public passage.”

This, the High Court declared, was a legal misdirection, as the onus lies upon the plaintiff making a claim of exclusivity over a statutory public resource.

Relief and Modification of Judgment

While recognising the plaintiff's undisturbed possession of his private agricultural land, the High Court refused to uphold the injunction that would block the Rasta. The Court ruled:

“The defendants are restrained from interfering in the peaceful possession of plaintiff of suit land owned by the plaintiff except the land of the passage which plaintiff has failed to prove to be owned by him.”

Thus, the appeal was partly allowed, and the judgments below were partially modified to protect only the portion of land over which the plaintiff had clearly established ownership.

This ruling reinforces a fundamental principle of civil jurisprudence — he who asserts must prove. In disputes over passages left during consolidation, courts must be cautious not to presume private ownership without documentary evidence, particularly where statutes presume public use unless expressly rebutted. The decision serves as a crucial precedent in Punjab and Haryana’s consolidation landscape, ensuring that Rastas are not converted into private fiefdoms by mere assertion or misuse of injunctions.

Date of Decision: 22 August 2025