Basheshar Nath and Others vs The Gram Panchayat

N.K. Kapoor, J.—This revision petition is against the order of the Additional District Judge whereby a direction has been given to the Court below to fix a date for appearance of the parties before a competent Court.

Briefly put, plaintiff filed a suit for permanent injunction restraining the defendant Gram Panchayat from forcibly evicting him or otherwise interfering in his peaceful possession. According to the plaintiff, he is in possession of the house marked ABCD in the site plan attached with the plaint and as the same falls within abadi deh, it does not come within the definition of shamilat deh in terms of Section 2(g) of the Punjab Village Common Lands (Regulation) Act, 1961 (for short ''the Act'') and so the controversy can be adjudicated by the civil Court alone. The defendant in its written statement, however, averred that the suit property vests in the Gram Panchayat. However, it was stated that residential house marked CDEF is in possession of the plaintiff but the portion marked ABEF is an open space which is exclusively owned and possessed by the Gram Panchayat.

The trial Court instead of examining the rival contentions raised by the parties, chose to relegate the plaintiff to his remedy before the Assistant Collector 1st Grade and so ordered for transfer of the case to the Court of Assistant Collector 1st Grade, Yamuna Nagar. In appeal, the Court despite having found substance in the contention of the appellant that such specific direction could not be given by the Court, yet affirmed the same with the observation that in substance such a direction cannot be faulted and thus dismissed the appeal.

Challenging the order passed by the Additional District Judge, counsel for the petitioners at the outset has termed it to be wholly illegal and unsustainable on the short ground that even as per admitted case of the parties a substantial portion of the suit property is a house in possession of the plaintiff which does not come within the purview of shamilat deh. So even if there is some dispute with regard to the area of the house, in the context of the present case, can be decided by a civil Court alone. Otherwise too, with the repeal of Sections 13-A and 13 B of the Act vide Act No. 9 of 1992 even such a question cannot be determined under the provisions of the Act and as regards the amended provisions of Section 7 of the Act an aggrieved person like the petitioner cannot seek the relief desired.

Having heard learned counsel for the parties, I am of the view that the revision petition deserves acceptance. Fact leading to the present dispute as briefly noticed is that the dispute pertains to a house situate within the abadi deh. Abadi deh does not come within the definition of term shamilat deh in Section 2(g) of the Act. This being so, there is no inference for automatic vesting of such a property on coming into force of the Act. In any case, such a dispute can only be adjudicated on the basis of evidence which the parties have a right to adduce. The Court has erred in directing that case file be transmitted to the Court of Assistant Collector 1st Grade for the trial Court as well as the lower appellate Court have not kept in view the amendment made in the Act vide Haryana Act No. 9 of 1992. Vide this Act, Sections 13-A and 13-B stand repealed. So presently there is no forum available to an aggrieved person for getting a question of title determined. Section 7 of the Act deals with a different situation. Even from another angle, as per definition of a house as given in Section 2(c) of the Act, ''a house includes a courtyard whether walled or not'', so, prima facie, the plea raised by the plaintiff is to be determined in the light of the provisions of the Act i.e. whether such a property comes within the ambit of shamilat deh or not. Since no attempt has been made by the Court below to examine this aspect of the matter, the conclusion arrived at and the approach adopted can be termed to be conjectural. Accordingly, I accept the revision petition, set aside the order impugned and direct the trial Court to examine the matter afresh and pass such appropriate order according to law.