Chhaju Ram vs Nand Lal.

R.N. Mittal, J. (Oral)

This revision petition has been filed by the defendant against the order of the Senior Subordinate Judge, Bhiwani, dated 2851981.

Briefly the case of the plaintiff is that the defendant encroached upon the part of the street which was between his house and that of the defendant. He, consequently, filed a suit for mandatory injunction directing the defendant to remove illegal encroachment and restraining him not to interfere into the enjoyment of the street by the plaintiff.

The suit was contested by the defendant who controverted the allegations of the plaintiff and inter alia pleaded that the property was not a shamlat property and that the Civil Court had no jurisdiction to try the suit. The learned trial Court had no jurisdiction to try the suit. The learned trial Court framed as many as 11 issues. Issue No. 5 related to the jurisdiction of the Court and reads as follows.

(5) Whether the civil Court has no jurisdiction to try the present suit?

It held that the civil Court had the jurisdiction to try the suit and thus decided issue No. 5 in favour of the plaintiff. The defendant had come up in revision against that order to this Court.

The only question that arises for determination is as to whether the civil Court had the jurisdiction to try the suit. Section 2(g) of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as the Act) defines `shamlat deh''. It inter alia includes lands used or reserved for the benefit of village community including streets, lanes, playgrounds, schools, drinking wells or ponds within abadi deh or gorah deh. In view of the aforesaid definition, the property for which the suit has been instituted by the plaintiff is shamlat deh.

Now it is to be seen whether the plaintiff can file a suit regarding shamlat deh in a civil Court. Section 13 of the Act relates to the bar of jurisdiction of the civil Court. It reads as follows :

"13. Bar of jurisdiction. No civil Court shall have jurisdiction

(a) to entertain or adjudicate upon any question whether

(i) any land or other immovable property is or is not shamlat deh.

(ii) any land or other immovable property or any right, title or interest in such land or other immovable property vests or does not vest in a Panchayat under this Act:....... ".

Section 7 of the Act deals with power to put Panchayats in possession of certain lands. It reads as follows :

"(1) An Assistant Collector of the first grade having jurisdiction in the village may, either suo motu or on an application made to him by a Panchayat or an inhabitant of the village or the Block Development and Panchayat OFFicer or Social Education and Panchayat Officer or any other officer authorised by the Block Development and Panchayat officer, after making such summary enquiry as he may deem fit and in accordance with such procedure as may be prescribed, eject any person who is in wrongful or unauthorised possession of the land or other immovable property in the shamilat deh of that village which vests or is deemed to have been vested in the Panchayat under this Act and put the Panchayat in possession thereof and for so doing the Assistant Collector of the first grade may exercise the powers of a revenue Court in relation to the execution of a decree for possession of land under the Punjab Tenancy Act, 1887.

(2) The Assistant Collector of the first grade may, by an order, in writing, require any person to pay a penalty, in respect of the land or other immovable property which was or has been in his wrongful or unauthorised possession, at a rate not less than six hundred rupees and not more than two thousand and five hundred rupees per hectore per annum, having regard to the benefit which could be derived from the land or other immovable property. If the penalty is not paid within the period of thirty days from the date of the order, the same shall be recoverable as arrears of land revenue.

(3) If any person refuses or fails to comply with the order of eviction passed under subsection (1) within ten days of the date of such order the Assistant Collector of the first grade may use such force, including police force, as may be necessary for putting the Panchayat in possession.

(4) Any person aggrieved by an order of the Assistant Collector of the first grade may, within a period of thirty days from the date of the order, prefer an appeal to the Collector in such form and manner, as may be prescribed."

From a reading of section 13 of the Act it is clear that the civil Court has no jurisdiction to decide as to whether any land or other immovable property vests or does not vest in a Panchayat.

Under section 7 of the Act, an Assistant Collector has been empowered to eject any person who is in wrongful or unauthorised possession of the land or other immovable property in the shamilat deh of the village.

The present suit is for the removal of the encroachment by the defendant which amounts to handing over its possession to the Panchayat. It may also be highlighted that the defendant has taken a plea that the property is not a part of the thoroughfare. In other words, he has challenged that the property does not vest in the Panchayat. In order to decide the case it is necessary to go into the question as to whether the encroachment has been made on a street or not. Therefore, I am of the view that the suit is barred by section 13 of the Act. The plaintiff may, if so advised, can take action under section 7 of the Act and file an application before the Assistant Collector for getting the encroachment removed.

In the above said view I get force from the observations of a Division Bench to which I was a party in The Karnal Cooperative Farmers Society Ltd., Pehowa V.Gram Panchayat Pehowa and others, 1976 P.L.J. 237, wherein it was observed that section 13 of the Act bars the jurisdiction of the civil Court to entertain or adjudicate upon any question as to whether any land or other immovable property vests or does not vest in a Panchayat under this Act. The above said view was followed by this Court in Lehri and others V. Arjan Dass and others, 1981 P.L.J. 52.

The learned counsel for the respondent has urged that the suit for mandatory injunction is not barred under section 13 of the Act. In support of his contention, he made reference to Munshi Ram and another V. State of Haryana and others, 1979 P.L.J. 489, and Kashmiri lal V. Banwari Lal and others, 1980 P.L.j. 83. i regret my inability to accept the contention. The cases referred to by the learned counsel are distinguishable. In Munshi Ram''s case (supra) no such contention was raised and therefore no reference was made to section 13 of the Act. The question before the learned Bench was made regarding interpretation of sections 13A and 13B. In Kashmir Lal''s case (supra) the plaintiff instituted a suit for permanent injunction restraining the defendants from dispossessing him from the property in dispute. In the present case, however, the relief claimed by the plaintiff is different. In the aforesaid situation the learned counsel cannot derive any benefit from the aforesaid cases.

For the aforesaid reasons, I accept the revision petition, quash the impugned order and hold that the civil Court has no jurisdiction to try the suit. The trial Court is directed to return the plaint to the plaintiff for presentation to the proper Court. No order as to costs.