Gurdev Singh vs Gram Panchayat, Marwa

R.L. Anand, J.

Unsuccessful plaintiffs S/Shri Gurdev Singh and seven others, have filed a suit against the Gram Sabha/Gram Panchayat Marwa, Rounki Ram and Mohinder Singh, defendants No. 1 to 3, for declaration to the effect that they are the owners and in possession of the abadi land mentioned at letters A and B of the Head Note of the plaint with a prayer to grant relief of permanent injunction restraining the defendants from interfering into the peaceful possession of the plaintiffs over the suit land.

The case set up by the plaintiffs in the trial Court was that they are the coowners and in joint possession of the suit property, i.e., residential house shown in red colour in the site plan attached with the plaint, whereas, they purchased the suit property bearing Khasra Number 59//42 (011) from defendant No. 3, Shri Mohinder Singh through unregistered saledeed dated 11.7.1972 but in the revenue record, still exists the name of defendant No. 3. Those entries are liable to be corrected. The plaintiffs further alleged that the trees are standing on the suit land which is in their exclusive possession and defendants have no right, title or interest over the property and they are unnecessarily interfering in their possession. Defendants Nos. 1 and 2 had threatened the plaintiffs to dispossess them from the suit land. Earlier also, the defendants threatened the plaintiffs to dispossess them and as a result of that plaintiffs had to file a suit for injunction. However, that suit was withdrawn on the verbal promise given by the defendants, yet another suit was filed by plaintiff No. 2 when defendant No. 1 again tried to dispossess him. Now the defendants No. 1 and 2 had collected the material near the suit property with the help of local police and are threatening to construct pucca street/drain by the side of the suit property without any right whatsoever. If the defendants succeeded in their mission the plaintiffs will suffer irreparable loss and injury which cannot be compensated in terms of money.

Notice of the suit was given to the defendants. Defendant No. 1 contested the suit only in the trial Court. Defendants No. 2 and 3 were proceeded ex parte. Defendant No. 1 alleged in the written statement that suit property is a shamlat deh which comes under the definition of Section 2(g) of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter called as ''the Act'') and the same is owned by the Gram Panchayat. The suit property is only used by the people of the village for performing marriage and for parking carts and trolleys etc. and there is also a passage on one side of the suit property and now the plaintiffs want to encroach upon the shamlat deh by alleging their houses and courtyard to which they have no right to do so. The defendant No. 1 also denied that the plaintiffs are owners of the Khasra No. 59, killa No. 42, (011) as having been purchased through unregistered deeds dated 11.7.72. Defendant No. 1 also alleged that even if any such unregistered sale deed is proved, the same is forged and false document and defendant No. 3 had no right to execute the same in favour of the plaintiffs as he was not the owner of the property. The defendant admitted that earlier two civil suits for permanent injunction were filed but those were dismissed. Subsequent plea was taken by defendant No. 1 that the suit is barred under Section 13 of the Act and that Civil Court had no jurisdiction to try the suit.

The plaintiffs filed rejoinder to the written statement of defendant No. 1, in which they have controverted the stand taken by the defendant No. 1 and have reiterated their own case.

From the pleadings of the parties the trial court framed the following issues :

Whether the plaintiffs are entitled to the injunction prayed for ? OPP

Whether this Court has no jurisdiction to try the suit ? OPP

Relief.

The parties led oral as well as documentary evidence in support of their case.

Both the issues were decided in favour of the plaintiffs and finally the suit of the plaintiffs was decreed.

Aggrieved by the judgment and decree of the trial Court Gram Sabha/Gram Panchayat, filed the appeal before the first appellate Court i.e. the Additional District Judge, Patiala, who for the reasons given in the judgment and decree dated 26.9.1987 allowed the appeal and set aside the judgment and decree of the trial Court and dismissed the suit of the plaintiffs mainly deciding issue No. 2 against the plaintiffs.

This time plaintiffs are aggrieved by the judgment and decree of the first appellate Court and they have filed the present appeal.

Nobody has appeared on behalf of the appellants. I have heard Shri P.S. Kang, Advocate, appearing on behalf of the respondent and with the assistance rendered by the counsel for the respondent, I am disposing of this appeal.

First of all, it will be useful for me to incorporate the reasons given by the trial Court when it decided issue No 2 in favour of the plaintiffs and those reasons are contained in paras 13, 15, 16, 17 and 18 which read as under :

"14. The onus to prove this issue was put on the defendants who have not led any evidence on this issue. The defendants have not placed on record any document which may show any that part of the disputed property was shamlat deh and was ever owned by the Gram Panchayat.

Ld. counsel for the defendants has argued that where the disputed property is a public street vesting in the Gram Panchayat or not it falls within the jurisdiction of Assistant Collector Ist Grade and Civil Court has no jurisdiction to try the suit. For this view he has relied upon 1986 RLR page 413.

Ld. counsel for the defendants has further argued that where there is question that whether the disputed property is Shamlatdeh or not the jurisdiction of the Civil Court is barred. For this view he has relied upon 1983 PLJ page 13 and 1985 PLJ page 285.

On the other hand Ld. counsel for the plaintiffs has argued that where there is suit for declaration that entries in the revenue record are erroneous and are required to be rectified and the objection that the civil court has no jurisdiction in view of 1946 Administration of Evacuee Property Act is taken the Civil Court was held to be not barred. For this view he has relied upon 1980 PLJ page 10. Ld. counsel for the plaintiffs next argued that question of jurisdiction of civil court is to be decided on the basis of allegations contained in the plaint and writtenstatement is not to be looked into at all. For this view he has relied upon All India Law Reporter 1981 page 174 and 1984(2) All India Law Reporter page 143.

I have considered the respective contentions of both the learned counsel for the parties and have also carefully gone through the authorities relied upon by them and find much force in the argument advanced by the learned counsel for the plaintiffs that the jurisdiction of the court has to be decided on the allegations of the plaint and not on the pleas made in the written statement. In the plaint, the plaintiffs have alleged that they are owners of the suit properties mentioned in para A of the plaint as having been purchased from defendant No. 3, while they are owners of their house mentioned in para B of the heading of the plaint and it is for the plaintiffs to prove that they are owners in possession of the same as per their allegations and the pleas taken in the written statement cannot be considered at all while deciding the question of jurisdiction of the Court.

After carefully going through the authorities relied upon by the counsel for the parties and record of the case, I am of the considered view that in this case the jurisdiction of the civil court is not barred. This issue is also decided against the defendants and in favour of the plaintiffs."

In this very context I would also like to incorporate the reasons given by the first appellate Court when it had reversed the finding of the trial Court on issue No. 2 and those reasons are given in paras 7, 8 and 9 of the judgment, which read as under :

The learned counsel for the Gram Sabhaappellant has argued vehemently that the jurisdiction of the civil court was barred and the finding given by the learned lower court to the contrary is erroneous. In order to develop this argument, he has taken me through the pleadings of the parties and urged that Gram Sabha has taken a specific plea to this effect that the disputed property was being used by the villagers for their common purposes and, therefore, it would fall within the definition of shamlat deh covered by section 2(g)(4) of the Punjab Village Common Lands (Regulation) Act, which lays down that shamilat deh includes lands used or reserved for the benefit of village community including streets, lanes, play grounds, schools, drinking wells or ponds within the abadi deh or Gora Deh. The learned counsel for the appellant also invited my attention towards the provisions of section 13 of the Act which lays down that no civil Court shall have jurisdiction to entertain or adjudicate upon any question whether land or property or any right to or interest in a property is or is not shamilat deh vested or deemed to have been vested in a Panchayat under the Act.

Applying the provisions of Section 13 to the instant case, it was argued that panchayat has expressly claimed that the land in question belongs to it being shamilat deh and, therefore, it will not be possible in the circumstances, for the civil court to make a declaration in favour of the plaintiffs without deciding the question whether the property in question was shamilat deh or not and whether it belonged to the panchayat or not. The argument of the learned counsel is pRegulation nt with force. This is not enough that the court should see the frame of the suit brought by the plaintiffs only. Of course, the general rule is that the question of jurisdiction is to be decided on the basis of averments made in the plaint. The plaintiffs in this case claimed themselves to be the owners and avoided to seek declaration that the suit land was not shamilet deh. They, however, questioned the correctness of entries in the revenue record showing Mohinder Singh to be owner of 11 marlas of land but the real dispute was with regard to the land shown in red colour in the site plan attached with the plaint and the apprehension was that the Gram Panchayat was claiming itself ownership. In my opinion, in such circumstances, the plaintiffs cannot by drafting their plaint cleverly and not claiming declaration to the effect that the disputed land was not shamilat deh, could not confer jurisdiction on the civil Court when section 13 of the Act has specifically barred the same from entertaining suits like the ones in hand. 1987 RRR 630 (SC) : AIR 1986 Supreme Court 2197, Ram Singh and others v. Gram Panchayat Mehal Kalan and others, can be cited to strengthen this argument.

I may mention here that Mohinder Singh, who transferred khasras No. 59//24(011) has not come forward to challenge the same and indeed, there is no dispute between him on this point. The real contest was between the plaintiffs and the Gram Panchayat. The other two defendants were added only to confer jurisdiction upon the civil court which is a futile attempt so far as the Gram Panchayat is concerned."

The above paras of this judgment would show that the suit of the plaintiffs was decreed by the trial Court which decided both the issues in favour of the plaintiffs, whereas, the first appellate Court, reversed the findings of the trial court on issue No. 2, by holding that the Civil Court had no jurisdiction to entertain the suit as the property in dispute was a shamilat deh within the meaning and definition of section 2(g) of the Act. For that reasons, the first appellate Court did not return any finding on issue No. 1.

I have gone through the contradictory reasons given by both the Courts below and have examined the evidence in the light of the definition as contained in Section 2(g) of the Act which makes a reference of Shamilat Deh. As per Section 2(g) of the Act, Shamilat Deh includes :

"1.

2.

3.

Lands used or reserved for the benefit of the village, community

including, streets, lanes, playgrounds, school, drinking well, or ponds within abadi deh or gora deh; and

"

The case set up by the plaintiffs in the trial Court was that they have purchased this land from Shri Mohinder Singh, defendant No. 3, through unregistered sale deed for a consideration of Rs. 99/. On the contrary, defence of defendant No. 1 was that the land in dispute is a Shamilat Deh and it vestes in the Gram Panchayat and it is used by the people of the village for performing marriages and for the parking of their carts and trolleys. Meaning thereby, that it is the specific case of the Gram Panchayat that the disputed land is reserved for the benefit of the village community and it is located within the Abadi Deh of this village.

In these circumstances, the primary point for adjudication always was whether the property in dispute is or is not a Shamilat Deh.

Mere asking of a defendant that a particular property is a shamilat Deh may perhaps be not sufficient to oust the jurisdiction of the Civil Court but if the dispute which has been raised by the Gram Panchayat on the face of it, appears to be genuine certainly, the adjudication of such dispute will go to the authorities under the Act and shall not be entertained by the Civil Court. In this regard one can refer to the provisions of Sections 11 and 13 of the Act. As per Section 13 no Civil Court shall have jurisdiction to entertain or adjudicate upon any question, whether any property or any right to or interest in any property is or is not shamilat deh vested or deemed to have been vested in a Panchayat under this Act. The above reading would show that when a triable issue is raised by the Gram Panchayat that property vests in it being a Shamilet Deh, the Civil Court will stay its hands in adjudicating or entertaining such claim. The property in dispute is within the Abadi Deh though has a Khasra Number. It is the case of the plaintiffs that they have purchased this property from Shri Mohinder Singh, defendant No. 3, but their saying itself is not enough. As per Section 11 of the Act, any person claiming right, title or interest in any land, vested or deemed to have been vested in a Panchayat under this Act or claiming that any land has not so vested in a panchayat may submit to the Collector, with such verification in the prescribed manner and the Collector shall have the jurisdiction to decide such claim in such manner as may be prescribed. If the plaintiffs denied the alleged right of the Gram Sabha that the land in dispute is not a Shamilat Deh, it is always open to the plaintiffs to approach the Collector and ascertain the title or interest if any. As per Section 12 of the same Act, it is clearly stated that every order made by the Collector or Commissioner, shall be final and shall not be called in question in any Court by way of appeal or revision or in any original suit, application or execution proceedings.

The reading of the above provisions, coupled with the stand taken up by the Gram Panchayat, would clearly show that the jurisdiction of Civil Court in such matters has been ousted and, therefore, the first appellate Court rightly came to the conclusion that the jurisdiction of the Civil Court was barred. The first appellate Court rightly returned the plaint to the plaintiffs for presentation before the competent authority.

I do not see any merit in this appeal and dismiss the same.