Kali Ram vs Harkishan and others

J.V. Gupta, J.

This revision petition is directed against the order of the trial Court dated February 23, 1987, whereby it has been held that the civil Court has no jurisdiction to try the suit in view of section 13 of the Punjab Village Common Lands (Regulation) Act, 1961.

The plaintiffs filed the suit for possession by way of partition of abadi deh of village Fatehpur in the year 1967. A preliminary decree was passed therein on April 27, 1968. As a consequence thereof, a local Commissioner was appointed to file his report suggesting the mode of partition. Objections were filed to the said report of the local Commissioner and the same were originally accepted by the trial Court vide order dated October 6, 1976. Against the said order, the decreeholders preferred an appeal. Therein the said order dated October 6, 1976, was set aside and the case was remanded to the trial Court vide order dated February 5, 1979, with the directions to ascertain first as to what was the nature of the land on January 9. 1954 and for further appropriate action. As a matter of fact there were five suits filed originally and five appeals were filed before the Additional District Judge and in all the five cases, the suits were remanded to the trial Court with the directions which reads as under :

"To conclude my aforesaid discussion, all the appeals are allowed and thus setting aside the impugned order dated 6.10.1975, I remit all these cases to the learned S.S.J., Sonepat to proceed further with the enquiry as to whether the suit land was not covered under the shamilat deh as defined in section 2(g) inclusive of the newly inserted clause (4a) of the Act. In case it is found that the suit land does not fall within the purview of the shamilat deh and is otherwise of partible nature, it shall proceed further to dispose of the suit in accordance with law."

After the remand, an objection was raised on behalf of the defendants that the Civil Court had no jurisdiction in view of section 13 of the Act. That objection prevailed with the trial Court and therefore it was held that the civil Court had no jurisdiction. The plaintiffs may seek their remedy under the Act in Court of the Assistant Collector, First Grade, Sonepat, having jurisdiction in the matter.

The learned counsel for the petitioner submitted that the amendment in the Act was prospective in nature and not retrospective and, therefore, since the suits were filed in the year 1967 and even a preliminary decree was passed on April 27, 1968, there was no occasion for the trial Court to hold that the civil Court had no jurisdiction. According to the learned counsel, admittedly when the suits were filed and the preliminary decree was passed, the civil Court had the jurisdiction to try the suits. In support of the contention, the learned relied upon Kanshi Ram v. Narain Singh, ILR 1984(1) Punjab and Haryana 145. He next contended that the land does not vest in the Gram Panchayat under section 2(g)(4a) of the Act and on that account also, the Court had the jurisdiction to try the suit. In support of the contention, the learned counsel relied upon Prem Chand v. Mehar Singh, 1987 Punjab Law Journal 502. The learned counsel also cited Bajinder Singh v. The Assistant Collector, Ist Grade, Guha, 1983 Punjab Law Journal 116, to contend that the civil Court decree passed prior to the amendment could not be set at naught by subsequent legislation. On the other hand, the learned counsel for the respondent submitted that since the plaintiffs themselves agreed that in case the question to be decided is as to whether the suit land vested in the Gram Panchayat or not, the same could not be decided by the civil Court, the impugned order was passed. Thus, argued the learned counsel, now they cannot be allowed to agitate that the civil Court had the jurisdiction.

After hearing the learned counsel for the parties, I find merit in the contention raised on behalf of the petitioners. The subsequent amendments in the Act will not take away the jurisdiction of the civil Court in which a preliminary decree had been passed on April 27, 1968. Moreover, when the case was remanded by the lower appellate Court vide order dated February 5, 1979, the said amendment had already come into operation but in spite of that, the case was remanded to the trial Court to give a finding whether the suit land was not covered under the shamilat deh as defined under section 2(g)(4a) of the Act. The defendants never felt aggrieved against the said remand order. In view of that remand orders also, the trial Court must find as to whether the suit land fell within the definition of shamilat deh or not. Consequently this revision petition succeeds and is allowed. The impugned order is set aside. The case is sent back to the trial Court to proceed with the suit in accordance with law. The parties have been directed to appear in the trial Court on August 16, 1989.