Kartar Singh (Dead) through LRs. vs Gram Panchayat

R.L. Anand, J.—This is defendants'' appeal and has been directed against the judgment and decree dated 23.3.1979 passed by the Court of Additional District Judge, Jalandhar who affirmed the judgment and decree dated 15.10.1975 passed by the Court of Sub-Judge, II Class, Jalandhar in favour of the plaintiff-respondents.

The brief facts of the case are that Gram Panchayat Laraoi, through its Sarpanch Darshan Singh, and Darshan Singh, son of Kartar Singh, in his individual capacity filed a suit for permanent injunction against the defendants restraining them from using the land in dispute described in the heading of the plaint for any purpose other than the purpose for which it was given. In the alternative, the plaintiffs prayed for a decree of possession of the land in dispute. According to the plaintiffs, plamtiff No. 1, Gram Panchayat is the owner of the land in dispute which was given to Charan Dass Chela Saran Dass to enjoy its usufruct. Charan Dass mortgaged this land with defendant No. 1 and defendants No. 2 and 3. Charan Dass who was the malguzar in respect of the land in dispute died intestate without leaving any heir and thereby the land in dispute remained in the ownership of the plaintiff. The plaintiffs asked the defendants to accept the mortgage amount of Rs. 60/- and redeem the land and to give possession of the land in dispute to the plaintiff but defendants 1 to 3 refused to redeem the land and they connived to play mischief by joining hands with defendants 4 to 7 who under the garb of religious tinge threatened to use the land in dispute for the purpose other than that for which it was given by the owner. The defendants started raising construction over the land in dispute and as such the matter was brought to the notice of the police. Action was taken by the police against the defendants and it was agreed upon by the defendants that they would not further make any construction on the land in dispute and they would restore the land in dispute to its original position as it was before 19/20.1.1973. However, defendants have again started collecting building material on the land in dispute and have threatened to use it for the purpose other than for which it was given. Therefore, the defendants are liable to be restrained from using the land in dispute for any purpose other than for which it was given and in the alternative, the plaintiffs are entitled to the decree of possession.

The suit was contested by the defendants. They controverted the allegations of the plaintiffs and alleged that one Hari Das Chela Garib Dass had mortgaged 4 kanals 13 marlas of land out of the land in dispute with Maya son of Bhaura father of Kartar Singh in the year 1992 and 2 kanals 13 marlas of land was mortgaged by Hari Dass Chela Garib Dass in favour of Uttam Singh and Sunder Singh in the year 1921. After the death of Uttam Singh and Sunder Singh the mortgagee right were inherited by Tej Kaur who transferred the same in favour of defendants No. 2 and 3. This property never vested in the Panchayat and as such the panchayat had no right to get it redeemed. Even, if the plaintiffs had any right to get the land in dispute redeemed the claim of the plaintiffs has become barred by time. The defendants also took objections that the Panchayat has no locus standi to file the suit; that the suit has not been properly valued for the purposes of court fee and jurisdiction and that the plaint was not properly valued.

From the Above pleadings of the parties, the following issues were framed by the trial Court;

(1) Whether the plaintiff has locus standi to file the suit ?

(ii) Whether the suit is not maintainable in the present form ?

(iii) Whether the plaint is properly verified, if not, its effect ?

(iv) Whether the plaintiff is entitled to the injunction prayed for ?

(iv-A) Whether in the alternative the plaintiff is entitled to the possession of the land in suit ?

(iv-B) Whether the suit for possession is not maintainable in the Civil Court on the grounds mentioned in preliminary objection No. 5 ?

(v) Relief.

The parties led oral and documentary evidence in support of their case and vide judgment and decree dated 15.10.1975 suit of the plaintiffs was decreed and it was ordered that possession of the land in dispute be got delivered after the removal of the malba on the land in dispute by the defendants and if the defendants do not remove the malba, the possession should be delivered as it is. The defendants Kartar Singh and others filed an appeal in the Court of Additional District Judge, Jalandhar who affirmed the judgment and decree of the trial court and dismissed the appeal filed against the judgment and decree dated 23.3.1979. Still aggrieved by the judgment and decree, the present appeal by the defendants which is being disposed of with the assistance of Shri V.G. Dogra, Advocate, on behalf of the appellant as the respondents failed to appear in spite of the service and they were proceeded ex parte.

In para No. 11 of the judgment the lower Appellate Court held as follows:-

"The learned counsel for the appellants next argued that as per the provisions of Section 13 of the Act Civil Court has no jurisdiction to decide the question as to whether the land in dispute vests in the panchayat or not. The instant case involves a question as to whether the land in suit vests in the panchayat or not. Therefore, this suit is not triable by the Civil Court. But I cannot agree to it. Section 13 of the Act which bars the jurisdiction of the Civil court to try the question as to whether a land vests in the panchayat or not, came into force after amendment of the Act which was made after the date of the institution of this suit. That being so this suit which was pending at the time of the amendment Act came into force is covered by the provisions of Amendment Act as has been held in a recent authority of our own High Court Gram Panchayat v. Balwant Kaur and Ors. 1979 P.L.J. 94. Therefore, I must hold that the suit even if it involves the question as to whether the land in dispute vest in the panchayat or not, is triable by the civil Court."

The above would show that a specific objection was taken by the defendant-appellants that Civil Court has no jurisdiction to entertain the suit in view of the provisions of Section 13 of the Punjab Village Common Lands Act, 1961 and the Court relied upon 1979 P.L.J. 94 Gram Panchayat Natini v. Balwant Kaur and others and repelled the arguments of defendant-appellants. In my opinion, the approach of the Courts below on the jurisdiction of the Civil Court was totally erroneous and cannot be allowed to stand in view of the Division Bench authority of our High Court reported as Gram Sabha Balad Kalan and Anr v. Sarwan Singh and Ors. 1981 PLJ 311 in which the case Gram Sabha Panchayat v. Balwant Kaur and Ors., relied upon by the courts below has been over-ruled. Incidentally, the judgment in Gram Panchayat Natini v. Balwant Kaur 1979 P.L.J. 94 was delivered by Justice S.P. Goyal, who was the member of Division Bench with Justice I.S. Tiwana, when both the Hon''ble Judges delivered the judgment in Gram Sabha Balad Kalan v. Sarwan Singh and Ors. 1981 PLJ 311 (supra). In view of the Division Bench Authority, the Civil Court has no jurisdiction to try the suit filed by the gram panchayat. It ought to have approached the Collector under the Punjab Village Common Land Act, 1961.

Resultantly, this appeal is allowed and the imposed judgment and decrees of the trial court as well as the first Appellate Court are hereby set aside and the suit of the plaintiff-respondents is hereby dismissed, leaving the parties to bear their own costs.