Lehri and Others vs Arjan Dass and Others

M.M. Punchhi, J.—The controversy in this second appeal stands engulfed by the change in law in the meantime. It has now to tread a different course.

Shorn of all details, the controversy is thus. The Plaintiff Respondents Arjan Dass and others filed a suit for declaration to the effect that the Defendant Appellants Lehri and others have encroached upon a portion of a common chowk in village Bichpari, tehsil and district Hissar They claimed that the said chowk (crossing) was shmilat used for common purposes of the village folk It was claimed that the said crossing had been encroached upon to the extent mentioned in a plan attached with the plaint by Defendants 1 to 14 in collusion with Defendant 15 and 16 (all now Appellants). The Gram Panchayat was arrayed as proforma Respondents in the suit as Defendant No. 17. The Defendants admitted the site to be a chowk but denied its character as a public place or a street or even shamilat. The Defendants also raised a plea that by the suggested encroachment, the Plaintiffs did not suffer any special damage and had no right to bring the suit. The contest gave rise to the following issues:

(1) Whether the Plaintiffs have no locus standi to bring this suit?

(2) Whether the site in dispute is a part of the chowk?

(3) Whether the site in dispute is a public street?

(4) Relief.

The trial Court held that the Plaintiffs had the locus standi to bring the suit as the obstruction caused by the Defendants would tend to put the Plaintiffs to suffer a special damage. Under issues Nos. 2 and 3, it was held that the site in dispute was a part of the chowk and hence a public street or public place. As a result, the Plaintiffs suit met with success. Challenge to the judgment and decree of the trial Court before the lower appellate Court at the instance of the contesting Defendants met with failure on July 20, 1968. The contesting Defendants are now in appeal before this Court.

In the meanwhile, Section 13 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as the Act) has been substituted by Haryana Act No. 34 of 1974. Now the civil Courts have been barred to assume jurisdiction in order to entertain or adjudicate upon any question as to whether any land or other immovable property or any right or interest in such land or other immovable property vests of does not vest in a Panchayat under this Act, or in respect of any other matter which any officer is empowered by or under the Act to determine or to question the legality of any action taken or any matter decided by any authority empowered to do so under this Act. Undoubtedly, the site in question is contested to be part of village chowk or a village street which is capable of being termed as shamilat deh in accordance with Section 2(g)(4) of the Act. Undoubtedly, this Court while hearing this appeal is a civil Court. Its jurisdiction to determine that question as to whether the property in question vests or does not vest in the Panchayat under the Act stands ousted by virtue of the substituted Section 13 of the Act. The Courts below have found that the sit in question is such a property and hence shamilat deh whereas the Defendants in appeal are supposed to contend that it is not so. Either stance is incapable of being adjudicated upon in the civil Court. Adequate support for the view now being taken is forthcoming from a decision rendered by J.M. Tandon, J. in Chandgi and Anr. v. Nihal Singh and Ors. 1979 P.L.R. 299. Whether the suit be at the trial stage or in a Court of appeal, the abided result would be just the same. It is well settled that an appeal is a continuation of the suit as understood in the procedural law of this land.

It was maintained by the learned Counsel for the Appellants that the appeal deserved acceptance on account of the bar created by Section 13. On there hand, the learned Counsel for the Respondents contended that Section 13B of the Act envisaged that only suits were to be transferred to the Court of the Assistant Collector and not appeals. In support thereof. The Karnal Co-operative Farmers Society Ltd. v. Gram Panchayat Pehowa and Ors. 1976 P.L.R. 648, was employed in aid. This decision has been approved by a Full Bench decision of this Court reported in Subedar Munshi Ram and Anr. v. State of Haryana and Ors. 1979 RLR 521. It has to be read in the context of Section 13B that only suits are transferable and not appeals pending on the date of enactment of Section 13 B of the Act by virtue of Haryana Act No 34 of 1974. But the Full Bench in Subedar Munshi Ram''s case (supra) while disposing of S.A.O. No. 54 of 1977 Teja etc. v. Jit Ram etc. has approved the transference of a suit by a facilitated remand made by the first appellate Court in rightful decision on the question of jurisdiction. Apart from the aforesaid consideration, the implication of Section 13-B of the Act nowhere figure in the instant case. The Plaintiff Respondents do not seek to extricate the site in question from the purview of shamilat deh rather they claim it to be within that engulf Section 13-B of the Act has thus no applicability to the cause in the present appeal. Suits for inclusion of land in shamilat deh are outside the domain of Section 13B and cannot be ordered to be transferred to the Assistant Collector, 1st Grade. Such is the view of this Court in a decision rendered by R.N. Mital, J. in Lal Singh and Anr. v. Gram Sabha Neja Dalla Kalan and Ors. 1977 P.L.J. 266.

As a sequel to the above said expression, the appeal of the Defendants meets with success, the judgments and decrees of the Courts below are set aside and the plaint of the Plaintiffs is ordered to be returned for presentation to the proper Court, if so desired. In the circumstances of the case, there would be no order as to costs.