Mahan Singh and Others vs The Collector etc.

G.R. Majithia, J.—The petitioners have challenged the order of Collector, Sonepat dated September 23,1980, reversing in appeal the order of Assistant Collector Ist Grade, Gohana dated April 3, 1979, in this petition under Articles 226/227 of the Constitution of India.

Respondent No. 2-Gram Panchayat Ahulana through its Sarpanch filed an application u/s 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (for short, the Act) for evicting the petitioners from the land in dispute. The Assistant Collector Ist Grade, Gohana, dismissed the application vide order dated April 3, 1979. Respondent No. 2 assailed the order of the Assistant Collector in appeal before the Collector, Sonepat, who allowed the same vide his order dated September 23,1980, observing thus :-

" I have heard the arguments of the learned counsel for both the parties and have thoroughly perused the record. The learned counsel for the respondents has vehemently stressed the point that they are not bound by the decision of the civil court because it was not an issue before the civil court. I have gone through the decision rendered by the civil court. This case has arisen from the result of the said decision. It was an issue before the civil court as to whether the disputed land is owned by the persons of Thalu Bhitar Wala. While deciding this issue, the civil court, decided that the disputed land belongs to the Gram Panchayat. In the said suit Baru was a party and the suit was decided against the him. Under such circumstances, they should have filed an appeal against that decision but they did not choose to do so. The said decision still holds good. But the Assistant Collector Ist grade has not paid requisite attention towards the said decision. He was satisfied simply to that the disputed land does not fall under the definition of the Shamlat land. The learned Collector has not stated any reason for not accepting the decision of the civil court. As it has been stated above, the decision of the civil court that the disputed land vests in the Gram Panchayat still holds good. Hence it should be honoured by the State authorities. So far as the question of possession of Baru etc. over this land is concerned, it is definitely illegal because one of the grounds of their possession over the land is stated that it is an old one. From this a conclusion can be arrived that they have not received this land from the Panchayat by way of exchange or gift. Under the foregoing circumstances, I conclude that the disputed land has vested in the Gram Panchayat and the possession of Baru etc. over the same is illegal. Hence, this appeal is accepted, the impugned order appealed against is set aside and Baru etc. are dispossessed from this land."

The petitioners have challenged the appellate order of the Collector on the solitary ground that the civil Court had no jurisdiction to adjudicate upon a question whether any property or any right to or interest in any property is or is not Shamlat Deh vested or deemed to have vested in the Panchayat under the Act. The Collector solely relied upon the decision of the civil Court in Civil Suit No. 2201 of 1973 titled "Kidara etc. v. Baru etc." decided on February 28, 1977, to come to a conclusion that the disputed property is Shamlat Deh and vests in the Gram Panchayat and, as such, the eviction of the petitioners could be ordered from the said land.

Kidara and others filed a Civil Suit under Order 1, Rule 8, Civil Procedure Code, on behalf of Thola Bhitarala of village Ahulana for permanent injunction restraining Baru son of Molu and petitioners No. 1 and 2 encroaching upon the site and not to cut the trees standing thereon. The petitioners No. 1 and 2 and Baru contested the claim of the plaintiffs. On the pleadings of the parties, issue No. 1, reading thus, was framed by the trial Judge :-

"Whether the dispute site ''ABCD'' mentioned in the plan dated 2.10.73 is owned by Thola Bhiterola? OPP"

The civil Court held thus :-

"In view of this, these two issues are to be decided against the plaintiffs since the disputed site is situated in Abadi Deh and is not owned by the said Thola and is not possessed also by anyone and hence the same vests in the Gram Panchayat. These issues are hereby decided against the plaintiffs."

The judgment and decree was rendered on February 28,1977. The same was not challenged in appeal by the petitioners and it has attained finality.

In the civil suit, the dispute was whether the property was owned by Thola Bhuterala. It was held by the civil Court that the property in dispute was situated in Abadi Deh and was not owned or possessed by Thola Bhuterala and the same vested in the Gram Panchayat. The judgment rendered by the civil Court is not inter partes and as such, it will not operate as res judicata. The judgment not inter partes can be used in evidence in certain circumstances as a fact in issue or as a relevant fact or possibly as a transaction. In the civil litigation, the question was whether the property belonged to Thola Bhuterala and the civil Court, on evidence, found that it belonged to the Gram Panchayat. The judgment is a piece of evidence to establish that the competent Court has held that the property belonged to the Panchayat. The petitioners did not lead any evidence in rebuttal. The Collector was not justified in relying upon the civil court''s judgment to conclude that the disputed property vests in the Panchayat. Section 13 of the Act, on which reliance is placed by the petitioners'' counsel, is not attracted to the facts of the instant case. The civil Court was not adjudicating whether the disputed property vested or did not vest in the Panchayat. It found as a matter of fact that the property belonged to the Panchayat and it could not be said that the civil court''s judgment was not without jurisdiction. Suit had been filed in a representative capacity for and on behalf of the proprietors of Thola Bhuterala.

For the reasons stated above, I find no merit in the writ petition. The same fails and is dismissed.