Mehar Singh vs Gram Sabha of Village Pathial

J.V. Gupta, J.

This is plaintiff''s Second Appeal whose suit for mandatory injunction was decreed by the trial Court but has been dismissed in appeal.

The plaintiff Mehar Singh filed a suit against the Gram Sabha of village Pathial and the Punjab State for a mandatory injunction directing the defendants to remove the drain and pucca floor from the site marked ABCD shown red in the plan Ex. P. 9 and restore the said site to its original position. It was pleaded that the plaintiff is the owner of the site in dispute and he had built, a tharah (plinth) on it in the year 1960 when Dalip Singh was the Sarpanch of the Gram Panchayat. The said Gram Sabha served a notice on the plaintiff and his father Amar Singh requiring them to demolish the said plinth which according to the Gram Sabha has been built over a public street and was, thus, an encroachment. The plaintiffs then filed a suit in the Court of Senior Sub Judge, Hoshiarpur, alleging that it was the private property of the plaintiffs and the Gram Panchayat be restrained from interfering in the possession of the plinth over the site in dispute. The suit was decreed on 20th November, 1961, vide judgment (copy Ex. P.7). The present Sarpanch Sat Pal who is the real nephew of Dalip Singh, exSarpanch, because of strained relations between the plaintiff and Dalip Singh, in utter disregard of the earlier decree passed in favour of the plaintiff, showed the said site to be a part of public street and that acting on the said demarcation, the officers of the State started making pucca flooring on the street, including the portion in dispute in spite of the protest of the plaintiffs. It was further alleged that the Gram Panchayat maliciously passed a resolution to the effect that the members of the Gram Panchayat apprehended breach of peace from the plaintiff and, thus, the plaintiff was challenged and arrested under Section 107/151, Code of Criminal Procedure, but was later on discharged by the Sub Divisional Magistrate, Hoshiarpur, vide his order dated 20th November, 1971 (copy Ex. P.4). It was, therefore, pleaded that since the Gram Panchayat had no right to include the site in dispute in the public street and get the same floored, the present suit was filed.

In the written statement filed on behalf of the Gram Sabha, the ownership of the plaintiff over the site in dispute was denied. As regards the previous decree Ex.P. 7, the Gram Sabha showed its ignorance and it was contended that the previous decree, if any, had been collusive and was the result of a fraud played by the plaintiff and was, thus, not binding on the Gram Sabha. It was pleaded that there was no plinth on the site in dispute which was a part of public street. The learned trial Court found that the ownership of the plaintiff over the site in dispute stood established particularly in view of the earlier judgment Ex. P.7. In view of that finding, the present suit was decreed. In appeal, the learned Senior Sub Judge with Enhanced Appellate Powers reversed the said finding of the trial Court and came to the conclusion that in the earlier judgment Ex. P.7, it was nowhere held that the site in dispute was the property of the plaintiff or his father. It was further held that the jurisdiction of the Civil Court to decide the controversy involved in the suit is barred under Section 13 of the Punjab Village Common Lands (Regulation) Act, 1961, as amended by Act No. 19 of 1976. In view of this finding, the plaintiff has filed this Second Appeal here.

Learned counsel for the defendantrespondents submitted that in view of Section 13 of the Punjab Village Common Lands (Regulation) Act, the Civil Court had no jurisdiction to entertain the suit and decide whether the site in dispute is a part of the public street or not. In support of this contention, he referred to Gram Panchayat Sadhraur v. Baldev Singh, 1983 PLJ 19. I do not find any merit in this contention. Section 13 has no applicability as regards the facts of the present case. It is a suit for mandatory injunction restraining the defendantsGram Sabha from interfering with the site in dispute which belongs to the plaintiffs and for which there has already been a decree by the Civil Court in his favour. That being so, the present suit as filed by the plaintiff was not barred under section 13 of the Act. The judgment relied on has absolutely no applicability to the facts of the present case.

On merits, after going through the judgment dated 20th November, 1961 (Ex. P.7) it is quite evident that the plaintiff and his father were held to be the owners of the site in dispute and, consequently, their suit was decreed against the Gram Sabha for permanent injunction to the effect that the Gram Sabha was restrained from taking proceedings under Sections 21/23 of the Gram Panchayat Act against the plaintiff. The lower appellate Court has erred in misconstruing the said judgment. Not only that, in the written statement the plea taken by the defendant was that the defendant has no knowledge of the decree; the same, if any, was the result of collusion and fraud between the plaintiff and the then Sarpanch and, therefore, was not binding on the defendants. This plea was never proved by the defendants and, therefore, the said judgment and decree was binding on the Gram Sabha. In this behalf, the trial Court rightly came to the conclusion that the ownership of the plaintiff over the site in dispute stoodestablished whereas the finding of the lower appellate Court is wrong, illegal and misconceived.

In view of this finding, the appeal succeeds, the judgment and decree of the lower appellate Court are set aside and those of the trial Court decreeing the plaintiff''s suit are restored with costs.