Nakul and others vs Lal Singh

J.V. Gupta, J.

This revision petition is directed against the order of the learned Additional District Judge, Karnal, dated July 30, 1983, whereby the order of the trial Court returning the plaint was set aside and the case was sent back to the trial Court for proceeding in accordance with law.

The plaintiffrespondent filed the suit for the grant of the permanent injunction on the ground that he was the owner in possession of the house situated in village Ishaqpur, Tehsil and District Karnal. The portion marked A, B, C and D in red colour in the site plan was a part and parcel of his house and was being used for keeping botaras and for parking buggis. The defendants were out to dispossess him forcibly from the said portion; hence the present suit. In the written statement, a preliminary objection was taken that the site, in dispute, vested in the Panchayat and, therefore, the jurisdiction of the civil Court in such matters was barred in view of the provisions of section 13 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter called the Act). In the replication filed on behalf of the plaintiff, it was reiterated that the property was owned and possessed by him from the time immemorial and that it never vested in the Gram Panchayat. The trial Court found that it had no jurisdiction to try the suit since it had to give a finding as to whether the property, in dispute, vested in the Gram Panchayat or not and that its jurisdiction to go into that question was barred under section 13 of the Act. As a result, the plaint was returned to the plaintiff. In the appeal filed on behalf of the plaintiff, the learned Additional District Judge reversed the said finding of the trial Court and came to the conclusion that the plaintiff''s suit as such was maintainable and was not barred under section 13 of the Act. Consequently, the case was sent back to the trial Court for decision on merits. Dissatisfied with the same, the defendants have come up in revision to this Court.

At the time of the motion hearing, the learned counsel for the petitioner cited Chhaju Ram v. Nand Lal, 1982 Punjab Law Journal 399 : 1984 R.R.R. 539. According to the learned counsel, since the civil Court has to determine as to whether the property vested in the Gram Panchayat or not, the jurisdiction of the civil Court was barred under section 13 of the Act and, therefore, the trial Court rightly returned the plaint to the plaintiff. On the other hand, the learned counsel for the plaintiffrespondent submitted that what is to be determined in the suit is whether the plaintiff is the owner of the suit property or not and, therefore, the civil Court has the jurisdiction to decide the suit. According to the learned counsel, section 13 of the Act was not at all attracted to the facts of the present case. In any case, argued the learned counsel, abadi deh was no more shamilat deh in view of the provisions of the Haryana Act No. 2 of 1981 whereby subclause 4(a) of section 2(g) of the Act, was omitted. In support of his first contention, the learned counsel relied upon Mangli Ram v. State of Haryana, 1981 Punjab Law Journal 489 and The Karnal Cooperative Farmers Society Ltd. v. Gram Panchayat, Pehowa, 1976 Punjab Law Journal 237.

After hearing the learned counsel for the parties, I do not find any merit in this petition.

Chhaju Ram''s case (supra), on which the notice of motion was issued, has no applicability to the facts of the present case. In the said case the plaintiff filed the suit on the allegation that the defendant encroached upon a part of the street which was between his house and that of the defendant. Thus, the plaintiff himself claimed the street in dispute, vesting in the Gram Panchayat, whereas the defendant controverted the said allegation of the plaintiff and pleaded that the property was not shamilat property and, therefore, the civil Court had the jurisdiction to try the suit. It was under these circumstances held therein that in view of the provisions of section 13 of the Act, the civil Court had no jurisdiction to try the suit. In the present case as observed earlier, the plaintiff has filed the suit claiming himself to be the owner of the suit property. He will succeed only if he proves that he is the owner thereof. In that situation, it becomes immaterial as to whether the plea of the defendants that the suit land vested in the Gram Panchayat is proved or not. In any case in Full Bench judgment of this Court in Munshi Ram v. State of Haryana, 1979 Punjab Law Journal 489, it was held that two ingredients must be satisfied before the jurisdiction of the civil Court was barred under section 13 of the Act, i.e. (1) the suit should be for the exclusion of the land from the shamilat deh and that (2) the same should have been filed against Gram Panchayat. Both these ingredients are missing in the present case and, therefore, the bar under section 13 of the Act, cannot be invoked in the present case. In this view of the matter, I do not find any illegality or infirmity in the order of the Additional District Judge as to be interfered with in revision.

Consequently, this revision petition fails and is dismissed with costs.