Nand Lal vs Chhottee

P.C. Jain, J.

Nand Lal, defendant has filed this regular second appeal against the judgment and decree of the learned Additional District Judge, Sonepat, dated 18th January, 1974, by which the judgment and decree of the trial Court decreeing the plaintiff''s suit, have been affirmed.

In order to appreciate the controversy, certain salient features of the case may be noticed:

Shrimati Chhotee had filed a suit against the defendantappellant inter alia on the grounds that she and the defendant enjoy a common, passage, in between their houses, shown as RS and AB in the site plan, Exhibit P.1, that this passage leads to the village pond and ends there, that houses of many other persons whose names have been mentioned in para 3 of the plaint, also open in the street, that the defendant had raised a wall at point KP and had opened a door at point `Y'' so as to block the passage of the Galli leading to village pond, that the defendant wants to encroach upon this passage by still raising another wall at point CH as shown in the site plan, Exhibit P1 and that in this manner the defendant has taken unauthorised possession of a piece of land marked KPAO and has obstructed the plaintiff''s right of passage. On these allegations, a decree for declaration that the plaintiff has a right of passage through the part of the street was sought. A decree for mandatory injunction directing the defendant to remove this obstruction had also been claimed.

The suit was contested by the defendant. His plea is that the space in dispute exclusively belongs to him, that the construction was raised 17 or 18 years back on the plot in dispute, that now he was only raising the wall, that the plaintiff had no right of passage through the land in dispute, that the suit was barred by the provisions of section 91 of the Code of Civil Procedure and that the subjectmatter of the suit having already been decided under sections 133 and 145/146 of the Criminal Procedure Code, cannot be agitated in Civil Court.

On the pleadings of the parties, several issues were framed.

On consideration of the evidence led by the parties, the trial Court held that the defendant was not the exclusive owner of the land in dispute, that there was a common passage leading from place mark RS upto place AB as shown in site plan Exhibit P.1 that this passage leads to the village pond and that the defendant had taken wrongful possession of plot KPAO and had thereby blocked the passage of the street, that the Civil Court had jurisdiction to try the suit and that the suit was within limitation. Consequently, the suit of the plaintiff was decreed.

Feeling aggrieved from the judgment and decree of the trial Court, the defendant preferred an appeal. Finding no merit the same was dismissed by the learned Additional District Judge, Sonepat. Hence the present regular second appeal by the defendant.

The defendant has filed Civil Miscellaneous No. 1129C/1983, under Order 41 Rule 2 read with Section 151 of the Code of Civil Procedure, praying that the appellant be permitted to argue that the jurisdiction of the Civil Court was barred under section 13 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as the Act). Notice of this application was given to the learned counsel for the respondent, who has filed a detailed reply and has opposed the prayer.

I have heard the learned counsel for the parties. In the interest of justice, I allow the learned counsel for the appellant to raise the plea of jurisdiction on the basis of section 13 of the Act.

The only point urged before me by the learned counsel for the appellant is that in view of the provisions of Section 13, the Civil Court has no jurisdiction. I am afraid I am unable to agree with this submission of the learned counsel. Section 13 of the Act reads as under :

"Bar of jurisdictionNo Civil Court shall have jurisdiction(a) to entertain or adjudicate upon any question whether

(i) any land or other immovable property is or not shamlat Deh;

(ii) any land or other immovable property or any right, title or interest in such land or other immovable property vests or does not vest in a Panchayat under this Act;

(b) in respect of any matter which any revenue court, officer or authority is empowered by or under this Act to determine, or

(c) to question the legality of any action taken or matter decided by any revenue Court, officer or authority empowered to do so under this act."

A bare perusal of the aforesaid section would show that the jurisdiction of the civil Court has been barred to entertain or adjudicate upon any question whether any land or other immovable property is or is not Shamlat Deh or any right, title or interest in such land or other immovable property vests or does not vest in a Panchayat under this Act. A bare perusal of the pleadings would show that none of these questions arise for decision in the instant case. Here the defendant is not allowing the plaintiff to use the passage by blocking the same.The defendant has claimed his ownership in the land. He has not pleaded that the passage vests in the Gram Panchayat. No question regarding the vesting or nonvesting of the land in the Gram Panchayat requires determination in the case. Even no question regarding the nature of the land i.e. whether the land is or is not Shamlat deh arises on the pleadings of the parties. In this view of the matter, I find that on the facts as pleaded in the written statement, the learned counsel for the appellant has not been able to show that the civil Court''s jurisdiction is ousted in the wake of the provisions of section 13 of the Act.

No other point has been argued by the learned counsel for the appellant. To make it more clear the learned counsel has not challenged any finding of the Courts below on merits.

For the reasons recorded above, I find no merit in this appeal, and, consequently, dismiss the same, but without there being any order as to costs.