Rakha Singh vs Babu Singh and others

B.S. Yadav, J.

The brief facts leading to this appeal are that the present appellants had filed a suit against the respondents, who had been sued in representative capacity, for a declaration that the land in dispute was Shamilat Deh and was reserved for common purposes and for the use of villagers and the defendants had no exclusive right of ownership over that land. They also prayed for permanent injunction restraining the defendants from interfering in the joint user of the suit land by all the villagers. In the alternative, they prayed for joint possession of the above land. According to the allegations in the plaint, the suit land was entered in the revenue papers as Shamilat Deh from the very beginning and was used by all the residents of the village for common purposes. Though there were two Pattis in the village but the suit land did not belong to any Patti exclusively. The defendants who were proprietors in the village, had got mutation sanctioned in respect of this land in their favour and in the new Jamabandi for the year 197172 they were wrongly recorded as owners. The suit land continued to be Shamilat Deh and remained reserved for common purposes of the villagers including the non proprietors. On account of wrong entry in the Jamabandi the defendants started claiming themselves to be the exclusive owners of this land. Hence the suit.

Defendant Nos. 1 to 4 contested the suit. They took up various pleas and inter alia pleaded that the entry in the Jamabandi had been correctly made.

Upon the allegations of the parties the learned trial Court framed various issues. Issue No. 1 stood as follows :

(1) Whether the land in suit is shamilat deh and reserved for common purposes of villagers as alleged in the plaint?

The trial Court under the above issue held that the land in dispute was Shamilat Deh and was used for common purpose. Accordingly, the plaintiffs'' suit was decreed on 24th January, 1975.

Feeling aggrieved, defendant Nos. 1 to 4 filed appeal which was heard by learned Additional District Judge, Ropar. It may be mentioned here that in the meantime section 13 of the Punjab Village Common Lands (Regulation) Act, 1961 (for short the Act), as applicable in Punjab, was amended by Act No. 19 of 1976. The amended section 13(a) reads as follows :

``No Civil Court shall have jurisdiction to entertain or adjudicate upon any question whether any property or any right to or interest in any property is not Shamilat Deh vested or deemed to have been vested in a Panchayat under this Act.''''

The learned Additional District Judge did not go into the merits of the case and held that in view of the amended section 13 of the Act, the Civil Court had no jurisdiction to entertain and try the suit. Consequently, he accepted the appeal and set aside the judgment and decree of the learned trial Court and ordered that the plaint be returned for presentation to the proper authority. Plaintiffs have filed this second appeal.

The learned counsel for the appellants vehemently argued that section 13 of the Act will come into play only when the Gram Panchayat is one of the parties to the suit and in the present case the Gram Panchayat is not a party and the litigation is between individuals. I am of the opinion that this argument has no force. From the wording of section 13 it cannot be inferred that it will be applicable if one of the contesting parties is Gram Panchayat. In my opinion bar of jurisdiction of Civil Court will come into play even if the litigation is between individuals if the dispute is of the nature falling under section 13 of the Act. In Chandgi and another v. Nihal Singh and others, 1979 PLJ 125, the dispute was between individuals i.e. Gram Panchayat concerned was not a party. In that case section 13(a) of the Act, as applicable to Haryana, was amended during the pendency of the appeal in the lower Appellant Court and the amended section read as follows :

``13. No Civil Court shall have jurisdiction, (a) 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 or does not vest in a panchayat under this Act.''''

It may be mentioned here that section 13 as applicable in Haryana was later on further amended in 1981 but for the purposes of this appeal we are not concerned with that amendment. In the above case the plaintiff had filed suit against certain person alleging that the site in dispute situated in a village in Hissar district, was a Chowk (vacant site) and was utilised for common purpose of the villagers like playground for children and resting of animals and the defendants wanted to encroach upon it. They prayed that the defendants be restrained from doing so. The suit was contested by the defendants. One of the issues framed in that case was :

``Whether the land in dispute is common property of the villagers? If so, to what effect?''''

The trial Court decreed the suit. On appeal, Senior Subordinate Judge held that in view of the provisions contained in section 13 of the Act, as applicable in Haryana, the Civil Court had no jurisdiction to try the suit as the question involved was whether the vacant site in dispute vested or did not vest in the Panchayat and as appeal was in continuation of the suit, it was hit by that section. Consequently it was held that the Civil Court had no jurisdiction. The plaintiffs in that case came to this Court in appeal. One of the arguments advanced, which was also advanced in the present case, was that the amendments did not apply to the pending appeals. That objection was overruled and it was held that the Civil Court had no jurisdiction. The relevant observation reads as follows :

``Section 13 of the Act is applicable to a Civil Court. The appellate Court hearing an appeal against the decree of the trial Court is a Civil Court. The issue under consideration before the lower appellate Court is covered by section 13 of the Act. The appellate Court being a Civil Court is thus debarred from adjudicating upon that issue. Under the circumstances, the lower appellate Court was right in holding that the appeals as well were hit by section 13 of the Act and consequently in setting aside the decrees under appeals being without jurisdiction and leaving the aggrieved party to seek remedy from the appropriate forum.''''

The above observations were made in relation to section 13(a) of the Act, as applicable to Haryana, but that provision is practically similar to section 13(a) of the Act, as applicable to Punjab.

In Gram Sabha Balad Kalan v. Sarwan Singh and others, 1981 PLJ 311 (D.B.) section 13(a) of the Act, as applicable to Punjab, came up for interpretation. In that case the plaintiffs had filed a suit against Gram Sabha for a declaration that the land in dispute was not governed by the definition of Shamilat Deh as defined in the Act and, therefore, did not vest in the Panchayat. The trial Court decreed the suit. On the question of jurisdiction it was held that as the question involved was one of the title, the Civil Court had jurisdiction to try the suit. The appeal filed by the Gram Sabha was unsuccessful. Second Appeal was filed in this Court. In that case counsel for the appellants had placed reliance upon section 13(a) of the Act and argued that Civil Court had been barred not only from entertaining but also from adjudicating upon any question as to whether the property is or is not Shamilat Deh and, therefore, not only the institution of the fresh suit had been debarred but also the decision in pending suits. That argument was accepted by a Division Bench of this Court and it was remarked :

``It is, therefore, evident that on the enactment of the said section 13, Civil Court has been debarred from not only entertaining the suit but also from passing any judgment upon any question whether land is or is not Shamilat Deh. The conclusion is, therefore, irresistible that the Civil Court ceases to have jurisdiction to pass any judgment even in a pending suit on the said question.''''

The above observations clearly apply to the present case. The ratio of Gram Sabha Balad Kalan''s case (supra) was followed in Gram Panchayat Sadhraur v. Baldev Singh and others, 1983 PLJ 19. In that case section 13 of the Act, as applicable to Haryana, had come into force while the appeal was pending in this Court. The judgments and decrees passed by the Courts below were set aside and the plaint was ordered to be returned the plaintiff for presentation to the Collector having jurisdiction in the matter.

For the foregoing reasons I do not find any force in the present appeal and dismiss the same with costs. Counsel''s fee Rs. 250/.