Ram Rakha Singh vs Pritam Singh and others

Pritpal Singh, J.

The plaintiffrespondents filed a suit relating to the land of Shamilatdeh against the defendantappellant Ram Rakha Singh. They alleged that the defendant has encroached upon the said Shamilat deh which he had no right to do. Relief of mandatory injunction was, therefore, claimed against the defendant asking him to remove the encroachment from the Shamilatdeh. This suit was decreed by the trial Sub Judge by a judgment dated 24th of February, 1973. The appeal filed by the defendant appellant was dismissed by the District Judge, Hoshiarpur, on 4th of August, 1976. This second appeal of the defendant is directed against the judgment and decree of the lower appellate Court.

It has transpired that during the pendency of this litigation the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as the Act) was amended by the Punjab Act No. 19 of 1976. Section 13, reproduced as under, was introduced in the Act by way of amendment :

``13. Bar of jurisdiction No Civil Court shall have jurisdiction

(a) to entertain or adjudicate upon any question whether

(i) any land or other immovable property is or is not Shamilar deh;

(ii) any land or other immovable property vests or does not vest in panchayat under this Act.''''

The contention of the appellant''s counsel is that in view of this section, Civil Court has been debarred not only from entertaining but also from adjudicating upon any question as to whether the property is or is not shamilardeh and consequently not only the institution of the fresh suits has been debarred but also the pending suits cannot proceed. This contention must be accepted in view of a Division Bench judgment of this Court in Gram Sabha Balad Kalan v. Sarwan Singh, 1981 PLJ 311. In that case a second appeal was admitted to Division Bench to settle the question as to whether the provisions of section 13 are retorspective in nature so as to affect the jurisdiction of the Civil Court to continue with the suits instituted prior to its enactment. After considering the matter, it was held as follows :

``Now after thorough consideration of the language of section 13 I have no hesitation in holding that the Civil Court would cease to have jurisdiction to adjudicate upon any question relating to the shamilat nature of the land even in pending suits after its enactment.''''

In the present case the palintiffs have alleged that the land in dispute is shamilardeh. The defendantappellant has contorverted this assertion and thus a question has arisen for adjudication whether the disputed property is or is not shamilatdeh. In view of the Division Bench judgment in the case of Sarwan Singh (supra) this question cannot be decided by Civil Court.

The result is that this appeal is allowed, the impugned judgment and decree of the lower appellate Court are set aside and the plaint is ordered to be returned to the plaintiffs for presentation to the Collector having jurisdiction in the matter. No order as to cots.