Punjab-Haryana High Court
Gian Chand vs Murari Lal And Others on 21 February, 2012
Author: M.M.S. Bedi
Bench: M.M.S. Bedi
R.S.A. No. 4716 of 2011 (O&M) [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
R.S.A. No. 4716 of 2011 (O&M)
Date of Decision: February 21, 2012
Gian Chand
.....Appellant
Vs.
Murari Lal and others
.....Respondents
CORAM: HON'BLE MR. JUSTICE M.M.S. BEDI.
-.-
Present:- Mr.Pankaj Jain, Advocate
for the appellant.
-.-
M.M.S. BEDI, J.
The defendant has preferred this second appeal aggrieved by the orders passed by the Courts below partly decreeing the suit of the plaintiff- respondents restraining the defendant-appellant from preventing the plaintiffs and other inhabitants of the village from using the land comprised in khasra No. 901 measuring 58 sq. yards for common purposes as Koodhi for collection of Gober, waste of cattles, agricultural manures and from raising any construction over the suit land, claiming that the said land has been used for common purposes and in enjoyment by all the inhabitants R.S.A. No. 4716 of 2011 (O&M) [2] of Village Hirapur as Koodhi for collecting of Gober, dank-cakes etc. shown as ABCD in Aksh Shijra. The defendant- appellant had allegedly fabricated a false document in the form of Ikrarnama dated October 21, 2001 vide which the defendant- appellant Nos. 3 to 6 had allegedly sold the suit land to defendant Nos. 1 and 2. It was claimed that the defendants are neither the owners of in possession of the suit land and that they have no right or title in the suit land. The defendant- appellant had threatened to stop the plaintiff- respondent and other inhabitants from putting gober and agricultural manure and waste of cattles over the Koodhi in question.
The defendant- appellant had denied that the property in dispute was used as Koodhi or that it was shamlat Deh or was being used for common purposes and enjoyment by all inhabitants of Village Hirapur. It is claimed that the suit land was gitwar of defendants 3 to 6 who were the owners being co-sharers, in the actual physical possession of the property in dispute alongwith plaintiff- respondents. On appreciation of evidence, the Courts below have arrived at a conclusion that the suit land is shamlat deh used for Koodhi i.e. for collection of Gober, dank-cakes etc. by all the inhabitants of Village Hirapur and that the plaintiff- respondents and the defendants have a right to use the suit land but not to the exclusion of each other and other inhabitants of the village. It has been held that suit land is shamlat deh and that the Gram Panchayat can change its nature subject to rules and regulations by adopting due procedure of law as such no perpetual R.S.A. No. 4716 of 2011 (O&M) [3] injunction could be granted. In view of the said finding, the suit of the plaintiff- respondents has been partly decreed as prayed for.
Learned counsel for the defendant- appellant has vehemently contended that the suit for injunction is not maintainable as the property in dispute is admittedly a shamlat land vesting in Panchayat. It has been argued that in view of Section 41 H of the Act, injunction cannot be granted when equally efficacious relief can certainly be obtained by any other usual mode of proceedings except in case of breach of trust. It has also been argued that the remedy which was available to the defendant- appellant was to file a petition under Section 7 of the Punjab Village Common Land (Regulation) Act, 1961 as applicable to Haryana. Following substantial question of law was sought to be raised by counsel for the defendant- appellant--
"Whether the suit filed by the plaintiff- respondents for permanent injunction to restrain the defendant- appellant from using the suit land as Koodhi was maintainable in view of provisions of Section 7 of the Act and Section 41-H of the Act?"
Counsel for the appellant has placed reliance on the judgment of Jai Parkash Vs. Ram Narain, reported as 2010 (1) PLR 571, wherein it has been held that a public street falls within the definition of shamlat deh from which any encroachment can be removed or illegal possession can be removed under provisions of Section 7 of the Act and that a suit regarding R.S.A. No. 4716 of 2011 (O&M) [4] sham lat deh is not maintainable in view of Section 13 B of the Punjab Village Common Land (Regulation) Act. Counsel for the appellant has referred to Section 7 and Section 13 B of the Act.
I have heard counsel for the appellant and considered his contentions carefully. The provisions of Section 7 of the Act as applicable to Haryana, reads as follows:-
"7. Power to put Panchayat in possession of certain lands.-- (1) An assistant Collector of the first grade having jurisdiction in the village may, either suo moto or on an application made to him by a Panchayat or an inhabitant of the village or the Block Development and Panchayat Officer or Social Education and Panchayat Officer, or any other Officer authorized by the Block Development and Panchayat Officer, after making such summary enquiry as he may deem fit and in accordance with such procedure as may be prescribed, eject any person who is in wrongful or unauthorized possession of the land or other immoveable property in the shamilat deh of that village which vests or is deemed to have been vested in the panchayat under this Act and put the panchayat in possession thereof and for so doing the Assistant Collector of the first grade may exercise the powers of a revenue court in relation to the execution of R.S.A. No. 4716 of 2011 (O&M) [5] a decree for possession of land under the Punjab Tenancy Act, 1887:
Provided that if in any such proceedings the question of title is raised and proved prima facie on the basis of documents that the question of title is really involved, the Assistant Collector of the first grade shall record a finding to that effect and first decide the question of title in the manner laid down hereinafter.
(2) The Assistant Collector of the first grade shall by an order, in writing, require any person to pay a penalty, in respect of the land or other immoveable property which was or has been in his wrongful or unauthorized possession, at a rate not less than five thousand rupees and not more than ten thousand rupees per hectare per annum, having regard to the benefit which could be derived from the land or other immoveable property. If the penalty is not paid within the period of thirty days from the date of the order, the same shall be recoverable as arrears of land revenue.
(3) The procedure for deciding the question of title under proviso to sub-section (1) shall be the same as laid down in the Code of Civil Procedure, 1908. R.S.A. No. 4716 of 2011 (O&M) [6]
(4) If any person refuses or fails to comply with the order to eviction passed under sub-section (1), within ten days of the date of such order, the Assistant Collector of the first grade may use such force, including police force, as may be necessary for putting the panchayat in possession.
(5) Any person who is found in wrongful or unauthorized possession of the land or other immoveable property in shamilat deh and is ordered to be ejected under sub-section (1), shall be punishable with imprisonment for a term which may extend to two years."
Section 13 of the Act reads as follows:-
"13. Bar of Jurisdiction:-- No civil court shall have jurisdiction--
(a) to entertain or adjudicate upon any question whether--
(i) any land or other immoveable property is or is not shamlat deh;
(ii) any land or other immoveable property or any right, title or interest in such land or other immoveable property vests or does not vest in a Panchayat under this Act;R.S.A. No. 4716 of 2011 (O&M) [7]
(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."
Section 13-A of the Act reads as follows:-
"13-A: Adjudication.--(1) Any person or in the case of a Panchayat, either the Panchayat or its Gram Sachiv, the concerned Block Development and Panchayat Officer, Social Education and Panchayat Officer or any other officer duly authorized by the State Government in this behalf, claiming right, title or interest in any land or other immoveable property vested or deemed to have been vested in the Panchayat under this Act, may file a suit for adjudication, whether such land or other immoveable property is shamilat deh or not and whether any land or other immovable property or any right, title or interest therein vests or does not vest in a Panchayat under this Act, in the Court of the Collector, having jurisdiction in the area wherein such land or other immoveable property is situated.R.S.A. No. 4716 of 2011 (O&M) [8]
Provided that no suit shall lie under this section in respect of the land or other immoveable property, which is or has been the subject matter of the proceedings under Section 7 of this Act under which the question of title has been raised and decided or under adjudication.
(2) The procedure for deciding the suits under sub-section (1) shall be the same as laid down in the Code of Civil Procedure, 1908 (5 of 1908)."
A perusal of the abovesaid provisions of Section 7 of the Act indicates that an Assistant Collector First grade has got jurisdiction to eject any person who is found to be in wrongful or unauthorized possession of a land which is shamlat deh of the village or which vests or deemed to have been vested in Panchayat land under the Act. It is the Assistant collector who has been given an authority to adjudicate upon the title of a property in case of a dispute whether a property is or is not a shamlat deh. The jurisdiction of civil Court is specifically barred under Section 13 (2) of the Act to maintain or adjudicate upon any question whether any land or immoveable property is or is not a shamlat deh or whether any land vests or does not vest in panchayat under the Act. The jurisdiction of the Civil Court is also specifically barred pertaining to the question of legality of any action taken by any revenue Court, officer or empowered to decide whether a particular property is or is not a shamlat deh. Section 13 A of the Act empowers a Collector to decide whether a particular property is shamlat deh R.S.A. No. 4716 of 2011 (O&M) [9] or not on an application filed by Panchayat or any other officer as mentioned in Section 13 A of the Act. Jurisdiction of the Civil Court is thus specifically barred if it has to be decided whether a particular immovable property is or is not a shamlat deh. As per Section 9 CPC the Courts shall have jurisdiction to try all suits of a civil nature excepting suit of which their cognizance is either expressly or impliedly barred.
In the present case, the dispute is pertaining to a land shown as Koodhi having Khasra No. 901 measuring 58 square yards. The defendant- appellant Gian Chand had allegedly alongwith defendant No.2 without being owner in possession of the property had allegedly made an attempt to stop the plaintiffs and other inhabitants of the village from putting their gober, agricultural manure and waste of cattles over the koodhi. The plaintiffs had not claimed title over the property. They have merely claimed using of the property being shamlat deh. Had plaintiffs filed a suit by impleading Gram Panchayat as a party, and questioned the status of the property as Shamlat deh by claiming title in the same, the suit of the plaintiff- respondents would have been barred in view of provisions of Section 13 of the Act. Merely because defendant No.1 had denied the land to be koodhi meant for putting gober, agricultural manure and waste of cattles, will not oust the jurisdiction of civil Court especially when the defendant- appellant has miserably failed to establish that the land is not sham lat land. In order to determine the jurisdiction of the civil Court in cases where the dispute is regarding shamlat land, the jurisdiction of civil R.S.A. No. 4716 of 2011 (O&M) [10] Court would be barred in case plaintiffs claim a right by impleading Gram Panchayat as a party claiming title in the property and denying vesting of the disputed property in gram panchayat. When a plaintiff approaches the Civil Court admitting the land to be shamlat but restraining the defendant- appellant from using it for some other purpose or for restraining the defendants from preventing the plaintiffs to use it for common purposes, the bar of Section 13 or Section 13 AA of the Act will not come into operation. So far as Section 7 of the Act is concerned, a suit for possession by panchayat pertaining to a shamlat deh, will not be maintainable. Neither Section 7 of the Act is applicable in the present case nor Section 13 or Section 13 A of the Act will prevent the civil Court to grant injunction to restrain the plaintiff- respondents from using the shamlat land for other purposes. The defendant- petitioner did not have any other alternative remedy to any other authority as there is no provision for proprietors of a village to prevent the misuser of a shamlat land by another proprietor or person of the concerned village. Thus provisions of Section 41 (H) of the Specific Relief Act will not be applicable. So far as judgment of Jai Parkash's case (supra) referred to by counsel for the appellant is concerned, it does not lay down that a suit for injunction will not be maintainable by a proprietor to prevent the other proprietors of the village from using the land for purposes other than common purposes. The relief claimed by the plaintiff- respondents cannot be raised by him before any other authority except for the civil Court as it is only the civil Court which has got R.S.A. No. 4716 of 2011 (O&M) [11] jurisdiction under Section 38 of the Specific Relief Act to prevent breach of an obligation existing in favour of plaintiff.
A careful perusal of the said judgment indicates that in the said case, the defendant had raised a construction on a public street and the plaintiff had sought a mandatory injunction for removal of the construction seeking consequential relief of permanent injunction. The Courts below had held that street alleged by the plaintiff was a private street. In the abovesaid decided case it was not the admitted case of the plaintiff that property in dispute was a shamlat deh or that user of the property in dispute as shamlat deh was interrupted by the defendant. The decision in peculiar set of facts of the said case is not applicable to the present case as such the judgment in Jai Parkash's case (supra) is distinguishable. Old Section 13 A and Section 13 B referred to in the said judgment stands omitted by Haryana Act No.9 of 1999 vide Haryana Government Gazette Extraordinary LS dated March 10, 199 and new Section 13 B pertaining to appeal and revision against the order of Assistant Collector stands inserted by Act No. 9 of 1999 As such Section 13 B is held not attracted in the present case. The question of law as pointed out by counsel for the appellant is thus answered in negative and is held to be not a substantial question of law involved in the present case warranting interference in the second appeal.
Dismissed.
February 21, 2012 (M.M.S.BEDI) sanjay JUDGE R.S.A. No. 4716 of 2011 (O&M) [12]