Honble GODARA, J. – This Civil Revision Petition has been preferred under Section 115, C.P.C., against the order dated 16.7.97 passed by the learned Addl. Civil Judge (JD), Barmer in Civil Original Suit No. 34/95. (2). Briefly stated, the facts giving rise to the present petition are that the plaintiff-respondent Dalichand and the defendant-petitioner are residents of Village Dhorimanna in Barmer District and their houses are situated adjacent to each other. The plaintiff- respondent instituted a suit for permanent injunction in the trial court against the defendant-respondent Nos. 1 and 2, initially without impleading the petitioners, with the allegations that the Gram Panchayat was bent upon illegally and unauthorisedly invading and threatening demolition of the disputed construc- tion forming part of the residential house of the plaintiff-respondent on the ground that the same was illegal and unauthorised and was raised on the public land vesting in the Panchayat but, any how, it was further claimed that the land whereon the disputed construction existed, belonged to and was of the ownership of theplaintiff-respondent and hence it was requested that the defendant-respondents be restrained from interfering with the use, occupation and possession of the plaintiff on the disputed land and from demolition of the disputed construction. (3). The trial court also appointed a Commissioner for local inspection of the disputed site and, defendant-petitioner who is neighbour of the plaintiff-respondent, also being aggrieved by the encroachment on the disputed site , moved an application for his impleadment as defendant in the suit. The trial court accepted his prayer and, consequently, the petitioner was permitted to be arrayed as defendant No.3. The trial court accepted his prayer and, consequently, the petitioner was permitted to be arrayed as defendant No.3. The defendants contested the suit mainly on the ground that the disputed site, whereat, admittedly, `Chabutra, Bath-room and `Tanka have been constructed, did not belong to and were never of the ownership of the plaintiff-respon- dent and, instead, it was claimed that this land formed the part of public way passing from front of the houses of the plaintiff-respondent as well as the defendant-petitioner and so the disputed land whereon this construction was raised was a public land vesting in the defendant-Gram Panchayat and the public in general had a vested right to pass and re-pass from the land forming part of the public way including the disputed site and the defendant- petitioner also had equally a vested legal right to have free access to the same land and the plaintiff-respondent had illegally and unathorisedly raised a construction thereon and, on complaint to the Gram Panchayat, the matter was enquired into and the plaintiff-respondent was afforded an opportunity to justify encroachment and construction on the disputed site but he failed to do so and, resultantly, the Gram Panchayat was of the opinion that the disputed site was illegally encroached upon and, consequently, an illegal and unauthorised disputed construction was raised and, therefore, the plaintiff-res- pondent was called upon to remove encroachment from the disputed site of the public way within 7 days of the order and, besides, a penalty of Rs. 15/- was also imposed. It was further ordered that in case encroachment was not removed within the stipulated period, the plaintiff-respondent shall be liable to pay a fine by way of penalty at the rate of rupee on per day. (4). Being aggrieved by this order, without bringing it to the notice of the trial court that any such proceedings were held by the defendant-Gram Panchayat and, instead, while omitting impleadment of defendant-petitioner who was also agitating his right before the Gram Panchayat and also hiding the fact of notice so having been served by the Gram Panchayat, filed suit for permanent injunction, as above. (5). (5). The defendants also pleaded that since such an order passed by the Gram Panchayat was appealable under the provisions of Section 61 of the Rajasthan Panchayati Raj Act, 1994 (for short `the Panchayati Raj Act) but inspite of the fact that an efficacious legal remedy was provided under the Panchayati Raj Act, brought this suit which could not be entertained by the trial court. Besides, similarly, an objection was taken that in view of the provisions of Section 109 of the Panchayati Raj Act, no suit against the defendant-Gram Panchayat could have been instituted in absence of a notice having been served under the provisions of Section 109 (1) (a) of the said Act and, hence, the suit so instituted by the plaintiff respondent was not maintainable before a civil court and the same was liable to be dismissed. (6). On the basis of pleadings of the parties, the trial court framed issues and, for the present disposal, the following two preliminary issues termed to be legal issues are relevant which are quoted ad verbatim : ^^rudh la[;k 2 vk;k izfroknh ¼xzke iapk;r] /kksjheUuk½ us] iapk;r dh Hkwfe ij oknh dk vfrØe.k gksus ls] /kkjk 50 jktLFkku iapk;rh jkt vf/kfu;e] ds rgr vknsk fnukad 1-7-95 ds ¼vfrØe.k gVkus ds vknsk½ fo#) /kkjk 61 jktLFkku iapk;rh jkt vf/kfu;e ds rgr vihy izLrqr djuh pkfg, FkhA vr% ;g okn bl U;k;ky; ds vf/kdkj {ks= dk ugha gksus ls pyus ;ksX; ugha gSA ¼izfroknh½ rudh la[;k 3 vk;k izfroknh ¼xzke iapk;r] /kksjheUuk½ ds fo#) lafLFkr djus ls iwoZ /kkjk 109 jktLFkku iapk;rh jkt vf/kfu;e ds rgr uksfVl fn;s fcuk ;g nkok pyus ;ksX; ugha gSA ¼izfroknh½ (7). Since both these issues were treated to be issues of law and, consequently, after hearing both the sides, the learned trial Judge decided both the issues against the defendants. Since both these issues were treated to be issues of law and, consequently, after hearing both the sides, the learned trial Judge decided both the issues against the defendants. As regards finding on issues No.2, it was held that the notice for removal of encroachment and unathorised construction raised thereon was issued under the provisions of Section 26(1) (ii) of the Rajasthan Panchayat Act, 1953 repealed by Section 124 of the Panchayati Raj Act having received assent of the Governor on 23rd day of April, 1994 whereas the disputed notice, as above, for removal of the encroachment was issued on 1.7.95 and, consequently, since the Panchayat purported to have enquired into and issued notice for removal of the encroachment from the public way under the provisions of the old Panchayat Act which had already been repealed and, consequently, the Gram Panchayat had no power and legal authority to have proceeded under the repealed Panchayat Act, 1953 and hence the appellate provisions of Section 61 of the Panchayati Raj Act were not attracted whereas the provisions of Section 26-A of the Panchayat Act, 1953 were no longer in force and hence, while disposing of issue No. 2, it was held that, on the same ground, in absence of having proceeded against the plaintiff-res- pondent under the provisions of the new Panchayati Raj Act, the provisions of Section 61 of the Act also were not attracted and hence there was no bar against institution of the suit by the plaintiff-respondent resulting in decision of this issue No. 2 against the defendants. As regards decision on issue No. 3 on similar grounds, it was held that the provisions of Section 109 of the Panchayati Raj Act could not be applied and, besides, it was also observed that the provisions of Section 50 of the Panchayat Act, 1953 were used while issuing notice of removal of encroach- ment by the Gram Panchayat and not under Section 109 of the Panchayati Raj Act and that since the Gram Panchayat, as above, did not proceed throughout under the aforesaid provisions of the Panchayati Raj Act and, consequently, as a result of repealment of old Act, the plaintiff-respondent could not be legally required to have exhausted statutory remedy by way of filing an appeal under Section 61 of the Pan- chayati Raj Act and, besides, since in a suit for permanent injunction, on filing of an application for grant of temporary injunction, at the same time, provisions of sub-section (2) of Section 80 of the Code of Civil Procedure (for short `the Code) since the suit of the plaintiff-respondent was to obtain emergent or immediate relief against the Government and so also against the defendants and, consequently, the plaintiff-respondent was granted leave to institute this suit without serving any notice as required by sub-section (1) of the said Section and, in view of these circumstances, there was no bar of provisions of Section 109 or Section 80(1) of the Code and, resultantly, decision of issue No. 3 was also went against the defen- dants. Being aggrieved, the present defendant-petitioner has preferred this revision petition.ss (8). I have heard the learned counsel for the petitioner at length, since none of the respondents appeared before this Court to oppose this petition, and have considered the legality and regularity of the impugned order. (10). As regards the impugned decision of issue No. 2, the learned counsel for the petitioner, while relying on the provisions of Section 124 of the Panchayati Raj Act, has submitted that the Rajasthan Panchayat Act, 1953 and so also the Rajasthan Panchayat Samitis and Zila Parishads Act, 1959 having been repealed by the Panchayati Raj Act, 1994, having so come into force after being assented to by the Governor on 23.4.94, the provisions of old Act were no longer in force and, consequently, the provisions of the new Act were applicable. Therefore, merely on the ground of mention of provisions of old section and omission of the new provisions corresponding to the same, did not matter and the learned trial Judge committed a serious illegality while overlooking the provisions of the Rajasthan Panchayati Raj Act and so also, at the same time, holding that the provisions of the old Panchayat Act also could not have been made use of and, therefore, with the repealment of the old Act and, simultaneously, the provisions of the new Act having come into force, there was no vaccum created by non-application of old Act and so also the provisions of the new Act. Consequently, the learned trial Judge did not appreciate the legal provisions and application of the Rajasthan Panchayati Raj Act correctly and, taking a superfluous view of the aforesaid legal provisions, held that since the notice dated 1.7.95 was issued under the provisions of the old Act and the same being not in force, there being absence of use of the corresponding provisions of the new Act, the appellate provisions of the new Act were not attracted and hence the civil Court was competent to entertain the suit filed by the plaintiff-respondent. (11). The plaintiff also could not dispute that on the complaint of the defendant-petitioner, the defendant-Gram Panchayat was seized of the dispute and after inspection of the disputed site, the Gram Panchayat was of the opinion that the disputed site was a subject matter of encroachment by the plaintiff-respondent who had also raised unauthorised and illegal construction thereon and the disputed site formed a part of the public street and way and as such it was a public land which could not have been sold or transferred by the Gram Panchayat also and the petitioner and so also all and sundry passing from the way had a legal right to use every piece of the land so framing part of the public way while passing or re-passing from there and to obstruct any unauthorised encroachment on the same whereby any individual or the members of the public passing from there and using the disputed site, were deprived of the same. (12). (12). All the public lands falling within the jurisdiction of the Gram Panchayat vested in it and the Gram Panchayat, being its custodian and trustee, in exercise of powers vesting under the provisions of Section 50 read with Schedule of the Rajasthan Panchayat Act, had every right of removal of encroachment I of public properties which necessarily includes land of public way, streets and public land etc. Consequently, while enquiring into the complaint against the encroachment on the disputed site by the plaintiff-respondent, the Gram Panchayat had every right to have enquired into and to hold whether the plaintiff-respondent had, in fact, encroached upon any part of the land forming part of the public way and as also claimed by the defendant-petitioner and so also held by the Gram Panchayat, the disputed land squarely formed a part of the public land forming a public way passing from the front of the houses of plaintiff-respondent as well as the defendant-petitioner and other houses situated in their neighbourhood. Besides, the public at large had also a right to pass or re-pass over the disputed site as well. Consequently, the defendant-Gram Panchayat was within its competence and legal right to have issued notice for removal of the encroachment in exercise of its powers under Section 50 read with Schedule-I of the Act and, resultantly, in case the plaintiff-respondent was aggrieved by notice dated 1.7.95 issued by the defendant-Gram Panchayat, Section 61(1) of the Panchayati Raj Act provides that any person aggrieved by any order or direction of a Panchayat made or issued under this Act or under this Act or under any rule or bye-law made thereunder may appeal from such order or direction to the Panchayat Samiti having jurisdiction within thirty days from the date of such order or direction exclusive of the time requisite for obtaining a copy thereof. Sub-section (2) of the same further provides that an appeal under Sub-section (1) shall be heard by the standing committee of the Panchayat Samiti constituted under clause (a) of sub-sec. (1) of Section 56. Sub- section (3) of the same refers to the powers of the standing committee to hear and to give any order or direction by way of setting aside or confirming the order appealed against and to award costs against the person filing the appeal. (1) of Section 56. Sub- section (3) of the same refers to the powers of the standing committee to hear and to give any order or direction by way of setting aside or confirming the order appealed against and to award costs against the person filing the appeal. Sub-section (4) of the said Act further provides that the decision of the standing committee given under sub-section (3) shall for all purposes be deemed to be the decision of the Panchayat Samiti. (13). This clearly shows that whosoever is aggrieved by the order of the Gram Panchayat, as empowered and authorised under Section 50 of the said Act, shall be empowered to prefer appeal under the aforesaid provisions of Section 61 of the Panchayati Raj Act. As a result, so far as presentation of the present suit is concerned, the provisions of Section 9 of the Civil Procedure Code provides that a civil court shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. (14). As regards the present subject matter of the suit, as already concluded hereinbefore, the Gram Panchayat purported to act under the provisions of Section 50, being in vogue and the order dated 1.7.95 having been issued. (14). As regards the present subject matter of the suit, as already concluded hereinbefore, the Gram Panchayat purported to act under the provisions of Section 50, being in vogue and the order dated 1.7.95 having been issued. Accordingly, on being aggrieved, the plaintiff-respondent had independent full-fledged remedy and the only legal course left to have challenged the vires, legality and merit of the notice by way of preferring an appeal under the said provisions of Section 61 of the Panchayati Raj Act and, consequently, impliedly, as is also provided under Section 9 of the Code referred to above, the jurisdiction of the Civil Court to entertain suit of the plaintiff-respondent who by passed the provisions of Section 61 of the Panchayati Raj Act and, in case he had any grievance there against also, to have preferred any revision against the appellate decision, if any, to the State Government or its delegate, he is barred from evading the specific statutory provisions of Section 61 of the Act and, instead, having instituted a suit and, consequently, the contention of the learned counsel for the petitioner cannot be brushed aside, being devoid of any force, that the trial court had no jurisdiction and, in view of the specific provisions of Section 61 of the Panchayati Raj Act, the jurisdiction of the civil court to entertain this suit stood barred and, consequently, the learned trial Judge committed illegality while holding that the aforesaid provisions could not be applied in this case. (15). The learned counsel for the petitioner has relied on the decision rendered in Mafatlal Industries Ltd. & Ors. vs. Union of India & Ors. (15). The learned counsel for the petitioner has relied on the decision rendered in Mafatlal Industries Ltd. & Ors. vs. Union of India & Ors. (1), wherein it has been observed that where any Act creates new rights and liabilities and also provi- ded the machinery for assessment and adjudication of those rights and liabilities, a bar to the jurisdiction to civil court arises by necessary implication and, so also, looking to the aim, object and scheme of the Panchayati Raj Act, 1994, the subject matter of the disputes falls squarely within the control and power of the Gram Panchayat under Section 50 read with Schedule I of the Act and, consequently, when the Gram Panchayat issued notice for removal of encroachment on 1.7.95, the same shall be deemed, since the provisions of the new Act were in force, to have proceeded under the corresponding provisions of the new Act and, consequently, by mere reference to the corresponding old provisions of the Panchayat Act, do not lead to the conclusion that the Gram Panchayat never intended and purported to proceed under the provisions of the new Act. Besides, the provisions of Section 124 of the Panchayati Raj Act relating to repealment and savings of the old Act clearly provides that on the date of commencement of this Act, hereinafter in this section referred to as the date of commencement, the Rajasthan Panchayat Act, 1953 etc. etc. shall stand repealed and the consequences following the same shall ensue and inter alia clause (g) provides that all the proceedings and matters pending before an existing Panchayati Raj institution or any authority of an existing Panchayati Raj Institution under the repealed Acts immediately before the date of commencement shall be deemed to have been instituted and to be pending before successor Panchayati Raj Institution or such authority as the successor Panchayati Raj Institution may direct and so also clause (h) further provides that in all suits and legal proceedings pending on the date of commencement in or to which an existing Panchayati Raj Institution, is a party, the successor Panchayati Raj Institution, shall be deemed to be substituted there for. Similarly, clause (i) inter alia provides that the notification, notice, order, permission, issued, imposed or granted in respect of any existing Panchayati Raj Institution or the local area thereof under the repealed Act and in force immediately before the date of commencement shall in so far as it is not inconsistent with the provisions of this Act, shall continue to be in force as if made, issued, imposed or granted under this Act in respect of the succe- ssor Panchayati Raj Institution or the corresponding local area thereof until superseded or modified by any notification, notice, permission etc. made, issued, imposed or granted under this Act. (16). Consequently, from which ever angle it is viewed, the intention of the repealing Act has been to maintain the continuity and regularity and legality of all those provisions which correspond to the new Act. So far as the present controversy is concerned, it need hardly be repeated that the Gram Panchayat was seized of the dispute regarding the suit land while the provisions of the new Act were applicable and, consequently, after enquiry, issued the impugned order dated 1.7.95 when the provisions of Section 50 read with Schedule-I of the Panchayati Raj Act were in force and, consequently, the notice so also issued can only be deemed to have been issued in exercise of the powers so vesting under Section 50, as above, and mere wrong mention of corresponding provisions Section 26(1(ii) of the old Act did not take away the force and application of Panchayati Raj Act, 1994 and, therefore, there is no difficulty in holding that the Panchayat proceeded against and issued impugned notice dated 1.7.95 in exercise of its rights under Section 50 of the Panchayati Raj Act, 1994 and, that being so, neither the provisions of Section 26(2) nor Section 26-A of the Panchayat Act, 1953 were applicable. Consequently, the provisions of Section 61 of the Panchayati Raj Act, 1994 were in force and, therefore, the plaintiff-respondent was left with no alternative but to have challen- ged the impugned notice dated 1.7.95 by way of preferring an appeal under sub- section (1) of Section 61 of the Panchayati Raj Act, 1994 and on the face of existence of these appellate provisions being applicable to the present dispute and the subject matter, impliedly the jurisdiction of the civil court under Section 9 of the Code was barred and, hence, the suit was also equally barred by the civil court which could not have entertained the same and, consequently, the objection so raised by the learned counsel for the petitioner that the trial court illegally exercised jurisdiction not vesting in it and hence the decision of issue No. 2 is contrary to law and deserves its reversal is well merited. (17). On the basis of above conclusion, the findings of the learned trial Judge are, being contrary to law, perverse and the petition succeeds even on this ground alone. (18). The next contention, on the same logic, as raised by the learned counsel for the petitioner is that, admittedly, there being no notice under Section 109 of the Panchayati Raj Act, the jurisdiction of the Court was barred. (19). Section 109 of the said Act runs as follows: ``109. Suits, etc. against Panchayat, Panchayat Samiti and Zila Parishad. (18). The next contention, on the same logic, as raised by the learned counsel for the petitioner is that, admittedly, there being no notice under Section 109 of the Panchayati Raj Act, the jurisdiction of the Court was barred. (19). Section 109 of the said Act runs as follows: ``109. Suits, etc. against Panchayat, Panchayat Samiti and Zila Parishad. – (1) No suit or other civil proceeding against a Panchayat Raj Institution or against any member, officer or servant thereof or against any person acting under the direction of a Panchayati Raj Institution or any member, officer or servant thereof for anything done or purporting to be done under this Act in its or his official capacity.– (a) shall be instituted until the expiration of two months after notice in writing, stating the cause of action, the name and place of abode of the intending plaintiff and the nature of the relief which he claims, has been delivered or left of its office or in the case of a member, officer, servant or person as aforesaid, delivered to him of left at the office or at his usual place of abode, and the plaint shall in each such case contain a statement that such notice has been so delivered or left, or (b) shall be instituted, unless it is a suit for the recovery of immovable property or for a declaration title thereto, otherwise than within six months after transfer next the accrual of the alleged cause of action. (2) The notice referred to in sub-section (1), when it is intended for a Panchayat, Panchayat Samiti or a Zila Parishad, shall be addressed to the Sarpanch, Vikas Adhikari or the Chief Executive Officer respectively. (20). Admittedly, there was no notice and hence so far as the objection regarding absence of a notice, as envisaged by Section 109 above, in its absence, no suit could be instituted by the person aggrieved by notice of a Gram Panchayat issued directing removal of encroachment from a public place/way. Even if there is any assertion of title, a mere assertion as such cannot bar the Gram Panchayat from proceeding under Section 50 of the Panchayati Raj Act and, on notice directing removal of encroachment and so its jurisdiction in the matter is not taken away (vide 1959 RLW 24 and 1957 RLW 136) (2). (21). Even if there is any assertion of title, a mere assertion as such cannot bar the Gram Panchayat from proceeding under Section 50 of the Panchayati Raj Act and, on notice directing removal of encroachment and so its jurisdiction in the matter is not taken away (vide 1959 RLW 24 and 1957 RLW 136) (2). (21). Resultantly, for the present, suffice it to observe that there was absence of notice under Section 109 of the Panchayati Raj Act, and it also barred institution of the suit by the plaintiff-non-petitioner. It does not necessitate the consideration as to whe- ther in view of provisions of Section 80(2) of the Code, the aforesaid provisions of Sec- tion 109 of the Panchayati Raj Act, could be over-ridden by obtaining leave of the Court. (22). The decision of the issue No. 2 has the effect of ousting jurisdiction of the civil court and, as a consequence, any finding on this issue is not warranted. (23). On the basis of above discussion, in view of reversal of impugned finding of the trial court on issue No. 2, this petition deserves to be accepted. (24). Resultantly, this petition is hereby accepted and the impugned findings of trial court on issue Nos. 2 and 3 are hereby reversed resulting in dismissal of the suit but without any order as to its costs. However, this decision shall not bar the plaintiff-non-petitioner from proceeding under Section 61 of the Panchayati Raj Act, if so advised. (25). This petition is disposed of accordingly along with its connected staypetition.