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2000 DIGILAW 536 (PNJ)

Surain Singh v. Gram Panchayat

2000-05-18

M.L.SINGHAL

body2000
Judgment M.L.Singhal, J. 1. Gram Panchayat of village Rai Peerbaxwala filed suit for mandatory injunction against Surain Singh son of Jiwan Singh of village Peerbaxwala directing the latter to remove wall/gate put up by him in streets shown red in the plan attached to the plaint at points A&B, C&D. Prayer was also made that he be directed to remove Khurli placed by him at point E in the said streets situated in village Rai Peerbaxwala which lead towards the phirni on the eastern side. It was also prayed that he be directed to restrain" himself from raising any construction in the said streets. It was alleged in the plaint that there are streets in the village as shown in the red in the plan joining the phirni on eastern side. Houses of Sarban, Gurnam Singh etc. adjoin the said street on the southern side and the houses of Jarnail Singh etc. adjoin the street on the northern side. Residents of mohalla Nanak Singh had been approaching the phirni through the said street. An application was moved by the residents of mohalla Nanak Singh on 27.8.1993 that defendant (Surain Singh) had closed the street by putting a gate on one of the streets of the eastern side shown as AB in the said plan and thereby the passage was blocked. Meeting was convened by the gram panchayat on 3.9.94 and it was found that residents of the village were facing grave hardship in approaching the phirni through that street due to the blockage of the street by him. It was resolved by the gram panchayat that notice be issued to him calling upon him to remove the said gate. He refused to receive the notice. Matter was taken by the gram panchayat to the court of SDM, Kapurthala for securing the removal of the encroachment. Surain Singh also constructed Khurli adjoining the said gate on the eastern side a few days after putting up gate in the street. Defendant also blocked another street by raising wall at point CD. He refused to receive the notice. Matter was taken by the gram panchayat to the court of SDM, Kapurthala for securing the removal of the encroachment. Surain Singh also constructed Khurli adjoining the said gate on the eastern side a few days after putting up gate in the street. Defendant also blocked another street by raising wall at point CD. Gram panchayat claimed that these were public streets meant to be used by the people of the village as a means to ingress and since the people of the village were facing difficulty in the use of the said streets due to the blockage by Surain Singh, they moved application under Section 133 of the Code of Criminal Procedure before SDM, Kapurthala. On 17.3.94, the said application was dismissed by SDM, Kapurthala saying that it was a very old gate and, therefore, its removal could not be directed. Revision filed by the gram panchayat was also dismissed by learned Sessions Judge, Kapurthala vide order dated 10.5.97. It was thereafter that gram panchayat filed this suit in the Civil court at Kapurthala for the aforesaid relief. Defendant Surain Singh contested the suit urging that there was no street beyond points CD and he had put up gate and manger 30 years ago. it was denied that any passage existed. 2. On the pleadings of the parties, the following issues were framed by the learned trial court: 1. Whether there exist two streets as shown in red colour in the site plan attached to the plaint? OPP 2. Whether the plaintiff is entitled to the decree for mandatory injunction? OPP 3. Whether the suit is not maintainable in the present form? OPD 4. Whether the jurisdiction of the civil court is barred? OPD 5. Whether the disputed property is part of the pond? If so, to what effect? OPD 6. Relief. 3. OPP 2. Whether the plaintiff is entitled to the decree for mandatory injunction? OPP 3. Whether the suit is not maintainable in the present form? OPD 4. Whether the jurisdiction of the civil court is barred? OPD 5. Whether the disputed property is part of the pond? If so, to what effect? OPD 6. Relief. 3. Additional Civil Judge, Senior Division, Kapurthala decreed the plaintiffs suit for mandatory injunction directing the defendant to remove wall/gate erected by him in the streets shown red in the plan P1 attached to the plaint at points A&B, C&D and also directed him to remove khurli put up by him at point E in the said streets, in view of his findings, that these are streets which the defendant had obstructed by putting up gate and manger and the putting up of gate and manger blocked the streets thereby obstructing the people of the village to make use of these streets for going to the village phirni. It was found that the obstruction of the streets was nuisance to the people of the village. It was found that it was part of the village pond which was being used as streets. Aggrieved from this judgment and decree dated 22.2.99 passed by Additional Civil Judge, Senior Division, Kapurthala, Surain Singh went in appeal. Learned Additional District Judge, Kapurthala dismissed the appeal vide order dated 20.4.99. Aggrieved from the dismissal of his appeal by the learned Additional District Judge, Kapurthala, Surain Singh, has come up in appeal to this court. 4. I have heard the learned counsel for the parties and have gone through the record. 5. Learned counsel for the appellant submitted that the appellant had specifically pleaded in the written statement that he had put up gate 30 years ago. 4. I have heard the learned counsel for the parties and have gone through the record. 5. Learned counsel for the appellant submitted that the appellant had specifically pleaded in the written statement that he had put up gate 30 years ago. He had put up manger 30 years ago and no such passage existed and the learned trial court should have framed a specific issue namely "whether the the defendant has acquired title to the site in dispute through adverse possession." Suffice it to say, the trial of the suit proceeded only on the premise "whether the site where Surain Singh has put up a manger is part of the street and the site where he has put up a gate is part of the street." No question of adverse possession can arise if it is found that Surain Singh has put up a manger on the street and he has put up gate on the street. Streets cannot be adversely possessed as streets are meant to be used only. Manjit Singh PW3, Sarpanch of the Gram Panchayat stated that street from eastern to western side touches the phirni of the village and had been used by the villagers but Surain Singh put up gate at point A&B and blocked the said street and also put up manger at point E. He stated that the said street from south to north touches the aforesaid street which has been blocked by Surain Singh at point C,D. Blockage of streets by Surain Singh is causing inconvenience to the people of the village in as much as they cannot go to the village phirni through these streets. On one side of the street is the house of Surain Singh and on the other side is his haveli. By putting up gate at point A,B and manger at point E and constructing wall at point C,D, he has included the area of the street in his house. PW1 Ujagar Singh stated that one disputed street leads from western side to eastern side and ultimately leads to the village pond and Surain Singh erected a manger and built a Kotha 4-5 years ago and this street is pucca upto the gate put up by the defendant. His house is in the Shamilat land. On one side of the street is the house of the defendant and on the other side is his haveli. His house is in the Shamilat land. On one side of the street is the house of the defendant and on the other side is his haveli. He stated that the defendant wants to encroach upon the street and make it part of his house. He staled that another street shown in the site plan was encroached upon by the defendant by erecting a wall at point C about 4 years ago and the residents of the village made complaint to the panchayat. Panchayat wanted to make pucca the remaining part of the street which leads from east to west. Surain Singh defendant DW1 stated that he constructed his house 50 years ago and no street ever existed in his residential house. Gate was put up by him 26-27 years ago and due to the proposed street, his house will be divided into two parts. He stated that gram panchayat made an application to the SDM, Kapurthala under Section 133 Cr. P.C and that application was dismissed and revision was also dismissed by Sessions Judge, Kapurthala. He stated that he has planted about 150 eucalyptus trees outside his house towards the eastern side and the houses of Gurdev Singh etc. are on the backside of his house and the house of Nanak Singh is situated at the periphery of the village. He stated that the level of the water of the pond is about 7 feet high and there is no need to carve out the proposed street and the proposed street is being carved out simply to harass him. Surain Singh admitted in cross examination that 12 karams of his residential house is owned by him and the remaining part of his house measuring about 12 karams is pond. That 12 karams of the area of his ownership is his ancestral property. He stated that the suit property including the pond falls within the red-line of the village which falls within the periphery of the village. It was thus concurrently found by the two courts below that the defendant has encroached upon the site of the village pond which was rasta and has raised construction. 6. Faced with this position, learned counsel for the appellant submitted that the civil court had no jurisdiction to determine whether the site in dispute is part of the village pond i.e. shamilat deh or not. 6. Faced with this position, learned counsel for the appellant submitted that the civil court had no jurisdiction to determine whether the site in dispute is part of the village pond i.e. shamilat deh or not. It was submitted that this question falls within the jurisdiction of the Collector under the Punjab Village Common Lands Regulations Act, 1961 and the jurisdiction of the civil court for determining this question has been expressly excluded by the provisions of section 13 of the said Act. In support of this submission, he drew my attention to Gram Panchayat Chachowal Motipur v. Karam Singh and Ors., 1993 PLJ 26 where it was held that as and when dispute arises with regard to a matter within exclusive jurisdiction of the authorities under the Punjab Village Common Lands Regulation Act, 1961, jurisdiction of the civil court to entertain/adjudicate is completely barred under Section 13 of the Act. Respondents plaintiffs filed suit against gram panchayat defendant-appellant restraining it from interfering with their possession as owners over the land measuring 43 kanal 9 marlas situated in the village. According to the plaintiffs, their father Meru was in possession of the land as owner and on his death the land fell to the share of the plaintiffs who remained in cultivating possession of the same and this way the defendant gram panchayat had no right, title or interest in the suit property. The suit was resisted by the defendant gram panchayat. Defendant gram panchayat denied that the plaintiffs were in possession of the land as co-share or had become owners of the same. Trial court dismissed the suit holding that they are not in possession of the land in dispute as co-sharers and further the order of eviction had been passed against them under section 7 of the Punjab Village Common Lands Regulation Act, 1961 and thus they were not entitled to the injunction prayed for. In appeal, their suit was decreed. Lower appellate court found merit in the contentions of the counsel that they being in cultivating possession for more than 12 years preceding the commencement of the Act without payment of rent are fully protected and so restrained the gram panchayat from interfering in the possession of the plaintiffs. In appeal, their suit was decreed. Lower appellate court found merit in the contentions of the counsel that they being in cultivating possession for more than 12 years preceding the commencement of the Act without payment of rent are fully protected and so restrained the gram panchayat from interfering in the possession of the plaintiffs. Appellate court, however, found that no civil court shall have jurisdiction to entertain or adjudicate upon any question whether any land or other immovable property or any right or interest vests or does not vest in the gram panchayat. In the regular second appeal filed by the gram panchayat, this court found against the plaintiffs and directed the return of the plaint for presentation to the Collector for adjudication of their claim in terms of Section 11 of the Act, in view of the finding, that the right of the person in cultivating possession of shamilat deh for more than 12 years without payment of rent or by payment of charges not exceeding the land revenue and cess payable thereon under Section 4(3)(ii) of the Act is in the nature of interest which is being claimed by the person, this interest is also to be determined by the Collector under section 11 of the Act. Determination of interest in terms of Section 4(3)(ii) of the Act is barred under Section 13(a) of the Act from being adjudicated by the Civil Court. On the strength of these observations of this court made in 1993 PLJ 26 (supra), the learned counsel for the appellant submitted that the civil court had no jurisdiction to determine whether the particular land vests or does not vest in shamilat deh as determination of this question falls squarely within the purview of the Collector under the said Act and determination of this question by the civil court is barred by the provisions of section 13 of the Act. He drew my attention to Kartar Singh (dead through LRS) v. Gram panchayat, Laroi, (1997-2)116 PLR 349 where it was held that the civil court has no jurisdiction to try suit filed by the gram panchayat where the question arises whether the land in dispute is shamilat deh, vesting in the gram panchayat. 7. He drew my attention to Kartar Singh (dead through LRS) v. Gram panchayat, Laroi, (1997-2)116 PLR 349 where it was held that the civil court has no jurisdiction to try suit filed by the gram panchayat where the question arises whether the land in dispute is shamilat deh, vesting in the gram panchayat. 7. Learned counsel for the respondent-gram panchayat on the other hand submitted that jurisdiction of the civil court will not be ousted where a private party claims that particular land belongs to him and the gram panchayat pleads that the said land belongs to it as being shamilat deh vest ing in the gram panchayat under the Village Common Lands Regulation Act. In Bhagu and Ors. v. Ram Asrup and Ors., 1985 PLJ 366 it was held that when the "lis" or "dispute" is between two private individuals, jurisdiction of the civil court is not taken away. Jurisdiction of civil court is taken away when "lis" is between gram panchayat and a private person and it relates to any of the questions specified in section 13 of the Act. Determination of question whether land in dispute is gali share-am or a thorough, fare. Ancillary to prayer or relief sought by the plaintiff, any finding either way not to affect or title or panchayat in the land, jurisdiction of civil court is not barred. Plaintiff respondent Ram Sarup filed suit on 18.7.78 with the allegations that out of the two plots No. 208 and 212 situated in village Dhadali, the first one is owned by him and the latter is a public street and he and proforma defendants were utilizing this street as an approach to their houses for the last more than 30 years, The defendant appellants were head strong persons, not only threatened to dispossess him from plot No. 208 but had actually constructed a 6 feet high wall in the thorough fare and thus caused obstruction in the free passage to his house and also to the houses of other defendants. Thus he sought permanent injunction restraining the appellants from raising any construction or interference in his possession over plot No. 208 and prayed for mandatory injunction directing these defendants to demolish the wall and restore the through fare to its original position. The appellants contested the suit denying the above mentioned allegations. Thus he sought permanent injunction restraining the appellants from raising any construction or interference in his possession over plot No. 208 and prayed for mandatory injunction directing these defendants to demolish the wall and restore the through fare to its original position. The appellants contested the suit denying the above mentioned allegations. It was found that all that has been stated by him in the plaint is that the suit land is gali share-am which is only a statement of fact. The denial of this fact by the defendants whether the gali was a thoroughfare which was used as an approach road for the last about 30 years. This determination by the trial court was only ancillary to the prayer or the relief sought by the plaintiff. Any finding either way is not to affect the interest or title of the panchayat to the land in question. A litigant having a grievance of a civil nature undoubtedly has, independently of any statute, a right to institute a suit in some Court or the other unless its cognizance is either expressly or impliedly barred. Statute ousting jurisdiction must be strictly construed. However, courts jurisdiction is excluded in adjudication of a question set out in section 13 of the Act when lis is between a private person and a panchayat. In Ram Singh and Ors. v. Gram Panchayat Mehal Kalan and Ors. 1986 P.L.J. 636 the Honble Supreme Court held that civil court cannot make a declaration without deciding the question whether land in question is or is not shamilat deh and whether it belonged to the gram panchayat or not. This question has to be decided by the collector only under section 11 and not by a civil court. It was a suit filed by Ram Singh and others against Gram Panchayat Mehal Kalan and others in representative capacity claiming declaration that they were owners in possession of the suit land along with some others. Gram Panchayat Mehal kalan inter-alia pleaded that the court before which the suit had been instituted had no jurisdiction to try it by virtue of the provisions of section 13 of the Act. Civil court had no jurisdiction to determine whether particular land does or does not. vest in the gram panchayat under the Punjab Village Common Lands (Regulation) Act. Gram Panchayat Mehal kalan inter-alia pleaded that the court before which the suit had been instituted had no jurisdiction to try it by virtue of the provisions of section 13 of the Act. Civil court had no jurisdiction to determine whether particular land does or does not. vest in the gram panchayat under the Punjab Village Common Lands (Regulation) Act. Shamilat deh as defined in section 2(g) of the Act includes- (1) lands described in the revenue records as shamilat deh excluding abadi deh; (2) shamital tikkas; (3) lands described in the revenue records as shamilat, tarafs, pattis, pannas and tholas and used according to revenue records for the benefit of the village community or a part thereof or for common purposes of the village; (4) lands used or reserved for the benefit of village community including streets lanes, play-grounds, schools, drinking wells, or ponds within abadi deh or gorah deh; and (5) xxxxxxxxx xxxxxxx 8. Section 11 of the Act says that any person claiming right, title or interest in any land vested or deemed to have been vested in a panchayat under the Act, or claiming that any land has not so vested in a panchayat, may submit to the Collector, within such time as may be prescribed, a statement of his claim in writing and signed and verified in the prescribed manner and that the Collector shall have jurisdiction to decide such claims in such manner as may be prescribed. Section 13 of the Act bars the jurisdiction of the civil court so far as the determination of the question whether any property or any right to or any interest in any property is or is not "shamilat deh" vested or deemed to have been vested in a panchayat under the Act is concerned. 9. In my opinion, civil court did not have jurisdiction to try this suit when in the suit between gram panchayat and Surain Singh, the gram panchayat had claimed that it is a public street vesting in the gram panchayat which Surain Singh had encroached. In villages, public streets vest in the gram panchayat and are "shamilat deh" as defined in section 2(g) of the Act. In villages, public streets vest in the gram panchayat and are "shamilat deh" as defined in section 2(g) of the Act. Determination of the question whether property in suit was "shamilat deh" vesting in the gram panchayat or it was private property of the defendant, gram panchayat having nothing do with it, falls for determination within the jurisdiction of the Collector under the provisions of Section 11 of the Punjab Village Common Lands (Regulation) Act, 1961. In Deeg Ram v. State of Haryana and Ors., 1977 PLJ 446, this argument that the Collector Would not be able to pass an injunction decree was repelled with the observation that section 13(B) of the Amendment Act, however, provides for all claims based on the ground of any land or other immovable property being excluded from shamilat deh. The fact that the colour of injunction is spread over the basic relief sought for, as envisaged under section 13-B, would not make any material difference, nor would it oust the Assistant Collector from determining the dispute and granting relief, if called for. 10. For the reasons given above, I am of the opinion that the civil court had no jurisdiction to entertain the suit and to adjudicate upon the question involved which was whether the disputed property is part of the pond and are streets and has been encroached upon by Surain Singh defendant. This appeal succeeds and is accordingly accepted. Judgment and decrees passed by both the courts below are set aside and the plaint is ordered to be returned to the gram panchayat for presentation to the Collector under the Punjab Village Common Lands (Regulation) Act, 1961. Parties shall appear before the trial court on 10th June, 2000 when the plaint shall be returned to the gram panchayat for presentation to the Collector under the Punjab Village Common Lands (Regulation) Act, 1961.