Research › Search › Judgment

Punjab High Court · body

2004 DIGILAW 1063 (PNJ)

Mahan Singh v. Collector

2004-09-16

G.S.SINGHVI, VIRENDER SINGH

body2004
Judgment Virender Singh, J. 1. The appeal under Clause X of the Letters Patent is directed against judgment dated 9.3.1994 of the learned Single Judge vide which C.W.P. No. 4334 of 1980 filed by Mahan Singh and five others (appellants herein) was dismissed upholding order dated 23.9.1980 (Annexure P2) passed by Collector, Sonepat (respondent No. 1). 2. Gram Panchayat, Ahulana (respondent No. 2) filed an application before Assistant Collector, 1st Grade, Gohana (hereinafter described as the Assistant Collector) under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (for short the Act) with the prayer that the appellants be evicted from the piece of land where there was a Chopal known as Thola Bhitar Wala within the abadi of village Ahulana and some shamlat land situated near thereto which was kept for public purposes/The appellants contested the application of respondent No. 2 by claiming that they were in possession of the disputed land from the time of their ancestors. They further claimed that Baru Ram, father of appellant Nos. 2 to 6 and Mahan Singh-appellant No. 1 had made their enclosures on the disputed land. Earlier a kucha house was built, but later on, pucca house and enclosures were built. Besides this, there was also a 4/5 feet wide lane which exists between the Chopal and the disputed land and that respondent No. 2 had no connection therewith. 3. By an order dated 3.4.1979 (Annexure P1), the Assistant Collector dismissed the application filed by respondent No. 2. That order was reversed by respondent No. 1 vide order Annexure P2 passed in the appeal preferred by respondent No. 2. He held that the disputed land vests in respondent No. 2 and the appellants had illegally occupied the same. 4. Feeling aggrieved by order Annexure P2, the appellants filed C.W.P. No. 4334 of 1980 which was dismissed by the learned Single Judge vide order dated 9.3.1994 with the observation that judgment and decree dated 28.2.1977 passed by the Sub-Judge 1st Class, Gohana (hereinafter described as the Sub-Judge) in Civil Suit No. 220 of 1973-Kidara v. Baru declaring respondent No. 2 as owner in possession of the disputed land was binding on the writ petitioners (appellants herein). 5. 5. Shri S.C. Kapoor, Senior Advocate appearing for the appellants argued that respondent No. 1 committed a grave illegality by ordering eviction of his clients on the premise that the finding recorded by the Sub Judge in the suit filed by Kidara and others was binding on them. He submitted that Baru and others did not have the occasion to challenge the finding recorded by the Sub-Judge because the suit filed by Kidara and others was dismissed and in any case, respondent No. 2 cannot take advantage of the said finding for treating the appellants as unauthorised occupants of disputed land because it was not a party to the suit. Shri Kapoor then argued that in view of the express bar contained in Section 13 of the Act, the Civil Court did not have the jurisdiction to record a finding that the land in dispute vests in respondent No. 2. He further argued that even otherwise, the judgment of the Civil Court which has been relied upon by respondent No. 1 while sitting in appeal or even by the learned Single Judge has no bearing on the controversy in-as-much as, that no issue was framed by the Civil Court regarding the fact that the disputed land belonged to respondent No. 2. Shri Kapoor criticised the order of the learned Single Judge and argued that the conclusion recorded by him about the binding character of the finding recorded by the Sub-Judge in the suit filed by Kidara and others in per se erroneous. 6. Shri H.S. Hooda, Senior Advocate, appearing for respondent No. 2 supported the order of the learned Single Judge as well as the one passed by respondent No. 1. He emphasized that the finding recorded by the Sub-Judge that respondent No. 2 is the owner in possession of the land in question is final and binding on the parties and respondent No. 1 did not commit any illegality by ordering eviction of the appellants. He submitted that even though, respondent No. 2 was not a party in the civil suit filed by Kidara and others, the appellants, who were parties to the suit through their predecessor are bound by the finding recorded by the Sub-Judge. He submitted that even though, respondent No. 2 was not a party in the civil suit filed by Kidara and others, the appellants, who were parties to the suit through their predecessor are bound by the finding recorded by the Sub-Judge. Shri Hooda then argued that the bar contained in Section 13 of the Act is not attracted in the present case because the suit filed by Kidara and others was not for determination of the title of (sic). 7. We have given serious thought to the respective arguments and perused the record including judgment and decree dated 28.2.1977, a copy whereof has been placed on record as Annexure R1. There is no dispute between the parties that the property which was subject-matter of the application filed by respondent No. 2 under Section 7 of the Act was also the subject-matter of the suit for permanent injunction filed by Kidara and others against Baru (predecessor of some of the appellants) and others. Kidara and others claimed that the property which was described as Thola Bhitar Wala belonged to them and the defendants were trying to dispossess them. In their written statement, the defendants pleaded that the land in dispute was in their possession since the time of their ancestors and they had become owner thereof. On the pleadings of the parties, the Sub-Judge framed the following issues:- (1) Whether disputed site ABDC mentioned in plan dated 2.10.1973 is owned by thola Bhiteria? OPP (2) Whether share holders thereof are in possession thereon? OPP (3) Whether the suit is within limitation? OPP (4) Whether the suit is not maintainable in the present form? OPP (5) Whether the suit is bad for non-joinder of necessary parties? OPP (6) Relief. 8. The onus to prove issue Nos. 1 and 2 was on the plaintiffs, but they could not lead tangible evidence to enable the trial court to record a finding in their favour. In the course of the judgment, the learned Sub Judge did make an observation that the disputed land vests in respondent No. 2 and the same is not possessed by any one else, but the said observation cannot be treated as conclusive finding on the issue of the title of the property and the same could not have been relied upon for ordering eviction of the appellants. Section 13 provides that no Civil Court shall have jurisdiction to entertain or adjudicate upon any question whether any land or other immovable property or any right, title or interest in such land or other immovable property vests or does not vest in a Panchayat under the Act. 9. In our opinion, the mandate of Section 13 of the Act cannot be nullified by relying on the stray observations made by the Sub-Judge in the suit filed by Kidara and others. In any case, those observations cannot be treated as binding on the appellants because respondent No. 2 was not party to the suit. the issues framed by the Sub-Judge did not warrant determination of the question of the title of respondent No. 2. The appellants did not have the opportunity to challenge the finding recorded by the Sub-Judge in favour of respondent No. 2 because the suit field by Kidara and others was dismissed. 10. In view of the above discussion, we hold that order Annexure P2 passed by respondent No. 1 for eviction of the appellants is vitiated by an error of law apparent on the face of the record. We further hold that the learned Single Judge gravely erred in holding that the finding recorded by the Sub-Judge in civil suit titled Kidara and Ors. v. Baru and Ors. that the disputed property vests in respondent No. 2 is binding on the appellants. 11. At this stage, we deem it proper to observe that respondent No. 1 had allowed the appeal of respondent No. 2 only on the basis of judgment and decree dated 28.2.1977 passed by the Sub-Judge and did not deal with other aspects of the case. Therefore, it is appropriate that a direction is given to him to decide the appeal filed by respondent No. 2 afresh after giving reasonable opportunity of hearing to the parties. In the result, the appeal is allowed and the order of the learned single Judge is set aside. Other Annexure P2 passed by respondent No. 1 is declared illegal and quashed and he is directed to decide the appeal of respondent No. 2 afresh after giving opportunity of hearing to the parties.