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2005 DIGILAW 852 (PNJ)

Jagdish v. Om Parkash

2005-08-11

M.M.KUMAR

body2005
Judgment M.M.Kumar, J. 1. This is ill advised plaintiffs appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity the Code), challenging concurrent findings of both the Courts below holding that the parties have litigated earlier and a suit was filed on 7.1.1982 by Baljit Singh and others (predecessor-in-interest of the plaintiff-appellants) against the defendant-respondent Om Parkash etc. The relief of permane(sic) injunction was sought against defendant-respondents restraining them from making any encroachment or interference into the possession of the plaintiffs. The defendant-respondents alleged that they and their predecessor-in-interest Kure Ram were continuously using the land as a passage for going to their plot since time immemorial. Reliance was placed on a sale-deed Ex.D-1, dated 21.10.1987, which highlighted the existence of Rasta, which was supported by Ex.PZ Aks Sijra as the later document also highlighted the existence of Rasta. The trial Court held as under:- In view of my findings on the above issues I grant a decree in favour of the plaintiffs for permanent injunction restraining the defendants from encroaching upon the disputed land shown with letters CDEF in the site plan produced by the plaintiff and for interfering with the possession of the plaintiffs thereon by carving out a passage across it otherwise than in due course of law. Keeping in view the circumstances of the case I leave the parties to bear their own costs. Decree sheet be prepared and file be consigned. The view taken by the trial Court permitted the parties to proceed in accordance with law and the appeal was also dismissed by the learned Additional District Judge on 5.8.1988. 2 On the basis of the permission granted to the judgment and decree of the Civil court, defendant-respondents filed a petition under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (for brevity the Act) against the plaintiff-appellants. The Assistant Collector, 1st Grade held that on 28.8.1992 he had inspected the spot and observed that his inspection had revealed that Jagdish, the plaintiff-appellant, had blocked the Rasta towards east by raising a wall; that the Rasta was under the ownership of the Gram Panchayat. Thereafter, an appeal was filed, which was dismissed by the Collector, Gurgaon, with the observation that the judgment and decree passed by the Civil Court has allowed the defendant-respondents to take recourse to law. Thereafter, an appeal was filed, which was dismissed by the Collector, Gurgaon, with the observation that the judgment and decree passed by the Civil Court has allowed the defendant-respondents to take recourse to law. The orders of the authorities under the Act were challenged before this Court in a writ petition, which was dismissed and even an S.L.P. filed by the plaintiff-appellants was dismissed. 3. The plaintiff-appellants then challenged the orders of the authorities under the Act by filing the civil suit from which the instant appeal has arisen. Both the Courts below have taken the view that in such a situation no suit would be competent as the matter has been adjudicated firstly by the authorities competent under the Act and thereafter the plaintiff-appellants failed in challenging those orders firstly before the High Court and then before the Supreme Court. The argument that the orders passed by the authorities under the Act were without jurisdiction and that the orders passed by this Court as well as the Supreme Court were not speaking orders, has been rejected by both the Courts below. It was suggested that the question of title could not have been decided by the authorities under the Act and those orders were without jurisdiction. The observations of the lower Appellate Court in this regard read as under: This argument is not tenable firstly because in the civil Court decided on 31.7.1986 there was no issue with regard to the ownership neither point of ownership was decided by the Court and the Court merely gave an opinion on the basis of possession of the plaintiffs over the disputed land with further observation that the possession of the plaintiffs be not interfered by carving out a passage across it otherwise than in due course of law. Hence, there was no question of title decided by the Civil Court. Rather before A.C. 1st Grade, application was given by the applicants under Section 7 of the Act that the disputed portion is a rasta and the respondents claimed that it was under their ownership and after going through the material on record and visit at the spot and after hearing the arguments the learned A.C. 1st Grade came to the conclusion that the disputed portion is a rasta and not property owned by the respondents. Hence the question of title was decided by A.C. 1st Grade. Hence the question of title was decided by A.C. 1st Grade. Under Section 13-A of the Act it is specifically provided that any person may file a suit for adjudication whether such land or other immovable property is shamlat deh or not and where any land or other immovable property or any right, title or interest therein vests or does not vest in the panchayat under this Act, in the Court of the Collector, having jurisdiction in the area wherein such land or other immovable property is situated. Under Section 2(g)(4) it is defined that shamlat deh includes land used for the benefit of village community including streets, lanes, etc. Section 13-C of the Act provides that every order made by the Assistant Collector of the First Grade, the Collector or the Commissioner shall be final and shall not be called in question in any manner in any Court. Section 13 bars the jurisdiction of civil Court to entertain or adjudicate upon any question whether any land or other immovable property is or is not shamlat deh. In the case before A.C. 1st Grade has passed a detailed and speaking judgment which has been upheld by Collector, Hon ble High Court in writ filed by the appellants and in S.L.P. by Hon ble Supreme Court. It clearly goes to establish that the property in dispute is held to be a rasta upto the Hon ble apex Court, Though it is admitted by the appellants that their writ petition was dismissed in the Hon ble High Court and SLP was also dismissed in the Hon ble Supreme Court but they have not placed on record any copy of order as well as the grounds taken by them in both these proceedings. Whatever is the situation this Court cannot question the legality of the order of A.C. 1st Grade which is upheld upto the Hon ble Supreme Court.... 4. Mr. Sanjay Vij, learned Counsel for the plaintiff-appellant has argued that on the basis of admitted position namely the writ petition was dismissed in limine and there was no adjudication of rights of the parties by the Civil Court, therefore, the same can be made subject-matter of challenge once again before the Civil Court and such a dismissal in limine of a writ petition by the High Court would not constitute any bar. He has then submitted that the orders of authorities passed under the Act were without jurisdiction as the question of title was involved and the same could not be decided by the Civil Court and, therefore, there is jurisdictional error in the orders of the High Court as well as that of the Supreme Court. In support of his submission learned Counsel has placed reliance on a judgment of the Supreme Court in the case of Gowrishankar and Anr. v. Joshi Amba Shankar Family Trust and Ors. 5. After hearing learned Counsel and perusing the views expressed by the two Courts below, I am of the considered view that the no interference of this Court is called for because the initial judgment and decree passed in favour of the plaintiff-appellants permitted the defendant-respondents to proceed in due course of law and in the meanwhile they were not to interfere or encroach upon the Rasta in dispute. Accordingly, they filed appropriate applications under Section 7 of the Act, which have been allowed. Firstly, the question of title could be decided by the authorities under the Act because under proviso to Section 7 read with Section 13-A of the Act, a question with regard to title can also be decided. The factual position is that such a question was raised and has been validly decided by the authorities under the Act. The Assistant Collector 1st Grade himself visited the spot and found the encroachment by the plaintiff-appellants. The orders passed by the Assistant Collector has been upheld by the Collector and then by the High Court as well as by the Supreme Court. It is appropriate to mention that the powers of the authorities under the Act to decide the question of title in terms of power conferred by Section 13A read with proviso to Section 7 have been upheld by this Court in Leela Ram and Anr. v. Gram Panchayat, Village Jailaf and Ors. (1997-3)117 P.L.R. 723. 6. In somewhat similar circumstances a Division Bench of this Court in the case of Bhagu and Ors. v. Ram Singh and Ors. v. Gram Panchayat, Village Jailaf and Ors. (1997-3)117 P.L.R. 723. 6. In somewhat similar circumstances a Division Bench of this Court in the case of Bhagu and Ors. v. Ram Singh and Ors. 1985 R.R.R. 353, considered the question whether the land which was described as Gali Shaire-am and which would undoubtedly be covered by the definition of Shamlat Deh as per the provisions of Section 2(g)(4) of the Act, held that the implication of Section 13(A) of the Act is that the jurisdiction of the Civil Court to that extent have been taken away. The significant observations made by the Division Bench in paras 4 and 5 suggests that jurisdiction of the Civil Court would be barred in these circumstances. 7. The argument of the learned Counsel based on the judgment of the Supreme Court in the case of Gowrishankar (supra) would not come to the rescue of the plaintiff-appellant because the question considered by the Supreme Court is entirely different than the one raised in this case. The Supreme Court has considered the question whether the order obtained by suppressing material facts and playing fraud on the Court would be nullity and the same could be challenged by filing a writ petition in the same Court. The answer to the afore-mentioned question has to be in the affirmative because any judgment, order or decree obtained by the playing fraud on the Court would be open to challenge by way of a separate suit. The aforementioned position has been reiterated by the Supreme Court in the case of S.P. Chengalvaraya v. Jagan Nath (1995-1)109 P.L.R. 293 (S.C.). However, the question before this Court in the present case is whether the adjudication which has already taken place with regard to the same property between the same parties (although some parties were different) could be re-opened by filing a separate civil suit especially when the matter stands concluded by the dismissal of a writ petition by the High Court and thereafter by the dismissal of Special Leave Petition (SLP) by the Supreme court. After the plaintiff-appellant lost the legal battle before the statutory authorities there were two remedies open to him. He could have challenged those orders by filing a writ petition or he could have chosen to file a civil suit. After the plaintiff-appellant lost the legal battle before the statutory authorities there were two remedies open to him. He could have challenged those orders by filing a writ petition or he could have chosen to file a civil suit. However, the plaintiff-appellant filed a writ petition which he lost albeit in limine and then by the dismissal of SLP by the Supreme Court, After exhausting all these remedies, the plaintiff-appellant cannot be permitted to once again file a civil suit. Such an argument is obviously misconceived and, therefore, I have no hesitation to reject the same. No interference of this Court is called for. The appeal is wholly without merit and is liable to be dismissed. 8. For the reasons aforementioned, this appeal fails and the same is dismissed. In view of the fact that the appeal has been dismissed on merit, I do not feel the necessity of expressing any opinion on the application filed under Section 151 of the Code for condonation of delay of 3 days in refiling of the appeal.