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2005 DIGILAW 993 (PNJ)

Shri Ram Singh v. Gram Panchayat, Kandia

2005-09-16

VINEY MITTAL

body2005
JUDGMENT Viney Mittal, J. (Oral) - The plaintiff in this appeal filed a suit for declaration to the effect that he is the owner in possession of the land in dispute. It was also claimed in this plaint that jamabandi entries reflecting the ownership of the Gram Panchayat were incorrect and were liable to be corrected. 2. The suit was contested by the defendant-Gram Panchayat. It was claimed that the land in question belonged to Gram Panchayat and that the Civil Court had no jurisdiction to deal with the matter. The learned trial Court vide its judgment and decree dated 13.11.1986 decreed the suit filed by the plaintiff. The plaintiff was held to be owner in possession of the suit land. It was held that since the Assistant Collector vide an earlier judgment dated 31.3.1986 had held that the plaintiff was owner of the suit land and that the same did not vest in the Gram Panchayat, therefore, the Gram Panchayat was not shown to be the owner of the suit land. It was also held that the aforesaid judgment dated 31.3.1986 had attained finality and, therefore, could not be questioned by Gram Panchayat. It was further held by the learned trial Court that in a sense, the suit in question filed by the plaintiff was for simple purpose of getting the entries of jamabandi corrected. Accordingly, it was held that the Civil Court had the jurisdiction to deal with the matter. 3. The matter was taken in appeal by the defendant. The learned appellate Court on the basis of objection raised by the defendants held that Civil Court had no jurisdiction to decide the suit. It was also held that primarily the prayer made by the plaintiff was for declaration regarding his ownership, accordingly, it was held that the suit filed by the plaintiff before the Civil Court was not maintainable. Consequently, the suit filed by the plaintiff was dismissed. 4. Plaintiff has now approached this Court through regular second appeal. The present appeal was filed in the year 1987 under the provisions of Section 41 of the Punjab Courts Act, 1980. Consequently, the suit filed by the plaintiff was dismissed. 4. Plaintiff has now approached this Court through regular second appeal. The present appeal was filed in the year 1987 under the provisions of Section 41 of the Punjab Courts Act, 1980. At that point of time a Full Bench of this Court in the case of Ghanpat v. Ram Devi, AIR 1978 Punjab & Haryana 137 had taken a view that in view of the aforesaid local law (Punjab Courts Act), the amended provisions of Section 100 of the Code of Civil Procedure, as amended in 1976, were not applicable to the second appeals filed in this Court. Accordingly, no substantial questions of law were framed nor the aforesaid regular second appeal was admitted on any such substantial questions of law. However, the Honble Supreme Court of India in the case of Kulwant Kaur and others v. Gurdial Singh Mann (dead) by LRs and others, JT 2001(4) SC 158 has held that after the amendment of the Code of Civil Procedure in the year 1976, thereby amending Section 100, Section 41 of the Punjab Courts Act had become redundant and repugnant to the Central Act i.e. Code of Civil Procedure and, therefore, was to be ignored and, therefore, the second appeal shall only lie to this Court under Section 100 of the amended Code of Civil Procedure on a substantial question of law. 5. Accordingly, in view of the law laid down by the Apex Court in Kulwant Kaurs case (supra), during the course of arguments, the following substantial questions of law were found to have arisen in the present regular second appeal : (i) Whether the judgment of the Assistant Collector, First Grade, Kalka dated 31.3.1986 having attained finality with regard to the ownership of the land in dispute, was it open to the Gram Panchayat to deny the ownership of the plaintiff? (ii) Whether the learned first appellate Court has duly considered the true impart of the judgment dated 31.3.1986 ? (iii) Whether findings recorded by the learned first appellate Court are judicially perverse and liable to be set aside ? 6. No one has chosen to appear on behalf of the respondents. 7. Sh. S.C. Kapoor, learned senior counsel has primarily placed his reliance upon the decree dated 31.3.1986 passed by the Assistant Collector First Grade, Kalka. (iii) Whether findings recorded by the learned first appellate Court are judicially perverse and liable to be set aside ? 6. No one has chosen to appear on behalf of the respondents. 7. Sh. S.C. Kapoor, learned senior counsel has primarily placed his reliance upon the decree dated 31.3.1986 passed by the Assistant Collector First Grade, Kalka. A perusal of the aforesaid judgment shows that a suit for declaration had been filed by Ram Singh and some of the proprietors of the village against the Nagar Panchayat claiming that the proprietors of the village were in exclusive possession of the land measuring 477 bighas 13 biswas. The said suit was contested by the Nagar Panchayat and thereafter, vide judgment dated 31.3.1986, the Assistant Collector held that the Nagar Panchayat was not the owner of the said land and said land vested in the village proprietors only. In the present proceedings, it is still claimed that the suit land had not vested in the Gram Panchayat. The Court of competent jurisdiction under the provisions of Punjab Village Common Lands Regulation Act, 1961 had held the proprietors of the village to be owners of the suit property. On account of the aforesaid finding having attained finality it was not open to the learned additional District Judge to hold that the Civil Court had no jurisdiction in the matter. 8. Accordingly, the aforesaid substantial questions are answered in favour of the appellants and against the respondent. Consequently, it is held that the findings recorded by the learned Additional District Judge, Ambala are judicially perverse and cannot be legally sustained. 9. As a result of the discussion, the present appeal is allowed. The judgment and decree dated 25.4.1987 passed by the Additional District Judge, Ambala are set aside. The matter is remitted back to the first Appellate Court to redecide the appeal filed by the defendant-respondents. Sh S.C. Kapoor, learned Senior Advocate (sic) the Court that as at present the subject-matter of the controversy falls within the territorial jurisdiction of the Panchkula, therefore, the appellate Court would be at Panchkuls. 10. Accordingly, the parties are directed to appear before the learned District Judge, Panchkula who shall keep the matter with him for fresh decision or may allocate the same to a Court of competent jurisdiction. 10. Accordingly, the parties are directed to appear before the learned District Judge, Panchkula who shall keep the matter with him for fresh decision or may allocate the same to a Court of competent jurisdiction. Since the matter has remained pending in this Court for a very long time, therefore, the learned first appellate Court is directed to decide the appeal within 6 months. The parties are directed to appear before the learned District Judge, Panchkula on 28.10.2005. Appeal allowed.