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2012 DIGILAW 255 (PNJ)

Ranjit Singh v. State of Punjab

2012-02-14

RAJIVE BHALLA, RAKESH KUMAR JAIN

body2012
JUDGMENT Mr. Rakesh Kumar Jain, J.: - The petitioners have questioned the validity of order dated 02.06.2010 (Annexure P-21) passed by respondent No.2 while allowing the appeal filed by respondent No.3 by which order dated 08.01.2008 (Annexure P-20) passed by the Collector-cum-Deputy Divisional Director, Rural Development and Panchayat, Patiala, has been set aside. 2. In brief, the case set up by the petitioners is that they are owners in possession of the land in dispute about which respondent No.3 had once filed a suit for possession, which was dismissed on 03.12.1979, and in the absence of any appeal, the said order had become final. Thereafter, the petitioners filed a suit for declaration on the basis of decree dated 03.12.1973 which was obtained by them on the plea of adverse possession and the said suit for declaration was decreed on 01.12.1980. It is alleged that respondent No.3 had filed an application under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 [for short “the Act”], which was dismissed on 27.06.1997 and its appeal was dismissed on 14.09.2001, against which respondent No.3 had filed CWP No.3512 of 2005 in this Court, which was dismissed as withdrawn on 03.03.2005 in order to file an application under Section 11 of the Act. It is further alleged that the application filed by the Gram Panchayat under Section 11 of the Act was dismissed by the Collector vide his order dated 08.01.2008 but the appeal has been allowed by respondent No.2 by the impugned order dated 02.06.2010. 3. Learned counsel for the petitioners has argued that since the petitioners have already been declared owners of the land in dispute by way of a Civil Court decree, therefore, the application filed by respondent No.3 could not have been allowed by respondent No.2 declaring title of the Gram Panchayat over the land in dispute. 4. Learned counsel for the respondent No.3 has, however, submitted that the decree dated 01.12.1980, which was even upheld in appeal on 29.05.2000, was collusive and even otherwise deserves to be ignored because the Civil Court had no jurisdiction to decide the question of title in view of Section 13 of the Act or to adjudicate upon a question, whether any property or any right to or interest in any property is or is not shamilat deh vested or deemed to have been vested in a Panchayat under the Act. It is also submitted that even the decree dated 03.12.1973, which has been produced as Ex.P1 in the suit filed by the petitioners which has been decreed on 01.12.1980, was a decree obtained on the ground of adverse possession of the plaintiffs, whereas the plea of adverse possession is a plea of defence, which cannot be, taken, by the plaintiff to establish a right. 5. We have heard both the counsel for the parties and perused the available record. 6. There is no doubt that the interest of the Gram Panchayat was not legally and diligently watched by the then Sarpanch against whom strictures have been passed by respondent No.2 in the impugned order, but as there is a decree dated 01.12.1980 in favour of the petitioners, which has been upheld on 29.05.2000, in appeal, the question that arises is whether the decree can be ignored in terms of Section 13 of the Act? In this regard, following provisions of the Act are required to be noticed: “11. Decision of claims of right, title or interest in shamilat deh.— (1) Any person or a Panchayat claiming right, title or interest in any land, vested or deemed to have been 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 the Collector shall have jurisdiction to decide such claim in such manner as may be prescribed. (2) Any person or a Panchayat aggrieved by an order of the Collector made under sub-section (1) may, within sixty days from the date of the order, prefer an appeal to the Commissioner in such form and manner as may be prescribed and the Commissioner may after hearing the appeal, confirm, vary or reverse the order appealed from and may pass such order as he deems fit.” “13. Bar of Jurisdiction in civil courts.— No Civil courts shall have jurisdiction— (a) to entertain or adjudicate upon any question, whether any property or any right to or interest in any property is or is not shamilat deh vested or deemed to have been vested in a Panchayat under this Act; or (b) to question the legality of any action taken by the Commissioner or the Collector or the Panchayat, under this Act; or (c) in respect of any matter which the Commissioner or the Collector is empowered by or under this Act to determine.” “13-B. Provisions of this Act to be overriding.— The provisions of this Act shall have effect, notwithstanding anything to the contrary in any law or any agreement, instrument, custom or usage or any decree or order of any court or other authority.” 7. According to Section 11 of the Act, any person or Panchayat, who claims right, title or interest in any land which is vested or deemed to have been vested in a Panchayat under the Act and claims that it is not so vested, may approach the Collector in the prescribed manner. Section 13 of the Act ousts the jurisdiction of Civil Courts to entertain or adjudicate upon any question with regard to the right, title or interest in property which is vested or deemed to have been vested in the Panchayat or about the legality of any action taken by the Collector or Commissioner or the Panchayat under the Act or in respect of any matter about which Commissioner or Collector is empowered to determine under the Act. Section 13-B was inserted to provide that the provisions of the Act shall have effect, notwithstanding anything to the contrary in any law, agreement, instrument, custom or usage or any decree or order of any court or other authority. It is pertinent to mention that the aforesaid provisions were inserted in the Act vide Act No.19 of 1976. The decree dated 01.12.1980 was passed in Civil Suit No.135/25.04.1980, instituted after the insertion of Section 13 in the Act, which debars a Civil Court from deciding question of any right, title or interest in favour of any party in respect of the land vested or deemed to have been vested in shamilat deh. The decree dated 01.12.1980 has to, therefore, be ignored as being without jurisdiction. The decree dated 01.12.1980 has to, therefore, be ignored as being without jurisdiction. Even otherwise, the said decree has to be ignored in terms of Section 13-B of the Act, which provides that provisions of the Act shall have effect, notwithstanding anything to the contrary in any law etc. which includes a decree as well. The petitioners, therefore, cannot take assistance of the Civil Court decree dated 01.12.1980 to prove their right, title or interest in the land in dispute. It has been further observed by respondent No.2 in the impugned order that “the appellants failed to submit any evidence in the lower court as well as this court from where it could be proved that they are continuously in cultivation possession over the land in dispute since 26th January, 1950”. This aspect has not been challenged by the counsel for the petitioners during the course of hearing. In view of the aforesaid discussion, we do not find any merit in the present writ petition and hence, the same is hereby dismissed. ---------0.B.S.0------------