R.S.A. 4529 of 2009 (O&M) [ 1 ] IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. 4529 of 2009 (O&M) Date of Decision: Dec. 22,2011 Banshi and another ................................... Petitioners Versus Dharambir .............................................. Respondent Coram: Hon'ble Ms. Justice Ritu Bahri 1.To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? Present: Mr. R.P.S.Ahluwalia, Advocate for the appellants. Mr. J.P.Sharma, Advocate for the respondent. ... RITU BAHRI, J. This Regular Second Appeal is against the judgment dated 18.7.2009 passed by the Additional District Judge, Narnaul, whereby the appeal against the judgment and decree dated 27.9.2007 passed by the Civil Judge (Sr. Divn.), Narnaul, has been dismissed. Plaintiff filed a suit for permanent injunction restraining the defendants from creating obstruction in the use of common passage comprised in Khewat No.110 min, R.S.A. 4529 of 2009 (O&M) [ 2 ] khatoni No.161 min, Khasra No.125, total area measuring 0 kanal 16 marlas and from raising any construction in the said passage. The plaintiff is owner of the land measuring 2 kanals 1 marla comprising in khewat No.30 min, khatoni No.44, khasra No.120 in village Rampura, Tehsil Narnaul. There is a common passage comprising in khewat no. 110, khatoni no. 161 min, khasra no.125 leading to the land of the plaintiff and width of the said rasta is 2 karams. The common passage is the only common passage available to the plaintiff and the defendants are attempting to obstruct the said passage. The defendants contested the suit and took up the plea that the suit property was not a common passage and it is a rasta to plot No. 122 and 123 only. There is a rasta to Khasra No. 120 and the width of this rasta is 4 Gatha and the suit property is a passage for plot No. 122. This passage was made pakka by Gram Panchayat for owners of plot No.122. Plot No. 122 has been purchased by Savita wife of Bansi, Bhag Singh and Manohar Singh son of Nityanand, Ramgiri wife of Ramswar on 29.12.1992. They have constructed their pukka houses in Khasra No. 122. Both the Courts after going through the evidence led by the parties have come to a conclusion that the property in dispute is a public thoroughfare and the defendants have tried to encroach upon the same in illegal manner. The defendants were restrained from interfering in the use of R.S.A. 4529 of 2009 (O&M) [ 3 ] khasra No. 125 by plaintiff and from creating any obstruction, digging of foundation and raising construction over the suit property. However, the Appellate Court gave liberty to the defendants to approach the revenue authorities for getting corrected the area of khasra No. 125. The size of the passage and the fact that Gram Panchayat had constructed a brick road would not enable the defendants to construct or encroach upon the said passage. The question of law for adjudication by this Court would be “Whether the Civil Court jurisdiction is barred to entertain a suit where the plaintiff is seeking a mandatory injunction against the defendants not to encroach upon the public street which vests in the Panchayat?” Counsel for the appellants has placed reliance on the judgment passed by this Court in Amarjeet Singh v. Gram Panchayat Kambheri 2009 (5) R.C.R. (Civil) 801 and Jai Parkash v. Ram Narain 2010 (1) R.C.R. (Civil) 972 to contend that a public street comes within the definition of Shamlat Deh and a civil suit qua Shamlat Deh is not maintainable in view of Section 13-B of the Punjab Village Common Lands (Regulation) Act, 1961 and it is the Collector under Section 7 of the Act who has the power to remove illegal possession and encroachment. On the other hand, counsel for the respondent has placed reliance on a Supreme Court judgment in Dhruv R.S.A. 4529 of 2009 (O&M) [ 4 ] Green Field Ltd. v. Hukam Singh 2002 (2) PLJ 287 and has referred to paragraph 10 in which the principles on the above issues have been read out which are as under:- (1)If there is express provision in any Special Act barring the jurisdiction of a civil Court to deal with matters specified thereunder the jurisdiction of an ordinary civil Court shall stand excluded. (2) If there is no express provision in the Act but an examination of the provisions contained therein lead to a conclusion in regard to exclusion of jurisdiction of a civil Court, the Court would then inquire whether any adequate and efficacious alternative remedy is provided under the Act; if the answer is in the affirmative, it can safely be concluded that the jurisdiction of the civil Court is barred. If, however, no such adequate and effective alternative remedy is provided then exclusion of the jurisdiction of civil Court cannot be inferred. (3) Even in cases where the jurisdiction of a civil Court is barred expressly or impliedly the court would nonetheless retain its jurisdiction to entertain and adjudicate the suit provided the order complained of is a nullity. R.S.A. 4529 of 2009 (O&M) [ 5 ] The bar of the Civil Court is to be examined in view of the three principles as enunciated by the Supreme Court. Section 13 of the Punjab Village Common Lands (Regulation) Act, 1961 is reproduced as under:- “13. Bar of jurisdiction – No civil Court shall have jurisdiction:- (a) To entertain or adjudicate upon any question whether- (i)any land or other immovable property is or is not shamlat deh. (ii) 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 this Act. (b) in respect of any matter which any revenue court, officer or authority is empowered by or under this Act to determine; or (c)to question the legality of any action taken or matter decided by any revenue court officer or authority empowered to do so under this Act.” As per Section 13-B and Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 and in the facts of the present case, the civil Court is not entertaining the suit to adjudicate whether the suit land vests in the Panchayat or not. It is not returning a finding as to who is in R.S.A. 4529 of 2009 (O&M) [ 6 ] possession of the land and whether the title vests in the Panchayat or not. The suit has been filed restraining the defendants from encroaching upon the Panchayat land and the public street which vests in the Panchayat land. As per the provisions of the Punjab Village Common Lands (Regulation) Act, 1961 the Revenue Court cannot remove or order encroachment of the land. Under Section 7 of the Act such matters cannot be decided, therefore there is no bar of jurisdiction of the civil Court. This aspect was dealt by this Court in Bani Singh v. Rattan Singh 1986 P.L.J. 577, Shri Nand Lal v. Mst. Chhottee 1983 PLJ 459 and Basakhi Ram v. Suresh Kumar 1998 (2) P.L.R. 344. The orders dated 27.9.2007 and 18.7.2009 passed by the Civil Judge (Sr.Divn.), Narnaul, and Additional District Judge, Narnaul, suffers from no illegality as the Civil Court has exercised its jurisdiction by restraining the defendants from making any encroachment on the public street by raising any construction and it calls for no interference. No question of law is involved for adjudication in the present case. Regular Second Appeal is dismissed. 22.12.2011 ( RITU BAHRI ) Rupi JUDGE