R.S.A. No.2617 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH REGULAR SECOND APPEAL No.2617 of 2009 DATE OF DECISION: 6 th APRIL, 2011 Gram Panchayat .... Appellant Versus Ramesh Chander & others. .... Respondents CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL. PRESENT: Mr. R. N. Lohan, Advocate for the appellant. Mr. V. K. Agnihotri, Advocate for the respondents. * * * * L.N. MITTAL, J. (ORAL) Defendant-Gram Panchayat having failed in both the courts below is in second appeal. Respondents/plaintiffs filed suit in representative capacity under Order 1 Rule 8 of the Civil Procedure Code on behalf of Brahamans of the village against defendant-appellant Gram Panchayat alleging that the suit land measuring 61 Kanals 14 Marlas was of Shamlat Brahmanan and was in possession of the plaintiffs and is still in their possession. However revenue entry depicted possession of residents of the village. Jamabandi for 1996-97 depicted the suit land as Rafai Aam i.e. for common purposes. Mutation No.173 dated 16.07.1964 was sanctioned by Assistant Collector in favour of defendant- Gram Panchayat regarding the suit land. Said mutation has been challenged in the suit as illegal and null and void as it was sanctioned without granting opportunity of hearing to the Brahamans of the village. It was pleaded that R.S.A. No.2617 of 2009 -2- common land of Brahaman cannot be mutated in the name of Gram Panchayat without compensation or without acquiring the land. Defendant has no right or concern with the suit land. Accordingly plaintiffs sought declaration that mutation No.173 dated 16.07.1964 of the suit land belonging to Shamlat Brahmanan in favour of defendant is illegal and null and void and not binding of the rights of the Brahamans of the village and all subsequent revenue entries are also illegal and null and void and are liable to be corrected. Defendant raised various preliminary objections including objection of bar of jurisdiction of Civil Court. The defendant broadly controverted the plaint allegations and pleaded that the suit land was shamlat deh and therefore it vested in defendant-Gram Panchayat. Defendant is using the suit land for common purposes of the villagers. Plaintiffs also had knowledge that suit land vested in defendant Gram Panchayat under the Punjab Village Common Lands (Regulation) Act, 1961 (in short the Act). Grounds pleaded by the plaintiffs to challenge the mutation were controverted. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Jind vide judgment and decree dated 30.08.2007 decreed the plaintiffs' suit declaring the impugned mutation to be illegal and null and void and declaring the Panna Brahmanan represented by the plaintiffs to be owners in possession of the suit land. First appeal preferred by defendant has been dismissed by learned Additional District Judge, Jind vide judgment and decree dated 13.01.2009. Feeling aggrieved, defendant has preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. R.S.A. No.2617 of 2009 -3- Learned counsel for the appellant vehemently contended that jurisdiction of Civil Court to try the suit is barred by Section 13 of the Act and the respondents/plaintiffs could assert their alleged right in the suit land by filing suit in the court of Collector under Section 13A of the Act. On the other hand, learned counsel for the respondents vehemently contended that respondents/plaintiffs in the suit have simply challenged mutation No.173 vide which suit land was mutated in the name of defendant Gram Panchayat and the question of vesting or non-vesting of the suit land in Gram Panchayat is not involved in the lis and, therefore, jurisdiction of the Civil Court is not barred. It was pointed out that originally the land was recorded in the name of Shamlat Brahamanan in the revenue record and, therefore the suit land could not be mutated in favour of the defendant Gram Panchayat. I have carefully considered the rival contentions. From the pleadings of the parties, it is manifest that the sole substantial question to be adjudicated in the suit is whether the suit land vested in defendant Gram Panchayat or not ? The plaintiffs asserted that plaintiffs are owners in possession of the suit land whereas the defendant asserted that it is owner in possession of the suit land. The defendant specifically asserted the suit land vested in Gram Panchayat. Plaintiffs disputed the same. Consequently, sole main controversy involved in the suit is regarding vesting or non-vesting of the suit land in defendant-Gram Panchayat. However, the said issue can be adjudicated upon only by the Collector under Section13-A of the Act and jurisdiction of the Civil Court to try the same is barred by Section 13 of the Act. For the reasons aforesaid, I find that both the courts below have R.S.A. No.2617 of 2009 -4- wrongly held that jurisdiction of Civil Court to try the suit is not barred. Substantial question of law as to whether finding of the courts below that Civil Court has jurisdiction to try the suit is perverse and illegal and against the mandatory provisions of Sections 13 and 13-A of the Act arises for adjudication in the instant second appeal. For the reasons already recorded, the aforesaid substantial question of law is answered in favour of the defendant-appellant. Civil Court has no jurisdiction to try the suit. Finding of the courts below to the contrary is, therefore, set aside, being illegal and perverse. Findings on other issues recorded by the courts below are set aside being without jurisdiction. The instant second appeal is, therefore, allowed. Judgments and decrees of the courts below are set aside. Plaint is ordered to be returned to the plaintiffs for presentation before court of competent jurisdiction. Files of the courts below be sent at once. Plaintiffs are directed to appear in the trial court on 10.05.2011 for receiving back the plaint. (L. N. MITTAL) JUDGE 6th April, 2011 'raj'