RSA No.2849 of 1987 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2849 of 1987 (O&M) Date of decision: 25.3.2010 Niadar and other ............Appellants Versus Gram Panchayat, Dundahera ..........Respondent CORAM: HON'BLE MR. JUSTICE ALOK SINGH -.- Present: Mr. C. B. Goel, Advocate for the appellants. None for the respondent. 1. Whether Reporters of local papers may be allowed to see the judgment?Yes 2. To be referred to the Reporters or not? Yes 3. Whether the judgment should be reported in the Digest? Yes ALOK SINGH, J. (ORAL) 1. The plaintiffs/appellants are assailing the judgment and decree dated 25.7.1987 passed by the Additional District Judge, Gurgaon/first Appellate Court, whereby suit of the plaintiffs was dismissed by observing that Civil Court jurisdiction is barred. 2. The brief facts of the present case are that plaintiffs filed a suit seeking relief of declaration declaring the plaintiffs as owners of the property in dispute on the basis of occupancy rights and RSA No.2849 of 1987 (O&M) -2- consequential relief of permanent injunction was also sought. 3. Learned trial Court did not agree with the plaintiffs on the question of ownership, however, finding the plaintiffs in possession permanent injunction was granted by the learned trial Court. 4. Feeling aggrieved from the judgment and decree passed by the learned trial Court granting permanent injunction, defendant- Gram Panchayat filed first appeal challenging the injunction granted by the learned trial Court, in which plaintiffs also filed cross- objections challenging the findings of the learned trial Court on the question of ownership. 5. Learned first Appellate Court dismissed the suit of the plaintiffs in toto by holding that Civil Court has no jurisdiction in the matter. 6. I have heard learned Counsel for the appellants and perused the record. 7. Mr. C.B. Goel, learned Counsel for the appellants, argued that in view of the judgment of Full Bench of this Court in the matter of Shiv Charan v. The Financial Commissioner, Revenue Department, Haryana reported in PLR Vol.CXXXVIII-(2004-3) 569 Civil Court has jurisdiction and suit is not barred. 8. I have perused the judgment of Full Bench of this Court in the matter of Shiv Charan (supra). To my mind, the question involved before the Full Bench was pertaining to the interpretation of Section 77(3)(d) of the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1953. The Full Bench of this Court has held that the only suit which is barred under Section 77(3)(d) of the Act is RSA No.2849 of 1987 (O&M) -3- suit by a tenant to establish a claim to a right of occupancy, or by a landlord to prove that a tenant has not such a right. The Full Bench further held, if a person is claiming title over the suit land on the basis of occupancy rights then it would not amount to claiming merely occupancy rights, hence, suit would not be barred before the Civil Court under Section 77(3)(d) of the Act. Full Bench of this Court was not dealing the question of applicability/interpretation of Section 7 and 13 of The Punjab Village Common Lands (Regulation) Act, 1961, as applicable to Haryana. 9. In the case in hand, question before this Court is as to whether Civil Court has jurisdiction in a suit claiming title in view of Section 13(b) read with Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961. 10. Section 13 of The Punjab Village Common Lands (Regulation) Act, 1961 (for brevity ‘the Act’) reads 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 RSA No.2849 of 1987 (O&M) -4- (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.” 11. Undisputedly, language of Section 77(3)(d) of 1953 Act and of Section 13 of 1961 of the Act are different and not paramateria. From the perusal of Section 13(b), it can safely be said that no suit shall lie in a Civil Court, if Revenue Court, Officer or authority under this Act can determine the same question. 12. Section 7 of The Punjab Village Common Lands (Regulation) Act, 1961 reads as under:- “7. Power to put Panchayat in posses- sion of certain lands (1) An Assistant Col- lector of the first grade having jurisdiction in the village may, either suo motu or an appli- cation made to him by a panchayat or an in- habitant of the village or the Block Develop- ment and Panchayat Officer or Social Educa- tion and Panchayat Officer, after making such summary enquiry as he may deem fit and in accordance with such procedure as may be prescribed, eject any person who is in wrong- ful or unauthorised possession of the land or other immovable property in the shamilat deh of that village which vests or is deemed to have been vested in the panchayat under this Act and put the panchayat in possession thereof and for so doing the Assistant Collector of the first grade may exercise the powers of a revenue court in relation to the execution of a decree for RSA No.2849 of 1987 (O&M) -5- possession of land under the Punjab Tenancy Act, 1887 : Provided that in any such proceedings the question of title is raised and proved prima facie on the basis of documents that the question of title is really involved, the As- sistant Collector of the first grade shall record a finding to that effect and first decide the question of title in the manner laid down here- inafter. (2) The Assistant Collector of the first grade shall by an order, in writing, require any per- son to pay a penalty, in respect of the land or other immovable property which was or has been in his wrongful or unauthorized posses- sion, at a rate not less than five thousand ru- pees and not more than ten thousand rupees and not more than ten thousand rupees per hectare per annum, having regard to the benefit which could be derived from the land or other immovable property. If the penalty is not paid within the period of thirty days from the date of the order, the same shall be re- coverable as arrears of land revenue. (3) The procedure for deciding the question of title under proviso to sub-section (1), shall be the same as laid down in the Code of Civil Procedure, 1908. (4) If any person refuses or fails to comply with the order of eviction passed under sub- section (1), within ten days of the date of such order, the Assistant Collector of the first grade may use such force, including police force, as may be necessary for putting the panchayat in possession. RSA No.2849 of 1987 (O&M) -6- (5) Any person who is found in wrongful or unauthorised possession of the land or other immovable property in shamilat deh and is or- dered to be ejected under sub-section (1), shall be punishable with imprisonment for a term which may extend to two years.” 13. From the proviso of Section 7, it can very well be said that if a question of title is raised, then before proceeding further, Assistant Collector shall decide the question of title first. 14. Mr. C.B.Goel, learned Counsel for the plaintiffs/appellants, stated that the question, as to whether property is shamlat deh or vested in the Gram Panchayat, of course would be an ancillary question but main question is a question of title. He further argued that plaintiffs are not claiming that property is a shamlat deh or not, hence, suit would not be barred by Section 13(b). 15. Undisputedly, question of title is involved in the present suit that too against the Gram Panchayat and same can be adjudicated under the proviso of under Section 7, hence, Civil Court has no jurisdiction over the matter in view of Sub-section (b) of Section 13 of the Act. 16. I find no illegality in the order of first Appellate Court. However, it is made clear that plaintiffs/appellants can agitate the question of title before the Assistant Collector if eviction proceeding is initiated against the plaintiffs by the Gram Panchayat. This Court hope and expect that plaintiffs/appellants shall not be evicted without adopting due process of law, if they are already in possession. 17. In view of the above, I am not inclined to entertain the RSA No.2849 of 1987 (O&M) -7- present second appeal. Hence, the appeal is dismissed with no order as to costs. ( ALOK SINGH ) 25.03.2010 JUDGE ashish