RSA No.4533 of 2011(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.4533 of 2011(O&M) Date of Decision: December 13, 2011 Gurmail Singh .....Appellant v. State of Punjab and others .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.G.S.Chahal, Advocate for the appellants. ...... Ram Chand Gupta, J.(Oral) C.M.No.13168-C of 2011 In view of the facts mentioned in the application, delay of 169 days in refiling the appeal is condoned. Application stands disposed of accordingly. C.M.No.13167-C of 2011 Application is allowed and appellant is permitted to make good the deficiency in Court fee. It has been stated by learned counsel for the appellant that he has already made good the deficiency in Court fee. Application stands disposed of accordingly. RSA No.4533 of 2011 Present appeal has been filed against judgment and decree dated 6.1.2011 passed by learned District Judge, Sangrur, dismissing appeal filed by present appellant-plaintiff against order dated 14.9.2010 vide which plaint of the suit filed by appellant-plaintiff was ordered to be rejected. RSA No.4533 of 2011(O&M) -2- I have heard learned counsel for the appellant and have gone through the whole record carefully including both the judgments passed by learned Courts below. Briefly stated, appellant-plaintiff filed a suit for a decree for declaration to the effect that plaintiff is owner in possession being proprietor of Village Dirba of the property in dispute and that respondents- defendants are having no right and concern of the said land and order dated 15.12.1998 passed by Assistant Collector Grade I, Sunam, sanctioning mutation in the name of respondent no.5 and also order dated 29.6.2006 passed by respondent no.4 ordering his eviction from the property in dispute were also challenged with consequential relief of permanent injunction restraining respondents from interfering in his possession over the land in dispute. On notice being issued, the same was contested, inter alia, on the ground that jurisdiction of the Civil Court is barred under Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (for short `the 1971 Act') and East Punjab Holdings (Consolidation & Prevention of Fragmentation) Act, 1948 (for short `the 1948 Act'). Plea has been taken that order was passed under the 1971 Act in pursuance of which mutation was entered in favour of respondent-Gram Panchayat and since then respondent-Gram Panchayat has been continuing as owner of the same. Further contends that present appellant-plaintiff is in illegal possession of the same and hence, proceedings were initiated for his ejectment under the 1971 Act. An order was passed by competent authority ordering for his ejectment and hence, plea has been taken that the plaint is liable to be rejected. Learned trial Court accepted the prayer of respondents-defendants RSA No.4533 of 2011(O&M) -3- and passed impugned order rejecting plaint filed by present appellant- plaintiff under Order 7 Rule 11 of the Code of Civil Procedure (for short `the Code').Appeal filed by the present appellant-plaintiff against the said order was also dismissed by learned first appellate Court. It has been vehemently contended by learned counsel for the appellant-plaintiff that civil Court is having jurisdiction to entertain and decide the suit for declaration for getting correction in the entries in the revenue record made under Section 45 of the Punjab Land Revenue Act, 1887. On the point he has also placed reliance upon Mohinder Singh v. The Commissioner, Ferozepur Division, Ferozepur and others, 1992 PLJ 711. It has also been contended that earlier revision was filed challenging the said order and however, the same was withdrawn by the appellant and, thereafter the present suit was filed. Admitted facts are that the land in dispute was mutated in the name of respondent no.5 vide order dated 15.12.1998. The order was passed under the 1948 Act. It is pertinent to reproduce Section 23-A of the said Act, which reads as under:- 23A. Management and Control of lands for common purposes to vest in Panchayats or State Government.- As soon as a scheme comes into force the management and control of all lands assigned or reserved for common purposes of the village under Section 18:- (a) in the case of common purposes specified in Sub-clause (iv) of Clause (bb) of Section 2 in respect of which the management and control are to be exercised by the State Government, shall vest in the State Government; and (b) in the case of any other common purpose, shall vest in the Panchayat of that village; RSA No.4533 of 2011(O&M) -4- and the State Government or the Panchayat, as the case may be, shall be entitled to appropriate the income accruing therefrom for the benefit of the village community, and the rights and interests of the owners of such, lands shall stand modified and extinguished accordingly; Provided that in the case of land assigned or reserved for the extension of village abadi or manure pits for the proprietors and non-proprietors of the village, such land shall vest in the proprietors and non-proprietors to whom it is given under the scheme of consolidation)." Further Section 42 of the aforesaid Act provides for a remedy to a person aggrieved by any Act or consolidation by any authority and Section 44 of the 1948 Act bars jurisdiction of civil Court to entertain the present suit, which reads as under:- “44.Jurisdiction of Civil Court barred as regards matters arising under this Act.- No civil Court shall entertain any suit instituted or application made to obtain a decision or order in respect o any matter which the State Government or any officer is, by this Act, empowered to determine, decide or dispose of.” Hence, in view of clear bar for the civil Court to entertain and decide the order passed under the 1948 Act in view of Section 44 of the 1948 Act, it cannot be said that any illegality has been committed by learned Courts below in passing the impugned orders. It is pertinent to reproduce order 7 Rule 11 of the Code, which reads as under: “11.Rejection of plaint.-The plaint shall be rejected in the following cases:- (a) where it does not disclose a cause of action; RSA No.4533 of 2011(O&M) -5- (b) where the relief claimed is under-valued, and the plaintiff, on being required by the Court to so correct the valuation within a time to be fixed by the Court, fails to do so; (c ) where the relief claimed is properly valued, but the plaint is written upon insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp- paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law; (e) where it is not filed in duplicate; (f) where the plaintiff fails to comply with the provisions of rule 9: Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that t he plaintiff was prevented by any cause of an exceptional nature from correcting the valuation nor supplying the requisite stamp papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.” The present case falls under sub Clause D of the aforesaid provision of law. Jurisdiction of the Civil Court is specifically barred under Section 44 of the 1948 Act. Moreover in view of the fact that present appellant-plaintiff is in illegal possession of the property in dispute, proceedings were initiated by respondents under the 1971 Act and eviction order has also been passed against the present appellant, which has also RSA No.4533 of 2011(O&M) -6- been challenged in the present suit. The said order also cannot be challenged before the Civil Court in view of the bar contained in Section 15 of the 1971 Act. Hence, the present case is not a case for simple declaration for getting entry in the jamabandi corrected as argued by learned counsel for the appellant. Rather the case is for setting aside order passed by competent authority under the 1948 Act and order passed by competent authority under the 1971 Act. Hence, in view of these facts, it cannot be said that any illegality has been committed by learned Courts below in passing the impugned judgments and decrees. Finding recorded by learned courts below is fully justified by the evidence on record and is supported by cogent reasons. The said finding is not shown to be perverse or illegal nor it is based on misreading or misappreciation of the evidence. Hence, the said finding does not warrant interference in this second appeal. No question of law, much less substantial question of law, arises for determination in this second appeal. Accordingly the appeal is dismissed in limine. 13.12.2011 ( Ram Chand Gupta ) meenu Judge