R.S.A. No. 3774 of 2006 -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 3774 of 2006 (O&M) Date of Decision : 6.2.2009 Manmohan Singh .......... Appellant Versus Harbans Singh & others. ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Sandeep Bansal, Advocate Mr. Satpal Singh, Advocate for respondents No. 3, 7, 8 & 9. Mr. S.S. Salar, Advocate for respondent No.10 **** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgments and decree dated 2.8.2002 and 28.3.2006 passed by the learned Courts below vide which suit filed by the plaintiff-respondent No.1 to 9 stands decreed qua the relief of declaration, that the exchange deed executed between appellant and Gram Panchayat and the mutation sanctioned thereon was illegal, null and void and not binding on the rights of the plaintiffs with consequential relief of permanent injunction restraining the defendants from alienating or changing the nature and utility of the land. The plaintiff-respondents No. 1 to 9 filed a suit for declaration for declaring them to be co-owners with other proprietors on the plea that R.S.A. No. 3774 of 2006 -2- the suit land was Mushtarka Malkan and that the appellant-defendant No.1 exchanged the suit land with the Gram Panchayat, in violation of statutory provisions on the basis of which the impugned mutation No. 10475 was sanctioned. As the title between Gram Panchayat and the proprietors was to be adjudicated only under the Punjab Village Common Lands (Regulation ) Rules, 1964 and not by the Civil Court, the first part of the relief, that plaintiffs were co-owner with other proprietors was withdrawn and the suit was contested only qua the legality of the exchange deed, and the mutation sanctioned thereon. The learned Courts below have recorded a concurrent finding of fact holding, that in view of the statutory rules i.e. the Punjab Village Common Lands (Regulation ) Rules, 1961 the exchange deed was non-est and illegal, being in violation of the Statutory Rules. The exchange was held to be null and void, thus liable to be set aside. Mutation was also ordered to be set aside. Two appeals against the judgment and decree passed were filed, one by the Gram Panchayat i.e. respondent No.10 and other by the appellant defendant No.1. The Gram Panchayat has withdrawn the appeal filed. Learned counsel for the appellant contends that the appeal raises the following substantial questions of law for consideration by this Court :- 1. Whether the learned Courts below erred in granting the R.S.A. No. 3774 of 2006 -3- relief to the plaintiffs-respondent not claimed or prayed for ? 2. Whether the order of mutation could be challenged in civil suit when the remedy under the Punjab Land Revenue Act is provided to the party ? On the first substantial question of law, the learned counsel for the appellant contends that the plaintiffs, claimed declaration that they were co-owners, with other proprietors, in the land in dispute at village Miani, Tehsil Dasuya, District Hoshiarpur as per the jamabandi for the year 1991- 92 being part and parcel of Mushtarka Malkan, and further that the entry of mutation of exchange No. 10475 procured by defendants in respect of the suit land, was wrong, void, illegal, inoperative and without jurisdiction, thus, having no effect on the rights of plaintiffs along with consequential relief of permanent injunction restraining the defendants from alienating or changing the nature and utility of the suit land without challenge the exchange deed. The contention of the learned counsel for the appellants is that the Courts below erred in decreeing the suit and declaring the exchange of the suit land by defendant No.1 with defendant No.2 being wrong, void, illegal, inoperative and without jurisdiction and as such having no effect on the rights of the plaintiff, though no such prayer was made in the suit. In support of this contention the learned counsel for the appellant placed reliance on the judgment of the Hon'ble Supreme Court in the case of Ram Singh and others Vs. Gram Panchayat, Mehal Kalan and R.S.A. No. 3774 of 2006 -4- others 1987 RRR 630. The judgment relied upon by the learned counsel for the appellant is not relevant to the facts of the present case inasmuch as the Hon'ble Supreme Court in the case of Ram Singh and others Vs. Gram Panchayat, Mehal Kalan and others (supra) was considering whether by way of clever drafting the jurisdiction could be given to the Civil Court which is otherwise barred. No such question arises in the present case. The order which is against the provisions of Act, thus, void can always be challenged in civil Court. The plaintiff-respondents had challenged the exchange to be bad and not effecting their right. The learned counsel for the appellant by placing reliance on the judgment of this Court in the case of Sardara alias Kalu (deceased) now Rep. by his L.Rs. Vs. Gram Sabha of village Khurdi and anr. 1989(1) RRR 280 contended that the suit filed by plaintiff-respondent was barred in view of Section 13 of the Punjab Village Common Lands (Regulation ) Act as the Civil Court was not competent to adjudicate as to whether the declaration or exchange made by the Gram Panchayat was in violation of law. The judgment relied upon by the learned counsel for the appellant is also not applicable as the relief qua ownership was not pressed and, therefore, the matter in dispute was not covered under the provisions of Section 13 of the Act so as to attract the bar of jurisdiction of the Civil Court. It is well settled law that when the authorities act in violation of the statute then the jurisdiction of the Civil Court to declare said action to be R.S.A. No. 3774 of 2006 -5- void is not barred. It is also the contention of the learned counsel for the appellant that the judgment and decree passed by the learned Courts below cannot be sustained as the application moved by the plaintiff to challenge the mutation stands dismissed by the revenue Court. This plea also deserves to be rejected. The order passed by the revenue Courts can be challenged in the civil Court in view of Section 45 of the Punjab Land Revenue Act. It is also pertinent to mention here that the contention of the learned counsel for the appellant that the relief granted was beyond prayer deserves to be rejected as already observed exchange was specifically challenged and issue No.1 was framed, which reads as under :- “1. Whether the exchange of the suit land by defendant No.2 is not legal and valid ? OPP” The issue was decided in favour of the plaintiff-respondent. It is well settled law that the Court can always mould the relief on the basis of facts proved on record. The parties were aware of the respective case of each other and led evidence in proof thereof. No prejudice has been caused to the defendant-appellant. The substantial questions of law raised in this appeal are answered against the appellant-defendant. No merit. Dismissed. 6.2.2009 ( VINOD K. SHARMA ) 'sp' JUDGE