R.S.A. No. 2993 of 2004 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 2993 of 2004 (O&M) Date of Decision : 20.01.2009 Balwinder Singh and others ....Appellants Versus The State of Haryana & others ...Respondents CORAM : HON'BLE MR.JUSTICE MAHESH GROVER .... Present : Mr. L.N.Verma, Advocate for the appellants. Mr. O.P.Sharma, Additional Advocate General, Haryana for respondent No.1. Mr. Mukul Aggarwal, Advocate for respondent No.2. ..... MAHESH GROVER, J. This appeal by the plaintiffs/appellants is directed against the judgments of the learned trial Court dated 28.2.2000 and that of the learned first Appellate Court dated 12.5.2004. The facts of the case are that the appellants claimed to be proprietors of land in village Khairpur, Tehsil and District Sirsa. A suit in representative capacity was filed by them pleading that during consolidation proceedings in the year 1962-63, 541 Kanals 3 Marlas of land was carved out of the holdings of the proprietors of land by imposing a general cut upon the holdings. This land was reserved for R.S.A. No. 2993 of 2004 -2- common purposes and some land which was detailed in the plaint was reserved for the income of the Gram Panchayat, Khairpur. This is the land which is stated to be in dispute and it measure 184 Kanals 6 Marlas. It was pleaded that this land was never used for the benefit of village community and remained in possession of 'Jumla Mushtarka Malkan'. A notification was issued on 9.10.1975 by which the entire area of village Khairpur was included in the Municipal limits of Municipal Committee, Sirsa and the revenue entries were allegedly changed in the year 1992. The appellants pleaded that they were in continuous possession of this land and they were owners thereof and further that the area lay outside the Municipal limits and prayed for declaration to that effect and also pleaded that injunction be granted to restrain the defendants/respondents from interfering in their possession. Mutation No.4629 sanctioned in favour of the Municipal Committee was also challenged to be null and void. The respondents contested the suit and said that after the issuance of notification, the respondents were left with no other option but to include the suit land in the Municipal area which stood in the name of 'Jumla Mushtarka Malkan' as the same vested in the Gram Panchayat/Municipal Committee. It was pleaded that as a matter of fact the land was reserved for common purposes of the village and continued to be under the control of the Gram Panchayat and the appellants had no interest in it and that the appellants were precluded from challenging the proceedings of consolidation taken in the year 1962-63. As per the notification, the extended area of Municipal Committee had consumed the entire land of village R.S.A. No. 2993 of 2004 -3- Khairpur and the properties which were owned by the Gram Panchayat came to vest in the Municipal Committee and therefore the mutation had rightly been sanctioned. A separate application was also moved by the respondents invoking the provisions of Order 7 Rule 11 C.P.C. to say that the plaint deserves to be rejected. The trial Court framed the following issues :- 1. Whether the suit land is Jumla Mushtarka Malkan and is owned by the plaintiffs, as alleged? OPP 2. Whether mutation No.4629 entered on 24.5.92 and sanctioned on 26.5.92 mentioning the suit land as shamlat deh is null and void, against the law and facts, not binding upon the rights of the plaintiffs and is liable to be set aside, as alleged?OPP 3. Whether the plaintiffs are entitled to the injunction, as prayed for? OPP 4. Whether the suit is not maintainable in the present form ?OPD 5. Whether the suit is bad for want of proper sanction under Order 1 Rule 8 C.P.C.?OPD 6. Whether plaintiffs are estopped from filing the present suit by their own act and conduct?OPD 7. Whether the plaint does not disclose any cause of action under Order 7 Rule 11 C.P.C.?OPD 8. Whether the suit is false and frivolous and is liable to be dismissed with special costs under Section 35-A CPC? OPD R.S.A. No. 2993 of 2004 -4- 9. Relief. While determining issues No.1 and 2, the learned trial Court came to the conclusion that the land was recorded as Jumla Malkan Wa Digar Haqdaran Arazi Hassab Rasad, Jumla Malkan or Mushtarka Malkan as shamlat deh within the meaning of Section 2(g) (4) of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as 'the Act'). It categorically concluded that the suit land had been entered as Jumla Malkan Hasab Rasad Rakba Khewat as per the entries made in Ex.P-1 and therefore it had rightly been entered as shamlat deh. Thus, the findings on these issues were returned against the appellants. In so far as the possession was concerned, it was determined that since the appellants failed to prove their ownership and in the absence of anything to show their possession, the finding was returned against them. Regarding issue No.4, the learned trial Court came to the conclusion that no notice had been issued to the Municipal Committee, which was the mandate of law, under Section 52 of the Haryana Municipal Act and accordingly this issue was decided against the appellants. Issues No.5 and 6 were determined in favour of of the appellants. Issue No.7 was determined in favour of the respondents and against the appellants while issue No.8 was determined in favour of the appellants. The suit was dismissed In appeal, the findings of the trial Court were affirmed. Learned counsel for the appellants contended that the land could not have been vested in the shamlat deh and the entries of the revenue record were contrary to the consolidation scheme. It was also R.S.A. No. 2993 of 2004 -5- contended that the appellants were the owners of the suit land and therefore they were also in possession thereof. Reliance was placed on Chajju Ram v. The Joint Director, Panchayats and others 1986 PLJ 293 and Kala Singh v. Commissioner Hissar Division and others 1984 PLJ 169 On the other hand, learned counsel for the respondents pleaded that the suit was clearly beyond the provisions of Section 13 and 13-A of the Act which clearly lay down that where the dispute regarding shamlat deh arises, the same has to be determined under the provisions of the Act and the civil Court has no jurisdiction. It was contended that the provisions of Section 52 of the Haryana Municipal Act had not been complied with since there was no notice to the respondents and the suit itself was not maintainable. After hearing the learned counsel for the parties, I am of the opinion that the appeal deserves to be dismissed. The appellants have raised the question which is not within the domain of the civil Court. It has been alleged that during the consolidation proceedings the land could not have been earmarked for common purposes or could have been recorded as shamlat deh or for the benefit of the village community. All these questions are clearly not within the jurisdiction of the civil Court. The consolidation had taken place in the year 1962-63 which was not challenged by the appellants before the competent Court. That apart, the revenue record shows that the land had been recorded as Jumla Mushtarka Malkan. There is thus no escape from the conclusion that the land was shamlat deh. Looking it from another angle also, Section 13 of the Act clearly bars the R.S.A. No. 2993 of 2004 -6- jurisdiction of the civil Court. Lastly, it was contended that if civil Court's jurisdiction was barred then the findings on other issues should not have been returned. On considering this aspect of the matter, it is observed that if it is a settled law that findings recorded by a Court which lacks jurisdiction are not binding upon the parties, the appellant may raise the dispute in an appropriate forum if the law permits him to do so. The notification itself by which the land of village Khairpur vested in the Municipal Committee was issued in the year 1975. The mutation was sanctioned in the year 1992. Therefore, any action against the Municipal Committee was subject to the constraints of the Haryana Municipal Act and Section 52 of the said Act clearly stipulates that notice to the Municipal Committee was mandatory which was concededly not done. Section 52 of the Haryana Municipal Act, 1973 reads as under :- “No suit shall be instituted against a committee, or against any employee of a committee, in respect of any act purporting to be done in its or his official capacity, until the expiration of one month next after notice in writing has been, in the case of a committee, delivered or left at its office, and in the case of an employee, delivered to him or left at his office or place of abode, stating the cause of action and the name and place of abode of the intending plaintiff, and the plaint must R.S.A. No. 2993 of 2004 -7- contain a statement that such notice has been so delivered or left. Provided that nothing in this section shall apply to any suit instituted under Section 38 of the Specific Relief Act, 1963.” The findings of both the Courts below thus cannot be faulted with and the same cannot be termed to be perverse to warrant any interference in regular second appeal. No substantial question of law arises in the appeal. Consequently, the appeal is dismissed. 20.1.2009 (MAHESH GROVER) JUDGE dss