S.A.O.No.21 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision:-1.9.2010 Jhagru Ram son of Parbhati ...Appellant Versus Jagan and others ...Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.C.B.Goel, Advocate for the appellant. Mr.R.S.Hooda, Advocate for the respondents. M ehinder S ingh S ullar , J . The epitome of the facts, relevant for a limited purpose of deciding the core controversy involved in the present appeal and emanating from the record, is that Jagan son of Randhir Singh, Shiban son of Arjun Singh and Lila Ram son of Jas Ram (since deceased), being represented by his legal representatives Smt.Bida widow and Gobind son, respondent-plaintiffs (hereinafter to be referred as “the plaintiffs”) filed the suit for a decree of mandatory injunction directing the Gram Panchayat of village Mokalwas and Ram Phal son of Kashi Ram proforma respondent No.6-defendant No.2 and appellant-defendant No.3 Jhagru Ram son of Parbhati (hereinafter to be referred as “the defendants”) to remove the encroachment over the public path (Rasta Sare-am) in question, with further direction to the Gram Panchayat-defendant No.1 to take appropriate steps for its removal and with a consequential relief of permanent injunction restraining the defendant Nos.2 and 3 from making further encroachment over the public path in question. Sequelly, they have also sought a decree for declaration challenging the order dated 20.2.2001 passed by the Assistant Collector Ist Grade, Gurgaon, in case titled “Jhagru Vs. Chandan Singh etc.” 2. The case set up by the plaintiffs, in brief in so far as relevant, was that the public path (Rasta Sare-am) in question (3 karam wide) of the Panchayat is S.A.O.No.21 of 2010 2 in existence in front of the houses of the plaintiffs and defendant Nos.2 and 3, falling under Rectangle No.48 Khasra No.26. It is paved with pacca bricks meant for ingress and egress for public at large. The plaintiffs and other inhabitants of the village are using the public street/passage since the time immemorial, openly and peacefully. The plaintiffs claimed that defendant Nos.2 and 3 are strong headed persons and have encroached upon a portion of said public street, without any legal right and plaintiffs have clear apprehension that they would further encroach the street. In order to keep the encroachment intact, the appellant-defendant was stated to have filed an application under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (for short “the Act”) and obtained the ejectment order dated 20.2.2001 from the AC Ist Grade illegally by concealing the true facts, in which, the plaintiffs were not the parties. 3. Concisely, according to the plaintiffs that defendant Nos.2 and 3 have already encroached upon some portion and further intend to encroach upon the public rasta in dispute, without any legal right and the ejectment order dated 20.2.2001 obtained by Jhagru defendant (appellant) was void and illegal. On the basis of aforesaid allegations, the plaintiffs filed the suit (Annexure P1) for a decree of mandatory and permanent injunction against the defendants in the manner as depicted here-in-above. 4. The contesting defendant Nos.2 and 3 resisted the suit and filed their written statement, inter-alia, pleading certain preliminary objections of, maintainability of suit; locus standi & cause of action of plaintiffs; jurisdiction of Civil Court and concealment of facts. They explained that the appellant-defendant No.3 had filed a petition under Section 7 of the Act against Chander, Man Singh and Sher Singh, relatives of the plaintiffs and ejectment order was passed against them on 20.2.2001. On merits, the existence of Sare-am Rasta in question of the Panchayat in front of the houses of the parties was admitted. However, it was denied that the defendants have encroached upon any portion of it. The case of the S.A.O.No.21 of 2010 3 defendants further proceeds that the public path was encroached upon by the plaintiffs after raising un-authorised construction to the extent of 9 feet in front of their houses and they submitted wrong site plan. Narrating the sequence of events, the defendants claimed that the indicated ejectment order passed by the AC Ist Grade is legal and the High Court has ordered its implementation in C.W.P.No.18163 of 2002, vide order dated 1.2.2005 (Annexure P4). It will not be out of place to mention here that the defendants have stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit. 5. During the pendency of the suit, the appellant-defendant No.3 filed an application (Annexure P8) for rejection of plaint under Order 7 Rule 11 CPC, mainly on the ground (which has now been urged) that the Civil Court did not have the jurisdiction to entertain the suit under Section 13 of the Act. 6. The plaintiffs contested the application and filed the reply (Annexure P9), inter-alia, denying the allegations of the application, reiterated that the Civil Court has got the jurisdiction and prayed for its dismissal. 7. The trial Court accepted the application (Annexure P8) and held that the jurisdiction of the Civil Court is barred under section 13 of the Act and rejected the plaint, by virtue of order dated 22.12.2009. 8. Aggrieved by the order of the trial court, the plaintiffs filed the appeal. The first Appellate Court accepted the appeal, set aside the order, remanded the matter back and the trial Court was directed to proceed further in the suit in accordance with law, vide impugned judgment dated 25.3.2010. 9. The appellant-defendant No.3 Jhagru Ram did not feel satisfied with the impugned judgment of Ist Appellate Court and filed the present appeal. That is how, I am seized of the matter. 10. Having heard the learned counsel for the parties, having gone through the record with their valuable help and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the appeal. S.A.O.No.21 of 2010 4 11. Ex facie, the argument of the learned counsel for appellant-defendant No.3 that the petition under section 7 of the Act filed by the appellant was accepted by the AC Ist Grade, vide order dated 20.2.2001 and it was directed to be implemented by this Court, vide order (Annexure P4) and since the disputed portion is a public path vested in the Gram Panchayat as defined under Section 2 (g), so, the jurisdiction of the Civil Court is barred under Section 13 of the Act, is neither tenable nor the observations of this Court in case Jai Parkash v. Ram Narain (2010-1) P.L.R. 571 are at all applicable to the facts of the present case, wherein, it was observed that “a suit in Civil Court qua Shamlat Deh is not maintainable, in view of Section 13-B (old) and the Collector under Section 7 of the Act has the power to remove illegal possession and encroachment and put panchayat in possession.” Possibly, no one can dispute with regard to the aforesaid observations, but to me, the same would not come to the rescue of the appellant in the instant case. 12. As is evident from the record that the plaintiffs filed the suit for mandatory and permanent injunction directing the defendants to remove the encroachment already made and to restrain them from further encroaching the street, inter-alia, pleading that the public path in question is in existence in front of the houses of the plaintiffs and defendant Nos.2 and 3 falling under Rectangle No.48 Khasra No.26 since long and is being used by the inhabitants of the village since the time immemorial without any obstruction. The contesting defendants in their written statement have categorically admitted this factual matrix. It does not remain a matter of dispute that the passage in question is a public street and vested in the Gram Panchayat. Meaning thereby, there is no dispute with regard to question of title and conceded factual matrix is that the passage in question is a public street. 13. Section 13 (as applicable to Haryana) of the Act postulates that “no Civil Court shall have the jurisdiction to entertain or adjudicate upon any question, S.A.O.No.21 of 2010 5 whether any land or other immovable property is or is not shamlat deh; 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; in respect of any matter which any revenue court, officer or authority is empowered by or under this Act to determine; or 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.” 14. Sequelly, Section 13-A of the Act posits that “any person claiming right, title or interest in any land or other immovable property vested or deemed to have been vested in the Panchayat under this Act, may file a suit for adjudication, whether such land or other immovable property is shamilat deh or not and whether any land or other immovable property or any right, title or interest therein vests or does not vest in a Panchayat under this Act; in the Court of the Collector, having jurisdiction in the area wherein such land or other immovable property is situated.” 15. A co-joint reading of these provisions would leave no manner of doubt that the jurisdiction of the Civil Court is only barred in case there is a legitimate dispute with regard to question of title of Shamlat Deh and not otherwise. As indicated earlier, since there is no such dispute in regard to the question of title of the public path between the parties, so, the bar of Section 13 of the Act would not be attracted in the present case. 16. It is not a matter of dispute that AC Ist Grade has the limited power under section 7 of the Act to summarily pass an ejectment order against any person, who is in wrongful and un-authorised possession of the Shamilat property, but that ipso facto would not exclude the jurisdiction of the Civil Court as the AC Ist Grade did not have any jurisdiction to issue any mandatory and permanent injunction restraining the defendants from further encroaching the public path as is claimed in the instant suit in this relevant connection. Meaning thereby, only Civil Court has the jurisdiction to issue mandatory and permanent injunction as S.A.O.No.21 of 2010 6 contemplated under the Specific Relief Act. 17. The next celebrated argument of the learned counsel that since the appellant has obtained the ejectment order dated 20.2.2001 against the relatives of the plaintiffs, the implementation of which, was ordered by this Court, vide order (Annexure P4), so, the suit filed by the plaintiffs is not maintainable, is not only devoid of merit but misplaced as well. No doubt, the plaintiffs have also challenged the validity of the indicated ejectment order in the suit, but since its validity has been upheld and this Court has directed its implementation, vide order (Annexure P4), so, the relief claimed by them (plaintiffs) in this respect becomes infructuous, claimed in the plaint as held by Ist Appellate Court as well. 18. Be that as it may, but since the other indicated main relief of mandatory and permanent injunction of the plaintiffs restraining the defendants from further encroaching upon the street still subsists, so it can only be decided by the Civil Court. Therefore, the real controversy between the parties cannot possibly be decided, without adducing evidence on record by the parties. To me, the first appellate Court has rightly accepted the appeal and remanded the matter back to the trial Court for its fresh decision in this respect. 19. There is another aspect of the matter, which can be viewed from a different angle. The first appellate Court has rightly acknowledged that in the wake of order (Annexure P4) of this Court, the suit of the plaintiffs qua challenging the order dated 20.2.2001 of AC Ist Grade, has become infructuous. It has further observed as under:- “There is a consistent view of our Hon'ble High Court that in the matters of encroachment on public thoroughfare which affect the rights of the user by public, civil court had jurisdiction to entertain and try the suit. Said observation was made by our Hon'ble High Court in Mitta Singh Versus Sant Ram and others, 1975 Punjab Law Journal 243 and was consistently followed in all subsequent cases reported as Om Parkash versus Tara Chand and another S.A.O.No.21 of 2010 7 2007 (4) Latest Judicial Reports, 37, Sant Ram Versus Dharam Chand and others 1991 (2) Latest Judicial Reports 150, Sahaj Ram Versus Chajju Ram and others 1950 to 1988 Latest Judicial Reports 1051, Bhagu and others Versus Ram Sarup and others, 1950 to 1988 Latest Judicial Reports 1134 and Shri Nand Lal Versus Mst.Chhotee 1950 to 1988 Latest Judicial Reports. 1127. In view of the law laid down by our Hon'ble High Court in aforesaid cases, it is held that civil court has the jurisdiction to entertain and try the dispute between the parties and on said ground, the plaint has been wrongly rejected.” 20. In this manner, thus seen from any angle, to me, the first appellate Court has rightly accepted the claim of the plaintiffs and negatived the plea of rejection of plaint of the defendants and recorded valid reasons in this relevant context. Such reasons cannot legally be set aside in the second appeal, unless the same are illegal or without jurisdiction. No such patent illegality or legal infirmity has been pointed out in the impugned judgment. Hence, the contrary arguments of the learned counsel for the appellant-defendant No.3 “stricto sensu” liable to be and are hereby repelled. Therefore, to my mind, the impugned judgment of first appellate Court deserves to be and is hereby maintained in the obtaining circumstances of the case. 21. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 22. In the light of the aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of trial of the suit, as there is no merit, therefore, the instant appeal is hereby dismissed. (Mehinder Singh Sullar) 1.9.2010 Judge AS Whether to be referred to reporter?Yes/No