PREM CHAND Vs. GRAM PANCHAYAT VILLAGE UDHOWAL KALAN

JUDGEMENT

(1.) This is plaintiffs second appeal directed against the judgment and decree dated 23.8.1979 passed by the Additional District Judge, Ludhiana allowing the appeal filed by Gram Panchayat of village Udhowal Kalan and dismissing the suit of the plaintiff-appellant. Facts giving rise to this appeal may first be noticed.

(2.) Plaintiff-appellant filed a suit for a permanent injunction seeking to restrain the Gram Panchayat from demolishing the room marked ABCD in the site plan which is Ex.P1 on the record. The plaintiff claimed to be the owner of the house along with the open space and one room. It was alleged that the plaintiff has no other passage except the one which is shown as CEFG in the site, plan and that he was entitled to use the same in order to reach the phirni. The plaintiff had also claimed that he had been using this passage for the last about 20 years. The Gram Panchayat contested the suit and took a preliminary objection that the suit was barred under Section 13 of the Punjab Village Common Lands (Regulation) Act, 1961 (for short the Act). It was pleaded on its behalf that the land in dispute did not belong to the plaintiff and that it was the ownership of the Gram Panchayat. It was alleged that the land was shamilat deh and vested in the Gram Panchayat and that the Assistant Collector 1st Grade, Samrala by his order dated 17.3.1976 had already declared the land in dispute to be shamilat deh and had ordered the eviction of the plaintiff appellant therefrom. A copy of this order is Ex.D2 on the record. From the pleadings of the parties, the following issue were framed :

(3.) By judgment dated 28.2.1979 the trial Court decided issues Nos. 1 and 2 against the defendant and in favour of the plaintiff and issue No. 3 against the plaintiff wherein it was held that he was not the owner of the portion marked ABCD as shown in the site plan. It was, however, held that the plaintiff was entitled to use the passage CEFG as that was the only passage connected to his land. The suit was partly dismissed and the prayer made for restraining the Gram Panchayat from demolishing the room marked ABCD was declined. The other prayer was granted and it was held that the petitioner was entitled to use the passage shown as CEFG. Feeling aggrieved by the judgment and decree of the trial Court the Gram Panchayat preferred an appeal in the Court of the Additional District Judge, Ludhiana who reversed the findings of the trial Court on issue Nos. 1 and 2 and held that the jurisdiction of the civil Court was barred in view of the provisions of Section 13 of the Act. He has referred to Ex.D2 which is an order dated 17.3.1976 passed by the Assistant Collector 1st Grade, Samrala before whom ejectment proceedings had been taken by the Gram Panchayat against the plaintiff for his ejectment under Section 7 of the Act. It is on record that a appeal filed against that order before the Collector had also been dismissed. The lower appellate Court came to the conclusion that this order had arisen out of the operation of the Act and, therefore, the jurisdiction of the civil Court was barred. A perusal of this order makes it clear that the land in dispute was shamilat deh which vested in the Gram Panchayat. The trial Court, too, had rejected the contention of the plaintiff that he was the owner of the room marked ABCD in the site plan. Since the land vested in the Gram Panchayat, the jurisdiction of the civil Court was barred. No fault can, thus, be found with the finding of the lower appellate Court in this regard. This being so, the suit filed by the plaintiff-appellant had to be dismissed. The lower appellate Court is also right in observing that since the plaintiff had encroached upon the site ABCD where he had constructed a room he cannot be heard to say that he should be provided with a passage so as to reach the phirni. The prayer for injunction, too, was without any basis and the lower appellate Court was right in declining the same.