JAI SINGH Vs. GRAM PANCHAYAT SINGHANWALA AND OTHERS

JUDGEMENT

(1.) JAI Singh instituted a suit for permanent injunction restraining the Gram Panchayat Singhanwala defendant No. 1, and the Gram Panchayat Nasirpur, defendant No. 2, from demolishing the wall A.B. shown red in the plan attached to the plaint and also from recovering Rs. 525/ - as penalty in execution of their notices and orders. According to the plaintiffs case, house No. 24 situated in village Laharsa was allotted to him 11 years ago and he is in possession thereof ever since, on a report by one Phami Shah, the Gram Panchayat of village Singhanwala issued a notice under section 21 of the Gram Panchayat Act (hereinafter called the Act) but on the plaintiff approaching the competent authority the case was transferred to the Gram Panchayat of village Nasirpur, defendant No. which Panchayat by its order dated 30/12/1958 directed the wall A.B. of the plaintiff's compound to be removed within a week with a further direction that the plaintiff pays Rs. 25/ - as fine and failing compliance, to pay a further fine of Rs. 1/ -per day to the extent of Rs. 100/ -. The plaintiff preferred a revision against this order in the Court of Shri Nand Kishore. Revenue Assistant. Ambala, who after hearing the parties suspended the resolution and held that the wall had existed from the time of the Muslims and that the Panchayat had no right to include that part of the house in the public street. The plaintiff on 11 -12 -1959 received a notice from the Panchayat, defendant No. I, to the effect that the Director, Gram Panchayat had dismissed the plaintiff's revision and the plaintiff was to pay Rs. 525/ - being the amount of fine within one week, failing which that Collector would be moved for realising the amount. This notice by defendant No. 1 and the order to defendant No. 2 were described in the suit to be mala fide, perverse, ultra vires and void and also that the wall A.B. was never constructed by him, the same having been in existence since the time of the Muslims and it was not situated in the public street. Another plea raised was that defendant No. 1 had no jurisdiction in the matter because the area of village Laharsa had been taken out of its jurisdiction vide notification dated 17 -7 -1959. The order of this Panchayat was illegal on this ground as well. Defendant No. 2, Gram Panchayat of Nasirpur, was impleaded as a proper party.

(2.) IN the written statement, it was denied that the disputed wall already existed. The plea of the orders of the Gram Panchayat being ultra vires, was controverted. The jurisdiction of the civil Court to set aside the orders of the Panchayat or which took exception to them was disputed. On the pleadings of the parties, the following issues were settled:

(3.) On appeal before the learned Senior Subordinate Judge, onus of issue No. 1 which had been placed on the plaintiff was assailed but this challenge was negatived on the ground that the onus had rightly been placed on the plaintiff. It was further noticed that this objection had not been included in the memorandum of appeal. It was added that evidence having been led, the question of onus was at the appellate stage immaterial.