JAGDISH Vs. OM PARKASH

JUDGEMENT

(1.) THIS is ill advised plaintiffs' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity 'the Code'), challenging concurrent findings of both the Courts below holding that the parties have litigated earlier and a suit was filed on 7.1.1982 by Baljit Singh and others (predecessor-in-interest of the plaintiff-appellants) against the defendant- respondent Om Parkash etc. The relief of permanent injunction was sought against defendant-respondents restraining them from making any encroachment or interference into the possession of the plaintiffs. The defendant-respondents alleged that they and their predecessor-in-interest Kure Ram were continuously using the land as a passage for going to their plot since time immemorial. Reliance was placed on a sale-deed Ex. D-1, dated 21.10.1987, which highlighted the existence of Rasta, which was supported by Ex. PZ Aks Sijra as the later document also highlighted the existence of Rasta. The trial Court held as under :- In view of my findings on the above issues I grant a decree in favour of the plaintiffs for permanent injunction restraining the defendants from encroaching upon the disputed land shown with letters CDEF in the site plan produced by the plaintiff and from interfering with the possession of the plaintiffs thereon by carving out a passage across it otherwise than in due course of law. Keeping in view the circumstances of the case I leave the parties to bear their own costs. Decree sheet be prepared and file be consigned." The view taken by the trial Court permitted the parties to proceed in accordance with law and the appeal was also dismissed by the learned Additional District Judge on 5.8.1988.

(2.) ON the basis of the permission granted by the judgment and decree of the Civil Court, defendant-respondents filed a petition under Section 7 of the Punjab Village Common Land (Regulations) Act, 1961 (for brevity 'the Act') against the plaintiff-appellants. The Assistant Collector Ist Grade held that on 28.8.1992 he had inspected the spot and observed that his inspection had revealed that Jagdish, the plaintiff-appellant, had blocked the Rasta towards east by raising a wall; that the Rasta was under the ownership of the Gram Panchayat. Thereafter, an appeal was filed, which was dismissed by the Collector, Gurgaon, with the observation that the judgment and decree passed by the Civil Court has allowed the defendant-respondents to take recourse to law. The orders of the authorities under the Act were challenged before this Court in a writ petition, which was dismissed and even an S.L.P. filed by the plaintiff-appellants was dismissed.

(3.) MR . Sanjay Vij, learned counsel for the plaintiff-appellant has argued that on the basis of admitted position namely the writ petition was dismissed in limine and there was no adjudication of rights of the parties by the Civil Court, therefore, the same can be made subject-matter of challenge once again before the Civil Court and such a dismissal in limine of a writ petition by the High Court would not constitute any bar. He has then submitted that the orders of authorities passed under the Act were without jurisdiction as the question of title was involved and the same could not be decided by the Civil Court and, therefore, there is jurisdictional error in the orders of the High Court as well as that of the Supreme Court. In support of his submission learned counsel has placed reliance on a judgment of the Supreme Court in the case of Gowrishankar and another v. Joshi Amba Shankar Family Trust and others, 1996(1) RRR 685 (SC) : JT 1996(2) SC 560.