BANI SINGH Vs. RATTAN SINGH

JUDGEMENT

(1.) The facts leading to this appeal are that the plaintiff along with his brothers is owner of plot No. 122/4. Defendants Nos. 1 to 5 are owners of plot No. 122/3 which is situated to the East of the plaintiff's plot. That plot was given to them during consolidation proceedings for extension of abadi. To the North of both these plots, a passage 11 feet wide was left in those proceedings. That passage was being used as a thoroughfare by all the inhabitants of the village. About 2-1/4 years prior to the filing of the suit, the defendants made construction on their plot and while doing so they encroached upon the passage situated in the North of their plot. To the East of the plot of the defendants also, there was a thoroughfare. The defendants made encroachments upon a part of that Eastern thoroughfare also. The encroachments on the thoroughfares have been shown in red colour in the plan filed with the plaint. Thereupon, the plaintiff filed the instant suit complaining that these encroachments were causing obstruction in the use of those thoroughfares by all the inhabitants of the village and carts could not pass through those thoroughfares. He, therefore, prayed for a decree for mandatory injunction requiring the defendants to remove the obstructions and not to make further encroachment. Defendants Nos. 1 to 3 and 6 contested the suit and denied the plaintiff's allegation that they had encroached upon any part of the thoroughfares. It was also pleaded that the Civil Court had no jurisdiction to try the suit. Some other pleas were also taken, as would be clear from the following issues framed by the learned trial Court :-

(2.) The learned counsel for the respondents raised a preliminary objection to the effect that the Civil Court had no jurisdiction to decide the suit. He argued that admittedly in view of Section 2(g)(4) of the Punjab Village Common Lands (Regulation) Act, 1961 (for short, the Act) as applicable to Haryana, land used for reserved for the benefit of village community including streets, lanes etc. are included within the definition of 'shamilat deh' and in view of Section 13 of the Act, the Civil Court has no jurisdiction. This argument has no force. Gram Panchayat concerned is not a party to the present suit. Hence the suit is not barred under the above provision. In this respect, reference can be made to Bhagu V. Ram Sarup, 1985 AIR(P&H) 257, the head note of which reads as follows :-

(3.) He next argued that the dispute of the present nature can be decided by the Assistant Collector of the Ist Grade. Reliance was placed upon Section 7 of the Act. I am of the opinion that the matter of the present nature does not fall under Section 7 of the Act. The said Section reads as follows :-