CHANAN SINGH Vs. BALKAR SINGH

JUDGEMENT

(1.) Balkar Singh filed a suit for the permanent injunction restraining Chanan Singh from making an encroachment on public street shown red in the plan filed with the plaint. The red portion was marked ABCDEF. Four months after the suit, the plaintiff was allowed to amend the plaint to seek relief of mandatory injunction for ordering the defendant to remove the wall constructed during the pendency of the suit which amounted to encroachment on the public street. Chanan Singh contested the suit and pleaded that he purchased the property in dispute from the Rehabilitation Department and that the has been in possession thereof since 1950. The plaintiff had applied for the purchase of the same, but he failed. Upon the contest of the parties, six issues were framed, out of which three which deserve to be noticed are, whether the site in dispute was a public street; whether civil Court had no jurisdiction to try the suit and if the site in dispute is not proved to be part of public street, whether it was owned and possessed by the defendant. The trial Court by judgment and decree dated 23.5.1984 decided the aforesaid three material issues against the plaintiff and in favour of the defendant. As a result, the suit was dismissed. The plaintiff went in appeal. While the appeal was pending before the Addl. District Judge, before him an application for amendment of the plaint was filed by the plaintiff keeping in view a decision of the apex Court in which it was held that shamlat deh properties owned by Mohemdans who had become evacuees would vest in the Gram Panchayat and not the Custodian, with the result that the sale made by the Custodian of the land in dispute in favour of the defendant was null and void. The learned Addl. District Judge by order dated 5.10.1985 in spite of the opposition of the defendant allowed the application. However, the learned Judge was of the view that the amendment would be purely of legal nature without involving the production of additional evidence. This was one of the factors which weighed with him while allowing the amendment. It would be useful to notice the exact words used by the learned Judge :-

(2.) Shri V.K. Bali, appearing for the defendant has argued that there is patent inconsistency between the two orders passed by the Addl. District Judge. While allowing amendment it was specifically noticed in the order that it was purely legal and no further evidence was to be recorded. Yet by the impugned order, matter has been wrongly sent back to the trial Court for recording evidence.

(3.) The other point raised is, that in view of the averments in the amended plaint, wherein it is pleaded that the site in dispute is a public street and it vests in the Gram Panchayat, which have been denied by the defendant in the written statement, a question of the title arises whether the land in dispute vests in the Gram Panchayat or not. It falls exclusively within the jurisdiction of the Assistant Collector I Grade having jurisdiction in that area under section 13-B of the Punjab Village Common Lands (Regulation) Act, 1961 as amended by Haryana from time to time and the jurisdiction of the civil Court has specifically been taken away by section 13 of the Act deal with such a matter, and therefore, the only proper course which was open to the Addl. District Judge was to return the amended plaint alongwith the unamended plaint to the plaintiff for presentation to the Assistant Collector I Grade having jurisdiction to decide the matter under section 13-B of the Act.