BALJINDER KAUR Vs. GURDAS RAM

JUDGEMENT

(1.) Regular Second Appeal No. 2630 of 1983 (Baljinder kaur V. Gurdas Ram) came up for hearing in the first instance before Goyal, J. who referred the same for decision by a larger bench, as he appeared to take a view contrary to the one taken by P.C. Jain. Acting Chief Justice as he then was in regard to the question as to whether the mere mention of the word 'street' or public street' in the plaint in a suit where the plaintiff seeks permanent injunction restraining another person from creating obstruction or encroaching upon the said street through which the plaintiff had claimed right of passage, constituted the plea that the land was shamlat deh in terms of section 2(g)(4) of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as 'the Act'), which had been used by the plaintiff and other villagers as a passage and the defendant sought to encroach thereupon or create an obstruction. The other appeal (R.S.A. No. 888 of 1976 - Charan Singh and others V. Ishar Singh and others) came up before Pritpal Singh, J. He permitted to be raised for the first time a plea challenging the jurisdiction of the Civil Court on the ground that the same stood barred in view of the provisions of section 13 of the Act and in the wake of earlier reference by Goyal, J., also referred the said appeal to a larger bench. That is how these two regular second appeals are before us and the being dealt with together.

(2.) In R.S.A. No. 2630 of 1983 an issue to the jurisdiction of the Civil Court was framed. The plea raised on behalf of the defendant was that the village street in question was not a street. It was the exclusive property of the defendant. In the alternative it was pleaded that since in terms of section 2(g)(4) of the Act all village streets form part of shamilat deh and section 13 of the Act creates a bar to the entertainment of any suit on the part of the Civil Court, which involves adjudication of a question as to whether the given land is or is not a shamilat deh so the Civil court is barred from entertaining the suit. The first Appellate Court held that the suit involved adjudication of the question as to whether the land in dispute was or was not shamilat deh and therefore, Civil court's jurisdiction was barred in view of the provisions of Section 13 of the Act and dismissed the suit, which led to the filing of the present appeal, in which primarily, as the admitting order would show, the question raised was that the Court below instead of dismissing the suit, should have returned the plaint to the plaintiff to be presented to the Court or Authority competent to take cognizance of the matter and grant the requisite relief to the plaintiffs. When the matter came up for hearing before the learned Single Judge reference was made to the decision in Nand Lal V. Mst. Chhottee, 1983,PunLJ 459, by the appellant's counsel to show that no question regarding adjudication of the fact as to whether the land was or was not shamilat deh, arose from the pleadings of the plaintiff where the plaintiff had merely mentioned that the defendant caused the alleged obstruction in the village street, through which he and other villagers had a right of passage. An assertion of such a fact in the Nand Lal's case was held by P.C. Jain, J. (as he then was) as not to be raising any question regarding the determination of the fact as to whether the suit land was or was not shamilat deh and the correctness of this decision was doubted by Goyal, J, as already observed, and he referred the matter to a larger Bench.

(3.) The facts in Nand lal's case were that the plaintiff and the defendant enjoyed common passage in between their houses. That passage led to the village pond and ended there. The houses of many other persons also opened in that passage and the defendant had sought to obstruct the same by raising a wall, thereby blocking the passage. The plaintiff sought a declaration that the plaintiff had a right of passage through the street in question and also sought a decree for mandatory injunction directing the defendant to remove the obstruction. The case finally reached the High Court where permission was given to raise the plea that the jurisdiction of the Civil Court was barred in view of the provisions of section 13 of the Act. The learned Judge repelled the plea raised on behalf of the defendant-respondent by observing that : "A bare reading of the aforesaid section would show that the jurisdiction of the civil Court has been barred to entertain or adjudicate upon any question whether any land or other immovable property is or is not shamilat deh or any right title or interest in such land or other immovable property vests or does not vest in a Panchayat under this Act. A bare perusal of the pleadings would show that none of these questions arise for decision in the instant case. Here the dependent is not allowing the plaintiff to use the passage by blocking the same. The defendant has claimed the ownership in the land. he has not pleaded that the passage vests in the Gram Panchayat. No question regarding the vesting or non vesting of the land in the Gram Panchayat requires determination in the case. Even no question regarding the nature of the land, ie., whether the land is or is not shamilat deh, arises on the pleadings of the parties.