RAJINDER KAUR Vs. GURDAS RAM AND ANOTHER

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 shamilat 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 Ors. 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 are 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 from 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 -A 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 P. L. J. 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 Nand Lal's case (supra) 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.) BEFORE proceeding further with the consideration of the rival contentious, it would be appropriate at this stage to notice the relevant provisions of Section 13 of the Act, which are in the following terms: