AMAR NATH Vs. RATTAN LAL AND OTHERS

JUDGEMENT

(1.) PLAINTIFFS -respondents Nos. 1 to 3, filed a suit for permanent injunction against the Gram Panchayat defendant No. 1, (now respondent No. 4), and defendant No. 2, (now the petitioner), with the averments that the site, in dispute, was a compound in front of their house and was in their exclusive ownership and possession since long and that the same was never used as a passage. It was also averred that the petitioner made an application before the Gram Panchayat, respondent No. 4, on which the latter Issued notice to the plaintiffs -respondents calling upon them to desist from construction on the said site. In the suit, a prayer was made for restraining the Gram Panchayat, respondent No. 4, from proceeding with the said application or taking any action on the aforesaid notice. After the written statement had been filed and evidence had been led by both the sides, the case was fixed for arguments. On April 27, 1978, the defendants filed an application under section 13 -B of the Punjab Village Common Lands (Regulation) Act, 1961, for staying the proceedings on the ground that the suit of the plaintiffs respondents was with regard to vacant site situated within the obadi deh of the village and was share cm and, therefore, was vested in the Panchayat and that the suit should he transferred to the Assistant Collector for decision because the civil court under the said provision had no jurisdiction. That application was dismissed by the impugned order dated May 2, 1975, by the Subordinate Judge, First Class. Jagadhri. The present revision petition is directed against the said order.

(2.) THE only question which falls for determination is ; whether the suit, as filed by the plaintiffs -respondents, is within the ambit of Section 13 -B of the Act ? The said provision is reproduced below ;

(3.) A perusal of section 2(g) shows that in sub -clauses (1) to (5) are included those properties which are to be included in "shamilat deh" and in sub -clauses (i) to (ix), reference is to those properties which were shamilat deh but are excluded from that category for the reasons and in the circumstances mentioned therein. Section 13 B has deliberately and expressly made a reference to those cases which are covered by sub -clauses (i) to (ix). In the present case, if the averments in the plaint are pursued closely, the case of the plaintiff respondents clearly is that the site, in dispute, was a compound in front of their house and was their exclusive ownership and in exclusive possession. It is not possible to spell out from the averments in the plaint that the claim of the plaintiffs -respondents was that due to any of the circumstances mentioned in sub -clauses (i) to (ix) in section 2 (g), the property, in dispute, should be excluded from the category of shamilat deh. Thus, the subject -matter in the suit is not covered by and is not within the ambit of section 13 -B of the Act. Consequently, the application of the petitioner was rightly rejected and the impugned order does not suffer from any infirmity.