JAGROOP SINGH Vs. SARBATI

JUDGEMENT

(1.) The petitioner has challenged the order dated 19.10.2013 passed by the learned Civil Judge (J.D.) & Judicial Magistrate, First Class, Behror, Alwar, whereby the learned Magistrate has dismissed the petitioner's application under Order 7 Rule 11 CPC for dismissing the plaint filed by the respondent-plaintiff.

(2.) The brief facts of the case are that the respondent-plaintiff, Sarbati, filed a civil suit against the petitioner-defendant stating therein that upon the land in dispute, which is in her ownership, there was never a public way, but the Government employees recorded the same as public way in the revenue record and are trying to construct a way. Therefore, it was prayed that the petitioner-defendant be restrained by order of injunction from constructing a public way in khatedari land of the respondent-plaintiff. The petitioner-defendant filed his written statement and denied the averments made in the plaint. The petitioner-defendant moved an application under Order 7 Rule 11 CPC on the ground of non-compliance of mandatory provisions of Section 109 of Panchayati Raj Act. The respondent-plaintiff filed her reply to the said application. By order dated 19.10.2013, the learned Magistrate dismissed the application under Order 7 Rule 11 CPC. Hence, this petition before this Court.

(3.) Mr. Vijay Yadav, the learned counsel for the petitioner, has contended that the public way under construction has been started at the behest of the Gram Panchayat and not at the behest of the petitioner. Since the respondent-plaintiff was challenging the construction of a public way, she has impleaded the petitioner-defendant in his official capacity as Sarpanch. Since she is challenging the construction initiated by the Gram Panchayat, she was required to send a notice under Section 109 of Panchayati Raj Act to the Gram Panchayat before initiating civil suit. However, the learned Judge has overlooked the requirement of the law. Therefore, the impugned order deserves to be set aside.