Chanan Singh vs Balkar Singh

G.C.Mital, J.—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 :

"That being the case, if the site in dispute is found to be public street it will also fall within the compass of the judgment and its ownership will also be deemed to have vested in the Gram Panchayat. This justifies the permission of amendment of plaint which will be purely of legal nature without involving the production of additional evidence. Such an amendment about a fact can be allowed in view of Ram Avtar Gupta v. Manak Raj and another, 1978 Rajasthan 186 : 1978(2) R.C.R.(Rent) 247".

After the amended plaint was filed and the case was taken up for arguments, the Addl. District Judge by order dated 22.11.1984 framed six issues on the basis of the amendment plaint. By the same order, he concluded that the settlement of the additional issues has necessitated the remand of the case because both the parties shall be adducing evidence on the additional issues. As a result the case was remanded to the trial Court with directions to receive evidence of the parties on additional issues and to render its findings by a certain date. Against the aforesaid order, the defendant has come to this Court in this appeal.

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.

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 13B 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 13B of the Act.

After considering the arguments raised by the counsel for two sides on the aforesaid points, I am of the view that both points raised on behalf of the defendant have merit. The order of the Addl. District Judge dated 5.10.1985, the relevant portion of which has been reproduced above, clearly goes to show that the learned Judge while allowing the amendment was of the considered view that no further evidence had to be led and the matter was purely legal and in my view the learned Judge was right in taking this decision. Whether the property in dispute was public street or not was a subject matter of dispute between the parties even under the unamended plaint on which a specific issue was framed and the parties had led evidence and the trial Court after consideration of the voluminous evidence led on the file had recorded a finding that it was not proved to be a public street. In view of the Supreme Court decision the only change which came about was that in case the site in dispute was proved to be public street instead of its vesting in Custodian/Rehabilitation Department, it would have vested in Gram Panchayat and the sale made by Custodian/ Rehabilitation Department in favour of the defendant would have been a waste paper and it would have continued as a public street vesting in Gram Panchayat. For this matter, no evidence had to be recorded. As a result, the learned Addl. District Judge clearly fell in an error in remanding the case to the trial Court by order dated 22.11.1985 for recording evidence. Consequently, order dated 22.11.1985 is hereby set aside.

Adverting to the second point, a reading of section 13 of the Act clearly shows that the jurisdiction of the civil Court to deal with the point in issue has clearly been taken away and the matter now falls in the exclusive jurisdiction of the Assistant Collector I Grade having jurisdiction in the village where the land in dispute is situate for which matter he has to make determination under section 13B of the Act read with the procedure contained in section 13A of the Act. This is the settled view of this Court by now.

For the reasons recorded above, the appeal is allowed and a direction is issued to the Addl. District Judge to return the plaint alongwith the amended plaint to the plaintiff for presentation of the same to Assistant Collector I Grade having jurisdiction to decide the matter in accordance with law. The parties through their counsel are directed to appear before the Addl. District Judge on 22nd September, 1986.