Karan Singh and Others vs State of Haryana and Others

V.K. Jhanji, J.—The petitioners who are proprietors in village Kanheli, filed a suit in Civil Court that land measuring 63 Kanals 12 Marias excluding the area measuring 258 Kanals 7 Marias which is under path and water courses total measuring 890 Kanals 9 Marias situated in village Mauja Kanheli, Tehsil and District Rohtak, was never used for common purpose of the village and does not fall within the definition of Shamlat Deh. In the plaint, it was also averred that the said land had been, partitioned by the proprietors before 1946-47 and the proprietors were in separate possession according to their share. The Punjab Village Common Lands (Regulation) Act, 1961, (hereinafter referred to as the ''Act'') was amended in the year 1974 and in consequence of the amendment, the civil suit was transferred u/s 13B of the Act to the Court of Assistant Collector 1st Grade, Rohtak. The petitioners challenged the transfer of the suit from Civil Court to the Court of Assistant Collector 1st Grade by filing Civil Writ Petition No. 181 of 1975, but the said writ petition was dismissed on 8th November, 1979. The suit was tried by the Assistant Collector 1st Grade who vide order dated 2nd April, 1987, dismissed the same, observing therein that the petitioners (plaintiff in that suit) claimed the land to be their own, but they have not given the details of the same in the plaint so as to show that how they are the owners. In absence of such an averment, it was not possible to decide whether the land vested in the Gram Panchayat or not. Through this very order, the Assistant Collector 1st Grade allowed the plaintiffs to file a fresh suit by giving full details within one month. It was also stated in the said order that in case, the suit is filed within one month, the respondents shall not raise any legal objection to the filing of the said suit.

In pursuance of the order dated 2nd April, 1987 (Annexure P-l) passed by the Assistant Collector 1st Grade, the petitioners filed a fresh suit giving therein all the details of the land in dispute, but the Assistant Collector 1st Grade, Rohtak, vide order dated 21st February, 1989, (Annexure P-2), dismissed the said suit by holding that in view of Section 13-A of the Act, limitation to file a suit was 5 years which expired on 11th February, 1986. The suit having been filed after this date, the Court had no jurisdiction to entertain the same u/s 13-A of the Act. The petitioners challenged the order of Assistant Collector 1st Grade dated 21st February, 1989 (Annexure P-2) in appeal before the Collector, Rohtak. The Collector, Rohtak, vide order dated 28th August, 1990 (Annexure P-4) dismissed the said appeal of the petitioners. The petitioner by way of this writ petition, have challenged the legality of the orders, dated 21st February, 1989 and 28th August, 1990, (Annexures P-2 and P-4 respectively).

The only contention of learned counsel for the petitioners is that once the Assistant Collector 1st Grade, Rohtak, vide order dated 2nd April, 1987, granted leave to the petitioners to file a fresh suit on the same cause of action, the fresh suit filed by the petitioner could not be dismissed on the ground of being time-barred.

On the other hand, learned counsel for the respondents tried to defend the orders in view of provisions of Section 13-A of the Act.

After hearing the learned counsel for the parties at length, I am of the view that this writ petition deserves to succeed. The Assistant Collector 1st Grade while dismissing the suit of the plaintiffs which was filed afresh, and the Collector while dismissing the appeal failed to take into consideration the effect of the order of Assistant Collector 1st Grade dated 2nd April, 1987 who while dismissing the suit had granted leave to the petitioners to file a fresh suit on the same cause of action, and it was specifically made clear in the said order that no objection to the filing of the suit shall be raised by the respondents. While granting leave to the petitioners, the Assistant Collector 1st Grade was aware of the provisions of section 13-A(i) of the Act which prescribed limitation of 5 years from the date of its commencement. The said Act came into force on 12th February, 1981. The order was passed by the Assistant Collector 1st Grade on 2nd April, 1987 and in view of the provisions of section 13-A(i) of the Act, the limitation had already expired on 11th February, 1986. In case, the respondents had any objection, they were at liberty to raise the same before the Assistant Collector 1st Grade who passed the said order, or the respondents could have challenged the order by way of an appeal. They having chosen not to file an appeal against the order dated 2nd April, 1987 and allowed the order to become final between the parties, they have no right to resist the suit on the ground that the same is barred by time.

For the reasons recorded above, the writ petition is allowed, but with no order as to costs. The orders, of the Assistant Collector 1st Grade, Rohtak, dated 2lst February, 1989 (Annexure P-2) and of the Collector, Rohtak, dated 28th August, 1990 (Annexure P-4), are hereby quashed. The Assistant Collector 1st Grade, Rohtak, is directed to decide the suit on merits, treating the same to have been filed within the period of limitation. The parties through counsel, are directed to appear before the Assistant Collector 1st Grade Rohtak, on 6th January, 1992.