Ujagar Singh and Others vs Gram Panchayat of Village Majhi and Others

Sarojnei Saksena, J.—Petitioners have filed this revision assailing the appellate Court''s order dated 13.11.1995 whereby petitioners'' appeal filed against the trial Court''s order dated 2.8.1995 was dismissed.

Brief facts of the case are that the petitioners in their plaint averred that they are khewatdars of village Majhi and are owners in possession of the disputed land shown as ''Mustarka Malkan Basti Road Khewat'' Gram Panchayat-respondent has no right, title or interest in the property and has no right to manage and control the suit land. Gram Panchayat is owing other land, which is under its control, but is wants to lease out the disputed property without any right. Plaintiff-petitioners requested the defendants-Gram Panchayat not to lease out their property, but it refused. Hence, they filed the suit for declaration as well as permanent injunction and also filed the petition under Order 39 Rule 1 and 2, Civil Procedure Code. They prayed that the Gram Panchayat be restrained from interfering in their peaceful possession of their Mustarka Malkan land, which is jointly owned by them as proprietors of the village.

Defendant-Gram panchayat filed written statement and took preliminary objection that the civil Court has no jurisdiction to try the suit. It also objected that the plaintiffs have concealed the material facts and thus, are not entitled to the discretionary relief of injunction. It also averred that by their own act and conduct, plaintiffs are estopped from seeking said relief as previously some of the plaintiffs themselves took the disputed land on auction from defendant-Gram Panchayat admitting its ownership and title over the suit land. It also denied that the plaintiffs are owners in possession of the disputed land as Mustarka Malkan. Gram panchayat took a specific plea that the disputed land is Shamilat deh and it belongs and vests in panchayat, which is being used for the benefit of village community and non proprietors of village for common purposes. Income from the land auction earned by the Gram panchayat is being used in the development of the village. Therefore, according to the defendant, it has right to maintain/control the suit land, which Gram Panchayat is doing for the last so many years. The other right holders of the village have admitted that they had been obtaining as Chakota from the Gram Panchayat.

Plaintiffs placed on record jamabandi and khasra girdawari for the year 1987-88. After hearing both the parties, perusing their pleadings and the material placed on record, the lower Court came to the conclusion that in this case since the Gram panchayat has taken a specific plea that the disputed property vests in Gram Panchayat and has also alleged that some of the right holders have also filed separate claim petition before the revenue officer that the property vests in Gram Panchayat, a declaration sought by the plaintiffs cannot be decided without deciding the issues whether the land in question is or is not Shamilat deh; whether the Gram panchayat has any right to auction the same or not. The lower Court arrived at the conclusion that such a suit is barred u/s 13 of the Punjab Village Lands (Regulation) Act, 1961 as such, a claim can be decided by the Collector u/s 11 of the said Act. Relying on Ram Singh and Ors. v. Gram Panchayat Mehal Kalan and Ors. 1986 P.L.J. 636, and Chander Parkash and Ors. v. Gram panchayat Ranwar and Anr. 1989(1) All LR 239, the lower Court held that prima facie it is established that this Court has no jurisdiction to try the present case. Hence, the injunction petition was dismissed and ad interim injunction granted earlier was vacated. The appellate Court vide its. impugned judgment has affirmed these findings.

Petitioners'' learned counsel contended that plaintiff-petitioners are co-sharers and Khewatdars of village Majhi and are in cultivating possession of their land recorded as Jumla Malkan. It is recorded as Jumla Mustarka Hasab Rasad Rakba Khewat. It is not Shamilat deh land, therefore, evidently Gram panchayat has no right, title or interest in their proprietory body''s Mustarka Malkan land. The Courts below have wrongly held that the Civil Court has no jurisdiction. To support his contentions, he has relied on Gram Sabha Balad and Anr. v. Sarwan Sing and Ors. 1981 P.L.J. 311, Gram Panchayat Sadhraur v. Baldev Singh and Ors. 1983 P.L.J. 19, Rakha Singh and Ors. v. Babu Singh and Ors. 1985 P.L.J. 266, Bhagu and Ors. v. Ram Sarup and Ors. 1985 P.L.J. 366, Gram Panchayat Mehal Kalan v. Ram Singh and Ors. 1986 P.L.J. 307, Ram Singh and Ors. v. Gram Panchayat Mehal Kalan and Ors. 1986 P.L.J. 636, Chanan Singh v. Balkar Singh 1986 P.L.J. 664 and Parma Nand v. Ram Kala and Ors. 1986 P.L.J. 685.

Respondent''s learned counsel assiduously argued that the Courts below have rightly held that the Civil Court has no jurisdiction to try the suit filed by the plaintiff-petitioners. He submitted that under Sections 2(g) of the Punjab Village Common Lands (Regulation) Act, 1961 (in short the ''Act'') Shamilat Deh Land is described. Its Section 11 provides that "any person or a Panchayat claiming right, title or interest in any land, vested or deemed to have been vested in a Panchayat under this Act or claiming that any land has not so vested in a panchayat, may submit to the Collector, within such time, as may be prescribed, a statement of his claim in writing and signed and verified in the prescribed manner and the Collector shall have jurisdiction to decide such claim in such manner as may be prescribed." Its Section 13 bars the jurisdiction of the civil Court to entertain or adjudicate upon any question, whether any property or any right to or interest in any property is or is not shamilat deh vested or deemed to have been vested in a Panchayat under this Act......"

Thus it is obvious that even if the plaintiffs are claiming that the suit land is not so vested in the Panchayat or if the Gram panchayat is claiming that the suit land is vested or deemed to have been vested under the said Act, the jurisdiction to decide such claim or right, title or interest is with the Collector u/s 11 of the Act.

Authorities relied on by the petitioners'' counsel - Gram Sabha Balad Kalan, Gram Panchayat Sadhraur Rakha Singh, Chanan Singh and Parma Nand''s case (supra) are inapplicable in this case as they are distinguishable on facts.

In Bhagu''s case (supra) a Division Bench of this High Court has held that "when jurisdiction of civil Court is taken away u/s 13 of the Act; when lis is between Gram Panchayat and a private person and its relates to any of the questions specified in Section 13. It is further observed that "the civil Court''s jurisdiction is not ousted in any and every suit relating to any property or interest therein in which defendant pleads (on howsoever frivolous or mischievous grounds) that subject-matter of litigation is Shamlat Deh or Panchayat property, i.e., property in dispute is or is not Shamilat Deh or Panchayat Property."

In this case, defendant-Gram Panchayat has pleaded that earlier even some of the plaintiffs had taken the suit land from Gram Panchayat on lease admitting the Gram Panchayat''s ownership over the suit land.

In Gram Panchayat Mehal Kalan''s case (supra) a Single Bench of this High Court has held that when the plaintiffs filed the suit for declaration claiming that they are proprietors/village owners of suit land and are in possession thereof, Gram Panchayat has no connection with it, they are not bound by the entries made in the revenue record and praying that the defendant-Gram Panchayat be restrained from getting possession of the suit land and giving it on lease to any body else; such a suit is covered by the provisions of Section 11 of the Act; jurisdiction of the civil Court to entertain such a suit is clearly barred u/s 13 of the Act. Against this judgment of this High Court, plaintiff-petitioners approached the Apex Court under Article 136 of the Constitution of India. The Apex Court considered the provisions of Sections 11 and 13 of the Act. On these facts, it was held that the civil Court cannot make a declaration without deciding the question whether the land in question is Shamilat Deh or not, whether it belonged to Gram Panchayat or not and this question has to be decided by the Collector only u/s 11 and not by the Civil Court. Issues involved in suit are not triable by the civil Court by virtue of Section 11 read with Section 13 of the Act and thus, the judgment of this High Court was upheld.

In Ujagar Singh v. Gram Panchayat Ballon and Ors., 1994 P.L.J. 604, plaintiff filed a suit against the Gram Panchayat and Ors. for a decree for permanent injunction restraining them from dispossessing him forcibly from the agricultural land mentioned therein on the ground that the suit land was owned by the proprietors of the village. In jamabandi entry in column of ownership, it is mentioned ''Jumla Malkan Hasab Rasad Rakba Khewat''. His suit was dismissed; appeal was also dismissed: plaintiff filed Regular Second Appeal before the High Court, which was also dismissed holding that the dispute whether the land vested or did not vest in Gram Panchayat can be decided by the Collector u/s 11 of the Act. The civil Court has no jurisdiction to try such a suit in view of the provisions of Section 13 of the Act.

In this case also, no doubt, plaintiffs have averred that they being proprietors of village are in possession of the disputed land, which is described as Jumla Mustarka Malkan; therefore, the Gram Panchayat has no right to lease it out. Gram Panchayat has contested the issue averring that it is ''Shamilat Deh Land: Earlier also they were leasing it out to different persons. Even some of the plaintiffs have taken this land in auction from the Gram Panchayat admitting it to be owner of the suit land (this submission is not repelled by the plaintiff-petitioners'' counsel during arguments). Therefore, such a dispute falls within the ambit of Section 11 of the Act and resultantly, the civil Court''s jurisdiction is barred u/s 13 of the Act.

Lastly, this revision is filed against the concurrent findings of the Courts below wherein they have declined to grant discretionary relief of injunction in favour of the plaintiffs. So far as the above legal points decided by the Courts below are concerned, I do not find any infirmity in that finding. On this count alone that plaintiffs have no prima facie case sought for injunction was declined. The orders passed by the Courts below are not beyond their jurisdiction. They have considered relevant issues for deciding such a petition.

Resultantly, finding no merit in the revision, it is hereby dismissed.

Any observation made here-in-above will not affect the merits of the case.