- (1.) The facts leading to this appeal are that the plaintiff along with his brothers is owner of plot No. 122/4. Defendants Nos. 1 to 5 are owners of plot No. 122/3 which is situated to the East of the plaintiff's plot. That plot was given to them during consolidation proceedings for extension of abadi. To the North of both these plots, a passage 11 feet wide was left in those proceedings. That passage was being used as a thoroughfare by all the inhabitants of the village. About 2-1/4 years prior to the filing of the suit, the defendants made construction on their plot and while doing so they encroached upon the passage situated in the North of their plot. To the East of the plot of the defendants also, there was a thoroughfare. The defendants made encroachments upon a part of that Eastern thoroughfare also. The encroachments on the thoroughfares have been shown in red colour in the plan filed with the plaint. Thereupon, the plaintiff filed the instant suit complaining that these encroachments were causing obstruction in the use of those thoroughfares by all the inhabitants of the village and carts could not pass through those thoroughfares. He, therefore, prayed for a decree for mandatory injunction requiring the defendants to remove the obstructions and not to make further encroachment. Defendants Nos. 1 to 3 and 6 contested the suit and denied the plaintiff's allegation that they had encroached upon any part of the thoroughfares. It was also pleaded that the Civil Court had no jurisdiction to try the suit. Some other pleas were also taken, as would be clear from the following issues framed by the learned trial Court :- (1) Whether defendants have encroached on any portion of the street; if so, when and its effect ? OPP. (2) Whether jurisdiction of the Civil Court is barred ? OPD. (3) Whether suit is properly valued for purposes of court-fee and jurisdiction; if not what is proper valuation ? OPP. (4) Whether suit is barred by time ? (5) Whether Gram Panchayat of village Shafiabad is a necessary party to the present suit ? (6) Relief. Under issue No. 1, it was held that the defendants had encroached upon the pathway situated to the North of the defendant's plot to the extent mentioned in the report of the Local Commissioner, whose report was accepted by the Court as correct. It may be mentioned here that the plaintiff had given up his prayer regarding the thoroughfare situated to the East of the defendant's plot. Under issue No. 2, it was held that the jurisdiction of the Civil Court was not barred. Issue Nos. 3, 4 and 5 were found against the defendants. While discussing the relief clause, the Court held that the plaintiff was seeking relief in respect of a public nuisance and he had failed to show that any special damage was caused to him beyond what was being suffered by others. Therefore, he was not held entitled to the relief prayed for. For coming to this conclusion, reliance was placed upon Arya Pratinidhi Sabha Punjab V. Lal Chand and another,1964 PunLR 670. Consequently, the plaintiff's suit was dismissed. Feeling aggrieved, the plaintiff filed the appeal. The defendants also filed cross-objections, challenging the finding of the trial Court under issue No. 1. The appeal and the cross-objections were heard by the learned Additional District Judge, Jind, Camp at Sonepat. The cross-objections were not pressed before him and those were dismissed. He also held that the defendants encroached upon the Northern thoroughfare to the extent of the site shown in yellow colour in plan Exhibit P-6 prepared by the Local Commissioner. However, relying upon Arya Pratinidhi Sabha Punjab's case he dismissed the appeal, as the plaintiff had failed to prove any special damage caused to him by the encroachment. The plaintiff has now filed the second appeal in this Court.
(2.) The learned counsel for the respondents raised a preliminary objection to the effect that the Civil Court had no jurisdiction to decide the suit. He argued that admittedly in view of Section 2(g)(4) of the Punjab Village Common Lands (Regulation) Act, 1961 (for short, the Act) as applicable to Haryana, land used for reserved for the benefit of village community including streets, lanes etc. are included within the definition of 'shamilat deh' and in view of Section 13 of the Act, the Civil Court has no jurisdiction. This argument has no force. Gram Panchayat concerned is not a party to the present suit. Hence the suit is not barred under the above provision. In this respect, reference can be made to Bhagu V. Ram Sarup, 1985 AIR(P&H) 257, the head note of which reads as follows :- ''From a combined reading of Sections 13 and 13-A it is discernible that the jurisdiction of the Civil Court is excluded from entertaining or adjudicating upon the questions stated in Section 13 when the lis in between a private person and the Panchayat. In other words, it is only when the contest is between the Panchayat and a private person for the determination or adjudication of the question specified in clauses (a) and (b) of Section 13 that the jurisdiction of Civil Court is barred. It is obvious that the right, title or claim of a private person to a particular land or immoveable property vis-a-vis the Gram Panchayat cannot factually and effectually be settled in the absence of the Panchayat being impleaded as a party to the litigation. Section 13 would not be operative when the lis or the dispute is between two private individuals.''
(3.) He next argued that the dispute of the present nature can be decided by the Assistant Collector of the Ist Grade. Reliance was placed upon Section 7 of the Act. I am of the opinion that the matter of the present nature does not fall under Section 7 of the Act. The said Section reads as follows :- ''7. Power to put Panchayats in possession of certain lands. - (1) An Assistant Collector of the first grade having jurisdiction in the village may, either suo motu or on an application made to him by a Panchayat or an inhabitant of the village or the Block Development and Panchayat Officer or Social Education and Panchayat Officer of any other Officer authorised by the Block Development and Panchayat Officer, after making such summary enquiry as he may deem fit and in accordance with such procedure as my be prescribed, eject any person who is in wrongful or unauthorised possession of the land or other immovable property in the shamilat deh of that village which vests or is deemed to have been vested in the Panchayat under this Act and put the Panchayat in possession thereof and for so doing the Assistant Collector of the first grade may exercise the powers of a revenue Court in relation to the execution of a decree for possession of land under the Punjab Tenancy Act, 1887. (2) The Assistant Collector of the first grade may, by an order, in writing, require any person to pay a penalty, in respect of the land or other immovable property which was or has been in his wrongful or un-authorised possession, at a rate not less than six hundred rupees and not more than two thousand and five hundred rupees per hectare per annum, having regard to the benefit which could be derived from the land or other immovable property. If the penalty is not paid within the period of thirty days from the date of the order, the same shall be recoverable as arrears of land revenue. (3) If any person refuses or fails to comply with the order of eviction passed under sub-section (1), within ten days of the date of such order, the Assistant Collector of the first grade may use such force, including police force, as may be necessary for putting the Panchayat in possession. (4) Any person aggrieved by an order of the Assistant Collector of the first grade may, within a period of thirty days from the date of the order, prefer an appeal to the Collector in such form and manner, as may be prescribed.'' I am of the opinion that Section 7 has not been enacted for deciding the matters of the present nature. The marginal note of the Section reads as follows :- ''Power to put Panchayat in possession of certain lands.'' Of course, the marginal note of a section cannot be taken as expression conveying all the provisions contained in the Section, but it at least gives some guidance that for what purpose the said section has been enacted. As the marginal note shows Section 7 has been enacted only to put Panchayat in possession of certain lands. Sub-section (2) of that Section further makes the meaning of the section clear, which empowers the Assistant Collector to impose penalty at a certain rate per hectare pr annum having regard to the benefit which could be derived from the land or the immoveable property. The Panchayat is not expected to derive any benefit from a thoroughfare. Though a thoroughfare vests in the Gram Panchayat having jurisdiction, but technically speaking it cannot be said to be in possession of it. Therefore, for removal of obstruction from a thoroughfare a person can come to the Civil Court and Section 7 of the Act would not bar the jurisdiction of the Civil Court. The preliminary objection raised on behalf of the respondents is accordingly overruled.;