ARVIND KUMAR, J. - (1.) THE appellant was the defendant in the suit for injunction filed by plaintiff-respondent No. 1 Tara Chand. After having lost concurrently before two of the Courts below, the appellant has preferred the instant regular second appeal and thereby questioned the legality of judgments and decrees passed by the Courts below, decreeing the suit of the plaintiff with a direction to the appellant to restore the portion of disputed passage at its original position.
(2.) I have heard learned counsel for the parties and have also gone through the paper-book carefully. It is apparent that there was no dispute between the parties with regard to existence of the passage in between the houses of the plaintiff and defendant and the dispute only was with regard to the width of the passage aforesaid. It was the case of the plaintiff that initially the width of the passage in question was 14-15 feet, but the defendant made encroachment over the same, as a result it has become narrow. As per own admission of DW.1 Harbhaj the width of the passage in dispute must be 7 feet to 9 feet, while in the report Ex.PW6/Y and site plan Ex.PW6/Z proved by PW.6 D.R. Yadav, Advocate who was appointed as local commission, the width of the passage in dispute was found to be 6 feet 5 inch only. Therefore, both the courts below while relying upon the documentary evidence adduced by the plaintiff, including the report Ex.PW6/Y of local commission and other reports Mark X and Mark Y of another local commission, as well as notices Ex.PW3/C and Ex.PW2/A issued by the Sarpanch of the village and BDPO respectively, to the defendant-appellant directing him not to uproot the bricks and to make encroachment upon the common passage, coupled with the statement made by DW.1 Harbhaj qua the width of the passage in question, concurrently held that the defendant-appellant has encroached upon the public land and since the gram panchayat is custodian of common passage, no person has a right to encroach upon the same for his own benefit. Accordingly, the appellant was rightly directed to remove the unauthorized encroachment made by him by restoring the portion of the disputed path to its original position.
(3.) ALTHOUGH a serious objection has been taken by the learned counsel for the appellant as to the maintainability of the present suit on the ground that since the passage in dispute falls within the definition of Shamlat deh, therefore, the jurisdiction of civil court is barred by virtue of Section 13 of the Punjab Village Common Lands (Regulation) Act. A perusal of the judgments and decrees passed by the Courts below reveals that this aspect of the matter has adequately been dealt with by the Courts below. It is an admitted case of the parties that the passage in dispute vest in the gram panchayat and once there is no dispute with regard to the title of land, it cannot be said that the jurisdiction of civil court is taken away by virtue of provisions contained in Section 13 of the Act ibid. Moreover, it has been held that abadi deh does not come within the definition of Shamlat deh, as contained in Section 2(g) of the Punjab Village Common Lands Act and if for removal of unauthorized obstruction, plaintiff has approached the civil court, then it cannot be said that the suit is not maintainable. Nothing has been shown to deviate from what has been concurrently held by the Courts below. It cannot be said that the findings returned by the Courts below suffer from any illegality or perversity or that the same are based on no evidence. No question of law, much less substantial question of law arises for determination in the regular second appeal, which is accordingly, dismissed. Appeal dismissed.;