GODARA, J. - (1.) THIS Civil Revision Petition has been preferred under Section 115, C. P. C. , against the order dated 16. 7. 97 passed by the learned Addl. Civil Judge (JD), Barmer in Civil Original Suit No. 34/95.
(2.) BRIEFLY stated, the facts giving rise to the present petition are that the plaintiff-respondent Dalichand and the defendant-petitioner are residents of Village Dhorimanna in Barmer District and their houses are situated adjacent to each other. The plaintiff- respondent instituted a suit for permanent injunction in the trial court against the defendant-respondent Nos. 1 and 2, initially without impleading the petitioners, with the allegations that the Gram Panchayat was bent upon illegally and unauthorisedly invading and threatening demolition of the disputed construc- tion forming part of the residential house of the plaintiff-respondent on the ground that the same was illegal and unauthorised and was raised on the public land vesting in the Panchayat but, any how, it was further claimed that the land whereon the disputed construction existed, belonged to and was of the ownership of theplaintiff-respondent and hence it was requested that the defendant-respondents be restrained from interfering with the use, occupation and possession of the plaintiff on the disputed land and from demolition of the disputed construction. The trial court also appointed a Commissioner for local inspection of the disputed site and, defendant-petitioner who is neighbour of the plaintiff-respondent, also being aggrieved by the encroachment on the disputed site , moved an application for his impleadment as defendant in the suit. The trial court accepted his prayer and, consequently, the petitioner was permitted to be arrayed as defendant No. 3. The defendants contested the suit mainly on the ground that the disputed site, whereat, admittedly, `chabutra', Bath-room and `tanka' have been constructed, did not belong to and were never of the ownership of the plaintiff-respon- dent and, instead, it was claimed that this land formed the part of public way passing from front of the houses of the plaintiff-respondent as well as the defendant-petitioner and so the disputed land whereon this construction was raised was a public land vesting in the defendant-Gram Panchayat and the public in general had a vested right to pass and re-pass from the land forming part of the public way including the disputed site and the defendant- petitioner also had equally a vested legal right to have free access to the same land and the plaintiff-respondent had illegally and unathorisedly raised a construction thereon and, on complaint to the Gram Panchayat, the matter was enquired into and the plaintiff-respondent was afforded an opportunity to justify encroachment and construction on the disputed site but he failed to do so and, resultantly, the Gram Panchayat was of the opinion that the disputed site was illegally encroached upon and, consequently, an illegal and unauthorised disputed construction was raised and, therefore, the plaintiff-res- pondent was called upon to remove encroachment from the disputed site of the public way within 7 days of the order and, besides, a penalty of Rs. 15/- was also imposed. It was further ordered that in case encroachment was not removed within the stipulated period, the plaintiff-respondent shall be liable to pay a fine by way of penalty at the rate of rupee on per day. Being aggrieved by this order, without bringing it to the notice of the trial court that any such proceedings were held by the defendant-Gram Panchayat and, instead, while omitting impleadment of defendant-petitioner who was also agitating his right before the Gram Panchayat and also hiding the fact of notice so having been served by the Gram Panchayat, filed suit for permanent injunction, as above. The defendants also pleaded that since such an order passed by the Gram Panchayat was appealable under the provisions of Section 61 of the Rajasthan Panchayati Raj Act, 1994 (for short `the Panchayati Raj Act') but inspite of the fact that an efficacious legal remedy was provided under the Panchayati Raj Act, brought this suit which could not be entertained by the trial court. Besides, similarly, an objection was taken that in view of the provisions of Section 109 of the Panchayati Raj Act, no suit against the defendant-Gram Panchayat could have been instituted in absence of a notice having been served under the provisions of Section 109 (1) (a) of the said Act and, hence, the suit so instituted by the plaintiff respondent was not maintainable before a civil court and the same was liable to be dismissed. On the basis of pleadings of the parties, the trial court framed issues and, for the present disposal, the following two preliminary issues termed to be legal issues are relevant which are quoted ad verbatim :
(3.) Varnacular Text Since both these issues were treated to be issues of law and, consequently, after hearing both the sides, the learned trial Judge decided both the issues against the defendants. As regards finding on issues No. 2, it was held that the notice for removal of encroachment and unathorised construction raised thereon was issued under the provisions of Section 26 (1) (ii) of the Rajasthan Panchayat Act, 1953 repealed by Section 124 of the Panchayati Raj Act having received assent of the Governor on 23rd day of April, 1994 whereas the disputed notice, as above, for removal of the encroachment was issued on 1. 7. 95 and, consequently, since the Panchayat purported to have enquired into and issued notice for removal of the encroachment from the public way under the provisions of the old Panchayat Act which had already been repealed and, consequently, the Gram Panchayat had no power and legal authority to have proceeded under the repealed Panchayat Act, 1953 and hence the appellate provisions of Section 61 of the Panchayati Raj Act were not attracted whereas the provisions of Section 26-A of the Panchayat Act, 1953 were no longer in force and hence, while disposing of issue No. 2, it was held that, on the same ground, in absence of having proceeded against the plaintiff-res- pondent under the provisions of the new Panchayati Raj Act, the provisions of Section 61 of the Act also were not attracted and hence there was no bar against institution of the suit by the plaintiff-respondent resulting in decision of this issue No. 2 against the defendants. As regards decision on issue No. 3 on similar grounds, it was held that the provisions of Section 109 of the Panchayati Raj Act could not be applied and, besides, it was also observed that the provisions of Section 50 of the Panchayat Act, 1953 were used while issuing notice of removal of encroach- ment by the Gram Panchayat and not under Section 109 of the Panchayati Raj Act and that since the Gram Panchayat, as above, did not proceed throughout under the aforesaid provisions of the Panchayati Raj Act and, consequently, as a result of repealment of old Act, the plaintiff-respondent could not be legally required to have exhausted statutory remedy by way of filing an appeal under Section 61 of the Pan- chayati Raj Act and, besides, since in a suit for permanent injunction, on filing of an application for grant of temporary injunction, at the same time, provisions of sub-section (2) of Section 80 of the Code of Civil Procedure (for short `the Code') since the suit of the plaintiff-respondent was to obtain emergent or immediate relief against the Government and so also against the defendants and, consequently, the plaintiff-respondent was granted leave to institute this suit without serving any notice as required by sub-section (1) of the said Section and, in view of these circumstances, there was no bar of provisions of Section 109 or Section 80 (1) of the Code and, resultantly, decision of issue No. 3 was also went against the defen- dants. Being aggrieved, the present defendant-petitioner has preferred this revision petition. ss I have heard the learned counsel for the petitioner at length, since none of the respondents appeared before this Court to oppose this petition, and have considered the legality and regularity of the impugned order. ;