JUDGMENT
Swatanter Kumar, J.
1. Plaintiffs Basakhi Ram and Shiv Ram had collectively filed a suit for permanent injunction against Suresh Kumar Sarpanch and others that the defendant be restrained from interfering in any manner whatsoever in the actual physical and peaceful ownership and possession of the plaintiffs by constructing a gali through the sehan of the property of the plaintiffs as described in the plaint. It was contended that the defendants had no legal right as no street is there in front of the house of the plaintiffs. They requested the defendants to desist from such illegal construction but of no consequence. Suit was contested by the defendants who claimed that the portion of the property was gali shreaam which vests in Gram Panchayat and they had also passed a resolution on 30.5.1994 for the construction of the gali in question to be pucca one.
2. Alongwith the suit the plaintiff had filed an application under Order 39, Rules 1 and 2 read with Section 151 of the Code of Civil Procedure praying for an interim injunction to the above effect. The learned trial Court after hearing the parties and relying upon various judgments passed the following order:-
“……therefore, the applicant Hans Raj is also a necessary party is allowed and both the parties till final decision of their suit by this Court are directed to maintain status quo with regard to the existing position of the property in dispute. Hence the injunction application is accordingly disposed of.”
3. The defendants in the suit had preferred an appeal before the learned Additional District Judge, Jagadhri, who vide his judgment and order dated 17.4.1997 set aside the impugned order holding that the Civil Court had no jurisdiction and the suit was hit by Section 13 of the Punjab Village Common Lands Regulations Act, 1961 as amended and applicable to Haryana. Aggrieved from this order the present revision has been preferred by Bakshish Ram and another.
4. It is contended on behalf of the petitioner that both the Courts below have come to concurrent prima facie view that the plaintiff is in possession of the property in question which is abadi deh and the plaintiff has not prayed for any declaration which would be hit by the provisions of Section 13 of the aforesaid Act. According to the learned counsel the judgment of the First Appellate court suffers from error of jurisdiction and the judgment of the learned trial Court should be upheld.
5. There is hardly much dispute with regard to the facts giving rise to the present proceedings. The learned trial Court specifically noticed in its judgment” Admittedly, the house in dispute is within the abadi deh of the village. Abadi deh is not shamlat deh hence the Civil Court has the jurisdiction to entertain and decide the matter in dispute between, the parties”. On this finding the learned first Appellate Court observed that the claim of the plaintiffs that property is part of their house while defendants claim it to be a public street and even abadi deh would be covered under the definition of shamlat Under Section 2(g)(1) of the Punjab Village Common Lands (Regulation) Act, and consequently hit by bar Under Section 13 of the Act. In order to appreciate the rival contentions raised in the present case it is necessary to examine the expression shamlat deh. Under Section 2(g)(5) of the Act, this expression has been understood of vide magnitude and stated to include the land in any village described as banjar qadim used for the common purpose of the villagers according to revenue records. The judgments of the learned courts below do not make a reference to any revenue record which describes the land in question and that it has been a public street which is used for the common use of the villagers. The plaintiff in the suit made a specific averments that the land in question has been a part of his house (angan) for the last number of years and is being used by none except by the plaintiffs. At the initial stage of the suit while deciding an application under Order 39 Rules 1 and 2 read with Section 151 of the C.P.C. the Court is primarily concerned with the prima facie view, balance of convenience and irreparable loss. This is for the reasons that parties are put to trial in due course of time, in regard to the facts on which the parlies are at issue. It is to prevent an irreparable loss which may occur to either of the parties to the proceedings remedy of which would be rendered difficult or impossible, later on. The learned counsel for the petitioner while relying upon a Full bench of this Court in the case of Jai Singh v. State of Haryana, (1995-1)109 P.L.R. 614 (S.C.), and judgment of the Supreme Court in the case of Ram Singh v. Gram Panchayat, Mehal Kalan, (1987-1)91 P.L.R. 224 (S.C.), and Single Bench judgment of this Court in the case of Besheshar Nath etc. v. Gram Panchayat, Mustafad, (1996-2)113 P.L.R. 645, to argue that in the present suit no declaration with regard to title of the lands being vested in Gram Sabha or otherwise is called for or prayed. The property in question being a private property the Civil Court has every right to determine and decide such a question dehorse of the finding recorded in regard to vesting or where such land is or is not a shamlat deh. At this stage, it may be relevant to refer to the case of Basheshar Nath (supra), where the Court held as under:-
“Having heard learned counsel for the parties. I am of the view that the revision petition deserves acceptance. Fact leading to the present dispute as briefly noticed is that the dispute pertains to a house situate within the abadi deh. Abadi deh does not come within the definition of term 2(g) of the Act. This being so, there is no inference for automatic vesting of such a property on coming into enforcement of the Act. In any case, such a dispute can only be adjudicated on the basis of evidence which the parties have a right to adduce. The Court has erred in directing that the case file be transmitted to the Court of Assistant Collector of 1st Grade for adjudication. Such a course is impermissible in law. In the present case, the trial Court as well as the lower appellate Court have not kept in view the amendment made in the Act vide Haryana Act No. 9 of 1992. Vide this Act, Sections 13-A and 13-B stands repealed. So, presently there is no forum available to an aggrieved person for getting a question of title determined. Section 7 of the Act deals with a different situation. Even from another angle; as per definition of a house as given in Section 2(c) of the Act, a house includes a courtyard whether walled or not so, prima facie, the plea raised by the plaintiff is to be determined in the light of the provisions of the Act i.e. whether such a properly comes within the ambit of shamlat deh or not. Since, no attempt has been made by the Court below to examine this aspect of the matter, the conclusion arrived at and the approach adopted can be termed to be conjectural.”
5. Somewhat similar view was expressed by another Bench of this Court in the case of Molu Ram v. Baje Singh, 1991 P.L.J. 543, where the Court held as under:-
“In order to be fair to Shri Harbhagwan Singh, learned Senior Advocate for the respondents, it deserves to be noticed here that his contention to the effect that the civil court has no jurisdiction in the matter as the property belongs to the Gram Panchayat, has no substance in view the Division Bench, Judgment, of this Court in Bhagu Ram v. Ram Sarup, 1985 P.L.J. 366. I, therefore;. while setting aside the impugned orders, injunct the respondents from interferring in the possession of the petitioner-plaintiff over the suit properties i.e. plots till the final disposal of the suits. There is, however, no order as to costs.
It is admitted case between the parties that no proceedings Under Section 7 of the Act have been commenced by the Gram Panchayat till today. The said provisions vests unquestionable right in the Gram Panchayat to get illegal unauthorised person removed from the premises which is shamlat deh or is a property vested in the Gram Panchayat. If the property in dispute is that of the Gram Panchayat atleast at this stage it is not clear from the record why the proceedings have not been initiated against the present petitioner by this time.
6. Learned counsel for the respondent has placed reliance upon judgment of Single Bench of this Court in Mukhtiar Singh v. Jai Singh, 1990 P.L.J. 41, to argue that when the jurisdiction of the civil court is barred Under Section 13 of the Act and also when such a plea is raised, it has no jurisdiction to grant temporary injunction under the provisions of Order 39, Rules 1 and 2. There is no doubt that the judgment helps the learned counsel for the respondents on both these issues but this court is bound by the view expressed by the Division Bench of this Court and With respect would prefer to follow the view expressed in the case of Molu Ram v. Baje Singh (supra) and Basheshar Nath v. Gram Panchayat, Mustafabad (supra).
7. With regard to the other limb of the argument that in a case where question of jurisdiction is raised the courts should not grant interim injunction, cannot be sustained as this question is no more res integra and has been answered by the Hon’ble Supreme Court in the case of Tayabbhai M. Bagasarwalla v. Hind Rubber Industries Pvt. Ltd., 1997(2) R.C.R. 473, and held as under:-
“A question of some general importance arise in these appeals. The question is whether a person who disobeys an interim injunction made by the Civil Court can be punished under Rule 2-A of Order 39 of the Code of Civil Procedure where it is ultimately found that the Civil Court had no jurisdiction to entertain and try the suit? A learned single Judge of the Bombay High Court has opined, following certain earlier decisions of that Court, that he cannot be. The reason given is once it is found that the Civil Court has no jurisdiction to entertain the said suit, all interim orders made therein must also be deemed to be without jurisdiction and, hence a person flouting such interim orders cannot be punished for their violation. The correctness of the said view is questioned in this appeal by the plaintiff-appellant.
It was further held as under :-
“The correct principle, therefore, is the one recognised and reiterated in Section 9-A to wit, where an objection to jurisdiction of a civil Court is raised to entertain a suit and to pass any interim orders therein, the Court should decide the question of jurisdiction in the first instance but that does not mean that pending the decision on the question jurisdiction, the Court has no jurisdiction to pass interim orders as may be called for in the facts and circumstances of the case. A mere objection to jurisdiction does not instantly disable the Court from passing any interim orders. It can yet pass appropriate orders. At the same time, it should also decide the question of jurisdiction at the earliest possible time. The interim orders so passed are orders within jurisdiction when passed and effective till the Court decides that it has no jurisdiction to entertain the suit. These interim orders undoubtedly come to an end with the decision that this court had no jurisdiction to try the suit. Indeed, in certain situations, it would be its duty to modify such orders or make appropriate directions.
8. In view of the above discussion and settled position of law I am of the considered view that the civil court has the jurisdiction to entertain the suits of the present kind. In any case the court had the jurisdiction to pass interim orders during the pendency of the proceedings. If the street is permitted to be constructed from the sehan of the plaintiffs it would certainly cause irreparable loss and damage to the appellant which cannot be remedied subsequently. It will bring matters into existence which admittedly do not exist as of today. Balancing the equities between the parties it is appropriate to maintain status quo as of today. Consequently, this revision is allowed, the interim order dated 17.4.1997 passed by the Additional District Judge is set aside and that of the trial Court dated 14.2.1995 is sustained.