JUDGMENT
B. Rai, J.
1. This Regular Second Appeal arises out of a suit filed by Ruldu Singh plaintiff-appellant for declaration to the effect that he is owner in possession of land measuring 56 Kanals 2 Marlas as mentioned in the Jamabandi for the year 1973-74 situated in the area of Village Umarpura, Tehsil Malerkotla and for permanent injunction to the effect that the defendant be restrained from dispossessing him and to take possession of the said land. That suit was decreed with costs by the learned Subordinate Judge, First Class, Malerkotla, vide his judgment and decree, dated February 14, 1978, granting both the reliefs.
2. Nagar Panchayat (defendant) challenged that judgment and decree passed by the trial Court in Civil Appeal No. 72 of 1978 before the District Judge, Sangrur. The appeal was partly allowed by the learned District Judge modifying the decree to the extent that the suit of the plaintiff for declaration that he is owner of the land in suit was dismissed and the decree for injunction was modified to the extent that the defendant shall not be dispossessed except in due course of law because by virtue of the fact that Ruldu Singh is in peaceful possession since the year 1963 and he has a right to protect that possession till he is dispossessed in due course of law. Parties were left to bear their own costs, vide his judgment and decree, dated October 31, 1979. However, Ruldu Singh plaintiff was not satisfied with the judgment and decree, dated October 31, 1979 of the first appellate Court and he has approached this Court in Regular Second Appeal.
3. Brief facts of the case are that originally the land measuring 34 Bighas 19 Biswas as described in Para 1 of the plaint and entered in jamabandi for the year 1986-87 was in possession of Mst. Bishni, the maternal grandmother of Ruldu Singh. The consolidation took place in the year 1952. In the year 1972-73, Killabandi was effected and in lieu of land measuring 34 Bighas 19 Biswas, the land measuring 56 Kanals 2 Marlas as described in the headnote of the plaint was allotted. Mst. Bishni had no male issue. She had only one daughter by the name of Bhagwanti-mother of Ruldu Singh. Bhagwanti died when Ruldu Singh was a small child and Ruldu Singh was brought up by Mst. Bishni and he continued rendering service to Mst. Bishni, About 17 years ago, Mst. Bishni died and Ruldu Singh entered into possession of the properties left by her as her heir and, thus, he entered into possession of the suit land. It was further alleged that during the life time of Mst. Bishni, she was in possession as an owner and after her death, Ruldu Singh plaintiff remained in possession of the land openly as an owner. Neither Mst. Bishni nor Ruldu Singh plaintiff ever paid any rent to anyone. He averred that entries in the jamabandi for the years 1962-63 and 1973-74 recording the defendant to be an owner are against facts and law and are not binding on him. He further pleaded that in the year 1963, Nagar Panchayat (defendant) attempted to dispossess him and for that purpose, proceedings Under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 were initiated on April 11, 1963, but the same were dismissed on April 8, 1965. Ruldu Singh alleged that defendant has now started making claims with respect to the land in suit as owner and is trying to dispossess him. Hence he filed the suit.
4. The suit was contested by the defendant-Nagar Panchayat, denying the identity of the land and the fact that Mst. Bishni was in possession or that she was delivered the possession in consolidation proceedings. The relationship of Ruldu Singh with Mst. Bishni was also challenged. It was also challenged that plaintiff has succeeded to the property of Mst. Bishni. Claim of ownership by Ruldu Singh by adverse possession was also challenged. It was further pleaded that the defendant was owner of the land in suit. The defendant also challenged the jurisdiction of the civil Court to entertain and decide the suit.
I have heard the learned counsel for the parties and have carefully gone through the record.
5. The learned counsel for the appellant has carried me through the judgments of the Courts below. It was pointed out by him that earlier also Ruldu Singh had filed a civil suit against the Sarpanch and Panches of the Nagar Panchayat, Umarpura for permanent injunction restraining them from dispossessing the plaintiff forcibly otherwise than in due course of law. On notice, defendant appeared and volunteered to make a statement on oath that he would not evict the plaintiff from the land by force and that he had applied to the Collector for his eviction in due course of law. In view of this statement, Ruldu Singh did not wish to proceed further with his suit. The suit was dismissed leaving the parties to bear their own costs by the Subordinate Judge, Fist Grade, Malerkotla, vide his order, dated November 29, 1963, Exhibit P10. Exhibit P12 is a certified copy of the order of Assistant Collector, First Grade, Malerkotla. A perusal of it would show that one Harbhajan Singh son of Nihal Singh resident of Village Umarpura had filed an application against Ruldu Singh Under Section 7 and 12 of the Punjab Village Common Lands (Regulation) Act, 1961 and Under Sections 4 to 7, 11 and 14 of the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1973 for ejectment of respondent (Ruldu Singh) from land measuring 56 Kanals 2 Marlas situated in the revenue estate of Village Umarpura. Inpara 5 of the order, the learned Assistant Collector, First Grade concluded that the respondent is in occupation of the land in dispute as owner by virtue of adverse possession, particularly when the applicant has not cared to lead any evidence to the contrary. It was further found that it is also proved on record that earlier also the Gram Panchayat, Umarpura instituted similar proceedings in the Court of Assistant Collector, First Grade, but that application was filed vide order, dated April 8, 1965, Exhibit R5. Accordingly, the application filed by Harbhajan Singh was dismissed by the Assistant Collector, First Grade, Malerkotla, vide his order, dated September 20, 1976. In these circumstances the learned counsel for the appellant submitted that from the documentary evidence, it is clearly proved that from the death of Mst. Bishni till September 20, 1976, Ruldu Singh was found to be in possession of the suit land by virtue of his adverse possession.
6. Exhibit D3 is the copy of warrant of possession which was issued on the application of Atma Singh and others regarding delivery of possession of land mentioned therein in a case Atma Singh v. Inder and Ors.. The Assistant Collector, First Grade, Malerkotla, issued a direction that after delivery of possession of land to Atma Singh in accordance with the procedure established by law, report be submitted. This warrant of possession was marked to Tehsildar. A note was given in the warrant that in case the crops are standing the compensation for the same be assessed and thereafter possession be delivered. Feeling aggrieved, Ruldu Singh preferred an appeal against the order, dated August 5, 1964 of the Assistant Collector, First Grade, before the Collector, Sangrur who vide his order, dated October 14, 1963, Exhibit P13, accepted the appeal, set aside the order and remanded the case to the Assistant Collector, First Grade, Malerkotla, with the observations that under the law his ejectment, if any, could not take place before the Ist of May next.
7. Exhibit P15 is the certified copy of the order, dated September 5, 1963, of Sub-Divisional Officer (Civil), Malerkotla. It shows that Atma Singh, Sarpanch, Nagar Panchayat Umarpura, filed an application against Inder Singh and six other persons including Ruldu Singh (appellant herein) Under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (Punjab Act No. 18 of 1961), regarding delivery of possession of land measuring 70 Bighas 19 Biswas to the Nagar Panchayat, Umarpura. That order reads as under :
“In this case it was not brought to my notice that crops were standing and that possession could not be delivered as such. It will be observed from my order that no such direction was given. The Sarpanch, however, argued that Ruldu Singh was in illegal possession and that the Panchayat should be put into possession after assessing the compensation. This argument was not controverted at that moment. Later on, however, the learned counsel for Ruldu Singh brought this fact to my notice with the result that possession was restored to Ruldu Singh and it was directed that possession should be changed only after the standing crops were harvested.”
It appears that after the remand, Ruldu Singh did not appear before the Assistant Collector, First Grade and was proceeded against ex parte. He filed an application before the Assistant Collector, First Grade, Malerkotla, for setting aside the ex parte proceedings but that application was dismissed by the Assistant Collector, First Grade, vide his order, dated August 5, 1963, Exhibit D4. It was observed by the learned Assistant Collector, First Grade that it was abundantly proved that the possession of Ruldu Singh has been of pretty recent years and it is not correct to say that he has been in possession for more than twelve years. It was further observed that as the possession of Ruldu Singh was illegal, that illegal possession should be vacated. Consequently, fresh warrant of possession was ordered to be issued. In pursuance of the warrant of possession as per order, dated August
7. 1963, Exhibit Dl, Nagar Panchayat took over possession of the land in dispute. It was argued by the learned counsel for the appellant that on August 7, 1963 when the possession of the suit land is alleged to have been taken from Ruldu Singh and was delivered to Nagar Panchayat, Ruldu Singh was not present. Moreover vide report, dated August 27, 1963, Exhibit D11, the possession was re-delivered to Ruldu Singh. It was further argued that it is clearly proved from the documentary evidence that possession, if any, was delivered to the Nagar Panchayat in pursuance of the illegal order which was later on set aside and possession was re-delivered to Ruldu Singh. According to the learned counsel, if a person is dispossessed in pursuance of an illegal order, which is later on set aside and possession is re-delivered, that person is deemed to be in continuous possession. Therefore, the interruption, if any, in continuous possession is no interruption in the eye of law. Ruldu Singh is proved to be in continuous peaceful possession for more than twelve years without interruption; and that possession has matured in ownership. In other words, Ruldu Singh has become owner of the suit land by adverse possession and the Nagar Panchayat has no right to interfere.
8. On the other hand, the learned counsel for the respondent has referred to the revenue record and has pointed out that in the Jamabandis for the years 1936-37, Exhibit P8, 1940-41, Exhibit P7, 1943-46, Exhibit P6 and 1958-59, Exhibit P4, land in dispute is recorded as shamilat deh and by virtue of the provisions of the Punjab Village Common Lands (Regulation) Act, 1961 the shamilat deh vests in the Nagar Panchayat. The claim of the appellant that he has become owner of the suit land by way of adverse possession amounts to denial of title of the Nagar Panchayat to the suit land and the question whether the suit land is shamilat deh or not, can only be decided by the Collector. It was further argued that even the prayer for permanent injunction is not tenable, the relief of injunction being called against the true owner.
9. I have given my thoughtful consideration to the rival contention but do not find any force in the submissions made by the learned counsel for the appellant. In the Jamabandis referred to by the learned counsel for the respondent, undisputably the land in dispute is recorded as shamilat deh which in view of the provisions of Section 2(g) read with Section 3 and 4 of the Punjab Village Common Lands (Regulation) Act, 1961, is vested in the Gram Panchayat. Section 13 of the Act bars the jurisdiction of the civil Court. Section 13 is reproduced below for ready reference :
“13. Bar of Jurisdiction in Civil Court – No civil court shall have jurisdiction –
(a) 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; or
(b) to question the legality of any action taken by the Commissioner or the Collector or the Panchayat, under this Act, or
(c) in respect of any matter which the Commissioner or the Collector is empowered by or under this Act to determine.”
10. A reading of provisions of Section 13 would show that jurisdiction of the civil Court has been specifically barred 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 the Act. Therefore, I am of the firm view that the civil Court had no jurisdiction to entertain and decide. the suit filed by Ruldu Singh. This legal aspect was also not taken note of by the learned District Judge, Sangrur, while deciding the appeal. It is well settled that; relief of permanent injunction is not available to any person against the true owner. Therefore, the relief of permanent injunction prayed for could also not be granted as’ has been done by the learned District Judge. Since the civil Court has been denuded of jurisdiction and that has been vested in the Collector, only Collector has to decided whether a piece of land would be shamilat or not strictly on the basis of definition contained in Section 2(g) read with Sections 3 and 4 of the Punjab Village Common Lands (Regulation) Act, 1961. In this connection, reference may also be made to the order passed by their Lordship of the Apex Court in Civil Appeal No.14786 of 1996 and Special Leave Petition (C) No. 10352 of 1991 Gram Panchayat of Village Sidh. Through Sarpanch Zora Singh v. Addl. Director Consolidation of Holding, Punjab and Ors., on November 21, 1996.
For the reasons recorded above, the appeal fails and is hereby dismissed. The judgment and decrees of both the Courts are set aside. No costs.
The plaint is ordered to be returned to the plaintiff for presentation before the competent Court.