Disposed

Balwant Singh & Ors. v. State of Pb. & Ors.

Punjab & Haryana HC22 Nov 2011CWP/6715/2006

Case brief

AI extract

What is this about?

The court disposed of a Civil Miscellaneous Application challenging a stay order. Instead of deciding the plea regarding res judicata immediately, the court directed parties to file detailed pleadings so the Collector can frame issues on merits.

What did the court decide?

Granted liberty to petitioners to file a detailed written statement within two months; Collector directed to frame issues including res judicata upon receipt of pleadings.

Balwant Singh & Ors. Vs State of Pb. & Ors. — Partition | Punjab & Haryana HC (2011)

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. C.W.P. No. 6715 of 2006 (O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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C.W.P. No. 6715 of 2006 (O&M)

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Date of Decision:- 22.11.2011

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Balwant Singh and others

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.....Petitioners

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Versus

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State of Punjab and others

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.....Respondents

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CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE PARAMJEET SINGH

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Present:Mr.Kanwaljit Singh, Sr. Advocate with Ms. Vidushi Gaur, Advocate for the petitioners.

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Mr. Manohar Lall, Addl. AG Punjab.

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Mr. HPS Ghuman, Advocate for respondent No. 3. ****

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SATISH KUMAR MITTAL, J(Oral).

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This Civil Miscellaneous Application No. 17563 of 2010 has been filed by the respondent No. 3-Gram Panchayat for vacation of the stay order dated 2.5.2006.

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Parties have agreed that instead of deciding this application, the main writ petition be heard and decided. We have taken the main writ petition for hearing and have heard the learned counsel for the parties.

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The petitioners have filed the instant petition challenging the order dated 20.2.2006 passed by the Collector whereby the application filed by the petitioners for dismissal of the title suit filed by the Gram Panchayat under Section 11 of the Punjab Village Common Lands (Regulation) Act, 1961, (hereinafter referred to as 'the Act') has been dismissed. It is the case of the petitioners that earlier the petitioners filed a title suit under Section 11

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. C.W.P. No. 6715 of 2006 (O&M)

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of the Act for declaring their ownership on the disputed land against the Gram Panchayat and the said suit was decreed on 16.5.1997, copy of which has been annexed as Annexure P-1. Against the said order the respondentGram Panchayat filed an appeal and the said order was upheld by the Commissioner vide order dated 6.5.1988. Feeling aggrieved against that order the Gram Panchayat filed CWP No. 1262 of 2000 and the same was dismissed by this Court while making the following observations:-

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“We find from the impugned orders that a concurrent finding of fact has been recorded that the private respondents had been in possession of the land in question prior to 26^th January, 1950 and that it was being used a brick-kiln. We are of the opinion that the petitioner should first approach the authorities under the act, if legally permissible, pointing out that the finding of fact was wrong. We accordingly dispose of the writ petition with the above remarks. Copy Dasti.”

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Two years, after dismissal of the said writ petition, the Gram Panchayat filed a petition under Sections 4 and 5 of the Punjab Public Premises and Land (Eviction and Rent Recovery), Act 1973, for ejectment of the petitioners from the land in dispute. Subsequently, vide order dated 6.11.2002 the said application was withdrawn. Thereafter the Gram Panchayat filed an application under Section 7 of the Act for ejectment of the petitioners from the land in dispute. That application was also withdrawn. It is the case of the petitioners that after three years the respondent-Gram Panchayat filed a petition under Section 11 of the Act for declaring the Gram Panchayat as owner of the land in dispute for which the suit filed by the petitioners under the said provision has already been decreed in their favour. After receiving the notice of the said land the

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. C.W.P. No. 6715 of 2006 (O&M) 3

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petitioners moved an application for dismissal of the petition filed by the Gram Panchayat, on the principle of res-judicata. The Collector has dismissed the said application vide impugned order which has been challenged in the present petition.

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Learned counsel for the petitioners argued that the Collector has committed grave illegality while straight away dismissing the application of the petitioners without framing preliminary issue with regard to maintainability of the second suit on the principle of res-judicata. However, it is admitted that the petitioners have not filed detailed written statement/reply to the petition filed by the Gram Panchayat under Section 11 of the Act.

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Undisputedly in the proceedings under Section 11 of the Act, the Code of Civil Procedure is applicable. The petitioners were supposed to file a detailed reply taking the preliminary objection with regard to maintainability of the suit on the ground of principle of res-judicata or any other ground. No such written statement/reply has been filed. Therefore, the Collector has not framed any issue including the preliminary issue and the application filed by the petitioners has been dismissed.

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During the course of hearing learned counsel for parties have agreed that if any detailed written statement/reply is filed by the petitioners, taking the preliminary objection then Collector can be directed to frame necessary issue arising from the pleadings of the parties (including the preliminary issue) and if there is any preliminary issue, the same may be decided in accordance with law on merits.

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We are of the opinion that in view of the fair stand taken by both the parties, this matter is disposed of with liberty to petitioners to file a

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. C.W.P. No. 6715 of 2006 (O&M)

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detailed written statement/reply to the petition filed by the Gram Panchayat under Section 11 of the Act, and it will be open for them to take preliminary objection with regard to maintainability of petition in view of principle of res-judicata. In case any such written statement/reply is filed within two months from today, the Collector will consider the said reply and after taking into consideration the pleadings of the parties shall frame necessary issues (including the preliminary issue) and then to proceed further with the suit and decide the issues and the preliminary issues in accordance with law.

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Disposed of.

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( SATISH KUMAR MITTAL) JUDGE

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22.11.2011 ( PARAMJEET SINGH ) reema JUDGE

Balwant Singh & Ors. v. State of Pb. & Ors.

Case brief

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Balwant Singh & Ors. v. State of Pb. & Ors.

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