The civil court has jurisdiction to decide a suit for declaration of right of passage and mandatory injunction to remove obstruction, where the defendant claims exclusive ownership of the land in dispute and no question regarding the vesting or non-vesting of the land in the Gram Panchayat or the nature of the land (whether it is Shamlat Deh or not) arises on the pleadings of the parties.

P.C.Jain, J.

1. Nand Lal, defendant has filed this regular second appeal against the judgment and decree of the learned Additional District Judge, Sonepat, dated 18th January, 1974, by which the judgment and decree of the trial Court decreeing the plaintiffs suit, have been affirmed.

2. In order to appreciate the controversy, certain salient features of the case may be noticed:-

Shrimati Chhotee had filed a suit against the defendant-appellant inter alia on the grounds that she and the defendant enjoy a common, passage, in between their houses, shown as RS and AB in the site plan, Exhibit P.1, that this passage leads to the village pond and ends there, that houses of many other persons whose names have been mentioned in para 3 of the plaint, also open in the street, that the defendant had raised a wall at point KP and had opened a door at point `Y so as to block the passage of the Galli leading to village pond, that the defendant wants to encroach upon this passage by still raising another wall at point CH as shown in the site plan, Exhibit P-1 and that in this manner the defendant has taken unauthorised possession of a piece of land marked KPAO and has obstructed the plaintiffs right of passage. On these allegations, a decree for declaration that the plaintiff has a right of passage through the part of the street was sought. A decree for mandatory injunction directing the defendant to remove this obstruction had also been claimed.

The suit was contested by the defendant. His plea is that the space in dispute exclusively belongs to him, that the construction was raised 17 or 18 years back on the plot in dispute, that now he was only raising the wall, that the plaintiff had no right of passage through the land in dispute, that the suit was barred by the provisions of section 91 of the Code of Civil Procedure and that the subject-matter of the suit having already been decided under sections 133 and 145/146 of the Criminal Procedure Code, cannot be agitated in Civil Court.

On the pleadings of the parties, several issues were framed.

On consideration of the evidence led by the parties, the trial Court held that the defendant was not the exclusive owner of the land in dispute, that there was a common passage leading from place mark RS upto place AB as shown in site plan Exhibit P.1 that this passage leads to the village pond and that the defendant had taken wrongful possession of plot KPAO and had thereby blocked the passage of the street, that the Civil Court had jurisdiction to try the suit and that the suit was within limitation. Consequently, the suit of the plaintiff was decreed.

Feeling aggrieved from the judgment and decree of the trial Court, the defendant preferred an appeal. Finding no merit the same was dismissed by the learned Additional District Judge, Sonepat. Hence the present regular second appeal by the defendant.

3. The defendant has filed Civil Miscellaneous No. 1129-C/1983, under Order 41 Rule 2 read with Section 151 of the Code of Civil Procedure, praying that the appellant be permitted to argue that the jurisdiction of the Civil Court was barred under section 13 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as the Act). Notice of this application was given to the learned counsel for the respondent, who has filed a detailed reply and has opposed the prayer.

4. I have heard the learned counsel for the parties. In the interest of justice, I allow the learned counsel for the appellant to raise the plea of jurisdiction on the basis of section 13 of the Act.

5. The only point urged before me by the learned counsel for the appellant is that in view of the provisions of Section 13, the Civil Court has no jurisdiction. I am afraid I am unable to agree with this submission of the learned counsel. Section 13 of the Act reads as under :-

"Bar of jurisdiction--No Civil Court shall have jurisdiction--(a) to entertain or adjudicate upon any question whether-- (i) any land or other