JUDGMENT

Anil Kshetarpal. J. - In the considered view of this Court, the following questions of law arise for consideration:-

1. Whether jurisdiction of the Civil Court to entertain and decide a civil suit is barred under Section 13 of the Punjab Village Common Lands (Regulation) Act, 1961 (as applicable to Haryana) (hereinafter referred to as "the 1961 Act"), if the question arise for adjudication is whether the suit property is shamlat deh or not as defined in Section 2(g) of the Act directly or indirectly;

2. Whether, while finally deciding the civil suit, the Court is required to take into consideration the pleadings, the evidence led by the parties (documentary and oral) before deciding the question of maintainability of the civil suit before the Civil Court or only the averments made in the plaint are to be examined.

2. The defendant/appellant-Gram Panchayat has filed the present appeal against concurrent finding of fact arrived at by the Courts below. The plaintiffs have pleaded that the land measuring 109 kanals 14 marlas is owned and possessed by the proprietors of the village and is being used for agricultural and allied purpose without interference. It was pleaded that in the revenue record, the land was recorded to be owned by the proprietors of the village and the entry was Hasab Rasad Raqba Khewat. However, subsequently, the mutation bearing No. 322 dated 26.07.1955 has been sanctioned and the land has been entered in the name of Gram Panchayat without notice to the plaintiff/proprietors of the village. The aforesaid mutation is on the basis of some communication from the government vide letter No. 782 ACH-54/305 dated 16.11.1954.

3. The defendant-Gram Panchayat contested the suit and pleaded that the Civil Court has no jurisdiction to try, entertain or adjudicate the suit as the land in dispute vests in the Gram Panchayat. It was claimed in the written statement that the land is shamlat deh and, hence, vests with the Gram Panchayat and is being used for various common purposes in the village.

4. The learned Civil Court, on examination of the pleadings, did frame an issue to the following effect:-

"3. Whether the Civil Court has no jurisdiction to try and entertain the present suit? OPD"

5. Both the Courts below, after relying upon the judgment passed in the case of Lehna Singh vs. The State of Haryana 1995 PLJ 506 have held that the Civil Court has the jurisdiction. The learned first Appellate Court has also relied upon the judgment passed by the Hon'ble Supreme Court in the case of Abdulla Bin Ali and Others vs. Galappa and Others 1985(2) SCC 54 to hold that while deciding on the question of maintainability of the suit before the Civil Court, only the assertions/averments made in the plaint are required to be examined.

6. At this stage, it would be relevant to note that before coming into force of the 1961 Act in the ownership column entry with regard to the land in dispute was Shamlat Deh Hasab Rasad Raqba, whereas in the cultivation column, it was recorded to be used for the various common purposes. Of course certain part of the land was recorded to be in possession of various persons.

7. This Court has heard learned counsel for the parties at length and with their able assistance, gone through the judgments passed by both the Courts below.

8. On the one hand, learned counsel for the appellant has contended that the question which arose before the Civil Court as to whether the suit property is shamlat deh or not and, therefore, the jurisdiction of the Civil Court is barred under Section 13 of the 1961 Act. On the other hand, learned counsel for the respondents has submitted that the prayer made in the suit was only to set aside a mutation and to correct the revenue entry and therefore, the jurisdiction of the Civil Court is not barred. He referred to Section 45 of the Punjab Land Revenue Act, 1882 to claim that such civil suit is very much maintainable.

9. In view of the respective contentions of learned couns