D.K. Mahajan, J. - This second appeal is directed against the decision of the learned Senior Subordinate Judge, Ambala, reversing on appeal the decision of the trial Court decreeing the plaintiff's suit. The plaintiffs filed the present suit for recovery of Rs. 100/- and a permanent injunction that the defendant should not realise the fine of Rs. 25/- per man and also a fine of Re. 1/- per day imposed on the appellants under the orders of Panchayat dated the 8th September, 1954 and 14th October, 1954. It may be mentioned that during the suit the attack on the order of 8th September, 1954 was not pressed. It was only the order of the 4th of October, 1954, the validity of which fell for determination. The trial Court held that the order of the 4th of October, 1954 was an invalid order because the plaintiffs had not encroached upon the public street and therefore decreed the suit. On appeal by the Gram Panchayat, the learned Senior Subordinate Judge came to the conclusion that the plaintiffs had encroached upon the public street, and in this view of the matter the learned Senior Subordinate Judge reversed the decision of the trial Court and dismissed the suit. Against this decision the present second appeal has been preferred. 2. The first contention of the learned counsel for the appellants was that the finding of the lower appellate Court that the plaintiffs had encroached upon a public street was erroneous because the lower appellate Court had ruled out the local Commissioner's report. In my opinion this argument has no force because there is other material on the record on which the finding of the lower appellate Court can be fully sustained. It was admitted by one of the plaintiffs, namely, Sunder Singh who appeared as P.W. 4 that the site in dispute was part of Khasra No. 2551. The revenue records show that this khasra No. is a public path and that is what the lower appellate Court has held. Therefore no exception can be taken to the finding of the lower appellate Court that the site in dispute is a public path and as this finding is based on evidence it cannot be interfered within second appeal being a finding of fact. 3. The second contention of the learned counsel is based on the decision of this Court in Naurang Lal v. The Gram Panchayat, 1964 P.L.R. 28, and it is to the effect that no recurring fine is justified in law when the initial order holding a person guilty under Section 21 of the Panchayat Act is passed. No exception is taken to this contention by the learned counsel for the respondent and indeed it could not be in view of the above Division Bench decision of this Court. Therefore the second contention must succeed and the order of the Panchayat imposing the recurring fine must be quashed. 4. The last contention of the learned counsel is that the initial fine of Rs. 25/- also cannot be imposed. The contention is novel and better be stated in extenso. The contention is that under Section 21(1) a conditional order is passed. That order, after recording evidence, is made absolute and in accordance with the conditional order which is made absolute time is granted to the offender to set right the wrong for which he is sought to be punished, for instance, in the present case, to remove the encroachment from the public path. It is after he has failed to remove the encroachment that an order, according to the learned counsel imposing the penalty, can be passed under Section 23 of the Punjab Gram Panchayat Act. The learned counsel strongly placed reliance on the expression in Section 23 that :-
"Any person who disobeys an order of the Gram Panchayat made under the two last preceding sections, shall be liable. * * * * *"
The argument is that there should be two orders one finding that the person proceeded against under Section 21 has committed a breach which is to be set right and for the purposes of setting it right some-time limit has to be prescribed in the order. It is only after the expiry of the time limit that the occasion would be for a second order under Section 23 of the Act. I am, however, unable to agree with this contention. Section 21 justifies conditional order and when an order is passed like the order similar to the one impugned in the present case, the penalty provision will only come into operation after the order is not obeyed. There is no charm in not passing the composite order and to wait till the order is disobeyed and then proceeded to pass the order imposing the penalty. The campsite order merely provides that in case the breach is not set right, the penalty will follow. Therefore if the breach is set right there would be no occasion for the penalty. It is not the case of the appellants that they carried out the order and in spite of that the penalty has been levied. On the other hand penalty has been levied because of the failure on the part of the appellants to carry out the order. I, therefore, repel the last contention as well. No other contention has been advanced. 5. For the reasons recorded above, this appeal is partly allowed and the impugned order imposing penalty Re. 1/- per day per man is set aside but otherwise the remaining part of the order of the Panchayat is allowed. In the circumstances of the case, there will be no order as to costs. Appeal partly allowed.