Punjab-Haryana High Court
Jangir Singh vs The Joint Director on 21 October, 2013
Author: Ajay Kumar Mittal
Bench: Ajay Kumar Mittal, Jaspal Singh
CWP No. 6898 of 1988 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CWP No. 6898 of 1988
Date of Decision: 21.10.2013
Jangir Singh
....Petitioner.
Versus
The Joint Director, Panchayats, Punjab and others
...Respondents.
CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL.
HON'BLE MR. JUSTICE JASPAL SINGH.
PRESENT: Mr. Harit Sharma, Advocate for the petitioner.
Mr. C.L. Premy, Advocate for respondent No.3.
None for the other respondents.
AJAY KUMAR MITTAL, J.
1. By way of instant petition filed under Articles 226/227 of the Constitution of India, the petitioner has prayed for quashing the orders dated 31.5.1983 (Annexure P-1) and dated 8.6.1988 (Annexure P-2).
2. Briefly stated, the facts necessary for adjudication of the present petition as narrated therein are that the petitioner was owner in possession of the land in dispute situated in village Mavi Sappan Tehsil and District Patiala since the time of his fore-fathers. Respondent No.3- Gram Panchayat filed a petition under Sections 7 and 11 of Punjab Village Common Lands (Regulation) Act, 1961 (in short "the Act") for the ejectment of the petitioner from the land in dispute on the ground that the same is Shamilat Deh and vested in the Gram Panchayat. The Singh Gurbachan 2013.11.18 10:44 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 6898 of 1988 -2- petitioner filed reply to the said petition alleging therein that he had already been declared as owner in possession of the land in dispute by civil court decree dated 5.4.1969 and on the basis thereof, mutation had already been sanctioned in his favour. It was further alleged that the petitioner and his fore-fathers were in possession of the land in dispute prior to 26.1.1950. According to the petitioner, the civil court had already decreed his claim and the same was binding on the Gram Panchayat. Respondent No.2 ignored the claim of the petitioner on the ground that the civil court decree dated 5.4.1969 being collusive had no effect on the ownership of the Panchayat in view of Section 13-B of the Act. It was held that the possession of the petitioner on the land in dispute was not established from 26.1.1950. Accordingly, respondent No.2 vide order dated 31.5.1983 (Annexure P-1) accepted the petition filed by the Gram Panchayat-respondent No.3 and ordered ejectment of the petitioner from the land in dispute. Feeling aggrieved, the petitioner filed an appeal before respondent No.1 who vide order dated 8.6.1988 (Annexure P-2) upheld the order of respondent No.2 and dismissed the appeal. Still dissatisfied, the petitioner has approached this Court by way of present writ petition.
3. Learned counsel for the petitioner submitted that the impugned orders are liable to be set aside as the civil court decree dated 5.4.1969 holding the petitioner to be owner in possession of the land in dispute was a valid decree and binding upon respondent No.3. It was further submitted that the Collector and the Joint Director, Panchayats, Punjab have no jurisdiction to ignore the said decree by holding it to be a collusive decree. The mere fact that the Sarpanch admitted ownership of the petitioner, does not raise an inference of collusion as the Sarpanch Singh Gurbachan 2013.11.18 10:44 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 6898 of 1988 -3- made a bonafide admission of Jangir Singh's ownership. It was also submitted that Section 13 of the Act which prohibits jurisdiction of civil courts, came into force in 1976 and, therefore, decrees passed before 1976 are legal and valid.
4. Learned counsel for the respondent No.3 submitted that as per revenue record, the land is Shamilat Deh and, therefore, vested in the Gram Panchayat by virtue of Section 2(g)(1) read with Section 3 of the Act. The decree dated 5.4.1969 passed by the Sub Judge IIIrd Class, Patiala, on the basis of a statement made by the then Sarpanch, accepting the ownership of Jangir Singh was collusive and did not bind the Gram Panchayat. It was further submitted that the Sarpanch was not authorized to make such a statement but colluded with the petitioner and admitted his ownership. A perusal of Annexure P-1 reveals that the suit was filed on 19.3.1969 and was decreed on 5.4.1969 on the admission made by the then Sarpanch regarding the claim of Jangir Singh. Therefore, the Collector and the Joint Director, Panchayats have rightly held that the decree was collusive and did not bind the Gram Panchayat. According to the learned counsel, the matter is squarely covered by the decision of this Court in CWP No. 14827 of 1989 [Matu Ram (since deceased) through his LRs v. Joint Director Panchayats and others] decided on 03.02.2012.
5. After hearing learned counsel for the parties, we do not find any merit in the writ petition. The Joint Director, Panchayats, Punjab while exercising the powers of Commissioner, on appeal, had held as under:-
"I have heard both the parties at length and have perused the record produced in this case carefully. Singh Gurbachan 2013.11.18 10:44 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 6898 of 1988 -4- Copies of the jamabandis for the year 1951-52, 55-56 and 79-80 were produced on record. From the documents produced it is proved that the Gram Panchayat is owner of the land in dispute. Appellants are claiming the possession over land in dispute by way of adverse possession. This land has been given to the Gram Panchayat in lieu of the land which was shamlat before consolidation. According to jamabandi for the year 1979-80, the gram panchayat has been shown to be owner of the land in dispute. The appellants have not produced any documents to connect the land in connection of the appellants before consolidation with the present land. Therefore, it is clear that he has occupied the land only after consolidation. This has been mentioned in the jamabandi for the year 1979-80 and the appellants have been shown as unauthorized occupants. According to the revenue record the appellants are in forcible possession over the land in dispute.
As regards the judgment and decree of the Sub Judge, Ist Class, Patiala is concerned, the same has been procured by the appellants in connivance with the gram panchayat of that time. Shri Mohar Singh who had appeared at that time on behalf of the gram panchayat had admitted the claim of the appellants in the suit. This decree was passed on his statement. Since this decree has been obtained in collusion, Singh Gurbachan 2013.11.18 10:44 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 6898 of 1988 -5- therefore, this is of no consequence in the eyes of law. On the basis of this decree the appellants cannot be given any right."
6. From the above, it is clear that the petitioner was unable to demonstrate with reference to any material on record that he was in possession before the consolidation. In fact, on the basis of the revenue record in the jamabandi for the year 1979-80, the petitioner was shown to be in unauthorized occupation. In such a situation, the decree dated 5.4.1969, wherein the then Sarpanch Shri Mohar Singh, who had appeared on behalf of the Gram Panchayat admitting the claim of the petitioner was a result of connivance with the petitioner and, therefore, the decree was collusive. Once that is so, the Collector as well as the appellate authority have rightly held that the decree dated 5.4.1969 was a collusive decree and would not affect the rights of the Gram Panchayat. Moreover, the learned counsel for the petitioner was unable to demonstrate any material on record to show that the petitioner was in possession before 26.1.1950.
7. Examining the case law on the subject, the Hon'ble Supreme Court in Gram Panchayat of Village Naulakha v. Ujagar Singh and others (2000) 7 SCC 543 has held that wherein the decree is collusive or fraudulent, the same can be ignored by the Collector, exercising powers under the Act. It was held as under:-
"4. On this point, we have heard the learned counsel for the respondents who contended that the principle laid down by the Full Bench in Jagar Ram case [1991 (1) PLR 260] is correct and that the earlier judgment in the present case is binding on the basis of the Singh Gurbachan 2013.11.18 10:44 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 6898 of 1988 -6- principle of res judicata. The Panchayat cannot therefore raise a plea of collusion in the latter proceedings unless it has first filed a suit and obtained a declaration or unless it took steps to have the earlier decree set aside.
5. We may state that the view taken by the Full Bench of the Punjab and Haryana High Court in Jagar Ram case is not correct and in fact, it runs contrary to the provisions of Section 44 of the Indian Evidence Act. That section provides that:
"44. Any party to a suit or proceeding may show that any judgment, order or decree which is relevant under Section 40, 41 or 42, and which has been proved by the adverse party, was delivered by a court not competent to deliver it, or was obtained by fraud or collusion."
(emphasis supplied) (Section 40 refers to the relevance of previous judgments which are pleaded as a bar to a second suit or trial and obviously concerns Section 11 CPC.
6. It appears from commentary in Sarkar's Evidence Act (13th Ed., reprint) (at p. 509) on Section 44 that it is the view of the Allahabad, Calcutta, Patna, Bombay High Courts that before such a contention is raised in the latter suit or proceeding, it is not necessary to file an independent suit. The passage from Sarkar's Evidence which refers to various Singh Gurbachan 2013.11.18 10:44 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 6898 of 1988 -7- decisions read as follows:
Under Section 44 a party can, in a collateral proceeding in which fraud may be set up as a defence, show that a decree or order obtained by the opposite party against him was passed by a court without jurisdiction or was obtained by fraud or collusion and it is not necessary to bring an independent suit for setting it aside Bansi v. Dhapo, Rajib Panda v. Lekhan Sendh Mahapatra, Parbati v. Gajraj Singh, Prayag Kumari Debi v. Siva Prosad Singh, Hare Krishna Sen v. Umesh Chandra Dutt, Aswini Kumar Samaddar v. Banamali Chakrabarty, Manchharam v. Kalidas, Ranganath Sakharam v. Govind Narasinv, Jamiruddin v.
Khadejanessa Bibi, Bhagwandas Narandas v. D.D.Patel & Co., Bishunath Tewari v. Mirchi and Gurajada Vijaya Lakshmamma v. Yarlagadda Padmanabham)."
Thus, in order to contend in a latter suit or proceeding that an earlier judgment was obtained by collusion, it is not necessary to file an independent suit as stated in Jagar Ram's case for a declaration as to its collusive nature or of setting it aside, as a condition precedent. In our opinion, the above cases cited in Sarkar's Commentary are correctly decided. We do not agree with the decisions on the Full Bench of the Singh Gurbachan 2013.11.18 10:44 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 6898 of 1988 -8- Punjab & Haryana High Court in Jagar Ram's case. The Full Bench has not referred to Section 44 of the Evidence Act nor to any other precedents of other Courts or to any basic legal principle.
7. The law in England also appears to be the same that no independent suit is necessary. In Spencer-Bower and Turner on Res Judicata (2nd Edn., 1969) it is stated (para 359) that there are exceptions to the principle or res judicata. If the party setting up res judicata as an estoppel has alleged all the elements of an estoppel (i.e.) ingredients of res judicata), it is still open to the latter (the opposite party) to defeat the estoppel by setting up and establishing certain affirmative answers. Of these there are four main classes- fraud, cross-estoppel, contract and public policy. The authors clearly say that no active proceedings for "rescission" of the earlier judgment are necessary. They state (para 370) as follows;
"The avoidance of a judicial act on the ground of fraud or collusion is effected not only by active proceedings for recision... but also by setting up the fraud as a defence to an action on the decision, or as an answer to any case which, whether by way of estoppel or otherwise, depends for its success on the decision being treated as incontrovertible.Singh Gurbachan
2013.11.18 10:44 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 6898 of 1988 -9- Thus, the law is well settled that no independent suit as a condition precedent is necessary.
8. Collusion say Spencer-Bower and Turner (para
378), is essentially play-acting by two or more persons for one common purpose- a concerted performance of a fabula disguised as a judicium-an unreal and fictitious pretence of a contest by confederates whose game is the same. As stated by Lord Selborne, L.C. In Boswell v. Coaks. There is no Judge; but a persons invested with the ensigns of a judicial office, is misemployed in listening to a fictitious cause proposed to him, there is no parity litigating...
no real interest brought into question and to use the words of a very sensible civilian on this point, fabula non judicium, hoc est; in scena, non in foro, res agitur. That, in our view, is the true meaning of the word "collusion" as applied to a judicial proceeding.
9. Further property of a public institution cannot be allowed to be jeopardised by persons who, at an earlier point of time, might have represented it and who were expected to effectively defend public interest and community property. Persons representing public bodies are expected to discharge their functions faithfully and in keeping with the trust reposed in them.
10. We may also add one other important reason which frequently arises under Section 11 CPC. The Singh Gurbachan 2013.11.18 10:44 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 6898 of 1988 -10- earlier suit by the respondent against the Panchayat was only a suit for injunction and not one on title. No question of title was gone into nor decided. The said decision cannot, therefore, be binding on the question of title. See in this connection Sajjadanashin Sayed v. Musa Dadabhai Ummer, where this Court, on a detailed consideration of law in India and elsewhere held that even if, in an earlier suit for injunction, there is an incidental finding on title, the same will not be binding in a latter suit or proceeding where title is directly in question, unless it is established that it was 'necessary' in the earlier suit to decide the question of title for granting or refusing injunction and that the relief for injunction was founded or based on the finding on title. Even the mere framing of an issue on title may not be sufficient as pointed out in that case.
11. Thus, it was open to the statutory authorities under the 1961 Act to go into the collusive nature of the suit in the proceedings under Section 7 of the 1961 Act as stated above. The High Court has not gone into the merits of the decision of the Collector and the Appellate authority but has allowed the writ petition solely based on the Full Bench decision in Jagar Ram. We have now overruled the Full Bench decision. We, therefore, set aside the judgment of the High Court and remit the writ petition to the High Court for disposal in accordance with law, in the light Singh Gurbachan 2013.11.18 10:44 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 6898 of 1988 -11- of the above observations."
8. Following the aforesaid pronouncement of the Hon'ble Supreme Court, this Court on 03.02.2012 decided similar issue in CWP No. 14827 of 1989 [Matu Ram (since deceased) through his LRs v. Joint Director Panchayats and others], wherein it was observed as under:-
"Matu Ram, deceased filed Civil Suit No.118 on 24.08.1964 titled as Matu V/s Gram Panchayat of Village Mavi Sappan, before the Sub Judge, First Class, Patiala (D), for possession of agricultural land, situated in Rectangle No.57, Khasras No.5,6,7,9 and 10, measuring 27 Bighas and 4 Biswas. As recorded in the orders passed by the Collector and the Joint Director Panchayats, the then Sarpanch Mehar Singh, made a statement admitting the claim Matu Ram, and the suit was decreed on 09.11.1964. The land in dispute was and is admittedly Shamilat Deh. By virtue of Sections 2(g)(1) and 3 of the Act, the land vests in the Gram Panchayat. The petitioners have not been able to refer to any resolution, passed by the Gram Panchayat, authorising the Sarpanch to make a statement conceding the claim of Matu Ram. A Sarpanch acts for and on behalf of a Gram Panchayat, as authorised by resolutions, passed by a Gram Panchayat and cannot of his own admit the claim of a party much less concede ownership. The Sarpanch, therefore, has no right to admit the claim of Matu Ram. The petitioners have not been able to refer Singh Gurbachan 2013.11.18 10:44 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 6898 of 1988 -12- to any material to prove the ownership of Matu Ram. The civil court did not examine whether Matu Ram's claim was in accordance with exceptions enacted by Section 2(g) of the Act, or whether the Sarpanch was authorised to make a statement conceding the suit and proceeded to the suit for joint possession, on the basis of the statement made by the Sarpanch. The collusion of the Sarpanch and Matu Ram is writ large on the civil court judgment and decree. The Collector and the Joint Director, Panchayats, have rightly held that the decree is collusive and, therefore, does not transmit any rights to Matu Ram or deprive the Gram Panchayat of its ownership of the land in dispute."
9. In view of the above, we do not find any merit in the writ petition. Consequently, the same is hereby dismissed.
(AJAY KUMAR MITTAL)
JUDGE
October 21, 2013 (JASPAL SINGH)
gbs JUDGE
Singh Gurbachan
2013.11.18 10:44
I attest to the accuracy and
integrity of this document
High Court Chandigarh