Punjab-Haryana High Court
Ajmer Singh And Another vs Joint Director Panchayat on 29 February, 2012
Author: Rajive Bhalla
Bench: Rajive Bhalla, Jora Singh
Civil Writ Petition No.4531 of 1988 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
(1) Civil Writ Petition No.4531 of 1988
Date of Order: 29th February, 2012
Ajmer Singh and another
...Petitioners
Versus
Joint Director Panchayat, Punjab and
another.
..Respondents
(2) Civil Writ Petition No.452 of 1988
Surinder Singh and another
...Petitioners
Versus
Joint Director Panchayat, Punjab and
another.
...Respondents
CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA
HON'BLE MR. JUSTICE JORA SINGH
Present: Mr. R.D.Bawa, Advocate
for the petitioners.
Mr. J.S.Puri, Addl. A.G.,Punjab
for respondents no.1 and 2.
Mr. Dhirender Chopra, Advocate
for respondent no.3-Gram Panchayat.
RAJIVE BHALLA, J.
By way of this order, we shall dispose of Civil Writ Petition Civil Writ Petition No.4531 of 1988 -2- Nos.4531 and 4532 of 1988 as they involve adjudication of similar questions of fact and law. Facts necessary for adjudication of the petitions have been taken from Civil Writ Petition No.4532 of 1988 and wherever necessary facts of the other petition shall also be referred to.
Sawan Singh, predecessor-in-interest of the petitioners was a proprietor in village Issapur, Tehsil Rajpura, District Patiala, and as such had a share in "Shamilat Deh". The petitioners claim that Sawan Singh, was in cultivating possession of land measuring 7 Bighas and 5 Biswas, before 26.01.1950, but a mutation of ownership, with respect to the land in dispute, was sanctioned in favour of the Gram Panchayat. Sawan Singh, therefore, filed Civil Suit No.326 of 08.05.1972 before the Sub Judge Ist Class, Rajpura, for joint possession and for declaration of his title. The Gram Panchayat filed a written statement contesting the ownership and possession of Sawan Singh. The trial court considered the pleadings and framed issues. Sawan Singh led evidence in support of his pleadings. The Gram Panchayat, however, did not lead any evidence or address arguments. Vide judgment and decree dated 10.01.1973, the Sub Judge Ist Class, Rajpura, decreed the suit for joint possession of half share of 7 Bighas and 5 Biswas.
The Gram Panchayat, filed applications under Sections 7 and 11 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as the 1961 Act), seeking adjudication of its title and ejectment of Sawan Singh, from the land in dispute. Sawan Singh pressed the decree dated 10.01.1973, into service. The Collector, vide order dated 24.05.1984, held that the decree operates Civil Writ Petition No.4531 of 1988 -3- as resjudicata and, therefore, dismissed the petition, filed by the Gram Panchayat. The Gram Panchayat filed an appeal. The Joint Director, Panchayat, Punjab (exercising the powers of Commissioner), accepted the appeal by holding that the decree dated 10.01.1973, is collusive and, therefore, does not operate as resjudicata, or divest the Gram Panchayat of its proprietary rights.
Counsel for the petitioners submits that as the decree dated 10.01.1973, was passed after due contest, it cannot be held to be collusive as the Gram Panchayat filed a written statement, issues were framed and the petitioners led evidence. The decree cannot be said to be collusive, merely because the Gram Panchayat did not lead evidence. It is further argued that the learned Joint Director, while holding that the decree is collusive, has not assigned any reason in support of its finding. It is argued that collusion has to be proved, as a matter of fact, by adducing evidence. The mere fact that the Gram Panchayat did not lead evidence or address arguments does not raise an inference of collusion. It is, however, accepted that if the decree is held to be collusive, it would not bind the Gram Panchayat.
Counsel for the Gram Panchayat, on the other hand, submits that the Appellate Authority has rightly held that decree is collusive. A perusal of the judgment, clearly reveals that Sawan Singh filed a suit for joint possession thereby admitting that he was not in possession and as a result rebutting the averment that he was in possession before 26.01.1950. It is also argued that there is no finding by the civil Court as to in which part of the land in dispute, Sawan Singh is in individual cultivating possession. It is further Civil Writ Petition No.4531 of 1988 -4- argued that as the decree is, on the face of it, collusive, the Appellate Authority rightly ignored the decree, held that the Gram Panchayat is owner and directed the eviction of the petitioners.
We have heard counsel for the parties and perused the impugned orders.
The writ petition was admitted along with the bunch of other writ petitions to adjudicate whether the Collector, exercising powers under Sections 7 and 11 of the 1961 Act, can ignore a civil Court decree passed before 1976. Counsel for the petitioners fairly concedes that in view of judgment of the Hon'ble Supreme Court in Gram Panchayat of Village Naulakha v. Ujagar Singh and others, 2000 (7) SCC, 543, a Collector, exercising powers under Sections 7 and 11 of the 1961 Act, is empowered to ignore a collusive decree, even it was passed by a Civil Court. The petitioners, however, contend that as the decree has been passed after due contest it cannot be said to be collusive. It is also argued that the Appellate Authority has not recorded any reasons before arriving at the conclusion that the decree is collusive.
As is apparent from the narrative of facts, Sawan Singh, predecessor-in-interest of the petitioners filed a suit claiming joint possession of land measuring 7 Bighas and 5 Biswas, on the plea that he was in possession of the land before 26.01.1950, not in excess of his share, duly assessed to land revenue. The Gram Panchayat filed a reply denying the correctness of the averments in the plaint. Sawan Singh led evidence. The Gram Panchayat, represented by the then Sarpanch, strangely enough, neither lead Civil Writ Petition No.4531 of 1988 -5- any evidence nor even come forward to point out to the Civil Court that the petitioners have not produced any evidence to prove as to in which portion of 7 Bighas and 5 Biswas, he was in cultivating possession and qua which portion he sought joint possession. The prayer for joint possession nullifies the petitioners' plea that Sawan Singh was in possession, prior to 1950 and as a result, any revenue documents recording such a possession. A person in possession would not make a prayer for joint possession but would make a prayer for declaration of ownership and protection of his possession. The Sarpanch did not come forward to lead evidence, or advance arguments so as to help Sawan Singh. The land was, admittedly, recorded as ownership of the Gram Panchayat, during consolidation, proceedings and in all revenue documents prepared thereafter. A perusal of the order passed by the Appellate Authority reveals that a clear finding has been recorded that as the Sarpanch did not lead any evidence, it raises an inference of collusion. We find no reason to differ with this finding, merely because issues were framed and Sawan Singh led evidence. The fact that the Gram Panchayat did not lead any evidence and in fact did not come forward to address arguments, on the question of possession, ownership or limitation, in our considered opinion, proves the collusion.
As regards Civil Writ Petition No.4531 of 1988, the decree dated 10.01.1973, passed by the Sub Judge Ist Class, Rajpura, also relates to a prayer for joint possession and, though, issues were framed and evidence was led, the Gram Panchayat did not bother to lead any evidence or address arguments on any plea whether relating to ownership, possession or limitation. Civil Writ Petition No.4531 of 1988 -6-
We are satisfied that findings recorded by the Appellate Authority that the decree was obtained by collusion and therefore, does not bind the Gram Panchayat are legal, valid and are affirmed.
In view of what has been stated hereinabove, the writ petitions are dismissed.
(RAJIVE BHALLA)
JUDGE
(JORA SINGH)
February 29th , 2012 JUDGE
nt