Punjab-Haryana High Court
Gram Panchayat Gulalta vs State Of Haryana And Others on 6 July, 2012
Bench: Rajive Bhalla, Rakesh Kumar Jain
CWP No.3385 of 1986 [1]
RSA No.3705 of 2006
*****
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
(1) CWP No.3385 of 1986
Date of decision:06.07.2012
Gram Panchayat Gulalta ...Petitioner
Versus
State of Haryana and others ...Respondents
(2) RSA No.3705 of 2006
Date of decision:06.07.2012
Ayub and others ....Appellants
Versus
Gram Panchayat Gulalta ...Respondent
CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA
HON'BLE MR. JUSTICE RAKESH KUMAR JAIN
Present: Mr. Sudhir Mittal, Advocate,
for the applicants.
Ms. Shruti Jain, AAG, Haryana.
Mr. Arun Jain, Sr. Advocate, with
Mr. Sunil Sharma, Advocate, for respondent No.3
(in CWP No.3385 of 1986) and
for the appellants (in RSA No.3705 of 2006).
None for the respondent in RSA No.3705 of 2006.
*****
RAKESH KUMAR JAIN, J.
By way of this order, we shall dispose of CWP No.3385 of 1986 and RSA No.3705 of 2006.
The writ petition is directed against order dated 18.10.1985 CWP No.3385 of 1986 [2] RSA No.3705 of 2006 ***** (Annexure P-3) passed by the Commissioner, Ambala Division, Ambala, by which order of the Assistant Collector 1st Grade, Ferozepur Zhirka, dated 18.01.1985, ordering the suit filed by the Gram Panchayat, Gulalta under Section 13-A of the Punjab Village Common Lands (Regulation) Act, 1961 [for short "1961 Act"] to continue despite the plea of res judicata having been raised by respondent No.3 on the ground that an earlier Civil Court decree dated 18.04.1974 rendered in a suit for permanent injunction, wherein the Sarpanch appearing on behalf of the Gram Panchayat admitted claim of respondent No.3 in toto, has been set aside.
The Regular Second Appeal has arisen from judgment and decree passed by both the Courts below by which suit filed by the Gram Panchayat, challenging the validity of collusive decree dated 18.04.1974, has been decreed. Since the appeal has been ordered to be heard along with the writ petition vide order dated 29.07.2008, therefore, both the cases are being disposed of together.
The case of the Gram Panchayat, set out in the writ petition is that it had filed a suit under Section 13-A of the 1961 Act on 31.01.1983 in order to seek declaration that the land in question is Shamlat Deh and vests in the Panchayat. Two issues were framed in the said suit, namely, "whether the case is competent under the present form?OPD." and "whether the suit can not continue due to res-judicata?OPD." The private respondent No.3 raised the objection that Panchayat had earlier filed an application under Section 7 of the 1961 Act on 14.11.1979 which was dismissed as there is a Civil Court decree in his favour dated 18.04.1974 in a suit for CWP No.3385 of 1986 [3] RSA No.3705 of 2006 ***** permanent injunction, in which Rasoola S/o Bahadur, the then Sarpanch of the village, admitted respondent No.3 to be owner in possession of the land in dispute. The Assistant Collector 1st Grade, vide his order dated 18.01.1985, observed that the decree dated 18.04.1974 was a collusive decree and would not apply as res judicata. Thus, he ordered that the suit would continue in the present form. Aggrieved against that order, respondent No.3 filed an appeal before the Commissioner, Ambala Division, Ambala, which was allowed on the ground that decree dated 18.04.1974 is prior to the Amended Act by which power to decide the question of title was withdrawn from the Civil Court on 12.11.1974. It was observed that since the decree is final and binding on both the parties, therefore, it would operate as res judicata. The Gram Panchayat challenged the impugned order dated 18.10.1985 (Annexure P-3), passed by the Commissioner, Ambala Division, Ambala, by way of the present writ petition, which was admitted on 21.08.1986.
The Gram Panchayat also filed a Civil Suit No.1292 on 22.12.2001 titled as "Gram Panchayat Gulalta Vs. Mehtab" for seeking declaration and permanent injunction that the decree dated 18.04.1974 passed in Civil Suit No.197/73 titled as "Mehtab Vs. Gram Panchayat", in which Rasoola, the then Sarpanch of the village appeared and filed admitted written statement, is collusive and fraudulent. In the said Civil Suit, as many as 8 issues were framed, out of which issue No.1 was "whether Gram Panchayat Gulalta is owner in possession of the land as detailed in para No.2 of the plaint and the judgment and decree dated 18.04.1974 titled as CWP No.3385 of 1986 [4] RSA No.3705 of 2006 ***** "Mehtab Vs. Gram Panchayat" passed by the Court of Sh. C.R.Goel, the then Sub Judge, Palwal, is null and void and not binding on the plaintiff and liable to be set-aside, as prayed in para No.3 of the plaint?OPP." Both the Courts below concurrently held that the Gram Panchayat Gulalta is owner in possession of the land falling in Khewat/Khata No.278/322, Rect. No.41 Killa No.26 (3-2) and the decree dated 18.04.1974 is null and void. It has also been observed that the suit was filed on the basis of Jamabandi for the year 1969-70 (Ex.P1), according to which the land in dispute is recorded as Shamlat Patti Gulalta Hasab Hissa Jaddi and shown in possession of the Makbuja Malkan Nal Chah. However, the present Regular Second Appeal filed by the legal representatives of Mehtab was admitted on 29.07.2008 and at the request of counsel for the parties, it was ordered to be heard along with CWP No.3385 of 1986.
It is pertinent to mention at this stage that during pendency of both the cases, CM No.16599 of 2010 was filed in CWP No.3385 of 1986 and CM No.13077-C of 2010 was filed in RSA No.3705 of 2006, under Order 1 Rule 10 of the Code of Civil Procedure, 1908 [for short "CPC"], for impleading Farooq son of Khalil Ahmad, resident of village and Post Office Gulalta, Tehsil Punhana, District Mewat as party respondent in both the cases. The said applications were ordered to be heard with the main case vide order dated 25.11.2010.
After hearing counsel for the parties, we allow both the applications, as prayed. Registry is directed to carry out necessary correction in the memo of parties.
CWP No.3385 of 1986 [5]RSA No.3705 of 2006
***** Shri Sudhir Mittal, counsel for the applicant/respondent Farooq, has submitted that a collusive decree obtained by respondent No.3 would not operate as res judicata as it was a fraud played by the then Sarpanch, who had admitted ownership and possession of Mehtab over the land in dispute. In this regard, he has relied upon a decision of the Supreme Court in the case of S.P.Chengalvaraya Naidu (dead) by L.Rs. v. Jagannath (dead) by L.Rs. and others, AIR 1994 SC 853 to contend that fraud vitiates everything. He has also relied upon another decision of the Supreme Court in the case of Gram Panchayat of village Naulakha v. Ujagar Singh and others, 2000(2) PLJ 596, in which an application was filed under Section 7 of the 1961 Act by the Gram Panchayat but the respondents therein set up an earlier decree dated 10.06.1975, which was obtained in collusion with the then Sarpanch in a suit for permanent injunction. The revenue authorities upheld the plea of collusion but the High Court, while relying upon a Full Bench decision of this Court in the case of Gram Panchayat village Batholi Kalan v. Jagar Ram and others, 1991 PLJ 41 FB, held that unless the Panchayat first files an independent suit to set aside the said decree and seeks declaration that the said decree was collusive or fraudulent, it cannot be ignored. In this regard, he has referred to para No.10 of the judgment in Gram Panchayat of village Naulakha's case (supra), which reads as under:
"10. We may also add one other important reason which frequently arises under Section 11 CPC. The earlier suit by the respondent against the CWP No.3385 of 1986 [6] RSA No.3705 of 2006 ***** Panchayat was only a suit for injunction and not one on title. No question of title was gone into or decided. The said decision cannot, therefore, be binding on the question of title. See in this connection Sajjadanashin Sayed v. Musa Dadabhai Ummer, (2000) 3 SCC 350, 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 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."
Counsel for respondent No.3 has submitted that though it was a suit for permanent injunction, but the then Sarpanch appearing on behalf of the Gram Panchayat admitted entire claim with regard to ownership and possession of respondent No.3, therefore, the said decree cannot be ignored.
We have heard counsel for the parties in respect of the writ petition and are of the considered opinion that the writ petition deserves to succeed because no documentary evidence has been led by respondent No.3 to prove that he is owner of the land in dispute except for the decree dated CWP No.3385 of 1986 [7] RSA No.3705 of 2006 ***** 18.04.1974, which is based upon collusion of the earlier Sarpanch. In Gram Panchayat of village Naulakha's case (supra), it has been held that an incidental finding on title in an earlier suit will not be binding in a later 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. In the present case, there is no such finding recorded in the suit for permanent injunction filed by respondent No.3 who had not sought any declaration of his title over the land in dispute.
In view thereof, the writ petition is allowed, impugned order dated 18.01.1985 is hereby quashed and the matter is remanded back to Assistant Collector 1st Grade, Ferozepur Zhirka to decide the case on merits.
Insofar as the Regular Second Appeal is concerned, it was admitted to consider the following questions of law:-
"(i) Whether in the facts and circumstances of the instant case, the judgment and decree passed by the Civil Court dated 18.4.1974, which was the basis of number of proceedings between the Gram Panchayat and the appellants subsequent thereto, can be set aside in a suit filed after 27 years of the decree in view of Article 59 of the Limitation Act, 1963?
(ii) Whether in the facts and circumstances of the instant case the decree dated 18.04.1974 can be set CWP No.3385 of 1986 [8] RSA No.3705 of 2006 ***** aside by assuming fraud and collusion, without the plaintiff/respondent laying down any such plea in its pleadings and in the evidence?"
However, in Gram Panchayat of village Naulakha's case (supra), it was held as under:-
"Thus, in order to contend in a later 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 case for a declaration as to its collusive nature or for 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 decision of the Full Bench of the Punjab and Haryana High Court in Jagar Ram case. The Full Bench has not referred to Section 44 of the Evidence Act or to any other precedents of other Courts or to any basic legal principle."
In view of the aforesaid decision, even filing of the second suit was not required, but once it has been held by both the Courts below that the land in dispute is Shamlat Deh and the decree dated 18.04.1974 was obtained by fraud and collusion, it can be challenged at any time. We are, therefore, of the considered opinion that questions of law, which have been CWP No.3385 of 1986 [9] RSA No.3705 of 2006 ***** framed at the time of admission of appeal, are not involved as such, in view of the facts and circumstances of the present case. Hence, the Regular Second Appeal is hereby dismissed being based upon a finding of question of fact recorded about ownership and title of the Gram Panchayat over the land in dispute.
(RAKESH KUMAR JAIN)
JUDGE
06.07.2012 (RAJIVE BHALLA)
vinod* JUDGE