Himachal Pradesh High Court
Sita Devi And Others vs Of on 25 October, 2016
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No. 412 of 2009.
Reserved on : 18/10/2016
.
Date of decision: 25/10/2016
Sita Devi and others ..Appellants/defendants
Versus
of
Lekh Ram and others. ..Respondents/plaintiffs.
Coram
rt
The Hon'ble Mr.Justice Sureshwar Thakur, J.
Whether approved for reporting?1. Yes.
For the appellants: Mr. G.D.Verma, Sr. Advocate with Mr. Ashok Tyagi, Advocate.
For the respondents: Mr. A.K.Pathania,, Mr. R.K.Gautam and Mr. Pawan Gautam, Advocates for respondents No. 1, 2, and 4 to 41 and LRs of respondents No. 3, 34 and 38.
Sureshwar Thakur, J:
1. The instant appeal stands directed against the impugned judgement and decree of the learned Additional District Judge, Una, H.P., whereby he affirmed the rendition of the learned Sub Judge 1st Class, Court No.I, Amb, District Una. The defendants standing aggrieved by the concurrently recorded renditions of both the learned Courts below concert, through 1 Whether the reporters of the local papers may be allowed to see the Judgment?::: Downloaded on - 15/04/2017 21:26:39 :::HCHP
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the instant appeal constituted before this Court, to reverse the judgements and decrees of both the Courts below.
.
2. The facts necessary for rendering a decision on the instant appeal are that the plaintiffs filed a suit in representative capacity seeking a declaration to the effect that the judgement and decree of of 9.12.1959 had been obtained by the defendants by playing a fraud on the Court and the residents of village Tiai, Tehsil Amb, District rt Una, having been obtained collusively and in connivance with Sant Ram the Ex-Sarpanch of the village and as such was a nullity in the eyes of law. The premises on which the suit was laid was Shamlat deh and the same stood vested in the Gram Panchayat Tiai by operation of law under the provisions of Section 3 of the Punjab Act No.1 of 1954 and mutation No. 113 had come to be sanctioned in this behalf on 18.6.1955 and since then the Shamlat was being managed by the Panchayat. The defendants had instituted a suit being Civil Suit No. 293/1959 against the Gram Panchayat Tiai seeking a declaration that land measuring 2860 Kanals and 17-1/2 marlas was owned and possessed by them. On 12.8.1959 the Gram Panchayat vide its resolution had resolved to contest the case and authorized Sant Ram to defend the case on behalf of the Panchayat.
On 9.12.1959 Sant Ram Pardhan had made a statement in Court that the suit of the plaintiffs be decreed. In 1968 the defendants ::: Downloaded on - 15/04/2017 21:26:39 :::HCHP ...3...
got the mutation in their name in pursuance to the judgement vide mutation No. 136 of 1968 and thereafter a civil suit No. 484 of 1969 .
titled as Gram Panchayat vs. Khoshala was filed challenging the aforesaid mutation. In the year 1972 Sarpanch Sant Ram again won the election and became the Sarpanch and again got a resolution passed on 9.3.1973 seeking to withdraw the Civil Suit No. 484 of of 1969. The said suit was also dismissed as withdrawn on 23.3.1973.
The present plaintiffs again in representative capacity filed suit rt alleging themselves to be beneficiary in the suit being Shamlat challenging the withdrawal of the suit. The matter went upto the Hon'ble High Court and in Regular Second Appeal No. 161 of 1987 Hon'ble High Court observed that as long as judgement and decree of 9.12.1959 is not challenged the plaintiffs could not succeed in getting any relief in the said suit out of which aforesaid RSA arose.
The plaintiffs therein again filed review petition wherein the Hon'ble High Court had given liberty to avail the remedy of challenging the judgement and decree Ext.D-2 and Ext.D-3. The plaintiffs herein, therefore, challenging the judgement and decree of 9.12.1959 have filed the present suit.
3. The defendants No.1 to 18 preferred a common written statement. They interalia raised the preliminary objections of locus standi, limitation, cause of action, maintainability, the suit being ::: Downloaded on - 15/04/2017 21:26:39 :::HCHP ...4...
barred under the provisions of Order 2, Rule 2 CPC and the plaintiffs being estopped from bringing the suit in view of the earlier suit .
having been filed by them.
4. On merits, the defendants denied that any fraud was played or any mis statement of fact was ever made in the Court. It was denied that the defendants had colluded with Sant Ram the of then Sarpanch. The plaintiffs were stated to be in full knowledge of the decision rendered in 1959.
rt The suit land was stated to have never been vested either in the Gram Panchayat or in the State. As per the defendants the Gram Panchayat and the State did not claim any interest or title to the suit land. The plaintiffs were thus estopped from agitating the matter which is in the competence of Gram Panchayat or the State. The State of H.P. being defendant No.21 had preferred a separate written statement. As per the State the Shamlat lands vested in the Panchayat under the Act of 1961 and had come to be vested in the State of H.P. by virtue of H.P. Village Common Lands (Vesting and Utilisation ) Act and as such the earlier decree of the Court has no effect in operation of the H.P.Village Common Land (Vesting and Utilisation ) Act, 1976. On merits it was the case of the State that the decree passed in Civil Suit No. 293/59 had become a nullity in view of the Section 3 of the H.P.Act and the suit land had in fact been vested in the State of H.P. ::: Downloaded on - 15/04/2017 21:26:39 :::HCHP ...5...
5. Replication to the written statement stood filed wherein the averments made in the written statement were controverted and .
those made in the plaint were re-asserted.
6. On the pleadings of the parties, the trial Court struck following issues inter-se the parties at contest:-
of
1. Whether judgement and decree dated 9.12.1959 in Civil Suit No. 293 of 1959 is collusive, result of fraud and misrepresentation, as alleged?
rt OPP.
2. If issue No.1 is proved in affirmative, whether suit land is Shamlat Deh in use of inhabitants of the village, Tiai? OPP.
3. If issue No. 1 and 2 are proved in affirmative whether the plaintiffs are entitled to the relief of injunction, as prayed, OPP.
4. Whether the suit is not within time? OPD.
5. Whether plaintiffs have no cause of action?
OPD.
6. Whether suit is barred by limitation? OPD.
7. Whether suit is bad for non mentioning of particulars of fraud as required under Order 6 Rule 2 CPC? OPD.
8. Whether suit is barred by principle of res judicata under Order 2 Rule 2 CPC.
10. Whether the plaintiffs have no title either proprietary or possessory in suit land? OPD.
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11. Relief.
.
7. On appraisal of the evidence, adduced before the learned trial Court, the learned trial Court decreed the suit of the plaintiffs besides the learned Additional District Judge, affirmed the findings of the learned trial Court.
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8. Now the defendants/appellants herein have instituted before this Court the instant Regular Second Appeal wherein rt they assail the findings recorded in its impugned judgment and decree by the learned first Appellate Court. When the appeal came up for admission on 30.11.2011, this Court admitted the appeal on the hereinafter extracted substantial questions of law:-
"1. Whether plaintiffs/ respondents have failed to discharge the legal onus with regard to alleged fraud and mis representation of facts in the present case as they have not pleaded the same as per order 6 Rule 2 and 3 of CPC nor have proved the same according to law?
2. Whether the suit of the plaintiffs was not abated as plaintiffs at Sr. No. 7, 8, 14, 16, 22 in the trial stage before the First Trial Court had been expired during the pendency of the suit itself and as no legal heirs had been brought on record by the plaintiffs/respondents within the time period as prescribed under law and matter as a whole had abated and suit was liable to be dismissed as a whole?::: Downloaded on - 15/04/2017 21:26:39 :::HCHP
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3. Whether the finding by both the Courts below are palpably illegal and erroneous on account of concurrent misappreciation and misconstruction of the pleadings of .
the parties, as well as oral and documentary evidence on record and the legal proposition of law as applicable to the facts of the case?
4. Whether the documents Ext.P-3, Ext.P-4, Ext.P-5, Ext.P-6, Ext.P-7, Ext.PW-1/A and Ext.PW-1/B have wrongly been ignored by the learned court below, though legally of proved on record?
5. Whether the learned lower Courts below have not committed illegality in returning the findings without rt considering pleadings and evidence of the parties that the suit is within period of limitation on the basis of clear oral and documentary evidence on record, though it is proved on record that the suit is hopelessly barred by limitation?
6. Whether the suit of the plaintiffs/respondents has not become infructuous in view of the fact that the State Government has vide its notification No. Rev.B.A.(3)- 8/2001 dated 10/09/2004 has reverted back the ownership to the legal heirs of the original owners as per their shares and as even thereafter the land has been revested in the names of the appellants and the mutation in this regard has also not been challenged by the respondents/plaintiffs till date. The notification is also placed on record of the learned Courts below but the same has not been considered hence this pure question of law is yet to be decided in the appeal."::: Downloaded on - 15/04/2017 21:26:39 :::HCHP
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Substantial questions of law.
.
9. The parties at lis are not at contest qua the factum of the suit land standing under Punjab Act No. 1 of 1954 vested in the Gram Panchayat concerned, in pursuance whereof mutation No. 113 comprised in Ext.PW-2/A stood of attested/sanctioned on 18.06.1955. One Khoshala since diseased now represented by his LRs besides others instituted rt suit No. 293/59 against Gram Panchayat Tiai, Tehsil Amb, in 1959 wherein they staked a declaratory right qua theirs holding possession of the suit land as its owners. On the suit aforesaid standing instituted before the Civil Court concerned, notice stood issued to the Gram Panchayat concerned, whereupon it under Ext.PW-4/A resolved to defend the suit also thereunder its the then Sarpanch Sant Ram was bestowed with an authorization to defend the interests of the Gram Panchayat concerned in the suit aforesaid instituted against it, in the Civil Court concerned. A perusal of the apposite resolution, unveils of Sant Ram the then Sarpanch of Gram Panchayat Tiai, Tehsil Amb, holding thereunder an authorization to defend before the Civil Court concerned the interests of the Gram Panchayat ::: Downloaded on - 15/04/2017 21:26:39 :::HCHP ...9...
concerned vis.a.vis the suit land qua which a suit stood instituted by the aforesaid Khoshala and others for whittling the .
effect of the statutory vestment of the suit land in the Gram Panchayat concerned. However, Sant Ram, the then Sarpanch of Gram Panchayat, Tiai, who held an authorization to defend of the interests in litigation of Gram Panchayat Tiai also who did not hold any specific authorization, to, in derogation of the rt interests in the suit land of the Gram Panchayat concerned, compromise the suit significantly when qua the suit land ownership stood vested qua it under a legislative enactment whereas he despite his not holding any specific authorization to compromise the interests in litigation of Gram Panchayat, Tiai, besides obviously in transgression of Ext.PW-4/A proceeded to record a statement on 9.12.1959 before the Civil Court concerned whereupon he accepted the claim in the suit of the plaintiffs therein, statement whereof stands couched in the hereinafter extracted phraseology :-
"Bian Kiya Ke Dawa Mudai se Iqwal Hai. Decree Bahak Mudian di jawe. Kharcha Frikan Rakha Jawe.
Sun Kar Darust Taslim Kiya."::: Downloaded on - 15/04/2017 21:26:39 :::HCHP
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10. In sequel thereto the Civil Court decreed the suit of the plaintiffs i.e Khosala and others instituted .
against Gram Panchayat Tiai, Tehsil Amb. The decree rendered by the Civil Court concerned vis.a.vis Khoshala and others sequelled attestation of mutation No.136 in the of year 1968 qua the suit land vis.a.vis them. The aforesaid mutation stood resolved by the Gram Panchayat Tiai to rt face the ordeal of it standing subjected to a challenge before the Civil Court concerned whereupon Civil Suit No. 484 of 1969 stood instituted before the Civil Court concerned. However, Sant Ram, the then Sarpanch of Gram Panchayat concerned who obviously abused besides infringed the authorization previously bestowed upon him by Gram Panchayat Tiai, authorization whereof stands comprised in Ext.PW-4/A, inference of infringement thereof by him stands spurred from his transgressing the specific mandate held therewithin whereupon he stood authorized to defend the interests in the suit instituted against it by Khoshala and others besides stands pointedly communicated in his recording a statement before the Civil ::: Downloaded on - 15/04/2017 21:26:39 :::HCHP ...11...
Court concerned holding therein articulations of the suit of Khoshala and others instituted against Gram Panchayat, .
Tiai, being ordered to be decreed whereupon an apposite decree stood rendered vis.a.vis Khoshala and others, on standing re-elected in 1972 as Sarpanch of Gram of Panchayat Tiai, Tehsil Amb, ensured passing of a resolution on 9.3.1973 by the Gram Panchayat concerned rt wherewithin echoings are held qua Civil Suit No. 484 of 1969 being withdrawn. In pursuance thereto Civil Suit No. 484 of 1969 nominclatured as Gram Panchayat Tiai vs. Khosala and others stood withdrawn on 23.3.1973 by the Gram Panchayat Tiai wherein mutation No. 136 of 1968 as stood sanctioned qua the suit land vis.a.vis plaintiffs Khoshala and others was subjected to an assault standing constituted thereupon. As a corollary thereto the apposite decree in consonance therewith stood rendered by the Civil Court concerned. The plaintiffs instituted a suit on 3.4.1973 before the Sub Judge Ist class, Una whereby they claimed a declaratory decree for setting aside mutation number 136 sanctioned on 25.3.1968 also claimed a declaratory relief ::: Downloaded on - 15/04/2017 21:26:39 :::HCHP ...12...
qua the apposite decree dismissing as withdrawn the suit of the Gram Panchayat Tiai, Tehsil Amb, being declared to .
be illegal and void, it standing sequelled by collusion and fraud.
11. The aforesaid civil suit stood instituted on of 3.4.1973 by the plaintiffs before the Sub Judge Ist Class, Una whereby they assailed the attestation of mutation rt bearing No. 136 sanctioned on 25.3.1968 mutation whereof stood attested in pursuance to the rendition of the Civil Court concerned recorded in 1959 whereupon the plaintiffs therein stood declared to be owners in possession of the suit land besides therein they assailed the decree rendered on 17.3.1982 by the Civil Court concerned. The suit aforesaid suffered the fate of dismissal. In an appeal carried therefrom before the learned Addl. District Judge it suffered an alike fate. The plaintiffs therein assailed the decision recorded by the Addl. District Judge, Una by preferring an appeal therefrom before this Court whereupon this Court dismissed their Regular Second Appeal bearing No. 161 of 1987. This Court while ::: Downloaded on - 15/04/2017 21:26:39 :::HCHP ...13...
pronouncing an adjudication upon RSA No. 161 of 1987 dismissed the appeal preferred herebefore by the plaintiffs.
.
The reason which prevailed upon this Court to dismiss the aforesaid Regular Second Appeal preferred herebefore by the plaintiffs stood embedded in (a) the factum of the of apposite decree of the Civil Court concerned rendered on 9.12.1959 acquiring finality arising from the factum of it rt remaining un-assailed. (b) Also for want of an onslaught standing constituted against it in the suit of the plaintiffs, their suit of 1973 for setting aside the relevant mutation recorded in the year 1968, mutation whereof stood anvilled thereupon, warranting dismissal. Significantly since no challenge stood constituted by the plaintiffs against the rendition of the Civil Court concerned pronounced on 9.12.1959 constrained this Court to dismiss the Regular Second Appeal preferred herebefore by the plaintiffs against the concurrently recorded renditions of the learned Courts below whereby they declined to interfere with the mutation recorded in the year 1968 also declined to afford a declaratory relief qua the decree of dismissal as ::: Downloaded on - 15/04/2017 21:26:39 :::HCHP ...14...
withdrawn, pronounced qua Civil Suit No. 484 of 1969 being declared to be null and void, it standing procured by .
collusion and fraud. The plaintiffs therefrom preferred Civil Review No. 47 of 1997 before this Court whereupon they sought review of the judgement of this Court recorded in of RSA No. 161 of 1987. This Court dismissed the aforesaid review petition yet it reserved liberty to the plaintiffs to by rt availing the appropriate mechanism prescribed by law constitute a challenge to the judgement and decree pronounced in 1959 by the Civil Court concerned rendition(s) whereof stand comprised in Ext.D-2 and Ext.D-
3. Also it ordered qua the question of limitation being sympathetically considered by the Civil Court concerned whereat the plaintiffs constitute a challenge to the judgement and decree comprised in Ext.D-2 and Ext.D-3.
In sequel, thereto the plaintiffs instituted Civil Suit No. 12-1 of 1998 before the Civil Judge, Jr. Division, Court No.1, Amb whereupon the latter Court decreed the suit of the plaintiffs. The learned First Appellate Court on standing seized with an appeal preferred therebefore by the ::: Downloaded on - 15/04/2017 21:26:39 :::HCHP ...15...
aggrieved defendants dismissed it. The defendants stand aggrieved by the renditions of the learned Courts below .
hence for reversing them they have herebefore instituted the instant Regular Second Appeal.
12. The suit of the plaintiffs initially instituted in the year of 1973 besides their successive suit instituted in the year 1998 stood instituted in a representative capacity, in latter rt suit whereof they obtained success by adducing cogent evidence in display qua theirs in consonance with prescriptions held in the relevant apposite records holding customary rights qua user of the suit land whereupon they canvassed qua theirs holding a concomitant leverage to unsettle the mutation recorded qua the suit land in the year 1968, mutation whereof stood anchored upon a decree of the Civil Court concerned pronounced in 1959, rendition whereof of the Civil Court is palpably in gross transgression of a legislative enactment nomenclatured as Punjab Act No. 1 of 1954 whereupon the suit land came to be vested in Gram Panchayat Tiai besides in sequel whereto mutation comprised in 113 came to be sanctioned ::: Downloaded on - 15/04/2017 21:26:39 :::HCHP ...16...
vis.a.vis. the Gram Panchayat concerned. With the suit of the plaintiffs standing instituted in a representative .
capacity besides with right of customary user of the suit land by the plaintiffs standing clinchingly sustained by emphatic evidence, resultantly though on occurrence of of demise of co-plaintiffs No. 7, 8, 14, 16 and 22 during the pendency of the suit before the learned trial Court, no apposite motion rt was made before the Civil Court concerned for theirs standing substituted by their LRs nor an order emanated therefrom qua theirs being ordered to be substituted by their LRs yet the omission on the part of the plaintiffs to beget their substitution by their LRs, would not entail a consequence of the suit of the plaintiffs abating as a whole, contrarily the suit of the plaintiffs would abate only qua deceased co-plaintiffs who died during the pendency of the trial of the suit before the learned trial Court and on occurrence of whose demise they remained unsubstituted by theirs LRs in the apposite array of co-
plaintiffs. Since an order of abatement of the extant suit vis.a.vis. co-plaintiffs whose demise occurred before the ::: Downloaded on - 15/04/2017 21:26:39 :::HCHP ...17...
learned trial Court may ipso facto bar their legal representatives to claim the benefit of an apposite decree, .
if any, pronounced by this Court vis.a.vis. other co-
plaintiffs also when a suit stands instituted in a representative capacity whereunder the collective interest of of the village proprietary body qua user by them of the suit land stands staked, hence occurrence of names of the rt deceased in the apposite array of litigants in the renditions of the learned Courts below would not beget a sequel qua the apposite renditions hence standing ingrained with a vice of nullity, as any pronouncement by this Court qua hence the renditions of the Court concerned standing afflicted with a vice of nullity would defeat the collective interests qua the suit land of the village proprietary body, collective interests whereof stand propagated by the plaintiffs for themselves besides for the entire village proprietary body, by theirs instituting a representative suit whereunder they claim assertion of customary rights upon the suit land, rights whereof stand espoused to ensue in their favour in pursuance of the suit land vesting in the ::: Downloaded on - 15/04/2017 21:26:39 :::HCHP ...18...
Gram Panchayat concerned under a legislative Enactment aforesaid also predominantly when the nature of the rights .
asserted by the plaintiffs are res communis besides when for lack of impleadment at the apposite stage of the LRs of deceased co-plaintiffs has begotten the sequel of the suit of standing ordered to abate vis.a.vis. them, concomitantly it would be in sagacious to conclude qua the renditions of the rt Courts below standing stained with a vice of nullity arising from occurrence of their names in the apposite array of litigants in the pronouncements made by the Courts concerned. The aforesaid view is warranted to obviate perpetuation of any mishap to the collective interests of the village proprietary body in the suit land, collective interests whereof stand concerted to be protected through the plaintiffs instituting the instant suit in a representative capacity whereon the trite assault for assailing the relevant pronouncements occurring in the relevant exhibits stand anchored upon bestowment upon them by a legislative Enactment customary rights of user of the suit land. Since the collective interests of the village proprietary body stand ::: Downloaded on - 15/04/2017 21:26:39 :::HCHP ...19...
canvassed through a suit filed by the plaintiffs in a representative capacity before the Civil Court concerned, as .
a corollary when obviously the interests in the suit land canvassed by the plaintiffs are not individual interests qua property held individually as owners by them rather when of the suit property was owned by the Gram Panchayat concerned whereon in consonance with prescriptions held rt in the relevant records they hold only customary rights qua its user, exercise of rights whereon by them stand clinchingly proven, in sequel thereto when insistence with inflexible rigidity is enjoined to be made when plaintiffs sue in an individual capacity qua suit property whereon they assert rights as owner in their individual capacity qua on demise of co-plaintiffs on an apposite motion at the apposite stage before the Court concerned theirs imperatively standing ordered to be substituted in the apposite array of litigants by theirs LRs, want whereof rendering the apposite pronouncement of the Court concerned to stand ingrained with a vice of nullity.
Contrarily for reasons aforestated when the extant suit ::: Downloaded on - 15/04/2017 21:26:39 :::HCHP ...20...
stands contra distinctively instituted in a representative capacity qua suit property whereon they do not stake any .
individual right of ownership rather only espouse rights qua its customary user, the rigour of the aforesaid inflexible dictate warrants its standing relaxed significantly for of protecting the collective interests in the suit land of the village proprietary body also when the pronouncement of rt this Court qua the suit of the plaintiffs abating in part qua deceased co-plaintiffs who at the apposite stage remained unsubstituted by their LRS would hence suffice to mete a formal deference thereto, deference aforesaid obviously wanes the effect of the aforesaid omission.
Consequently, in the peculiar facts and circumstances of the case prevailing hereat it is deemed fit to order qua the suit of the plaintiffs standing abated vis.a.vis. co-plaintiffs whose demise occurred during the pendency of the trial of the suit before the learned trial Court whereat they remained unsubstituted by their LRs, without ordering for the renditions of the Courts below being declared to be nonest.
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13. The factual matrix of the case as aforestated underscores the factum of the rendition of the Civil Court .
concerned pronounced in 1959 standing pronounced vis.a.vis. the suit land also it unveils of it standing pronounced inter partes holding no congruity vis.a.vis. inter of partes herebefore. Consequently, for lack of distinctivity in the litigating parties before the Civil Court concerned which rt pronounced a decree in the year 1959 vis.a.vis. the defendants herebefore the principle of res judicata may not stand attracted vis.a.vis. the extant suit of the plaintiffs herebefore. Tritely put the principle of res judicata encapsulated in Section 11 of the CPC is hinged upon estoppel arising from conclusivity of judicial pronouncement whereas the principle of estoppel embodied in Order 2 Rule 2 CPC is anchored upon pro active waiver besides abandonments by plaintiffs to incorporate in their previous suit, all reliefs besides causes of action which arose thereat. Significantly when the pronouncement qua the suit land occurring in the year 1959 holds analogity vis.a.vis the suit land hereat yet with ::: Downloaded on - 15/04/2017 21:26:39 :::HCHP ...22...
the plaintiffs herebefore not being contestants therebefore whereupon hence the principle of resjudicata may not .
stand attracted vis.a.vis the instant suit yet it is enjoined to cross the hurdle of limitation besides the hurdle of the mandate of Order 2 Rule 2 CPC. The plaintiffs would of succeed in crossing the hurdle of limitation only on theirs emphatically by sustainable relevant evidence proving the rt factum of theirs acquiring knowledge only in the year 1998 qua the pronouncement of the Civil Court which occurred in the year 1959 erupting on deception standing practiced upon it by the plaintiffs therein in collusion with Sant Ram the then Sarpanch of the Gram Panchayat Tiai whereupon it would concomitantly acquire a stain of nullity also would hence pave way for facilitating the plaintiffs, to, on theirs thereupon acquiring knowledge qua the pronouncement of the Civil Court concerned standing procured by collusion or fraud practiced upon the Court concerned by the plaintiffs in collusion with Sant Ram the then Sarpanch of Gram Pranchayat concerned, institute an apposite suit for assailing the decree and judgement rendered in the year ::: Downloaded on - 15/04/2017 21:26:39 :::HCHP ...23...
1959. The aforesaid conclusion stands erected given there being no wrangle qua the proposition qua a decree .
obtained by fraud being nonest also there being no quarrel with the proposition of law of it being assailable within the statutorily prescribed period of time computable from the of date of acquisition of knowledge by the aggrieved qua it standing procured by fraud or collusion. However, before rt applying the aforesaid principle of law it is imperative to determine whether the plaintiffs acquired knowledge earlier than 1998 qua the pronouncement of the Civil Court concerned which occurred in the year 1959 standing obtained by fraud. In case this Court holds of the plaintiffs prior to 1998 holding active knowledge qua the fraud practiced upon the Civil Court concerned by the plaintiffs therein in collusion with Sant Ram the then Sarpanch of Gram Panchayat Tiai, Tehsil Amb, the inevitable sequel thereto would be of with hence the plaintiffs abandoning to in their previous suit instituted in the year 1973 incorporate therein the trite factum of the pronouncement of the Civil Court concerned rendered in the year 1959 standing ::: Downloaded on - 15/04/2017 21:26:39 :::HCHP ...24...
obtained by fraud whereas it stood enjoined by the mandate of Order 2 Rule 2 CPC to stand embodied therein, .
transgression whereof would attract qua their instant suit the statutory principle of theirs standing estopped to incorporate in the extant suit a declaratory relief qua the of rendition of the Civil Court concerned pronounced in 1959 emanating on fraud in the manner aforesaid standing practiced upon rt it. The learned counsel for the defendants/appellants contends with vigour qua with the plaintiffs' in their instant suit infracting the embargo of Order 2 Rule 2 CPC arising from the factum of theirs holding knowledge, qua the factum of rendition of the Civil Court concerned pronounced in 1959 purportedly standing vitiated with a vice of nullity it standing procured by them by theirs purportedly practicing fraud upon it in collusion with Sant Ram the then Sarpanch of Gram Panchayat concerned, at the stage contemporaneous to the trial of Civil Suit No. 484 of 1969 by the Court concerned, knowledge whereof held thereat by them is garnerable from the factum of the plaintiffs constituting apposite ::: Downloaded on - 15/04/2017 21:26:39 :::HCHP ...25...
pleadings in the instant suit qua theirs acquiring knowledge qua the rendition of the Civil Court concerned pronounced .
in 1959, on the apposite judgement and decree embodied in Ext.D-2 and Ext.D-3 standing adduced therebefore in evidence, pleading whereof portrays their acquiescing qua of the trite factum whereupon they held leverage to with the leave of the Court make apposite amendments in the plaint rt for hence thereat theirs assailing the aforesaid renditions comprised in the aforesaid exhibits whereas theirs omitting to do so, rendered invokable vis.a.vis the extant suit, the mandate of order 2 rule 2 CPC whereupon they stand statutorily ousted to canvas therein qua the judgement and decree of the Civil Court concerned pronounced in 1959 being declared to be null and void, it standing engineered by fraud practiced upon the Civil Court concerned by them in collusion with Sant Ram the then Sarpanch. However, the aforesaid submission holds no vigour significantly when the plaintiffs herebefore were not contestants in the Civil Suit which stood instituted before the Civil Court concerned in the year 1959 hence concomitantly when the renditions ::: Downloaded on - 15/04/2017 21:26:39 :::HCHP ...26...
comprised in Ext.D-2 and Ext.D-3 stood not rendered inter partes litigants in the instant Civil Suit, as a corollary, it .
would be an over exacting expectation from them qua theirs thereat holding knowledge qua the pronouncement of the Civil Court concerned which occurred in the year of 1959. Also the effect of the aforesaid inference is of the mere factum of adduction into evidence of the judgement rt and decree of the Civil Court concerned comprised in Ext.D-2 and Ext.D-3 not holding the effect of theirs thereupon also acquiring knowledge qua the resolution passed by the Gram Panchayat concerned, resolution whereof stands pronounced in Ext.PW-4/A whereupon its the then Sarpanch Sant Ram was authorized to defend the apposite civil suit whereas in transgression of the mandate held therewithin qua his standing enjoined to defend its interests in the Civil Suit preferred against it by the apposite plaintiffs therein, his causing mishap to the interests in the suit land of Gram Panchayat Tiai, by making a statement before it, holding echoings therein qua his concedeing to the claim staked by the apposite ::: Downloaded on - 15/04/2017 21:26:39 :::HCHP ...27...
plaintiffs in their apposite suit, proclamation whereof held therewithin is a loud vivid display qua his for securing .
vis.a.vis them the decree as prayed for in their suit instituted in the year 1959 his hence colluding with the plaintiffs therein whereupon it obviously acquired a stain of qua its rendition emanating from fraud standing practiced upon it by the plaintiffs in collusion with Sant Ram the then Sarpanch of rt the Gram Panchayat concerned.
Predominantly also the judgement and decrees of the Civil Court concerned rendered in 1959 stand unaccompanied by the resolution of the Gram Panchayat concerned reflected in Ext.PW-4/A, mandate whereof stood transgressed by its the then Sarpanch Sant Ram also when no efficacious evidence stands adduced by the defendant in display of the plaintiffs earlier than 1998 acquiring knowledge qua its making by the Panchayat concerned evidence whereof stood denoted in the relevant register portraying qua theirs applying for its copies whereas it constituted the foundation for the plaintiffs efficaciously propagating qua the rendition of the Civil Court concerned ::: Downloaded on - 15/04/2017 21:26:39 :::HCHP ...28...
comprised in Ext.D-2 and Ext.D-3 standing procured by collusion occurring interse the apposite plaintiffs therein .
and Sant Ram the then Sarpanch of Gram Panchayat Tiai.
In aftermath the mere adduction into evidence of Ext.D-2 and Ext.D-3 during the course of trial of the civil suit of instituted by the plaintiffs in the year 1973 would not ipso facto beget a conclusion of theirs thereat also acquiring rt knowledge qua the making of a resolution comprised in Ext.PW-4/A by the Gram Panchayat concerned nor also hence it can be concluded qua their omission, to in the extant suit assail Ext.D-2 and Ext.D-3 by making a motion under Order 6 Rule 17 CPC before the court concerned whereby they sought its leave to incorporate in their apposite pleadings an apposite relief qua Ext.D-2 and Ext.D-3 standing pronounced to suffer invalidation given theirs standing stained with a vice of nullity arising from theirs standing procured for them by Sant Ram, the then Sarpanch of Gram Panchayat Tiai by the latter transgressing the mandate of Ext.PW-4/A besides its rendition erupting on his holding active complicity with ::: Downloaded on - 15/04/2017 21:26:39 :::HCHP ...29...
them, conspicuously when he committed breach of resolution comprised in Ext.PW-4/A by making therebefore .
a statement abandoning the interests in the suit land of the Panchayat concerned whereupon the apposite judgement and decree stood pronounced, inviting qua them the bar of of estoppel constituted in the provisions of Order 2 Rule 2 CPC. In other words, when Ext.D-2 and Ext.D-3 stood rt founded upon Ext.PW-4/A knowledge whereof stood for reasons aforestated unacquired by the plaintiffs till 1998 it was neither imperative for the plaintiffs to introduce in their earlier plaint the aforesaid factum of Ext.D-2 and Ext.D-3 standing ingrained with any vice of nullity it standing procured by fraud nor also they stood enjoined to in their earlier plaint by making a motion before the appropriate Court concerned seek its leave for incorporating an apposite relief therein qua it hence suffering invalidation nor also any omission of the plaintiffs qua the facet aforesaid would attract qua them the rigour of the bar of estoppel constituted in Order 2 Rule 2 CPC significantly when for its attraction, proven acquisition of ::: Downloaded on - 15/04/2017 21:26:39 :::HCHP ...30...
knowledge by the plaintiffs qua the relevant germane facet, at the relevant stage qua its imperative incorporation .
in the plaint, is essential. However, when the aforesaid trite factum is amiss hereat, reiteratedly the bar of estoppel constituted under Order 2 Rule 2 CPC whereupon of the plaintiffs stand interdicted to qua the relevant facet seek relief from the Civil Court remains unattracted qua rt them, thereupon the inevitable sequel is of suit of the plaintiffs for setting aside the pronouncement of the Civil Court concerned rendered in 1959 being construable to be within limitation. For reasons aforesaid this Court concludes with aplomb of the judgements and decrees of the Courts below standing sequelled by theirs appraising the entire evidence on record in a wholesome and harmonious manner apart therefrom it is obvious that the analysis of material on record by the learned Courts below not suffering from any perversity or absurdity of mis-
appreciation and non appreciation of evidence on record, rather it has aptly appreciated the material available on record.
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13. I find no merit in this appeal, which is accordingly dismissed and the judgments and decrees of .
both the Courts below are maintained and affirmed.
Substantial questions of law are answered accordingly. No costs. However, the defendants are directed to within two of weeks comply with the orders of this Court of 18.10.2014 rendered in CMP No. 11109 of 2014. The pending rt application(s), if any, also stand disposed of. Records of the Courts below be sent back forthwith.
25th October, 2016. (Sureshwar Thakur) ™ Judge.
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