Punjab-Haryana High Court
Matu Ram (Since Deceased) vs Joint Director Panchayats And Others on 3 February, 2012
Author: Rajive Bhalla
Bench: Rajive Bhalla, Jora Singh
CWP No.14827 of 1989 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No.14827 of 1989 (O&M)
Date of decision:03.02.2012
Matu Ram (since deceased)
through his LRs ..... Petitioners
Versus
Joint Director Panchayats and others ..... Respondents
CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA
HON'BLE MR. JUSTICE JORA SINGH
Present: Mr.P.S.Bajwa, Advocate for the petitioners.
Mr.J.S.Puri, Addl.A.G., Punjab respondents No.1 and 2.
Mr.C.L.Premy, Advocate for respondents No.3 and 4.
Mr.Kanwaljit Singh, Senior Advocate, with
Mr.I.P.S.Mangat, Advocate for respondent No.5.
*****
RAJIVE BHALLA, J By way of this order, we shall dispose of CWPs No.14827 of 1989, 11756 and 11205 of 2010 as they involve adjudication of common questions of fact and law. Facts necessary for adjudication, are being taken from CWP No.14827 of 1989, but wherever necessary, facts of other petitions shall also be referred to.
Matu Ram (since deceased), through his LRs, has filed CWP No.14827 of 1989, praying for issuance of a writ in the nature of certiorari for quashing orders dated 31.01.1983 and 08.06.1988, passed by the Collector/DDPO Patiala and the Joint Director Panchayats, Punjab (exercising the powers of Commissioner), respectively, allowing petitions, filed under Sections 7 and 11 of the Punjab Village CWP No.14827 of 1989 (O&M) -2- Common Lands (Regulation) Act, 1961 (for short as the 'Act') filed by the Gram Panchayat and dismissing his appeal.
CWP No.11756 of 2010 has been filed by the Gram Panchayat of village Mavi Sappan, praying that orders dated 07.04.2008 and 06.11.2009, passed by the Deputy Director Panchayat- cum-Collector, Patiala and the Director, Rural Development and Panchayat Department, Punjab, vide which a petition filed by respondent No.4, under Section 11 of the Act, has been allowed and appeal filed by the Gram Panchayat has been dismissed, may be set aside.
CWP No.11205 of 2010 has been filed by the Gram Panchayat of village Mavi Sappan, praying that orders dated 07.08.2006 and 06.11.2009, passed by the Deputy Director Panchayat- cum-Collector, Patiala and the Director, Rural Development and Panchayat Department, Punjab, vide which a petition filed by respondents No.4 to 6, under Section 11 of the Act, has been allowed and appeal filed by the Gram Panchayat has been dismissed, may be set aside.
Matu Ram (since deceased), the petitioner, in CWP No.14827 of 1987 was declared owner in possession of land bearing Khasra Nos.57//5(6-4), 6(2-10), 7(8-0), 9(4-18), 19(5-12), measuring 27 kanals and 4 marlas, situated in village Mavi Sappan, by way of a civil court decree dated 09.06.1965. The Gram Panchayat-respondent No.3 filed petitions under Section 7 and 11 of the Punjab Village Common Lands CWP No.14827 of 1989 (O&M) -3- (Regulation) Act, 1961 (for short as the 'Act') for declaration of its title and for ejectment of Matu Ram. The petitioner relied upon decree dated 09.11.1964, passed by the Sub Judge, First Class, Patiala in Civil Suit No.118, to claim ownership. The Collector, allowed the petitions, filed by the Gram Panchayat, by holding that as per jamabandis for the years 1959-60, 1963-64 and 1979-80 the land in dispute is Shamilat Deh and, therefore, belongs to the Gram Panchayat. The Collector also held that decree passed in favour of the petitioner, on the basis of statement made by Mehar Singh, the then Sarpanch, is collusive and, therefore, does not divest the Gram Panchayat of its proprietary rights. The Collector also ordered the ejectment of Matu Ram. Aggrieved by this order, Matu Ram filed an appeal before the Joint Director, Panchayats, Punjab, which was dismissed and findings recorded by the Collector were affirmed.
The other writ petitions, have been filed by the Gram Panchayat, as the Collector and the Commissioner have decided the question of title against the Gram Panchayat. The private respondents, in these writ petitions, draw their title from sale and mortgage deeds executed by Matu Ram, with respect to land, which is subject matter of the civil court decree. The fate of these writ petitions would primarily depend upon the fate of the writ petition filed by Matu Ram.
Counsels for Matu Ram (deceased) and the private respondents submit that the impugned orders should be set aside as the civil court decree has not been challenged, before any court much less CWP No.14827 of 1989 (O&M) -4- set aside, by any court. The Collector and the Joint Director Panchayats, therefore, had no jurisdiction to disregard the decree. The Collector and the Joint Director have held that this decree is collusive, without assigning any reasons. The mere fact that the Sarpanch admitted ownership of Matu Ram, does not raise an inference of collusion as the Sarpanch made a bonafide admission of Matu Ram's ownership. It is further argued that as Section 13 of the Act, that prohibits jurisdiction of civil courts, came into force in 1976, decrees passed before 1976 are legal and valid. It is further submitted that in Civil Writ Petition No.11864 of 2011, the Collector has held that this very decree is not collusive and binds the parties.
Counsel for the Gram Panchayat, however, submits that, as per revenue record, the land is Shamilat Deh. The land, therefore, vests in the Gram Panchayat by virtue of Section 2(g)(1) read with Section 3 of the Act. The judgment and decree dated 09.11.1964, passed by the Sub Judge, First Class, Patiala, on the basis of a statement made by the Sarpanch, accepting the ownership of Matu Ram, is collusive and does not bind the Gram Panchayat. The Sarpanch was not authorised to make such a statement but colluded with Matu Ram and admitted his ownership. A perusal of the judgment reveals that the suit was filed on 24.08.1964, the Sarpanch admitted the claim of Matu Ram, and the suit was decreed on 09.11.1964. The Collector and the Joint Director Panchayats, have rightly held that the decree is collusive and does not bind the Gram Panchayat. As regards CWP No.14827 of 1989 (O&M) -5- CWPs No.11205 and 11756 of 2010, counsel for the Gram Panchayat submits that as private respondents are vendees from Matu Ram, the Collector and the Appellate Authority should have ignored the civil court decree, as well as the sale deeds and allowed the petition filed by the Gram Panchayat.
Counsel for the private respondents in CWPs No.11756 and 11205 of 2010, submit that apart from the fact that the decree passed in favour of Matu Ram is legal and valid the impugned orders should be set aside as the petitioners are bonafide purchasers/mortgagees without prior notice of any defect in Matu Ram's title, We have heard counsel for the parties, perused the impugned orders and the statutory provisions that apply to the present controversy.
The questions that arise for adjudication are: -
1. Whether a Collector exercising powers under Sections 7 and 11 of the Act, can ignore a civil court decree passed before 1976 on the ground that it is collusive ?
2. Whether the decree obtained by the petitioner is collusive and if so, its effect ?
3. Whether the mortgage and sale deeds executed by Matu Ram can be upheld by holding that mortgagees and the vendees are bonafide purchasers ?
The Punjab Village Common Lands (Regulation) Act, 1961 CWP No.14827 of 1989 (O&M) -6- confers proprietary rights upon Gram Panchayats with respect to lands described as Shamilat Deh. Section 7 of the Act enables a Gram Panchayat to evict persons in unauthorised occupation of Shamilat Deh. Section 11 of the Act enables any person or a panchayat to file a claim before the Collector that land vests or does not so vest in a Gram Panchayat. Section 11 of the Act was incorporated, in the 1961 Act, by way of Act No.19 of 1976. Before the enactment of Section 11, questions of title were decided by civil courts. Section 11 of the Act, reads as follows: -
"11. Decision of claims of right, title or interest in shamilat deh-
(1){Any person or a Panchayat} claiming right, title or interest in any land, vested or deemed to have been vested in a panchayat under this Act or claiming that any land has not so vested in a Panchayat, may submit to the collector, within such time, as may be prescribed, a statement of his claim in writing and signed and verified in the prescribed manner and the Collector shall have jurisdiction to decide such claim in such manner as may be prescribed.
(2)Any person or a Panchayat aggrieved by an order of the Collector made under sub-section (1) may, within sixty days from the date of the order, prefer an appeal to the Commissioner in such form and manner as may be prescribed and the Commissioner may after hearing the appeal, confirm, vary or reverse the order appealed from and may pass such order as he deems fit."
Section 13 of the Act which was also introduced in the Act by Act No.19 of 1976, bars civil courts from deciding whether the land is Shamilat Deh or not.
The first question that requires adjudication is whether a civil court decree, passed before the enactment of Section 11, can be ignored CWP No.14827 of 1989 (O&M) -7- by a Collector, exercising powers under Section 11 of the Act, by holding that the decree is collusive. The question is no longer res integra as it was answered by the Hon'ble Supreme Court in "Gram Panchayat of Village Naulakha V/s Ujagar Singh and others (2000) 7 SCC 543, by holding that if a decree is collusive or fraudulent, it may be ignored by a Collector, exercising powers under the Act. A relevant extract from the judgment reads as follows: -
"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 is correct and that the earlier judgment in the present case is binding on the basis of the 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 decisions read as follows:
Under Section 44 a party can, in a collateral proceeding in which fraud may be set up as a defence, CWP No.14827 of 1989 (O&M) -8- 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 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 CWP No.14827 of 1989 (O&M) -9- decision being treated as incontrovertible.
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 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 CWP No.14827 of 1989 (O&M) -10- 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 of the above observations."
It is, therefore, beyond debate that a judgment and decree, passed by a civil court before the enactment of Section 11 of the Act, can be ignored by a Collector, exercising powers under Sections 7 and 11 of the Act, provided the judgment and decree is held to be collusive.
The next question that arises for adjudication is whether findings recorded by the Collector and the Appellate Authority that the decree obtained by Matu Ram is collusive, are correct, if so, its effect.
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 CWP No.14827 of 1989 (O&M) -11- 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 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.
The private respondents in this petition and in CWP No.11756 of 2010, and 11205 of 2010 who are vendees and mortgagees from Matu Ram, have raised a plea that as they are bonafide purchasers without prior notice of any defect in Matu Ram's title, their rights, in the land in dispute, should be protected. We have considered the plea but as the collusive decree does not confer any CWP No.14827 of 1989 (O&M) -12- right, title or interest upon Matu Ram or deprive the Gram Panchayat of its title, the mortgage and sale deeds executed by Matu Ram does not pass valid title to vendees and mortgagees. The land in dispute is admittedly Shamilat Deh and vests in the Gram Panchayat by virtue of Section 2(g)(1) and Section 3 of the Act. A bare perusal of the jambandis should have warned the private respondents that the land is Shamilat Deh and vests in the Gram Panchayat. We are, therefore, of the firm opinion that the vendees and the mortgagees cannot be allowed to appropriate public property on the plea that they are bonafide purchasers, from an ostensible owner.
In view of what has been stated hereinabove, while affirming the finding that the decree dated 09.06.1965 is collusive, uphold the impugned orders in CWP No.14827 of 1989 and dismiss the writ petition. As a consequence, CWPs No.11205 and 11756 of 2010 are allowed, impugned orders are set aside and it is declared that the Gram Panchayat is owner of the land in dispute.
The petitioners and the private respondents in CWPs No.14827 of 1989 and private respondents in CWPs No.11205 and 11756 of 2010 shall be evicted from the land in dispute, forthwith. No order as to costs.
[ RAJIVE BHALLA ]
JUDGE
03.02.2012 [ JORA SINGH ]
shamsher JUDGE