Punjab-Haryana High Court
Baldev Singh And Another vs The State Of Punjab And Others on 23 May, 2013
Author: Rekha Mittal
Bench: Rajive Bhalla, Rekha Mittal
C.W.P.No.3331 of 1987 -1-
In the High Court of Punjab and Haryana at Chandigarh
Date of Decision: May 23, 2013
1) C.W.P.No.3331 of 1987
Baldev Singh and another
---Petitioners
versus
The State of Punjab and others
---Respondents
2) C.W.P.No.3437 of 1987
Puran Chand and others
---Petitioners
versus
The State of Punjab and others
---Respondents
3) C.W.P.No.3438 of 1987
Gainda
---Petitioner
versus
The State of Punjab and others
---Respondents
Coram: Hon'ble Mr. Justice Rajive Bhalla
Hon'ble Mrs. Justice Rekha Mittal
Present: Ms. G.K.Hundal, Advocate
for the petitioner(s)
Ms. Vandana Malhotra, Addl. Advocate General, Punjab
for respondent Nos.1 to 3
***
Rekha Mittal, J.
By way of this order, we shall dispose of CWP No.3331 of 1987 titled "Baldev Singh and another vs. The State of Punjab C.W.P.No.3331 of 1987 -2- and others" CWP No. 3437 of 1987 titled "Puran Chand and others vs. The State of Punjab and others" and CWP No. 3438 of 1987 titled "Gainda vs. The State of Punjab and others" as these involve adjudication of common questions of law and are based on identical facts. For the sake of convenience, facts are being taken from CWP No. 3331 of 1987.
Counsel for the petitioners submits that Gram Panchayat village Budhmore, Tehsil and District Patiala filed a petition under Sections 7 and 11 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as "the 1961 Act") by alleging that the decree of the civil court and the mutation sanctioned on the basis of the decree are liable to be set aside and the Gram Panchayat is entitled to recover possession of the land in dispute. It is argued that the petitioners are in possession of the suit land prior to 26.1.1950. The petitioners filed a suit for declaration of their ownership in the year 1972 on the premise that they are in possession of the land in dispute and the same does not vest in the Gram Panchayat. The civil court, after contest by the Gram Panchayat, declared the petitioners as owners of the suit land. The mutation was sanctioned in the name of the petitioners on the basis of the decree of the civil court. It is further argued that a decree passed by the civil court prior to Amending Act No. 19 of 1976 cannot be ignored in proceedings under Section 11 of the C.W.P.No.3331 of 1987 -3- 1961 Act. In this regard, reliance has been placed on judgment of this Court in "Gram Panchayat village Bathoi Kalan vs. Jogar Ram and others 1991 (1) Revenue Law Reporter 299, Rattan Chand vs. Inderjit Singh and others 2004 (2) RCR (Civil) 827 and decision in CWP No. 217 of 1985 (Labh Singh vs. State of Punjab) decided on 1.11.1985 (Annexure P-6) Counsel for the Gram Panchayat argues that the petitioners have failed to adduce any evidence to establish their plea of possession much less cultivating possession prior to 26.1.1950. The civil court decree relied upon by the petitioners is the result of collusion passed on the basis of admission made by a representative of the then Gram Panchayat without any authority as has been so held by the Collector/DDPO, Patiala in the impugned order. It is argued with vehemence that the authorities under the 1961 Act have recorded consistent finding of facts that the petitioners have failed to lead any evidence to claim exclusion of land from shamlat deh by invoking any of the exclusion clauses envisaged in Section 2(g) (ii) to (ix) of the 1961 Act.
We have heard counsel for the parties and perused the records.
The land in dispute is admittedly recorded as shamlat deh prior to sanction of mutation on the basis of civil court decree, pressed into service by the petitioners. The Gram Panchayat filed a C.W.P.No.3331 of 1987 -4- petition under Sections 7 and 11 of the 1961 Act by alleging that the land in dispute is shamlat deh and the same vests in Gram Panchayat and the judgment and decree passed by the civil court is liable to set aside. The petitioners in reply, set up a plea that as the petitioners have been declared owners by the civil court and the decree of the civil court has attained finality, the Gram Panchayat has no right to claim ownership or seek ejectment of the petitioners. However, the petitioners did not raise any plea that the land is excluded from shamlat deh by virtue of any provision contained in Section 2(g) of the 1961 Act. Nevertheless, the petitioners before this Court have set out a plea that they are in possession of the suit land prior to 26.1.1950 in their right as owners.
The questions that arise for consideration are whether the petitioners have been able to substantiate their plea of possession prior to 26.1.1950 and whether the civil court decree is beinding.
Before we proceed further, it is appropriate to mention here that it is none of the plea of the petitioners that the shamlat land was partitioned amongst the right holders of the village and the co-sharers are in individual cultivating possession after the said partition. As a necessary inference, the petitioners claim ownership on the basis of possession by invoking Section 2(g)(viii) C.W.P.No.3331 of 1987 -5- of the 1961 Act.
Section 2(g) of the 1961 Act defines shamlat deh. Section 2(g)(1) to (5) provide for land included in shamlat deh and Sections 2(g)(ii) to (ix) deal with land excluded from shamlat deh. A relevant extract from Section 2(g) is quoted hereinbelow:-
"2(g) "Shamlat deh" includes-
(1)lands described in the revenue records as shamilat deh excluding abadi deh;
(2) xxxx xxxx xxxx
(3)xxxx xxxx xxxx
(4) xxxx xxxx xxxx
(5)xxxx xxxx xxxx
but does not include land which--
(i) [-------]
(ii)xxxx xxxx xxxx
(ii-a) xxxx xxxx xxxx
(iii) xxxx xxxx xxxx
(iv)xxxx xxxx xxxx
(v) xxxx xxxx xxxx
(vi)xxxx xxxx xxxx
(vii) xxxx xxxx xxxx
(viii)was shamilat deh, was assessed to land revenue and has been in the individual cultivating possession of co-
sharers not being in excess of their respective shares in such shamilat deh on or before the 26th January 1950; or." A perusal of Section 2(g)(viii) of the 1961 Act reveals that to claim ownership, a person has to prove (i) cultivating C.W.P.No.3331 of 1987 -6- possession of the land in dispute prior to 26.1.1950, (ii) the land being assessed to land revenue and (iii) the land in possession is to the extent of share in such shamlat deh.
The petitioners did not produce any evidence much less a revenue document to prove any such plea that they are in possession of the land in dispute prior to 26.1.1950. Not only this, the petitioners did not append any document with the petition or later to establish their plea of possession prior to 26.1.1950. The petitioners have miserably failed to prove their possession much less cultivating prior to 26.1.1950, the land being assessed to land revenue or their share holding in such shamlat deh to establish that the land in their possession is not in excess of their share in such shamlat deh, being one of the proprietors of the village.
There cannot be any dispute about the settled position of law that a judgment and decree passed by the civil court prior to amendment by Punjab Act No. 19 of 1976 cannot be ignored by application of Section 13-B of the 1961 Act. However, a Full Bench of this Court in Gram Panchayat village Bathoi Kalan vs. Jogar Ram and others's case (supra) has held that parties are always at liberty to get those decrees set aside on the ground of collusion, fraud etc. or otherwise, by a competent Court. After the amendment by the aforesaid Act, Sections 11 to 13 of the 1961 Act were substituted. Section 13 of the 1961 Act has created a bar C.W.P.No.3331 of 1987 -7- against the civil court to entertain any dispute whether the land is shamlat or not and whether it vests in the Gram Panchayat or does not so vest. The Collector has been conferred with the power to decide these questions which were earlier within the domain of the civil court. The Gram Panchayat challenged the decree of the civil court on the ground of collusion and pressed its claim to recover possession of the land in dispute. No plea was raised by the petitioners that the judgment and decree passed by the civil court is not amenable to challenge before the Collector. After appreciating the judgment and decree passed by the civil court, the pleadings of the parties and on due consideration of the evidence adduced, the Collector recorded a categoric finding that the decree was obtained by collusion as the Gram Panchayat admitted possession of the defendants (petitioners herein). A relevant extract from order passed by the Collector reads as follows:-
"xxxx xxxx xxxx But in rebuttal the counsel for the applicant produced Ex. P-3. It is clear from the judgment of Sub Judge II Class Patiala dated 26.5.72 that this decree has been obtained by collusion because in that case the Gram Panchayat has admitted the possession of the defendants. In this way the decision through this decree and judgment has not been given on merits. The C.W.P.No.3331 of 1987 -8- collusive decree has no effect on the ownership of the Gram Panchayat according to section 13-B of the Punjab Village Common Lands (Regulation)Act. The defendants have not proved their possession over the suit land in this case prior to 26.1.1950. Although the suit land was the ownership of the Gram Panchayat prior to the mutation dated 20.11.75."
Counsel for the petitioners has not disputed that the decree of the civil court was passed on the basis of admission of the claim of the petitioners in regard to possession of the land in dispute. There is nothing on record suggestive of the fact that a representative of the Gram Panchayat who suffered a statement admitting the possession of the petitioners had been authorized by the Gram Panchayat to admit the claim of the petitioners. Rule 16 of the Punjab Village Common Lands (Regulation) Rules, 1964 (hereinafter referred to as "the 1964 Rules") deals with the procedure where a panchayat sues or is sued in its representative capacity. A relevant extract of Rule 16 of the 1964 Rules reads as follows:-
"16.Procedure where a Panchayat sues or is sued in its representative capacity.
(1) The panchayat shall by a resolution to be recorded in the proceeding book, appoint its C.W.P.No.3331 of 1987 -9- Sarpanch or any other panch to contest any suit filed by or against the Panchayat. The Sarpanch or panch so appointed shall file a copy of the resolution duly attested by the Sarpanch under the seal of the Panchayat in the court along with other documents.
(2) xxxx xxxx xxxx (3) The Sarpanch or panch so appointed shall not be competent to compound or admit claim of the party suing the Panchayat without prior authorization by the Panchayat by a resolution in writing passed in a meeting specifically called for the purpose. If any decree or order is passed by the Court as a result of fraud, misrepresentation, concealment of facts or collusion with the opposite party, the Sarpanch or panch shall be personally liable for the loss caused to the Panchayat."
As the petitioners failed to adduce any evidence before the authorities or before this Court that the person who admitted the claim of the petitioners before the civil court had any authorization by the panchayat in compliance with the process provided in Rule 16(3) of the 1964 Rules, such a decree can not bind the Gram Panchayat to deprive it of its ownership. The C.W.P.No.3331 of 1987 -10- legislature in its wisdom has enacted certain provisions and rules thereby providing safe guards against the Gram Panchayat being deprived of its precious possessions by unscrupulous persons. As the petitioners have failed to adduce any evidence to substantiate their plea of possession much less cultivating possession prior to 26.1.1950 to claim exclusion of land from shamlat deh, the admission of the claim of the petitioners before the civil court was contrary to facts on record and, therefore, in essence, it is the result of collusion between the petitioners and the maker of the statement. In this view of the matter, we have no hesitation in concurring the findings recorded by the Collector that the judgment and decree passed by the civil court is the result of collusion and cannot bind the Gram Panchayat to divest of its ownership of land in dispute measuring 80 kanals 18 marlas claimed by Baldev Singh and another, 32 kanals 15 marlas claimed by Puran Chand and others and 47 kanals 14 marlas by Gainda Ram in the aforementioned writ petitions.
In view of what has been discussed hereinabove, finding no merit, the petitions are dismissed. No order as to costs.
( REKHA MITTAL) JUDGE (RAJIVE BHALLA) JUDGE May 23, 2013 PARAMJIT C.W.P.No.3331 of 1987 -11-