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2003 DIGILAW 463 (PNJ)

Gram Panchayat v. Narender Singh

2003-03-28

V.M.JAIN

body2003
Judgment V.M.Jain, J. 1. This regular Second appeal has been filed by the defendant-Gram Panchayat against the judgments and decrees of the Courts below, whereby the suit filed by the plaintiffs was decreed by the Trial Court and the appeal filed by the defendant-Gram Panchayat, was dismissed by the learned Additional District Judge. 2. The facts in brief are that the plaintiffs filed a suit for possession, in respect of the agricultural land measuring 110 kanals, 8 marlas, described in the heading of the plaint. It was alleged that Satnam Singh, plaintiff and the predecessors-in-interest of the other plaintiffs, were co-sharers in the Shamlat Deh, Darbi. It was alleged that in the year 1946, Shamlat Deh land was partitioned between co-sharers and that the partition proceedings were pending before the Revenue Officer and before the instrument of partition could be drawn, the Muslim co-sharers left for Pakistan (during partition) and as such the mutation, after partition could not be sanctioned. It was alleged that the share belonging to the Muslim co-sharers was declared evacuee property and was allotted to various displaced persons. It was alleged that plaintiff, Satnam Singh and the predecessors-in-interest of the other plaintiffs, filed a suit for declaration that they were the owners in possession of 21 Bighas and 1 Biswa of land. It was alleged that the said suit was decreed by the Trial Court on 15.3.1961. It was alleged that the mutation in respect of the said Civil Court decree, could not be sanctioned because the consolidation proceedings were pending. It was alleged that after consolidation, the plaintiffs were entitled to land measuring 110 kanals, 8 marlas, which was given in lieu of the old khasra numbers, during consolidation proceedings. It was accordingly prayed that a decree of possession be passed in favour of the plaintiff. 3. In the written statement filed by the defendant it was alleged that the present suit filed by the plaintiff, was not maintainable and at the most they could have sought execution of the decree, earlier passed in their favour and the execution petition was dismissed on 19.4.1971 and the plaintiffs were estopped from filing the present suit for possession. It was further alleged that the previous decree was obtained by the plaintiffs in connivance with the Sarpanch, who had no authority to represent the Gram Panchayat. It was further alleged that the previous decree was obtained by the plaintiffs in connivance with the Sarpanch, who had no authority to represent the Gram Panchayat. It was alleged that the plaintiffs could take possession only of that land, which the plaintiffs could prove, was allotted in lieu of their share. It was also alleged that the suit was time barred, was not maintainable in the present form and was barred by principle of res judicata. 4. After hearing both sides and after perusing the record, the learned Trial Court, decree the suit of the plaintiffs for possession of the suit land measuring 110 kanals, 8 marlas, declaring them the owners of the suit land. The appeal filed by the defendant-Gram Panchayat was dismissed by the learned Additional District Judge, upholding the judgment and decree of the Trial Court. Aggrieved against the same, the defendant-Gram Panchayat, filed the present regular second appeal, in this Court. 5. I have heard the learned counsel for the parties and have gone through the record, carefully. 6. The learned counsel appearing for the defendant-appellant, submitted before me that the previous decree obtained by the plaintiffs against the Gram Panchayat dated 15.3.1961, was a nullity and as such on the basis of the said Civil Court decree dated 15.3.1961, the plaintiffs were not entitled to seek possession of the suit property. It was submitted that the previous Civil Court decree dated 15.3.1961 was passed on the basis of the admission made by the Sarpanch of the Gram Panchayat and that the Sarpanch was not competent to make the statement in favour of the plaintiffs. Reliance has been placed on the provisions of the Punjab Village Common Lands (Regulation) Act, 1961, and the rules framed thereunder. 7. However, I find no force in these submissions of the learned counsel for the defendant-appellant, Gram Panchayat. As referred to above, the Civil Court decree in the previous suit is dated 15.3.1961. This decree was passed by the Civil Court, prior to the coming into force of the Punjab Village Common Lands (Regulations) Act, 1961 which has come into force on 4.5 1961. Prior to the coming into force of the Punjab Village Common Lands (Regulation) Act, 1961, the provisions of the Punjab Village Common Lands (Regulation) Act, 1953, were applicable. This decree was passed by the Civil Court, prior to the coming into force of the Punjab Village Common Lands (Regulations) Act, 1961 which has come into force on 4.5 1961. Prior to the coming into force of the Punjab Village Common Lands (Regulation) Act, 1961, the provisions of the Punjab Village Common Lands (Regulation) Act, 1953, were applicable. Keeping in view the provisions of the aforesaid 1953 Act, the Civil Court decree dated 15.3.1961, was passed by the Civil Court. It is not disputed before me that at no point of time the validity of the aforesaid Civil Court decree dated 15.3.1961, was challenged by the defendant/appellant-Gram Panchayat, before any Civil Court of any other Court of competent jurisdiction. In fact, this decree became final between the parties. 8. After the coming into force of the aforesaid 1961 Act, Section 13-A was added in the 1961 Act, by virtue of Haryana Act No. 34 of 1974. As per Section 13-A of the said Act, as amended by Haryana Act No. 34 of 1974, it was provided that where a decree had been obtained from a Civil Court by any person against any Panchayat in respect of any land or other movable property on the ground of its being excluded from Shamlat Deh, the Panchayat Officials were empowered within a period of 2 years from the date of the coming into force of the amendment Act No. 34 of 1974, to make an application before Assistant Collector for setting aside the said Civil Court decree on the ground that the copies of the relevant entries of the revenue record, had not been produced. The validity of the said Amendment Act No. 34 of 1974, vide which Section 13A, was added in 1961 Act, was challenged in this Court. A Division Bench of this Court, in the case of The Karnal Cooperative Farmers Society Ltd., Pehowa v. The Gram Panchayat, Pe-howa and Ors., 1976 P.L.J. 237, had struck down the aforesaid provisions of amendment Act No. 34 of 1974, vide which Section 13A, was added in the 1961 Act. Thus, after the provisions of Section 13-A of the Act, which were added by Haryana Act No. 34 of 1974, were struck down by a Division Bench of this Court, there is no special law, under which a Civil Court decree could be challenged. Thus, after the provisions of Section 13-A of the Act, which were added by Haryana Act No. 34 of 1974, were struck down by a Division Bench of this Court, there is no special law, under which a Civil Court decree could be challenged. On the other hand, the general law could apply for challenging the validity of a Civil Court decree within the specified time. In the present case, as referred to above, at no point of time, the validity of the Civil Court decree was challenged by the Gram Panchayat, on any ground, till the plaintiffs filed the present suit. 9. In my opinion, the Civil Court decree dated 15.3.1961, could not be held to be illegal and void, without proving that the same was obtained by the plaintiffs by fraud, mis-representation and undue influence. In the present case, nothing has come on the record to show that the Civil Court decree dated 15.3.1961 was based on fraud, mis-representation and undue influence. Under these circumstances, in my opinion, the defen-dant/application-Gram Panchayat, could not be allowed to get out of the Civil Court decree dated 15.3.1961, passed against the Gram Panchayat. 10. As referred to above, in the present case Civil Court had passed the decree dated 15.3.1961 declaring the plaintiffs to be owners in possession of the land in dispute. Nothing has come on the record to show that the said decree was passed contrary to the law or that it was illegal or void. 11. The learned counsel appearing for the defendant-appellant also could not point out anything on the record to show that the statement, made by the Sarpanch, was contrary to the law or that he had no authority to make the said statement at the relevant time, which resulted in the passing of the Civil Court decree dated 15.3.1961. The de-fendant/appellant-Gram Panchayat has failed to show that the previous decree dated 15.3.1961 was illegal and void. In my opinion, the Courts below, were perfectly justified in holding that the Civil Court decree dated 15.3.1961, was legal and valid and no fault could be found with the same. 12. The de-fendant/appellant-Gram Panchayat has failed to show that the previous decree dated 15.3.1961 was illegal and void. In my opinion, the Courts below, were perfectly justified in holding that the Civil Court decree dated 15.3.1961, was legal and valid and no fault could be found with the same. 12. It was then submitted before me by the learned counsel appearing for the defendant-appellant that the present suit for possession was barred by time, inasmuch as the mutation in favour of the Gram Panchayat in respect of the suit land, was sanctioned in August, 1954 and the present suit was filed in the year, 1971. However, I find no force in this submission as well, of the learned counsel for the defendant/appellant, after the aforesaid mutation was sanctioned in August, 1954, the plaintiffs had filed the previous suit for declaration and injunction and the said suit was decreed on 15.3.1961, declaring the plaintiffs to be the owners in possession of the suit land. Under these circumstances, the present suit for possession filed by the plaintiffs, in the year 1971, could not be said to be time barred. The learned counsel appearing for the defendant-appellant, could not point out anything on the record to show that as to in what manner the suit was barred by time. 13. It was then submitted before me by the learned counsel for the defendant-appellant that the present suit for possession filed by the plaintiffs, was barred under Order 2 Rule 2 CPC. It was submitted that if the plaintiffs were out of possession, then the plaintiffs should have asked for possession at the time when the previous suit for declaration was filed and the plaintiffs having failed to sue for possession, they were debarred from filing the suit for possession subsequently. However, I find no force in this submission as well, of the learned counsel for the defendant-appellant. As per the previous Civil court decree dated 15.3.1961, the plaintiffs were declared the owners in possession of the suit property. There was no question of the plaintiffs filing the suit for possession at the time when the previous suit was filed considering that the plaintiffs were already in possession of the suit property and were declared, as owners in possession of the suit property, by virtue of Civil Court decree dated 15.3.1961. There was no question of the plaintiffs filing the suit for possession at the time when the previous suit was filed considering that the plaintiffs were already in possession of the suit property and were declared, as owners in possession of the suit property, by virtue of Civil Court decree dated 15.3.1961. It was only subsequently, when the plaintiffs found that they were out of possession that the present suit for possession, was filed by the plaintiffs, on the basis of ownership. In this view of the matter, in my opinion, it could not be said that the present suit filed by the plaintiffs was barred under Order 2 Rule 2 CPC. 14. It was then submitted before me by the learned counsel appearing for the defendant-appellant that the Civil Court had no jurisdiction to pass the decree for possession, thereby excluding the suit land from Shamlat Deh. However, I find no force in this submission as well, of the learned counsel for the defendant-appellant. The question that the suit property was not Shamlat Deh and was owned by the plaintiffs had already been decided by the Civil Court in the previous decree dated 15.3.1961. Under these circumstances, the Civil Court, certainly had jurisdiction to grant the decree for possession to the plaintiffs, on the basis of their ownership, which was based on the previous decree dated 15.3.1961. Furthermore, in case the plaintiffs were already in possession of the suit property since 1946, the suit land would not form part of Shamlat Deh under any provisions of the law. Under these circumstances, in my opinion, the Civil Court, had rightly declared plaintiffs to be the owners in possession of the suit property, at the time when the previous decree dated 15.3.1961, was passed. I am of the opinion that the plaintiffs being the owners of the suit property, the Court below, rightly decreed the suit of the plaintiffs for possession of the suit property and no fault could be found with the same. Even otherwise, to substantial question of law arises for determination in this appeal. For the reasons recorded above, finding no merit in this appeal, the same is hereby dismissed.