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2005 DIGILAW 170 (PNJ)

Surinder Pal v. Man Singh

2005-02-01

AJAY K.MITTAL

body2005
Judgment 1. This is a petition under Article 227 of the Constitution of India for quashing the order dated 3-11-2004 passed by the Additional District Judge, Kurukshetra whereby an application moved by the plaintiff-petitioners to withdraw the suit with permission to file a fresh suit at appropriate forum, has been declined. 2. In order to understand the controversy involved, it is necessary to notice a few facts. The predecessor of the petitioners - Dharam Devi filed a suit for declaration and permanent injunction against the respondents stating that she was in possession of the land in dispute and she has also installed a tube-well in the said land. It was further averred that no rent or batai was ever paid to anyone and the entry in the revenue record as Gair Marausi was illegal and void and respondents Nos. 1 and 2 had no right, title or interest in the suit property though they have been claiming to be proprietors of village Kheri Shish Garan. The ownership by virtue of adverse possession was also claimed by the plaintiff. The suit was filed under Order 1 Rule 8 of the Code of Civil Procedure (for short "the Code") in the representative capacity. 2A. The defendants in the written statement submitted that during the period of consolidation of land holdings, land measuring 241 Kanals 4 Marlas comprised in Rectangle No.4. Killa Nos. 1 to 25, Rectangle No. 2, Killa Nos. 21,22, Rectangle No. 3, Killa Nos. 11, 20, 21, and Rectangle No. 5, Killa Nos. 6, 7, 14, to 17 situated in the revenue estate of village Kheri Shish Garan was reserved for the income of the Gram Panchayat as there was no sufficient land, in absence of there being proper Shamlat deh in the village. A pro rata cut was imposed on the holdings of the land owners and the Gram Panchayat was put in possession of the suit property for income of the Gram Panchayat. Further stand in the written statement was that ever since then the Gram Panchayat had been auctioning the suit property and giving on batai and the owners had no right of possession over the suit property. It was specifically pleaded that the Gram Panchayat was a necessary party and the same having not been impleaded, the suit was bad for non-joinder of necessary party. It was specifically pleaded that the Gram Panchayat was a necessary party and the same having not been impleaded, the suit was bad for non-joinder of necessary party. Other averments regarding the plaintiff having become owner by adverse possession or that the possession of the plaintiff was open, continuous and hostile, without interruption from any quarter were denied. It was also submitted that it was the Panchayat which had got the immediate right of possession to the suit property. 3. On the above pleadings, the trial Court framed the following issues :- (1) Whether the plaintiff is the owner in possession of the suit property by way of adverse possession and entitled to the relief of injunction, as prayed for ? OPP (2) Whether suit of plaintiff is not maintainable nor plaintiff has locus standi to file the present suit? OPD (3) Relief. 4. The trial Court after appraising the evidence on record, dismissed the suit by judgment and decree dated 20-12-1999. Aggrieved by the said judgment and decree of the trial Court, the plaintiff preferred appeal before the District Judge which came to be heard by the Additional District Judge, Kurukshetra. During the pendency of this appeal, the plaintiff-petitioners moved an application seeking permission of the Court to withdraw the suit with liberty to file a fresh one. The application, as noticed above, was dismissed by the Additional District Judge, Kurukshetra by order dated 3-11-2004. 5. Learned counsel appearing for the petitioners submitted that when the suit was filed in the year 1993, at that time there was no special enactment for adjudicating upon the dispute regarding title or interest in the suit property owned by the Gram Panchayat and thus, the civil Court had the jurisdiction to try the suit. It was by way of Haryana amendment brought out by Act No. 9 of 1999 in Punjab Village Common Lands (Regulation) Act, 1961 that Section 13-A was introduced and by virtue of the same the Collector was empowered to decide the said question of title and the jurisdiction of the Civil Court was barred. On these premises, the counsel submitted that the Court below should have granted permission for withdrawal of the suit with permission to file fresh suit at appropriate forum. On these premises, the counsel submitted that the Court below should have granted permission for withdrawal of the suit with permission to file fresh suit at appropriate forum. The counsel further submitted that the trial Court while dismissing the suit had observed that Gram Panchayat, Kheri Shish Gram was a necessary party and the same having not been impleaded, the suit was bad for non-joinder of a necessary party. The counsel went on submitting further that no issue was framed in this regard yet the trial Court recorded the said finding. Learned counsel further submitted that by way of amendment in the Haryana Act No. 9 in the year 1999, since the jurisdiction of the civil Court had been taken away, the proceedings that took place in the Civil Court were non-est and, therefore, it was the duty of the Court to return the plaint for being presented before the appropriate forum. Learned counsel relied on two Supreme Court decisions in Ram Singh V/s. Gram Panchayat, Mehal Kalan AIR 1986 SC 2197 and Sumedico Corporation V/s. Regional Provident Fund Commissioner, 1999 Lab IC 2626 : (1999 AIR SCW 2415) and submitted that the question arising in a suit for declaration of title to certain land and for injunction, questioning the entries in the revenue records on the basis of which the Gram Panchayat was claiming the suit property as belonging to it as Shamlat Deh, has to be decided by the Collector only, under Section 11 of the Punjab Village Common Lands (Regulation) Act and not by the Civil Court. 6. I have heard learned counsel for the petitioners and gone through the record. It is not disputed by the counsel appearing for the petitioners that the amendment by way of Amending Act No. 9 of 1999 had come into effect before the passing of the judgment and decree by the trial Court on 20-12-1999. The counsel could not furnish any satisfactory explanation as to why an application was not filed before the trial Court seeking the permission of the Court to withdraw the suit with liberty to file fresh suit at appropriate forum. The trial Court on the basis of material available on record, decided the suit on merits against the petitioners. The counsel could not furnish any satisfactory explanation as to why an application was not filed before the trial Court seeking the permission of the Court to withdraw the suit with liberty to file fresh suit at appropriate forum. The trial Court on the basis of material available on record, decided the suit on merits against the petitioners. At this stage, the relevant part of the findings of the trial Court recorded under issue No.1 is reproduced hereunder :- "Thus the plaintiff cannot set up the plea of adverse possession against the proprietors of the village Kheri Shishgaran, who have themselves no right to immediate possession to the suit property in view of the scheme of consolidation Ex. D1 and Ex. D2. Even otherwise, the plea of adverse possession has not been proved where the revenue record shows the possession of the plaintiff over the suit property only from the Jamabandi of the year 1990-91, Ex. P4 and the plaintiff can be only termed as a trespasser over the suit property and no more. The issue is decided against the plaintiff." 7. In absence of any satisfactory reply as to why the application for withdrawal of the suit was not filed before the trial Court, it appears that the petitioners who had been actively pursuing the proceedings before the trial Court intentionally did not do so as they intended to await for the result of the suit. The application before the appellate Court appears to have been filed with an oblique intention and is a clever device to negate the findings recorded against them by the trial Court. The appellate Court was thus, right in not allowing the application of the petitioners for withdrawal of the suit with a liberty to file a fresh one as with the passing of the judgment and decree by the trial Court, certain rights had vested in the party in whose favour the decree had been passed. This Court in Bashir Ahmad V/s. Masjit Patti Niyamatpur, 1999 (3) 123 Pun LR 58, in almost similar circumstances has held as under :- "It is, therefore, clear from the aforementioned judgments that sub-rule (1) of Rule 1 of Order 23, Code of Civil Procedure gives an unqualified right to the plaintiff to withdraw from a suit so long as suit is pending and no vested rights have accrued in favour of the defendant. Once a suit is decided and decree passed, it conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and, therefore, at the stage of appeal, though it may be continuation of the suit, plaintiff has no absolute right to withdraw a suit under sub-rule (1) of Rule 1 of Order 23, Code of Civil Procedure." 8. Now adverting to the case law cited by the counsel for the petitioners in Ram Singh case (AIR 1986 SC 2197) (supra), it may be stated that in the said case, the Apex Court was considering the question, where the suit was filed questioning the entries in the revenue record showing the suit land as belonging to Gram Panchayat whereas the Panchayat was claiming the suit land as shamlat deh and it was in these circumstances, observed that this question was to be decided by the Collector under the Punjab Village Common Lands (Regulation) Act. This is not the position in the case in hand. Sumedico Corporation (1999 Lab IC 2626 : 1999 AIR SCW 2415) (supra) was a case under the Employees Provident Funds and Miscellaneous Provisions Act and the same has no application to the facts and circumstances of the present case. As a matter of fact, in none of the aforesaid two judgments of the Supreme Court, the question as raised herein was at issue. 9. Learned counsel for the petitioner as a last resort relying on another judgment of the Supreme Court in Bal Niketan Nursery School V/s. Kesari Prasad, AIR 1987 SC 1970 further submitted that in any case, once the trial Court had held that the Gram Panchayat was a necessary party and the suit was bad for non-joinder of necessary party, the Gram Panchayat should have been allowed to be impleaded as party under Order 1, Rule 10 of the Code. On a consideration of the matter, I find that there is no force in this contention as well. The petitioners had filed application under Order 23, Rule 1 of the Code for withdrawal of the suit with liberty to file a fresh one and there was no proper application under Order 1, Rule 10 of the Code filed by the petitioners. 10. The petitioners had filed application under Order 23, Rule 1 of the Code for withdrawal of the suit with liberty to file a fresh one and there was no proper application under Order 1, Rule 10 of the Code filed by the petitioners. 10. In view of the above, no illegality or infirmity could be pointed out by the counsel for the petitioners in the order passed on 3-11-2004 by the Additional District Judge, Kurukshetra whereby petitioners application under Order 23, Rule 1 of the Code was dismissed. Finding no merit in the revision petition, the same is consequently dismissed.