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2008 DIGILAW 1680 (PNJ)

Gurdev Kaur v. Gram Panchayat Balad Kalan

2008-09-29

HEMANT GUPTA, KANWALJIT SINGH AHLUWALIA

body2008
JUDGMENT Hemant Gupta, J. - This order shall dispose of LPA No. 171 of 2004, arising out of the order dated 14.5.2003, passed by the learned Single Judge of this Court, whereby Civil Writ Petition No. 419 of 1996 filed by the Gram Panchayat was allowed, and LPA No. 31 of 2004 against the order dated 27.2.2004, passed by the learned Single Judge, whereby an application filed by the appellant for setting aside the ex-parte order dated 14.5.2003, was dismissed. 2. The relevant facts as made out from the paper book are that in the year 1974, Sarwan Singh; Sukhdev Singh; Kamikkar Singh and Chetan Singh sons of Kartar Kaur widow of Mehar Singh filed a Civil Suit for declaration that land measuring 68 bighas and 17 biswas does not vest in defendant No. 2 i.e. Gram Panchayat and that the order dated 28.7.1971 and 25.3.1974 passed by the Assistant Collector, Sangrur, are inexecutable. The said suit was decreed on 16.8.1978. The first appeal was dismissed. However, in the second appeal against the aforesaid judgment, this Court found that the jurisdiction of the Civil Court is barred vide its judgment dated 19.3.1981. However, liberty was given to the plaintiffs to seek their remedy from the competent Court. 3. Thereafter, the aforesaid plaintiffs filed a suit under section 11 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter refened to as the Act), before the District Development and Panchayat Officer. The present appellant was impleaded as proforma respondent No. 5. The prayer in this suit was that the applicants and respondent Nos. 2 to 6 are the owners and in possession of the land measuring 68 bighas and 17 biswas and that the order dated 28.3.1971 and 25.3.1974 passed by the Assistant Collector, Ist Grade, Sangrur, are without jurisdiction. The said application was allowed by the District Development and Panchayat Officer on 5.5.1986. The appeal preferred by the Gram Panchayat was dismissed on 20.6.1990. However, in the writ petition filed by the Gram Panchayat, the orders passed by the authorities under the Act were set aside and it was held that the land in dispute vests with the Panchayat vide order dated 14.5.2003. The plaintiffs before the Collector filed LPA No. 386 of 2003 which was dismissed as withdrawn after recording an argument of the counsel for the Parchayat. 4. The plaintiffs before the Collector filed LPA No. 386 of 2003 which was dismissed as withdrawn after recording an argument of the counsel for the Parchayat. 4. We have heard learned counsel for the parties and find no merit in the present appeal. Firstly, the appellant, as a legal heir of Mehar Singh, does not possess any better right than what her brothers had. The brothers of the appellant prosecuted application under Section 11 of the Act and when an appeal was filed against the judgment of the learned Single Judge of this Court against the order dated 14.5.2003. In fact, it was Mehar Singh, predecessor-in-interest of the appellant, who was alleged to be the right holder of the land in Jumla Musterka Malkan. It was after the death of Mehar Singh on 11.4.1974, the brothers of the appellant and the appellant stepped into the shoes of the deceased Mehar Singh. It was on the said pleadings, brothers of the appellant invoked the jurisdiction of the Collector under Section 11 of the Act. Thus, the rights of the appellant are not better than the rights of her brothers. The estate of Mehar Singh was represented by the brothers of the appellant. In fact, the brothers were the ones, who invoked the jurisdiction of the Collector and taken all steps as are required by a prudent person to prosecute and defend the interest of Mehar Singh. 5. In N.K. Mohd. Sulaiman Sahib v. N. C. Mohd. Ismail Saheb and others, I A.I.R. 1966 S.C. 792, it was held that where on account of a bona fide error, the plaintiff institutes suit against a person, who is not representing the estate of a deceased person against whom the plaintiff has a claim either at all or even partially in the absence of any fraud or collusion or any other ground, which taints the decree, a decree passed against the person impleaded as heirs binds the estate, even though the other persons interested in the estate are not brought on record. Following the said view, the Honble Supreme Court in Mohd. Hussain v. Gopibai, 2008(2) RAJ 142 : (2008)3 SCC 233, has held to the following effect : "Ordinarily the court does not regard a decree binding upon a person who was not impleaded in the action. Following the said view, the Honble Supreme Court in Mohd. Hussain v. Gopibai, 2008(2) RAJ 142 : (2008)3 SCC 233, has held to the following effect : "Ordinarily the court does not regard a decree binding upon a person who was not impleaded in the action. However, there exist some important exceptions : (i) Where by the personal law governing the absent heir, the heir impleaded represents his interest in the estate of the deceased, the decree would be binding on all the persons interested in the estate. (ii) If there be a debt justly due and no prejudice is shown to the absent heir, the decree in an action where the plaintiff has after bona fide enquiry impleaded all the heirs known to him will ordinarily be held binding upon all persons interested in the estate. (iii) The Court will also investigate, if invited, whether the decree was obtained by fraud, collusion or other means intended to overreach the Court. Therefore, in the absence of fraud, collusion or other similar grounds, which taint the decree, a decree passed against the heirs impleaded binds the other heirs as well even though the other persons interested are not brought on record." 6. In P. Chandrasekharan and others v. S. Kanakarajan and others, 2007(3) RAJ 203 : 2007(5) Supreme Court Cases 669, the Honble Supreme Court held that some of the heirs and the legal representatives of the deceased-Cross Objector being already party to the appeal, the estate of the deceased has substantially been represented. 7. The said view was followed by this Court in Padmawati and others v. Kulwant Rai and others, (2008-2)150 PLR 424, wherein it was held to the following effect : "46. A Full Bench of this Court in Sardara Singh v. Harbhajan Singh, AIR 1974 Punjab and Haryana 345, has found that all the legal heirs are not required to be served as their interests are fully protected by the other legal heirs, who are already on record. It was held that what is to be seen is whether the estate is effectively represented. In Hari Singh v. Mangal Singh etc., 1968 Current Law Journal (Pb. It was held that what is to be seen is whether the estate is effectively represented. In Hari Singh v. Mangal Singh etc., 1968 Current Law Journal (Pb. & Hry.) 922, this Court held that in the absence of any fraud or collusion between the plaintiff to indicate that there hasnot been a fair or real trial, or that against the absent heir there was a special case which was not and could not be tried in the proceedingg, the doctrine of sufficient representation shall be attracted. A Division Bench of the Court in Baldev Singh v. Hira, (1972)74 P.L.R. 422, has held that despite the death of one of the legal representatives of the deceased party, his estate continues to be fully/represented by the remaining legal representative. Therefore, there is no question of total or partial abatement." 8. In view of the said fact, the proceedings initiated by the brothers of the appellant for the benefit of the estate of Mehar Singh will bind not only the brothers of the appellant, but the appellant as well. 9. The matter can be examined from another angle as well. An LPA No. 386 of 2003 was filed against the judgment of the learned Single Judge on 14.5.2003. LPA No. 386 of 2003 was dismissed as withdrawn on 18.12.2003, when the following order was passed :- . "LPA No. 386 of 2003 (O&M) Present : Shri Ajay Kaushik, Advocate, for Shri Arun Jain, Advocate, for the applicant-appellants. Shri S.S. Salar, Advocate, for the respondents. Shri Ajay Kaushik, learned counsel appearing on behalf of the applicant- appellants, after it was pointed out by the learned counsel appearing on behalf of the respondents, that the words Makbooja Charand mentioned in the document appended as Annexure P.3, with the writ petition, which was the reasons best known to the applicant-appellants, has been omitted in the document filed with the appeal, prays to withdraw the appeal. Permission is granted and the Letters Patent Appeal is dismissed as withdrawn. Since the appeal has been dismissed as withdrawn, prayer for stay is also dismissed." 10. A perusal of the said order would show that the appeal was withdrawn after the arguments were addressed before this Court and finding no escape from the conclusion recorded by the learned Single Judge. Since the appeal has been dismissed as withdrawn, prayer for stay is also dismissed." 10. A perusal of the said order would show that the appeal was withdrawn after the arguments were addressed before this Court and finding no escape from the conclusion recorded by the learned Single Judge. Such withdrawal of the appeal amounts to merger of the order passed by the learned Single Judge with the orders passed by the Letters Patent Bench. 11. A Full Bench of this Court in Smt. Daya Wanti v. Yadvindra Public School, Patiala and others, (1996-1)112 PLR 208, has examined the doctrine of merger and over-rule Division Bench judgment reported in Matu Ram v. Union Territory of Chandigarh, (1988-1)93 P.L.R. page 8. The Full Bench has relied upon the judgments of the Honble Supreme Court in State of U.P. v. Mohammad Nooh, A.I.R. 1958 S.C. 86 and Commissioner of Income Tax Bombay v. M/s. Amritlal Bhagilal, A.I.R. 1958 S.C. 868. Reliance was also placed on State of Madras v. Madurai Mills Co. Ltd., A.I.R. 1967 S.C. 681 as well as the earlier Full Bench judgment reported as Bansi v. Additional Director, Consolidation of Holdings, Rohtak, (1966)68 P.L.R. 52 (FB). It was held that dismissal of a writ petition in limine amounts to merger of the order. 12. In Chandi Prasad and others v. Jagdish Prasad and others, (2004)8 Supreme Court Cases 724, the Honble Supreme Court examined the earlier judgment in V.M. Salgaocar and Bros. (P) Ltd. v. CIT, (2000)5 S.C.C. 373 and Kunhayammed v. State of Kerala, (2000)6 S.C.C. 359, to return a finding that when an Appellate Court passed a decree, the decree of the trial Court merges with the decree of the Appellate Court. The merger of the decree takes place irrespective of the fact as to whether the Appellate Court confirms; modifies or reverses the decree passed by the trial Court. It was held that when a Special Leave Petition has been dismissed summarily, the doctrine of merger does not apply but when an appeal is dismissed, it does. It was held to the following effect: "21. It was held that when a Special Leave Petition has been dismissed summarily, the doctrine of merger does not apply but when an appeal is dismissed, it does. It was held to the following effect: "21. It is axiomatic true that when a judgment is pronounced by a High Court in exercise of its appellate power upon entertaining the appeal and a full hearing in the presence of both parties, the same would replace the judgment of the lower Court and, only the judgment of the High Court would be treated as final. (See : U.J.S. Chopra v. State of Bombay, A.I.R. 1955 S.C. 633). 22. When an appeal is prescribed under a statute and the appellate forum is invoked and entertained, for all intent and purport, the suit continues. 23. The doctrine of merger is based on the principles of propriety in hierarchy of the justice-delivery system. The doctrine of merger does not make a distinction between an order of reversal, modification or an order of confirmation passed by the appellate authority. The said doctrine postulates that there cannot be more than one operative decree governing the same subject-matter at a given point of time. 24. It is trite that when an appellate court passes a decree, the decree of the trial Court merges with the decree of the appellate court and even if and subject to any modification that may be made in the appellate decree, the decree of the appellate court supersedes the decree of the trial Court. In other words, merger of a decree takes place irrespective of the fact as to whether the appellate court affirms, modifies or reverses the decree passed by the trial court. When a special leave petition is dismissed summarily, doctrine of merger does not apply but when an appeal is dismissed, it does. [See : V.M. Salgaocar and Bros. (P) Ltd. v. CIT]" 13. In Kunhayammeds case (supra), the Honble Supreme Court held to the following effect : "12. The logic underlying the doctrine of merger is that there cannot be more than one decree or operative orders governing the same subject-matter at a given point of time. [See : V.M. Salgaocar and Bros. (P) Ltd. v. CIT]" 13. In Kunhayammeds case (supra), the Honble Supreme Court held to the following effect : "12. The logic underlying the doctrine of merger is that there cannot be more than one decree or operative orders governing the same subject-matter at a given point of time. When a decree or order passed by an inferior court, tribunal or authority was subjected to a remedy available under the law before a superior forum then, though the decree or order under challenge continues to be effective and binding, nevertheless its finality is put in jeopardy. Once the superior court has disposed of the lis before it either way - whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior court, tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the court, tribunal or the authority below. However, the doctrine is not of universal or unlimited application. The nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or which could have been laid shall have to be kept in view." 14. In the aforesaid case, while drawing distinction between the Special Leave to Appeal and hearing of the Appeal, it was held that when the Special Leave Petition is dismissed, the Supreme Court does not comment on the correctness of or otherwise of the order from which the leave to appeal is sought. What the Court means is that it does not consider it to be a case for exercising its jurisdiction under Article 136 of the Constitution of India. When the appeal is dismissed, the doctrine of merger applies though, it may be by a non-speaking order. 15. In Shyam Sundar Sarna v. Pannalal Jaiswal and others, (2005)1 Supreme Court Cases 436, the question raised was that if the appeal is filed against an ex parte judgment and decree, whether an application for setting aside the ex parte decree before the inferior Court would be maintainable. It was held that the Explanation to Order 9 Rule 13 of the CPC does not apply to the doctrine of the merger though in the absence of such Explanation, the decree would have mergd with the decree of the Appellate Court. It was held that the Explanation to Order 9 Rule 13 of the CPC does not apply to the doctrine of the merger though in the absence of such Explanation, the decree would have mergd with the decree of the Appellate Court. In the aforesaid case, the earlier judgment in Rani Chaudhury v. Lt. Col. Suraj Jit Choudhury, (1982)2 SCC 596 was examined. It was held that the dismissal of appeal, may be on any ground and the withdrawal of appeal, is also to be considered a dismissal of the appeal, but the same has been expressly exempted by the Explanation. It was held to the following effect : "On the scope of the Explanation, it was stated that the disposal of the appeal contemplated in the Explanation was not intended to mean or imply a disposal on merits resulting in the merger of the decree of the trial court with a decree, if any, of the appellate court on the disposal of the appeal. The disposal of the appeal may be on any ground and though the withdrawal of an appeal by an appellant is also to be considered a disposal of the appeal, the same has been expressly exempted by the Explanation. It was also observed that the legislative intent incorporated in the Explanation or Order 9 Rule 13 of the Code was to confine the defendant to a single course of action and to discourage the prolonging of the litigatior on the ex parte decree, namely, by preferring an application to the trial Court under Order 9 Rule 13 of the Code for setting aside the decree and by filing an appeal to a superior Court against it. If he did not withdraw the appeal filed by him or allowed the appeal to be disposed of on any other ground, he was denied the right to apply under Order 9 Rule 13 of the Code. The Court also clarified that by the introduction of the Explanation, the area of operation of the doctrine of merger was enormously extended. By virtue of the Explanation, the disposal of the appeal on any ground whatever, apart from its withdrawal, constituted sufficient reason for bringing the bar into operation." 16. The Court also clarified that by the introduction of the Explanation, the area of operation of the doctrine of merger was enormously extended. By virtue of the Explanation, the disposal of the appeal on any ground whatever, apart from its withdrawal, constituted sufficient reason for bringing the bar into operation." 16. In view of the above, we are of the opinion that though the withdrawal was not simpliciter, but if the same is considered as an unambiguous withdrawal, still such withdrawal of appeal would amount to merger of the order passed by the learned - Single Judge with the order passed by the Letters Patent Bench. Thus, the present appeal filed after the dismissal of the Letters Patent Appeal as also the Special Leave Petition, is nothing but an abuse of process of law. 17. Consequently, both the appeals are dismissed. Appeal dismissed.