R.S.A No. 2307 of 1982 ::1::
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
R.S.A No. 2307 of 1982
Date of decision : August 27, 2009
Gram Panchayat of village Khanna Majra and another,
...... Appellant (s)
v.
Jagan Nath and another,
...... Respondent(s)
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CORAM : HON’BLE MR.JUSTICE AJAY TEWARI
***
Present : Mr. M.S.Rakkar, Sr. Advocate with
Mr. P.S.Baath, Advocate
for the appellants.
Mr. Vipin K.Bali, Advocate
for respondent No.1.
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1. Whether Reporters of Local Newspapers may be allowed to see the
judgment ?
2. To be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest ?
***
AJAY TEWARI, J (Oral)
This appeal has been filed against the judgment of the lower
appellate Court reversing that of the trial Court and thereby dismissing the
suit of the plaintiff/appellant No.1-Gram Panchayat.
The question of law proposed by counsel for the appellants is
whether even if it is held that the authorization in favour of Ishar Dass
(respondent No.2) included the power to compromise, still the Gram
Panchayat had a right to accept the claim of respondent No.1 over the land
which belonged to the Gram Panchayat in view of rule 16 of the Punjab
R.S.A No. 2307 of 1982 ::2::
Village Common Lands (Regulation) Rules, 1964 (for short “the Rules”).
The facts are that on 21.11.1967 respondent No.1 filed a suit
claiming that he was owner in possession of land measuring 90 kanals 17
marlas allegedly wrongly shown in the ownership of the Gram Panchayat.
The Gram Panchayat authorized one of the Panches, namely, Ishar Dass
(respondent No.2) to defend the suit on its behalf. However, the said Ishar
Dass instead of defending the suit accepted the claim of respondent No.1
and consequently the suit was decreed on 18.1.1969. No action was,
however, taken by respondent No.1 in furtherance of the said decree for
declaration till 1973 when he tried to stall the annual auction which was
being conducted by the appellant-Gram Panchayat. Immediately thereafter
the Gram Panchayat filed the instant suit.
The trial Court decreed the suit holding that neither Ishar Dass
was given the authority to accept the claim of respondent No.1 nor in law
could the Gram Panchayat accept such a claim. The lower appellate Court,
however, held that once the authority to conduct `Pairvi’ was granted to
Ishar Dass, it must be deemed that he had the right to even accept the claim.
However, the lower appellate Court has not at all considered the statutory
position. In this context rule 16 of the Rules (notified under Section 15(2)
(h) of the Punjab Village Common Lands (Regulation) Act, 1961) reads
thus :-
” 1.- 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 Sarpanch or any other
panch to contest any suit filed by or against the
R.S.A No. 2307 of 1982 ::3::
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) The actual expenditure incurred in the defence of
the case shall be chargeable to the funds of the
Panchayat.
(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.”
A perusal of the above rule clearly reveals that it was not for
the Panchayat to disprove that the authorization in favour of Ishar Dass did
not extend to admission of claim of respondent No.1 but it was for
respondent No.1 to aver and prove by positive evidence that in fact the
authorization given by the Panchayat included the competence to admit the
claim. In this context it may be noticed that in the written statement filed to
the instant suit no such plea was taken. Rather, in para 9 (1) it was
mentioned as follows :-
” 9(1) In reply to sub-para (1) of para 9 of the plaint, it is
submitted that Shri Ishar Dass was authorised to conduct
R.S.A No. 2307 of 1982 ::4::
the suit on behalf of the plaintiff, but it is emphatically
denied that he had colluded with the answering defendant
in getting the decree passed in his favour. The decree
has been rightly passed in respect of the suit property.”
In the absence of any positive plea or any evidence in this
regard, it could not be held that the authorization in favour of Ishar Dass
extended to the extent of competence to admit the claim of respondent No.1.
Consequently, holding the above question in favour of the
appellants, this appeal is allowed, and the judgment and decree of the lower
appellate Court is set aside while that of the trial Court is restored.
( AJAY TEWARI ) August 27, 2009. JUDGE `kk'