R.S.A.No. 1428 of 2009 1
In the High Court of Punjab and Haryana at Chandigarh
R.S.A.No. 1428 of 2009
Date of decision: 31.7. 2009
Maghar Singh
......Appellant
Versus
The Municipal Committee Cheeka and others
.......Respondents
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Ms.Monisha Gandhi, Advocate,
for the appellant.
Mr.Jagdish Manchanda, Advocate,
for the respondents.
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SABINA, J.
Plaintiff-respondent No.1filed a suit for possession and
mesne profits and the same was decreed by the Additional Civil
Judge (Sr.Divn.) Guhla vide judgment and decree dated 26.8.2008.
In appeal, the said judgment and decree were upheld by the
Additional District Judge, Kaithal vide judgment and decree dated
17.12.2008. Hence, the present appeal by the defendant.
Brief facts of the case, as noticed by the lower appellate
R.S.A.No. 1428 of 2009 2
Court in para Nos. 2 and 3 of its judgment, are as under:-
“2. Tersely a suit for possession of land
measuring 19 kanals 17 marlas as fully detailed in para
No.1 of the plaint was filed by plaintiff-respondent against
the present appellant. A prayer for recovery of mesne
profits w.e.f. 1.1.1998 was also made in the said suit.
The Municipal Committee claimed ownership on the suit
property on the basis of mutation No.1247 dated
11.6.1996 and it was contended that right of the plaintiff
was protected by Hon’ble Punjab and Haryana High
Court, Chandigarh in Civil Misc. No.5957-C of 1998 and
Regular Second Appeal No.3811 of 1997. The present
appellant was stated to be in unauthorised and illegal
possession of the suit property and request was made to
the appellant to hand over the vacant possession of the
suit property to the Municipal Committee and on failure of
the said person to comply with the request of the
Municipal Committee, the necessity arose for filing the
present suit. The suit was filed through Sh.Sat Pal Singla
and Sh.Ujjagar Singh, who were duly authorised by
Municipal Committee, Cheeka to file and pursue the suit
vide resolution No.2 dated 20.7.1999.
3. On notice being given, the suit was contested
by the appellant by submitting that the suit was not
R.S.A.No. 1428 of 2009 3maintainable and the plaintiff was having no locus standi
or cause of action to file the suit. The jurisdiction of the
trial Court was disputed as far as the relief of mesne
profits is concerned. It was contended that the suit land
is agricultural land and no suit for recovery of mesne
profits is triable by civil court and under the provisions of
Punjab Tenancy Act, the jurisdiction solely vests in the
revenue courts. The plaintiff was termed guilty of
concealment of material facts from the court and it was
put forth that the present appellant is the owner of the suit
land and his ownership rights were conferred in a civil
court decree dated 29.1.1974 passed in civil suit No.78 of
1974 by the court of Sh.R.S.Garg, the then learned Sub
Judge IInd Class, Kaithal in suit titled as “Tek Singh etc.
vs. Gram Panchayat Sailimpur”. The said decree dated
29.1.1974 was challenged by some of the inhabitants of
the village in civil suit No.478 of 1991 titled as “Ram
Chander etc. vs. Tek Singh etc.” and the said suit was
decreed by the Court of Sh.N.D.Achint, the then learned
Sub Judge, Guhla vide judgment and decree dated
2.11.1992 and decree dated 29.1.1974 passed by the
Court of Sh.R.S.Garg was set aside. The judgment and
decree dated 2.11.1992 passed in civil suit No.478 of
1991 was set aside in appeal by the court of
R.S.A.No. 1428 of 2009 4Sh.S.P.Singh, the then learned Additional District Judge,
Kaithal, vide judgment and decree dated 25.10.1997 and
thereafter the plaintiffs of suit No.478 of 1991 preferred
Regular Second Appeal No. 3811 of 1997 before the
Hon’ble High Court of Punjab and Haryana, but the said
RSA was withdrawn by the plaintiffs as is evident from the
order dated 24.3.1999. It was put forth that the decree
dated 29.1.1974 thus, remained intact and has not been
set aside by any court of competent jurisdiction and the
present appellant continues to be the owner of the suit
property. It was also submitted that the suit has not been
filed through a proper and authorised person. It was
denied if the possession of the appellant over the suit
property was unauthorised and a prayer was made for
dismissal of the suit.”
On the pleadings of the parties, following issues were
framed by the trial Court:-
“1. Whether the plaintiff is entitled to a decree for
possession as prayed for ? OPP
2. Whether the plaintiff is entitled to a decree of
recovery of mesne profits from the plaintiff as prayed for?
OPP
3. Whether the suit is filed within limitation?
OPD
R.S.A.No. 1428 of 2009 54. Whether the suit of the plaintiff is not
maintainable in the present form? OPD
5. Relief. “
The lis involved in the present case is as to whether the
defendant had become owner of the suit land by virtue of civil Court
decree dated 29.1.1974 or Municipal Committee, Cheeka was owner
of the suit land?
The Municipal Committee, Cheeka filed a suit for
possession and mesne profits. Both the Courts below have held in
favour of the Municipal Committee. Learned counsel for the appellant
has vehemently argued that the suit of the Committee was liable to
be dismissed as the appellant was owner in possession of the suit
property on the basis of civil Court decree dated 29.1.1974. The
appellant had filed a suit seeking declaration that he was co-owner in
possession of the land measuring 2173 kanals 12 marlas with other
co-owners. The said suit was decreed by Sub Judge (IInd Class),
Kaithal and the decree was upheld upto this Court. Gram Panchayat
was no more in possession of the suit land on 11.6.1996 when
Municipal Committee came into being.
Learned counsel for the respondents, on the other hand,
has submitted that the Municipal Committee was owner of the suit
land. The said right of the Committee was upheld by this Court in
CM No.5957-C of 1998. The defendants in the said suit were
directed to deposit the arrears of mesne profits w.e.f. 1.1.1998. To
R.S.A.No. 1428 of 2009 6avoid payment, the regular second appeal was itself got dismissed
as withdrawn.
Admittedly, Ram Chand and others filed a civil suit
No.478/91 against Tek Singh and others challenging the correctness
of decree dated 29.1.1974 on the following grounds:-
i) The Gram Panchayat in the said suit was
sued through its Sarpanch, Bachan Singh, who
happened to be the father of defendant No.1 in that
suit.
ii) One Phulla the then Panch of Gram
Panchayat, Saleempur instead of contesting the suit
colluded with the DH (the defendants in this suit) and
filed written statement admitting the claim of the
plaintiffs in the said suit.
iii) The said Phulla had no authority to make a
statement depriving the Gram Panchayat of the land
and as such the impugned decree passed in civil suit
No.78 of 1974 on 29.1.1974 is null and void and does
not pass at title to the defendants (in this suit).
iv) One Sadhu son of Shri Devatia who is also
beneficiar under the impugned decree was expied on
2.4.1978 and his estate is now being represented by
defendant No. 27 to 33.”
The said persons had filed the suit in a representative
R.S.A.No. 1428 of 2009 7capacity as the Gram Panchayat, thus, was not challenging the said
decree. The said suit was decreed by Additional Senior Sub Judge,
Guhla vide judgment and decree dated 2.11.1992. However,
Additional District Judge, Kaithal set aside the said judgment and
decree vide judgment and decree dated 25.10.1997, inter alia, on
the ground that the Gram Panchayat Saleempur had become extinct
in the year 1982 and the Municipal Committee, Cheeka had come
into being when the suit in question was filed.
RSA No.3811 of 1997 was filed challenging the judgment
and decree passed by learned Additional District Judge. In the said
appeal, the following order was passed on 28.7.1998:-
” C.M. No. 725-C of 1998 under Order 1 Rule
10 CPC on behalf of Municipal committee, Cheeka to be
impleaded as a party to the appeal to be heard with the
main case.
Admitted.
Order dated 22.12.1997 whereby parties were
directed to maintain status quo regarding possession as
well as nature of the property, is modified to the extent
that the trial court shall determine within three months
from the date of appearance before the trial Court rent of
the land/premises in occupation of the appellants and on
determination within three months, thereafter, appellants
shall deposit the amount including the arrears w.e.f.
R.S.A.No. 1428 of 2009 81.1.1998 with the Municipal committee, Cheeka who
would invest the same in FDR in a nationalised bank
carrying maximum interest and the FDR shall be kept in
trust. The question of disbursement of the amount so
deposited in the FDR along with interest thereon shall be
decided at the time of the decision of the appeal. In case
the appellants fail to deposit the amount so determined,
the say granted in their favour shall stand vacated.
Appeal be set down for final disposal within
two years.”
In CM No.875-C of 1999 in the said RSA No.3811 of
1997, the following order was passed on 24.2.1999:-
” In this application prayer made is to dismiss
RSA No.3811 of 1997 as withdrawn. It is, however, made
clear that withdrawal of the appeal shall not affect the
right of the Municipal Committee, Cheeka, District Kaithal
to proceed against the appellants in accordance with
law.”
There is no dispute that initially the land vested in Gram
Panchayat, Salimpur and thereafter, vide notification Ex.P-2, the
entire land of Village Salimpur was included in Municipal limits of
Cheeka Municipality. The case of the defendant is that the Gram
Panchayat had ceased to be owner of the suit property in the year
1994 on the basis of civil Court decree dated 29.1.1974. In fact 2173
R.S.A.No. 1428 of 2009 9kanals 12 marlas of land was transferred by the Gram Panchayat to
various inhabitants of the village vide Civil Court decree dated
29.1.1974.
Admittedly, the suit was filed by the inhabitants of the
village and Sarpanch Bachan Singh, who was father of one of the
plaintiffs in that suit, appeared and admitted the claim of the plaintiffs
in that suit.
Rule 16 of the Punjab Village Common Lands
(Regulation)Rules, 1964 reads as under :-
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 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) 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 authorisation by the
R.S.A.No. 1428 of 2009 10Panchayat by a resolution in writing passed in a
meeting specially called for the 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.”
The resolution was passed by the Gram Panchayat on
21.1.1974, whereas, the civil suit was filed on 28.1.1974 and the suit
was decreed on the very next day i.e. 29.1.1974 as the Sarpanch,
who appeared on behalf of the Gram Panchayat admitted the claim
of the plaintiffs in that suit. The said facts in themselves are
sufficient to establish collusion between the plaintiffs and the
Sarpanch, who had appeared on behalf of the Gram Panchayat. In
normal circumstances, resolution would have been passed by the
Gram Panchayat after the filing of the suit authorising the Sarpanch
to contest the case. The said decree was, in fact, not a consent
decree but it was a collusive decree.
The argument raised by learned counsel for the appellant
is that the decree passed on the basis of consent was as valid and
as binding as based on contest. May be, that as broad proposition
one may agree to it but where a consent goes against public policy, it
would not absolve the Court from its duty. The parties cannot
achieve what is contrary to law and a decree merely based on such
consent is ineffective, null and void. It is a settled proposition of law
that where a decree is passed on the basis of consent, which is not
R.S.A.No. 1428 of 2009 11lawful then the Court should not enforce the decree in execution
proceedings. The fact that the resolution was passed by the Gram
Panchayat before the filing of the suit on 28.1.1978 itself was
sufficient for the Court to hold that the resolution could not be said to
be a proper authorisation by the Panchayat allowing the Sarpanch to
admit the claim of the plaintiff suing the Panchayat.
A consent decree is passed in a case where the
defendant admits the claim of the plaintiff and on the basis of
admission consent decree is passed. However, in a case where
defendant admits the claim of the plaintiff to defeat the right/interest
of another, such a decree is a collusive decree. The suit land was
public property and Sarpanch without proper authority could not give
his consent. The land was owned by Gram Panchayat.
The plaintiffs and the Sarpanch had colluded with each
other to defeat the right/interest of the Gram Panchayat and hence,
the said decree could not be said to be a consent decree but the
decree had been obtained by the plaintiffs in collusion with the
Sarpanch. Such a collusive decree was not even required to be
challenged by the Gram Panchayat by filing an independent suit
The Apex Court in Gram Panchayat of village Naulakha
v. Ujagar Singh 2000 (4) RCR (Civil) 749, held that a judgment
obtained by collusion was not necessary to be challenged by way of
filing an independent suit and it could be contended in a later suit by
way of defence that the earlier decree was result of collusion. Para
R.S.A.No. 1428 of 2009 12Nos. 6 to 8 are reproduced herein below:-
“6. It appears from commentary in Sarkar’s
Evidence Act on Section 44 that it is the view of the
Allahabad, Calcutta, Patna, Bombay High Courts that
before such a contention is raised in the latter suit or
proceeding, it is not necessary to file an independent suit.
The passage from Sarkar’s Evidence which refers to
various decisions reads as follows:-
“Under Section 44 a party can, in a collateral proceeding
in which fraud may be set up as a defence, show that a
decree or order obtained by the opposite party against
him was passed by a Court without jurisdiction or was
obtained by fraud or collusion and it is not necessary to
bring an independent suit for setting it aside.
Thus, in order to contend in a latter suit or proceeding
that an earlier judgment was obtained by collusion, it is
not necessary to file an independent suit as stated in
Jagar Ram’s case for a declaration as to its collusive
nature or for setting it aside, as a condition precedent. In
our opinion, the above cases cited in Sarkar’s
Commentary are correctly decided. We do not agree with
the decision of the Full Bench of the Punjab and Haryana
High Court in Jagar Ram’s case. The Full Bench has not
referred to Section 44 of the Evidence Act nor to any
R.S.A.No. 1428 of 2009 13other precedents of other Courts or to any basic legal
principle.
7. The law in England also appears to be the
same, that no independent suit is necessary. In Spencer-
Bower and Turner on Res judicata it is stated that there
are exceptions to the principle of res judicata. If the party
setting up res judicata as an estoppel has alleged all the
elements of an estoppel (i.e. ingredients of res judicata), it
is still open to the latter (the opposite party) to defeat the
estoppel by setting up and establishing certain affirmative
answers. Of these there are four main classes- fraud,
cross-estoppel, contract and public policy. The author
clearly says that no active proceedings for ‘rescission’ of
the earlier judgment are necessary. They state as
follows:-
“The avoidance of a judicial act on the ground of
fraud or collusion is effected not only by active
proceedings for rescission but also by setting up
the fraud as a defence to an action on the
decision, or as an answer to any case which,
whether by way of estoppel or otherwise,
depends for its success on the decision being
treated as incontrovertible.”
R.S.A.No. 1428 of 2009 14
Thus, the law is well settled that no independent suit as
a condition precedent is necessary.
8. Collusion, say Spencer-Bower and Turner is
essentially play acting by two or more persons for one
common purpose- a concerted performance of a fabula
disguised as a judicium an unreal and fictious presence
of a contest by confederates whose game is the same.
As stated by Lord Selborne L/C in Baswell v. Coaks,
1894(6) Rep. 167, there is no judge; but a person
divested with the ensigns of a judicial office, is
misemployed in listening to a fictitious cause proposed
to him, there is no party litigating no real interest
brought into question and to use the words of a very
sensible civilian on this point, fabula non judicium, hoc
est; in scena, non in foro, res agitur. That, in our view,
is the true meaning of the word ‘ collusion’ as applied
to a judicial proceeding.
In these circumstances, the Courts below had rightly
decreed the suit of the Municipal Committee.
No substantial question of law arises in this regular
second appeal. Accordingly, the same is dismissed.
(SABINA)
JUDGE
July 31, 2009
anita