R.S.A.No. 798 of 2008(O&M) {1}
In the High Court of Punjab and Haryana at Chandigarh
R.S.A.No. 798 of 2008(O&M)
Date of Decision:July 30, 2009
Col. Balwinder Singh(Retd.) and others
---Appellants
versus
Gram Panchayat, Bhanri and another
---Respondents
Coram: HON'BLE MRS. JUSTICE SABINA
***
Present: Mr.Arun Palli, Senior Advocate,
with Mr. Kanwar Goyal, Advocate
for the appellants
None for the caveator-respondent.
***
SABINA J.
Plaintiff-Gram Panchayat had filed a suit for declaration.
Civil Judge ( Junior Division), Patiala, vide judgment and decree dated
26.3.2007decreed the suit of the plaintiff. Aggrieved by the same,
defendant No. 1 and defendants Nos. 2 to 4 preferred appeals and the
same were dismissed by Additional District Judge, Patiala vide judgment
R.S.A.No. 798 of 2008(O&M) {2}
and decree dated 9.10.2007, Hence, the present appeal by the defendants
No. 2 to 4.
The facts of the case as noticed by the learned Additional
District Judge, in paras 2 to 4 of its judgment read as under:-
“The facts of the case are that Gram Panchayat through its
Sarpanch Darshan Singh has filed a suit for declaration that the
judgment and decree dated 26.7.1996 passed by Sh. Arun Veer
Vashista, the then learned Civil Judge (Junior Division),
Patiala, in suit No. 560 dated 22.12.1995, decided on 26.7.96,
titled as Harchand Singh versus Gram Panchayat is based on
fraud and collusion with the said Sarpanch Pal Singh and
defendant Harchand Singh and are, therefore, void, ab-initio
and are liable to be set aside and do not effect the rights of the
plaintiff. It is added that Col. Balwinder Singh and Pushpinder
Kaur became party by filing application under Order 1 Rule 10
CPC. The defendant obtained an order from the Collector,
Patiala on 28.1.1991, under Section 11 of the Punjab Village
Common Lands (Regulations)Act, by concealment of facts and
also succeeded in getting the mutation sanctioned on the basis
of the said order. The order dated 28.1.91 was challenged by
the gram panchayat before the Commissioner (I.R.D.), Punjab
Chandigarh to set aside the same. The defendant challenged
the order of the Commissioner before the Hon’ble High Court,
which upheld the order of the Commissioner, vide its order
dated 31.7.1995. Thereafter, by concealment of factum of
previous litigation, Harchand Singh filed suit in the court of Sh.
R.S.A.No. 798 of 2008(O&M) {3}
Arun Veer Vashista on 22.12.95, which decreed on 26.7.1996.
During the pendency of said suit, the defendant transferred the
suit property vide sale deeds dated 27.12.95, 10.1.96, 8.2.96
and lastly on 20.5.96 in favour of Balwinder Singh and others
and handed over the possession to them. The defendant was in
collusion with the then Sarpanch Lal Singh, who was elected in
January, 1993. The order passed by the Commissioner and the
Hon’ble High court was well within the knowledge of the then
Sarpanch and the present defendants, but they did not disclose
the same and did not produce the same before the court of Sh.
Arun Veer Vashista, the then learned Civil Judge ( Junior
Division), Patiala, which led to the passing of judgment and
decree dated 26.7.96. The decree is based on fraud and
collusion with the then Sarpanch and the defendant and is
liable to be set aside and does not effects the rights of the
plaintiff gram panchayat to proceed against the defendant and
his successors Balwinder Singh etc. to whom the land was
transferred during the pendency of the said suit. The plaintiff
came to know about the judgment and decree, when Balwinder
Singh and others produced the same before the A.C.Ist Grade,
Nabha in mutation proceedings in September, 1999 and
thereafter, after obtaining the copies thereof, the present was
filed.
Defendant No. 1 in his written statement took the
preliminary objections that the suit of the plaintiff is false and
frivolous; the suit land has already been sold to Balwinder
R.S.A.No. 798 of 2008(O&M) {4}Singh and others and they are in actual possession; the suit is
bad for non joinder of necessary parties and is time barred and
is not maintainable. It is also barred by the principle of res
judicata and that no proper court fees has been affixed. The
plaintiff has not come to the court with clean hands and
concealed the material facts from the court. It was stated that
order dated 28.1.91 was obtained by concealment of material
facts. It was denied that the mutation was sanctioned on the
basis of the said order. The order of the Collector was not set
aside by the Commissioner. The writ petition was filed by the
gram panchayat and dismissed on 7.6.96. The said judgments
have become final. Now the gram panchayat is estopped from
filing the present suit. Now the gram panchayat is estopped
from filing the present suit. Balwinder Singh etc. have not
been impleaded as party. The collusion with the then Sarpanch
Pal Singh is denied. It is stated that gram Panchayat filed writ
petition No. 8622 of 1996 before Hon’ble the High Court, but
the same was dismissed on 7.6.96. It was denied that the
decree is the result of fraud and collusion, as alleged.
Defendants No. 2 to 4 in the written statement took
the preliminary objections that the plaintiff has not come to the
court with clean hands and the defendants are entitled to special
costs. They claimed that they are bona fide purchaser and
protected under Section 41 of the Transfer of Property Act.
The fraud and collusion have been denied. The suit is alleged
to be time barred.”
R.S.A.No. 798 of 2008(O&M) {5}
On the pleadings of the parties, on 2.11.2000 trial court framed
the following issues:-
“(1) Whether the plaintiff is entitled for the declaration
to the effect that the judgment and decree dated 26.7.1996
passed by the court of Sh. Arun Veer Vashista, PCS, Civil
Judge, Sr. Division, Patiala, in suit No. 560 of dated 22.12.95
suit titled as Harchand Singh Vs. Gram Panchayat is based
upon fraud and is null and void ? OPP
(2)Whether the suit is false and frivolous? OPD
(3)Whether the suit is non joinder for necessary parties as
defendant Balwinder Singh already sold the land? OPP
(4)Whether the suit is barred by limitation? OPD
(5)Whether the suit is hit by res judicata? OPD
(6)Whether no proper court fee has been paid? OPD
(7)Whether plaintiff has not come to the court with clean
hands? OPD
The following additional issues were also framed by the learned
trial court on 7.6.2002:-
(7-A)Whether the suit is not maintainable in the present
form?OPD
(7-B)Whether the plaintiff is estopped by its own act and
conduct from filing the present suit? OPD
(7-C) Whether the defendants No. 2 to 4 are the bona fide
purchasers for valuable consideration, if so, its effect? OPD
After hearing learned counsel for the appellants, I am of the
opinion that the present appeal deserves to be dismissed.
R.S.A.No. 798 of 2008(O&M) {6}
Plaintiff -Gram Panchayat had challenged the decree dated
26.7.1996 passed in a suit titled as Harchand Singh vs. Gram Panchayat on
the ground of fraud. The said decree was obtained in a suit filed by
Harchand Singh as the same was not contested by the then Sarpanch. Gram
Panchayat was held to be owner of the property in dispute in earlier
litigation up to this Court. Harchand Singh got an order under Section 11
of the Punjab Village Common Lands (Regulation)Act, 1961 dated
28.1.1991. The said order was challenged by the Gram Panchayat and was
set aside and the order passed by the Commissioner, (I.R.D.) Punjab,
Chandigarh was upheld by this Court vide order dated 31.7.1995. However,
when the decree, in question was passed on 26.7.1996, the said facts were
not brought to the notice of the court. The arguments raised by learned
senior counsel for the appellants that the appellants were bona fide
purchasers as Harchand Singh was duly reflected as owner of the suit
property in the revenue record is without any force as Harchand Singh could
not have passed a better title to the purchaser. Harchand Singh was not
owner of the property in dispute and the same was owned by the Gram
Panchayat. Courts below had rightly held that the decree in question dated
26.7.1996 was a result of fraud and the appellants could not be described
as bona fide purchasers.
No substantial question of law arises in this appeal.
Accordingly, this appeal is dismissed.
(SABINA)
JUDGE
July 30, 2009
PARAMJIT