R.S.A.No.1152 of 2006 1
In the High Court of Punjab and Haryana at Chandigarh
R.S.A.No.1152 of 2006
Date of decision: 22.10.2009
Sat Pal Singh
......Appellant
Versus
Sardara and others
.......Respondents
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr. R.M.Ravi, Advocate,
for the appellant.
Mr.Neeraj Sharma, Advocate,
for Mr.Sandeep Goyal, Advocate,
for respondent No.4.
****
SABINA, J.
Plaintiffs-respondents filed a suit for declaration and
permanent injunction, which was decreed by the Civil Judge
(Sr.Divn.), Kaithal vide judgment and decree dated 27.7.2002. In
appeal filed by defendant No.1, the said judgment and decree were
upheld by the Additional District Judge, Kaithal vide judgment and
decree dated 30.11.2005. Hence, the present appeal by defendant
R.S.A.No.1152 of 2006 2
No.1.
Brief facts of the case, as noticed by the lower appellate
Court in para Nos. 2 and 3 of its judgment, are as under:-
” Brief facts need to be narrated here:- It is the
case of the plaintiffs that agricultural land measuring 5020
kls. 1 marlas representing 100401/123183 share of the
total land measuring 5751 kls 11 mls comprised in khewat
No.590 khatoni No.679 to 861 as per jamabandi for the
year 1971-72 (attached with plaint) is situated within the
revenue estate of village Nauch Tehsil and Distt. Kaithal
and the same land vested in Jumla Malkan Hasab Rasab
Zare Khewat according to judgment and decree passed in
civil suit No.1063 of 1966 decided on 15.3.1967 and the
amended civil suit No.35 of 1968 decided on 7.1.69 vide
copy of mutation No.1423 from Gram Panchayat Nauch
tehsil and distt. Kaithal; that the agricultural land
measuring 5632 kls 18 mls representing 99681/123183
share of the total land measuring 5725 kls 3 mls vide
mutation no.2360 of 21.8.1992 revested in Gram
Panchayat Nauch according to the Notification No.5491
of 15.5.1992 from Jumla Mustarka Malkan Hasab Rasab
Zare Khewat; that the above said notification was struck
down on 18.12.1994 by the Punjab and Haryana High
Court and as such the above said land mentioned in para
R.S.A.No.1152 of 2006 3No.2 of the plaint, again revested in Jumla Mustarka
Malkan Hasab Rasab Zare Khewat; that the proprietors of
the Jumla Mustarka Malkan land mentioned in para No.1
of the plaint are large and numerous and as such the
present suit is being filed by plaintiffs no.1 to 4 in their
representative capacity under Order 1 Rule 8 of the CPC
on behalf of all the proprietors of Jumla Malkan Land and
they have no interest adverse to that of the proprietary
body of the Jumla Malkan and their interest same is
common; that the defendant No.1 filed a civil suit no.81 of
1973 on 24.2.1973 in the civil court claiming his title in the
land measuring 36 kls 0 mls representing 720/123183
share out of the land mentioned in para No.1 of the plaint
owned and possessed by the proprietary body and the
same suit was decreed on 26.3.1973 in case Sat Pal
Singh versus Churia etc. and a mutation in respect of the
said decree was sanctioned on 7.6.1977 which is
numbering 1621 and the said judgment and decree
passed in civil suit No.81 of 1973 passed on 26.3.1973 in
case of Sat Pal Singh versus Churia etc. and the mutation
No.1621 sanctioning on 7.6.1977 is null and void, illegal,
nonest and not binding over the rights of the plaintiff on
the ground that defendant No.1 was not and is not the
owner in possession of any portion of the land mentioned
R.S.A.No.1152 of 2006 4in para No.1 of the plaint and that the civil suit No.81 of
1973 was filed by defendant No.1 against defendants
No.2 to 4 and the predecessor-in-interest named Khem
Chand of defendant No.5 to 9 in representative capacity
under Order 1 Rule 8 CPC and no due permission was
granted to defendant No.1 to file that suit in
representative capacity and the defendants of civil suit
No.81/1973 were also not duly served which was
essential in law; that the judgment and decree passed in
civil suit no.81 of 1973 was a result of collusion in
between defendant No.1 (of this suit) and defendants
No.2 to 4 and one Khem chand the predecessor in
interest of the remaining defendants (of this suit); that the
impugned judgment and decree passed in civil suit No.81
of 1973 is nothing but a result of fraud played by the
defendants upon the plaintiffs and upon the court as well
that the impugned judgment and decree passed in civil
suit No.81 of 1973 is nothing but a result of
misrepresentation and concealment of facts before the
court; that defendant No.1 claims title for the first time
under the impugned judgment and decree passed in civil
suit and the decree has not been duly stamped and
registered and as such, the unstamped and unregistered
impugned decree confers no right, or interest upon
R.S.A.No.1152 of 2006 5defendant No.1. The value of the land of impugned
decree is nore than Rs.100/- and it goes against public
policy if the same is not registered; that under the garb of
the impugned judgment and decree passed on 26.3.1973
in civil suit noi.81 of 1973, defendant No.1 is bent upon to
get the suit land partitioned in collusion with some co-
sharers of the Jumla Malkan land and wants to get the
possession of his alleged share by way of partition of
which defendant No.1 has got no right, title or interest
whatsoever, hence, the present suit.
3. Defendants contested the suit by way of filing
written statement. Several preliminary objections
regarding locus-standi; their representative capacity
under Order 1 Rule 8 CPC; limitation; maintainability;
estoppel etc. were taken. On merits, each plea taken in
the plaint was controverted. It was alleged that the
plaintiffs and proforma defendants had the knowledge of
the suit and decree in question and the defendants of the
previous suit made statement in the court and the
mutation of the suit land on the basis of said decree has
also been attested publically and each and every one of
the proprietors had knowledge of the same. It was further
pleaded that defendant No.1 is owner in possession of
the suit land i.e. land measuring 36 kanal 0 mls.
R.S.A.No.1152 of 2006 6representing 720/123183 share out of the total land
mentioned in para no.1 of the plaint. That the plaintiffs or
any proprietors of the village are not in possession of this
land which is exclusively in possession of defendant No.1.
It was further pleaded that suit was filed by defendant
No.1 with regard to his share 36 kls 0 mls which was
owned and exclusively possession by defendant No.1 as
his share and the said decree is within the four corners of
law, legal and binding on the plaintiffs and others and
there is no just ground for setting aside the same and
defendant No.1 is the owner in possession of the land
measuring 36 kls 0 mls as his share of the total land of
the proprietary body. With these pleas dismissal of the
suit was prayed for.”
On the pleadings of the parties, following issues were
framed by the trial Court:-
“1. Whether the judgment and decree dated
26.3.1973 passed in civil suit No.81 of 1973 is illegal null
and void as per the averments taken in the plaint? OPP
2. Whether the suit is within time? OPP
3. Whether the plaintiff has no locus standi to file
the present suit? OPD
4. Whether the plaintiff has no cause of action ?
OPD
R.S.A.No.1152 of 2006 7
5. Whether the plaintiffs are estopped from filing
the present suit by their own act and conduct? OPD
6. Whether the plaintiffs have waived their rights
if any to file the present suit? OPD
7. Whether the suit is not maintainable in the
present form? OPD
8. Whether the suit is bad for non-joinder of the
necessary parties? OPD
9. Relief. “
After hearing learned counsel for the parties, I am of the
opinion that the present appeal is devoid of any merit and deserves
to be dismissed.
In the present case the plaintiffs had filed a suit for
declaration that the judgment and decree dated 26.3.1973 passed in
Civil Suit No.81 of 1973 were null and void. The said judgment and
decree were challenged on the ground of fraud and that decree was
not registered one. In the plaint in the said suit, plaintiff Satpal minor
claimed himself to be a co-sharer and proprietor in the shamlat deh
land. At that time, father of Satpal i.e. Man Singh was alive and was
having land holding in his favour. It has been noticed by the learned
Additional District Judge that Satpal, while appearing in the witness
box as PW-2, admitted in his cross-examination that he was not
owner of any other land apart from the suit land. In these
circumstances, Satpal could not be a proprietor of Jumla Mustarkan
R.S.A.No.1152 of 2006 8
land during the life time of his father Man Singh. Judgment Ex.P-3
was passed in civil suit filed by propritors of the village against Gram
Panchayat and the suit of the proprietors was decreed. Plaintiff
Satpal was not a proprietor as per the list attached thereto. Hence,
the plaintiff could not get the judgment and decree passed in civil
Suit No.1063 of 1996 as not binding on his rights merely on the
admission made by the defendant in that case as the plaintiff was not
a propritor of the suit land.
It has been observed by the learned Additional District
Judge in the impugned judgment that a perusal of the written
statement in the said suit revealed that defendants No. 1 to 4 had
filed the written statement in individual capacity and not in a
representative capacity. In these circumstances, the Courts below
rightly held that the said judgement was a result of fraud and
collusion. Plaintiff Satpal in collusion with Churia, Hari Singh, Hari
Ram and Khem Chand got the impugned decree Ex.P-8 dated
26.3.1973 in his favour. The land belonged to the Gram Panchayat
and in order to usurp the said land, the collusive decree was got
passed in favour of plaintiff Satpal. Such a decree was not binding
on the rights of the present plaintiffs. The decree in question was not
a registered decree. Since plaintiff Satpal in the said suit did not
have any pre-existing right, the decree was required to be
compulsorily registered. Since the impunged decree dated
26.3.1973 passed in civil suit No.81 of 1973 was not a registered
R.S.A.No.1152 of 2006 9
one, the same was rightly held to be illegal, null and void. Since, the
impugned decree was obtained by fraud and collusion, the suit of
the plaintiffs was rightly held to be not barred by limitation. In these
circumstances, the Courts below had rightly decreed the suit of the
plaintiffs.
No substantial question of law arises in this regular
second appeal. Accordingly, the same is dismissed.
(SABINA)
JUDGE
October 22, 2009
anita