R.S.A.No. 62 of 2008 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 62 of 2008 (O&M) Date of decision: 17.9. 2009 Parsa ......Appellant Versus Municipal Committee Cheeka .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Sushil Gautam, Advocate, for the appellant . Mr.Jagdish Manchanda, Advocate, for the respondent. **** SABINA, J. Plaintiff-respondent filed 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 11.10.2006. In appeal, the said judgment and decree were upheld by the District Judge, Kaithal vide judgment and decree dated 15.11.2007. Hence, the present appeal by the defendant. Brief facts of the case, as noticed by the lower appellate R.S.A.No. 62 of 2008 (O&M) 2 Court in para Nos. 2 and 3 of its judgment, are as under:- “2. This suit was filed on the averments that Municipal Committee, Cheeka is the owner of the suit land and the defendant is in unauthorised possession of the same. The plaintiff being the owner is entitled to possession of the land in question and is also entitled to mesne profits. As the defendant had refused to hand over the possession of the suit land and to pay the arrears of mesne profits, so this suit was filed seeking a decree for possession and for mesne profits w.e.f. 1.1.1998. 3. On the other hand, defendant in his written statement pleaded that municipal committee has nothing to do with the ownership of the land. The mutation, if any, in favour of plaintiff does not confer any title on the municipal committee. The predecessors- in- interest of defendant have been in continuous possession of the suit land for more than 12 years. The said possession has been exclusive, peaceful, open, notorious and in assertion of the right of ownership and without payment of anything to anyone and in denial of the right of ownership of the whole world including the plaintiff. The said possession is recorded as unauthorized in the revenue records for a period exceeding 12 years and hence the R.S.A.No. 62 of 2008 (O&M) 3 ownership of the land vests in the defendant. It was also pleaded that the plaint had not been signed and verified by a duly authorized person and that the civil court had no jurisdiction. So the defendant prayed 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 the possession sought ? OPP 2. Whether the plaintiff is entitled to mesne profits if any? OPP 3. Whether the suit of plaintiff firm is filed by the authorized person? OPD 4. Whether the Civil Court has no jurisdiction to try the present suit? OPD 5. Whether the suit has been filed beyond limitation and defendant become owner of the suit land by way of adverse possession as alleged in written statement? OPD 5-A 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? R.S.A.No. 62 of 2008 (O&M) 4 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 Ex.D-1. Learned counsel for the respondent, on the other hand, has submitted that the Municipal Committee was owner of the suit land. There is no dispute that initially the land vested in Gram Panchayat, Saleempur and thereafter, vide notification dated 2.1.1996 Ex.P-2, the entire land of Village Saleempur 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 kanals 12 marlas of land was transferred by the Gram Panchayat to various inhabitants of the village vide Civil Court decree dated 29.1.1974. 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 :- R.S.A.No. 62 of 2008 (O&M) 5 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 Panchayat 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 R.S.A.No. 62 of 2008 (O&M) 6 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 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 lawful 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 28.1.1974 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. R.S.A.No. 62 of 2008 (O&M) 7 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 Nos. 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 R.S.A.No. 62 of 2008 (O&M) 8 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 other 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 R.S.A.No. 62 of 2008 (O&M) 9 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.” 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 R.S.A.No. 62 of 2008 (O&M) 10 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 September 17, 2009 anita