RSA No.5259 of 2003 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.5259 of 2003 Date of Decision: 26.8.2009 Surjan Singh and another .....Appellants Vs. Amar Nath and others ....Respondents .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr. Onkar Singh, Advocate for the appellants. Mr. R.P.S. Ahluwalia, Advocate for respondents no.1 to 8. Mr. S.N. Saini, Advocate for respondents no.9. .... RAJIVE BHALLA, J This order shall dispose of four appeals namely; RSA Nos.5259, 5260 of 2003 and 5261 of 2003 and 2875 of 2004, as they involve adjudication of identical disputes. The facts have been taken from RSA No.5259 of 2003. The defendants/appellants challenge judgements and decrees dated 20.1.2000 and 28.5.2003, passed by the Civil Judge (Junior Division), Rajpura and the Additional District Judge,(Adhoc)Patiala, decreeing the suit filed by the respondents and dismissing their appeals, respectively. The plaintiffs/respondents filed a suit, under order 1 Rule 8 of the Code of Civil Procedure for declaration that the decree dated 19.10.1982, passed in Civil Suit No.763 of 30.8.1982 is illegal, void and RSA No.5259 of 2003 2 not binding upon the plaintiffs and other co-sharers, as it has been obtained by perpetuating a fraud. The plaintiffs/respondents pleaded that the suit land is “Shamlat deh Maqbuza Malkan” i.e. the common property of the proprietary body of the village. Despite the joint ownership and possession of all co- sharers, the appellants filed a collusive suit against one Tara Chand S/o Siri Ram, claiming conclusive ownership of the suit land, on the basis of a family settlement. The Civil Judge (Junior Division) Rajpura, decreed the suit and declared that the appellants are owners in possession of the suit land. The decree passed in favour of the appellants is null and void, as the suit land is the joint property of the proprietary body and no co-sharer, much less the defendants/appellants can appropriate the suit land to their exclusive ownership or possession. The decree dated 19.10.1982 obtained by the defendants/appellants by concealing the nature of the property is, therefore, null and void. In response to the pleadings in the plaint, the appellants filed a reply, denying the averments in the plaint and asserted that the respondents are neither co-sharers nor in possession of the suit land. The appellants have become owners by way of a family settlement and,therefore, the judgement and decree dated 19.10.1982 is legal and valid. On the basis of the pleadings, the learned trial court framed the following issues :- “1. Whether Surjan Singh, defendant has no right or title in the land in dispute ? OPP. 2. Whether the decree dated 19.10.982 is null and void and ineffective and not binding on the plaintiffs and other co-sharers ? OPP. RSA No.5259 of 2003 3 3. Whether the suit is legally maintainable ? OPP. 4. Whether the plaintiffs have no locus-standi to sue ? OPP. 5. Whether the land in suit is shamilat deh and the plaintiff and other co-sharers are the proprietors and co- owners of the land ? OPP 6. Whether the suit is bad for non-joinder of necessary parties ? OPD. 7. Whether the plaintiffs are entitled to the declaration prayed for ? OPP. 8. Relief.” After considering the pleadings, the evidence adduced and the arguments addressed, the trial court decreed the suit by holding that as the land vests in the proprietary body, the judgement and decree dated 19.10.1982, is null and void. It was also held that while obtaining the aforementioned judgement and decree the appellants concealed that the land is the common undivided property of the proprietary body. It was also held that the decree is invalid for want of registration. Aggrieved by the aforementioned judgement and decree, the appellants filed an appeal. Vide judgement and decree dated 28.5.2003, the Additional Distt. Judge (Adhoc), Patiala dismissed the appeal and affirmed the findings recorded by the trial court. Counsel for the appellants submits that admittedly the appellants are proprietors and co-sharers in exclusive possession. They were, therefore, entitled to effect a settlement with Tara Chand etc. and RSA No.5259 of 2003 4 obtain a decree of their ownership. The findings recorded by the courts below that this decree required registration is, therefore, void. It is submitted that in view of the numerous instances of sale and exchange of shamilat land, by other proprietors, the impugned judgement and decree could not be held to be invalid. It is submitted that in view of the errors committed by the courts below, the following substantial questions of law arise for consideration :- “1. Whether the proprietors of the village have a right,title or interest in the Shamilat Deh of the village or not ? 2. Whether the decree can be set aside even if a party has an antecedent title in the suit property ? 3. Whether the Decree passed on admission of the antecedent title/family settlement/partition requires Registration ? 4. Whether there is no limitation to challenge the Decree ? 5. Whether the judgements and decrees of both the courts below are perverse and illegal, and as a result of misreading and non-reading of evidence and law ?” Counsel for the respondents submits that the findings recorded by the courts below are legal and valid and therefore, do not call for any interference. It is submitted that the land is admittedly described, in the revenue record, as “Shamilat Deh Hasab-e-Rasad Khewat” and is, therefore, the joint ownership of the proprietary body of village Rauni. An RSA No.5259 of 2003 5 individual co-sharer or a group of co-sharers cannot suffer a consent decree declaring themselves to be exclusive owners. It is argued that in the absence of any partition of the shamilat land, Tara Chand has no right to suffer a collusive decree in favour of the appellants or for the appellants to allege that they had become owners by way of family settlement. I have heard learned counsel for the parties and perused the impugned judgements and decrees. Before proceeding to adjudicate the dispute, it would be appropriate to mention that the suit land is described in the revenue record as “Shamilat Deh Hasab-e-Rasad Khewat”. Admittedly there is no Gram Panchayat in village Rauni and, therefore, the Shamilat land continues to vest in the proprietors. The expression “Shamilat Deh Hasab-e-Rasad Khewat” reflects joint ownership of the proprietary body of a village. In the absence of any partition, amongst the proprietors, no one proprietor can allege or assert possessory or proprietary rights to the exclusion of the other proprietors. The appellants filed a suit against one Tara Chand, alleging that they are owners in possession of the suit land on account of a family settlement. As Tara Chand admitted their claim, a civil court passed a judgement and decree declaring them as owners in possession. While obtaining this decree, the appellants and Tara Chand concealed that the land is “Shamilat Deh Hasab-e-Rasad Khewat”. The appellants could not allege, assert or claim exclusive title, to the exclusion of rights of other co-sharers. The land in dispute is the joint ownership of the proprietors of village Rauni as reflected in the list of proprietors Ex.P-1. The mere fact that the appellants are in possession of a particular portion of the suit land, does not entitle them to claim exclusive ownership or possession, in the absence of RSA No.5259 of 2003 6 any proof of partition of the suit land. The judgement and decree dated 19.10.1982 was procured by perpetuating a fraud by concealing the fact that the suit land is shamilat deh. The courts below, therefore, rightly held that the judgement and decree dated 19.10.1982 is a nullity. In so far as the questions of law framed by counsel for the appellants, the first question has to be answered in the affirmative by holding that where shamilat land does not vest in a Gram Panchayat it continues to be the joint ownership of the proprietors of a village, in accordance with their holdings. This answer,however, would not confer any benefit upon the appellants as at best they can claim, to be co-owners in joint possession. The second question is answered by holding that though parties to the decree dated 19.10.1982 are co-sharers in joint possession with antecedent title they cannot set up sole and exclusive title in themselves to the exclusion of other co-sharers without partition. The third question is whether a decree passed on admission of antecedent title requires registration. This question in my considered opinion is superfluous, as the appellants had no right to set up exclusive title in themselves to the exclusion of the other members of the proprietary body. The last question relates to limitation. The respondents being co-sharers, filed a suit on the basis of title and, therefore, the suit cannot be dismissed on the ground of limitation. In view of what has been stated herein above, the appeals are dismissed with no order as to costs. 26.8.2009 (RAJIVE BHALLA) GS JUDGE