RSA No.731 of 2004 (O&M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** RSA No.731 of 2004 (O&M) DATE OF DECISION: 10.08.2010 **** Gram Panchayat of village Mohan, Tehsil Dasuya, District Hoshiarpur through its Sarpanch Sh. Ram Parkash . . . . Appellant VS. Charan Singh and others . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: - Mr.Balbir Singh, Advocate for the appellant. Mr.B.R. Mahajan, Advocate for the respondents. **** RAKESH KUMAR JAIN J. (ORAL) This appeal is filed by defendant No.1-Gram Panchayat against the judgment and decree of the Courts below by which suit filed by the plaintiffs for declaration to the effect that they are joint owners in possession of the land in question has been decreed. The case set up by the plaintiffs is that suit land mentioned in head note A of the plaint is in the joint ownership of plaintiffs No.1 and 2 and defendants No.2 and 3, the suit land mentioned in head note B of the plaint is in the joint ownership of plaintiff No.3 to 7 and the suit land mentioned in head note C of the plaint is exclusively owned and possessed by plaintiff No.8. The suit land along with some other land was under the joint ownership of the proprietary body of the village RSA No.731 of 2004 (O&M) - 2 - which was partitioned amongst the proprietors of the village by order of the competent revenue authorities. Consequently, the suit land fell to the share of the plaintiffs and respondents No.2 and 3 and has been mutated accordingly. The Gram Panchayat had filed appeal against order of the partition dated 07.05.1985 passed by AC. Ist Grade, Dasuya before the Commissioner and Financial Commissioner, which has been dismissed. The Gram Panchayat also filed many applications before DDPO, Hoshiarpur which have been dismissed as infructuous. Despite various decision of the revenue/competent authorities, defendant No.1/Gram Panchayat creating mischief with the help of the political leaders and is asserting itself to be the owner of the land in question and is trying to interfere in possession of the plaintiffs. Hence, the suit was filed for declaration and injunction. Defendant No.1/Gram Panchayat filed separate written statement in which it was admitted that the suit land was jointly owned by the proprietary body, which was partitioned by order of A.C. Ist Dasuya on 7.5.1985 and possession was also delivered to the owners as per Kuras vide report No.421 dated 5.7.1985. The filing of the suit and appeal was also admitted but it was denied that the Gram Panchayat had ever disobeyed the order of the competent authority and created any mischief as alleged by the plaintiffs. Defendants No.2 & 3 filed their separate written statement, contested the suit on the preliminary objection that the Civil Court has no jurisdiction to try the present suit. On merits, it was alleged that defendant No.1 had filed the suit before the Collector, Hoshiarpur for eviction of plaintiff No.1 and defendant No.2 in which plaintiff No.1 and defendant No.2 were evicted vide order dated 30.10.1981. It was also asserted that the suit land is not liable to be partitioned, defendant No.1 is owner of the suit property and all other allegations mentioned in the plaint were denied. The RSA No.731 of 2004 (O&M) - 3 - plaintiff did not file replication. On the pleadings of the parties trial Court stuck issues on 02.3.1995. In order to prove their case, plaintiff Charan Singh examined himself as PW1, Baldev Singh as PW2, Ashwani Kumari Patwari as PW3 and after tendering some documents closed their evidence. Defendant No.1 did not produce his evidence. The learned trial Court, after examining the evidence, available on record, decreed the suit of the plaintiffs by its judgment and decree dated 15.9.1998. Aggrieved against the judgment and decree of the trial Court, appeal was filed by Piara Singh/defendant No.2 and Gram Panchayat/defendant No.1 on 28.2.2003. The said appeal was dismissed by the Addl. District Judge (Ad hoc), Hoshiparpur vide his judgment and decree dated 13.10.2003, in which following observations were made: “Ex.P-4 is the order of partition and this order of partition has become final and the suit land has been allotted to different share holders and they have been put in possession of that land in execution in favour of the share holders who are proprietors in the village and therefore learned trial Court has rightly determined all the issues in favour of the plaintiff and against the respondents. The present appeal has been filed by Charan Singh to whom the land has also been allotted. It is also filed by Gram Panchayat but Gram Panchayat could RSA No.731 of 2004 (O&M) - 4 - not challenge this judgment because it cannot go beyond the written statement filed by Gram Panchayat. Gram Panchayat in the written statement has not denied the fact that the suit land has been owned by the proprietors of the village and the partition of that land by the Ac Ist Grade, Dasuya has also been admitted and delivery of possession has also been admitted vide report Rojnamcha No.421 dt. 5.7.1985. Therefore, now it does not lie in the mouth of the Gram Panchayat to say that the proprietary body of the village has been wrongly shown to be owner of the suit land. There is another fact which affects the merits of this appeal. Respondent No.2 Bhajan Singh No.4, Karam Singh and No.8 Iqbal Singh have died before the institution of this appeal. In AIR 1990 Rajasthan Page 17 Lal Vs. Khan and others it has been held as under: - Where in an ejectment case, the Presiding Officer of the first appellate Court in the main body of the judgment recited that ‘A’ (one of the landlords) had died and his legal representatives have been brought on record yet in the title of the judgment, he did not take care to ensure that their names were included and even in the operative part of the judgment, he purported to pass a decree in favour of ‘A’ RSA No.731 of 2004 (O&M) - 5 - and thereafter the tenant’s counsel fully knowing that ‘A’ had died and his legal representatives had been brought on record, filed an appeal against ‘A’, the appeal being filed against a dead person, would be incompetent and liable to be dismissed. Since the appellant himself has been negligent and oblivious in the matter, he cannot claim the indulgence of the Court by saying he should not be punished for the mistake of the Presiding Officer. The fact remains that second appeal had been filed against a dead person without bringing his legal representatives on record without the period of limitation. The doctrine “vigilanti bus, et no dormentibus, jura subvenient” is attracted to the present case. Law helps those who are vigilant and not those who sleep to put in other words, law comes to the rescue of such persons who are themselves vigilant about their rights.” Still aggrieved, defendant No.1 alone has preferred the present appeal. During the pendency of the appeal, plaintiffs through their counsel have filed Civil Misc. Application Nos.8234 & 8235-C-2010. Vide Civil Misc. Application No.8234-C-2010, a prayer was made for placing on record death certificates (Annexures R1 to R3) pertaining to RSA No.731 of 2004 (O&M) - 6 - Bhajan Singh, Karamjit Singh and Iqbal Singh, who were the plaintiffs No.2, 4 & 8 in the suit. Vide Civil Misc. Application No.8235-C-2010, plaintiffs/respondents have prayed for dismissal of the appeal having been filed against dead persons. Notice in the application was issued. Reply is filed in the Court and copy thereof has been handed over to the counsel for the applicants/respondents. Learned counsel for the appellant has failed to deny the facts mentioned in the application that the aforesaid three plaintiffs namely, plaintiffs No.2, 4 & 8 were already dead even before the First Appellate Court but still appeal was filed against them without impleading their Legal Representatives and the appeal has been filed by the Gram Panchayat through its Sarpanch, who generally has the information of the well being of the residents of the village. In any case, the present appeal has also been filed against the aforesaid three dead persons. The act and conduct of the Sarpanch of the Gram Panchayat through whom the present appeal has been filed is deplorable as the appeal against dead persons is not maintainable. Even if, this aspect is kept aside for a moment, the appeal otherwise has no merit in view of the finding recorded by the First Appellate Court which has been reproduced hereinabove. Appellant cannot rely upon an order of eviction dated 30.10.1981 over and above the order of AC. Ist Grade, Dasuya which was passed on 7.5.1985 and has become final because the appeal and revision filed by the appellant were dismissed by the competent authorities. Once the property has been partitioned and is no more a part of shamlat deh, the said land does not vest in Gram Panchayat even for the purpose of its management in terms of Section18 of The East Punjab Holdings (Consolidation and Prevention of fragmentation) Act, 1948. Thus, no question of law much less substantial is raised by the RSA No.731 of 2004 (O&M) - 7 - learned counsel for the appellant as envisaged under Section 100 of the Code of Civil Procedure, 1908 (for short ‘CPC’) and as such the present appeal is devoid of any merit and is hereby dismissed with costs throughout. (RAKESH KUMAR JAIN) 10.08.2010 JUDGE Vivek