R.S.A.No. 1317 of 2008 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 1317 of 2008 Date of decision: 31.7. 2009 Bohti and others ......Appellants Versus The Municipal Committee Cheeka .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Ms.Monisha Gandhi, Advocate, for the appellants. 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 29.7.2005. 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 defendants. Brief facts of the case, as noticed by the lower appellate R.S.A.No. 1317 of 2008 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 defendants are 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 defendants 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, it was pleaded by the defendants that municipal committee has nothing to do with the ownership of the suit land. The alleged mutation No.1247 is illegal, null and void and a waste paper. It was further pleaded that predecessors in interest of defendants were co-owners in possession of the total land measuring 2173 kanals 12 marlas, along with other co-owners, as per civil court decree dated 29.1.1974 passed in civil suit No.78 of 1974. The said decree has been confirmed upto the Hon'ble High Court. The Gram Panchayat itself was no longer the owner in possession of the suit land on 11.6.1996 the alleged date of attestation of the illegal mutation No.1247. So it was asserted that R.S.A.No. 1317 of 2008 3 defendants were the owners of the suit land and were in authorised possession and plaintiff was not entitled to obtain any decree for possession. It was also denied that plaintiff had any right to obtain a decree for mesne profits of the suit property. So defendants 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 the plaintiff is filed by the authorised person? OPD 4. Whether the civil Court has no jurisdiction to try the present suit? OPD 5. Whether the suit has been filed beyond the limitation? OPD 6. Relief. ” The lis involved in the present case is as to whether the defendants 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. The Municipal Committee, Cheeka filed a suit for R.S.A.No. 1317 of 2008 4 possession and mesne profits. Both the Courts below have held in favour of the Municipal Committee. Learned counsel for the appellants has vehemently argued that the suit of the Committee was liable to be dismissed as the appellants were owner in possession of the suit property on the basis of civil Court decree dated 29.1.1974. The predecessors-in-interest of the appellants had filed a suit seeking declaration that they were co-owner in possession of the land measuring 2173 kanals 12 marlas with other co-owners. The said suit was decreed by Sub Judge (IInd Class), Kaithal and the decree was upheld upto this Court. Gram Panchayat was no more in possession of the suit land on 11.6.1996 when Municipal Committee came into being. Learned counsel for the respondent, on the other hand, has submitted that the Municipal Committee was owner of the suit land. The said right of the Committee was upheld by this Court in CM No.5957-C of 1998. The defendants in the said suit were directed to deposit the arrears of mesne profits w.e.f. 1.1.1998. To avoid payment, the regular second appeal was itself got dismissed as withdrawn. Admittedly, Ram Chand and others filed a civil suit No.478/91 against Tek Singh and others challenging the correctness of decree dated 29.1.1974 on the following grounds:- i) The Gram Panchayat in the said suit was sued through its Sarpanch, Bachan Singh, who R.S.A.No. 1317 of 2008 5 happened to be the father of defendant No.1 in that suit. ii) One Phulla the then Panch of Gram Panchayat, Saleempur instead of contesting the suit colluded with the DH (the defendants in this suit) and filed written statement admitting the claim of the plaintiffs in the said suit. iii) The said Phulla had no authority to make a statement depriving the Gram Panchayat of the land and as such the impugned decree passed in civil suit No.78 of 1974 on 29.1.1974 is null and void and does not pass at title to the defendants (in this suit). iv) One Sadhu son of Shri Devatia who is also beneficiar under the impugned decree expired on 2.4.1978 and his estate is now being represented by defendant No. 27 to 33.” The said persons had filed the suit in a representative capacity as the Gram Panchayat had not challenged the said decree. The said suit was decreed by Additional Senior Sub Judge, Guhla vide judgment and decree dated 2.11.1992. However, Additional District Judge, Kaithal set aside the said judgment and decree vide judgment and decree dated 25.10.1997, inter alia, on the ground that the Gram Panchayat Saleempur had become extinct in the year 1982 and the Municipal Committee, Cheeka had come R.S.A.No. 1317 of 2008 6 into being when the suit in question was filed. RSA No.3811 of 1997 was filed challenging the judgment and decree passed by learned Additional District Judge. In the said appeal, the following order was passed on 28.7.1998:- “ C.M. No. 725-C of 1998 under Order 1 Rule 10 CPC on behalf of Municipal committee, Cheeka to be impleaded as a party to the appeal to be heard with the main case. Admitted. Order dated 22.12.1997 whereby parties were directed to maintain status quo regarding possession as well as nature of the property, is modified to the extent that the trial court shall determine within three months from the date of appearance before the trial Court rent of the land/premises in occupation of the appellants and on determination within three months, thereafter, appellants shall deposit the amount including the arrears w.e.f. 1.1.1998 with the Municipal committee, Cheeka who would invest the same in FDR in a nationalised bank carrying maximum interest and the FDR shall be kept in trust. The question of disbursement of the amount so deposited in the FDR along with interest thereon shall be decided at the time of the decision of the appeal. In case the appellants fail to deposit the amount so determined, R.S.A.No. 1317 of 2008 7 the stay granted in their favour shall stand vacated. Appeal be set down for final disposal within two years.” In CM No.875-C of 1999 in the said RSA No.3811 of 1997, the following order was passed on 24.2.1999:- “ In this application prayer made is to dismiss RSA No.3811 of 1997 as withdrawn. It is, however, made clear that withdrawal of the appeal shall not affect the right of the Municipal Committee, Cheeka, District Kaithal to proceed against the appellants in accordance with law.” There is no dispute that initially the land vested in Gram Panchayat, Salimpur and thereafter, vide notification Ex.P-2, the entire land of Village Salimpur was included in Municipal limits of Cheeka Municipality. The case of the defendants is that the Gram Panchayat had ceased to be owner of the suit property in the year 1974 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. Admittedly, 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. R.S.A.No. 1317 of 2008 8 Rule 16 of the Punjab Village Common Lands (Regulation)Rules, 1964 reads as under :- 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 R.S.A.No. 1317 of 2008 9 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 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 argument raised by learned counsel for the appellants is that the decree passed on the basis of consent was as valid and as binding as based on contest. May be, that as broad proposition one may agree to it but where a consent goes against public policy, it would not absolve the Court from its duty. 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 28.1.1978 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. R.S.A.No. 1317 of 2008 10 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. 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. R.S.A.No. 1317 of 2008 11 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 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 R.S.A.No. 1317 of 2008 12 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 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. R.S.A.No. 1317 of 2008 13 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 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 July 31, 2009 anita