R.S.A.No.2245 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision : 21.07.2009 R.S.A. No.2245 of 2006 Ram Saran ...Appellant Versus Randhir etc. ...Respondents R.S.A.No.2244 of 2006 Ram Saran ...Appellant Versus Telu etc. ...Respondents Present: Mr. Rajinder Goyal, Advocate, for the appellant, in both the appeals. None for the respondents. CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA HEMANT GUPTA, J. This order shall dispose of R.S.A.No.2245 of 2006 arising out of Civil Suit No.80 of 2004 in which the appellant is defendant No.17 and R.S.A.No.2244 of 2006 arising out of Civil Suit No.908 of 1995 filed by the appellants arising out of a suit for injunction. However, for facility of reference, the facts are taken from R.S.A.No.2245 of 2006. The plaintiff-respondents have filed suit for declaration in respect of agricultural land measuring 125 kanals situated in village R.S.A.No.2245 of 2006 2 Hajwana, challenging judgment and decree dated 29.1.1968 and judgment and decree dated 27.4.1995 extinguishing rights of Gram Panchayat, Hajwana, over the land in dispute. The plaintiffs allged that such decrees are null & void and without jurisdiction, therefore, ineffective qua the rights of Gram Panchayat. It was pleaded that none of defendant Nos.1 to 28 or their predecessor-in-interest were in possession of suit land either on 26.1.1950 or any time prior to the said date, but a suit bearing No.518 of 1967 was instituted by Thandi Ram and others against Gram Sabha, Hajwana, which was decreed on the statement of counsel for the defendants on 29.1.1968. The plaintiffs alleged that the said judgment and decree is null & void as it is result of collusion between the parties as Gram Sabha, Hajwana, or its Gram Panchayat or its executive body never passed a resolution either authorizing its Sarpanch Risal Singh or its counsel Sh. Balbir Singh, to admit the claim of the plaintiffs. Still further, the said decree was kept under cover and not produced before the Revenue Authorities for change of mutation. Even though such decree was passed, the plaintiffs again filed a suit which led to judgment and decree dated 27.4.1995. It was alleged that the said suit was filed against Gram Sabha, though the Gram Sabha ceased to be legal entity in terms of Section 5 of Haryana Act No.71 of 1971 and that the Civil Court had no jurisdiction to determine whether particular land vest or does not vest with the Gram Panchayat. In the written statement on behalf of defendant Nos.1 to 28, a plea was raised that the suit is hopelessly time barred and that Shankar, Panch was authorized by the resolution to make a statement admitting the R.S.A.No.2245 of 2006 3 claim of the plaintiffs. It was denied that there was any collusion whatsoever and the decrees were rightly passed and the Civil Court will not sit in appeal over the decree passed on 29.1.1968. The learned trial Court found that there was no authority with the Panch to make a statement on behalf of the Gram Panchayat. It was also found that the defendants have not produced any document, which could show that they were in possession prior to 1950. Since, the fraud was committed in respect of property of Panchayat, it was found that there is no limitation to challenge such a fraudulent decree. Consequently, the judgments and decrees dated 29.1.1968 and 27.4.1995 were found to be illegal or null & void. The learned first Appellate Court dismissed the appeal holding that the aforesaid judgments and decrees are without jurisdiction. Still aggrieved, defendant No.17 is in second appeal. Learned counsel for the appellant has vehemently argued that on 29.1.1968, when the first decree was passed in favour of the plaintiffs therein, the Civil Court has jurisdiction to entertain the suit in respect of land described as 'shamlat deh' within the meaning of Section 2(g) of the Punjab Village Common Lands (Regulation) Act, 1961. Since on that day, the Civil Court has jurisdiction to entertain the suit, therefore, the first Appellate Court has gravely erred in law in holding that decree is without jurisdiction. It is also argued that challenge to such decree has been made after more than 30 years, therefore, the suit suffers from gross delay and latches. The said argument raised by learned counsel for the appellant is not tenable. Even if, it is assumed that the Civil Court had the R.S.A.No.2245 of 2006 4 jurisdiction to entertain the suit in respect of shamlat deh as defined under the Act in the year 1968, but the fact remains that such decree has been suffered by Shankar one of the Panch of Gram Sabha. There is no resolution produced on record, which authorizes Shankar to admit claim of the plaintiffs. In the absence of any authorization in favour of Shankar to admit claim of the plaintiffs in the earlier suit, the decree is without consent of juristic entity. A Panch does not represent Gram Sabha. He is only a member of such institution. Therefore, such decree can be said to be an act of collusion alone. Still further, the claim of the plaintiffs in the aforesaid suit was that they are in possession since prior to 26.1.1950. But the plaintiffs had not proved their possession prior to 26.1.1950 in any proceedings. Therefore, the plaintiffs were not entitled to any declaration of their title from the Civil Court in the year 1968, when the ingredients for such declaration are not satisfied and when the authorization on behalf of the defendants is not proved. Admittedly, the decree dated 29.1.1968 was not given a fact in the revenue record till 1995-96. therefore, the decree obtained, but kept in secrecy will not start limitation against the plaintiffs in the present case. The decree was obtained by fraud and kept under secret cover, therefore, such fraudulent act can be avoided when such fraud comes to the notice. Therefore, the plea of limitation is misconceived and not tenable. Such decree is, thus, patently an act of fraud, affecting the rights of inhabitants of the village, as such land vested with the Panchayat. On 27.4.1995, when another decree was obtained, the Civil Court had no jurisdiction in view of Section 13 of the Act substituted by Haryana Act No.34 of 1974 and by Haryana Act No.2 of 1981. In terms R.S.A.No.2245 of 2006 5 of Section 13 of the Act as it existed in the year 1995, the Civil Court does not have any jurisdiction to entertain or adjudicate upon any question whether any land or other immovable property is or is not a shamlat deh. Therefore, on the date of the aforesaid decree, the jurisdiction of the Civil Court was barred and, thus, the said decree was without jurisdiction. In view of the discussion above and the findings recorded by the Courts below, I do not find that any substantial question of law arises for consideration by this Court. Dismissed. July 21, 2009 (HEMANT GUPTA) Vimal JUDGE