LPA No. 1622 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH LPA No. 1622 of 2011 Date of decision: 05.09.2011 Ram Saroop @ Ram Swarup ….. APPELLANT VERSUS Financial Commissioner and Principal Secretary. Haryana Development & Panchayat Department and others ….. RESPONDENTS CORAM:HON’BLE MR. JUSTICE JASBIR SINGH HON’BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. Anurag Jain, Advocate, for the appellant. *** Augustine George Masih, J. In this appeal, challenge is to the judgment of the learned Single Judge dated 16.08.2011 passed in CWP No. 6170 of 2011, vide which the writ petition preferred by the appellant assailing the orders dated 09.03.2011, 29.01.2010 and 04.08.2009 passed by the Financial Commissioner, Commissioner, Hisar Division and Collector, Bhiwani respectively, was dismissed, wherein the application preferred by the appellant under Section 13-A of the Punjab Village Common Lands LPA No. 1622 of 2011 2 (Regulation) Act, 1961 (hereinafter referred to as 'the 1961 Act') as applicable to the State of Haryana, was dismissed. Counsel for the appellant contends that the findings recorded by the Revenue Authorities as also by this Court that the petition under Section 13-A of the 1961 Act is barred by the principle of res-judicata as earlier application preferred by the Gram Panchayat, Village Kari Aadu, Tehsil Charkhi Dadri, District Bhiwani (hereinafter referred to as 'Gram Panchayat') was allowed on the ground that proceedings under Section 7 of the 1961 Act are based on summary procedure, whereas for deciding an application under Section 13-A of the 1961 Act, the procedure for deciding the suits, as laid down in the Code of Civil Procedure, 1908, is to be followed. This, he contends, on the basis of Sub-Section (2) of Section 13- A of the 1961 Act. His submission is that the proviso to Section 13-A, reliance whereof has been placed in the impugned orders, is totally misplaced as the procedure envisaged under Section 7 (3) of the 1961 Act was not followed while deciding the application of the Gram Panchayat under Section 7 and no finding was given with regard to the question of title of the land in dispute. He further contends that the land in question is in possession of the appellant and prior to him, his forefathers, which is apparent from the Jamabandi from the year 1928 onwards. He contends that the disputed land does not fall within the definition of Shamlat Deh, as provided under Section 2 (g) of the 1961 Act in the light of the fact that the appellant, through his forefathers, was in cultivating possession prior to 26.01.1950 and was excluded by Clause (viii) of Section 2 (g) of the 1961 Act. He, on this basis, contends that the impugned judgment and the orders passed by the Revenue Authorities cannot be sustained and deserve to be set aside and the application under Section 13-A of the 1961 Act preferred by the appellants allowed. LPA No. 1622 of 2011 3 We have heard the counsel for the appellant and have gone through the records of the case. The case has a checkered history and, therefore, reference to the facts would be beneficial. A petition under Section 7 of the 1961 Act was preferred by the Gram Panchayat on 29.03.1995 for eviction of the appellant and proforma respondents No. 6 to 12. The same was contested by the appellants along with others by taking a specific plea in para 4 of their written statement that the Gram Panchayat was not the owner of the land in question because the land was in cultivating possession of the appellants and the Gram Panchayat has no concern whatsoever. They had become the owners of the land and are in possession of the land much prior to the year 1928. The Gram Panchayat and the appellants led their evidence before the Assistant Collector, Ist Grade, Charkhi Dadri. On consideration of the same, vide order dated 27.09.2000, eviction of the appellant and proforma respondents was ordered. They preferred an appeal before the Collector, Bhiwani, which was dismissed on 11.12.2000 and thereafter, a revision petition before the Commissioner, which also received the same fate vide order dated 01.05.2003. These orders were challenged by the appellant and proforma respondents before this Court in CWP No. 19211 of 2004 titled as Ram Saroop and others vs. State of Haryana and others, wherein it was the claim of the appellant and proforma respondents that they are owners in possession of the land measuring 88 Kanals 5 Marlas comprised in Khewat No. 69/67, Khatauni No. 83 and they have been in cultivating possession of the land from time immemorial of their forefathers till date. This was reflected in the Jamabandi of the year 1928 A.D. and the entries in the column of ownership were recorded as Shamlat Deh, Hasab Rasab Raqba Khewat. It LPA No. 1622 of 2011 4 was alleged that the said entries showed the ownership of this Khewat as joint and Surja son of Kheta, the predecessor-in-interest of the petitioners was shown as owner in possession of the land as co-sharer of the village in proportion to his share in the joint land. This possession was repeatedly reflected in the jamabandi for the years 1936-37, 1940-41, 1944-45, 1952- 53, 1956-57, 1960-61, 1967-68, 1972-73 and 1977-78. The consolidation in the village Kari Aadu took place in the year 1980 and during this consolidation of holdings, the land was shown as Shamlat Deh and the possession continued with the appellant and proforma respondents, which is reflected in the jamabandi prepared immediately after consolidation. The claim of the appellant and the proforma respondents that they were the owners of the land and also were in possession was the ground taken specifically by them before this Court. These contentions were duly considered by a Division Bench of this Court and the writ petition was dismissed vide order dated 07.07.2006, wherein this Court, on this aspect, had held as follows:- In the case in hand the term revenue record records `Shamilat Deh Hasab Rasad Raqba Khewat.' With the use of the expression `Raqba Khewat' it is evident that the share of the proprietors in the Shamilat Deh land is to the extent of the share of their holdings in the Khewat. Besides, it is not the case of the petitioners that the land has been partitioned amongst the holders of the land according to their share in the holding in the Khewat. Section 2(g) as has been noticed is in two parts. The first part of Section 2(g) relates to land which is included in Shamilat Deh and the second part is LPA No. 1622 of 2011 5 that which is excluded from Shamilat Deh. In terms of Clause (iii) in the second part which relates to exclusion of land from Shamilat Deh, it has been provided that the land which has been partitioned and brought under cultivation by individual land owners before 26.1.1950 would not be included in Shamilat Deh. It is not even the case of the petitioners that the land in question has ever been partitioned, which may bring their case in the said exclusion clause. It is also not the case of the petitioners that they are in individual cultivating possession of the Shamilat land of co-sharers not being in excess of their respective share in Shamilat Deh on or before 26.1.1950 so as to come within the exclusion provided by clause (viii) of Section 2(g) of the 1961 Act. The expression `individual cultivating possession' and `respective shares' were considered in the case of Ram Bahu and others v. Gram Panchayat (Gram Sabha) of Village Indri, 1971 PLJ 487, wherein it was observed as follows : “The use of the words and expressions `individual', `cultivating possession' and `respective shares' would suggest that a co- sharer or a small body of co-sharers should be in separate cultivating possession of lands on individual basis before they can claim the benefit of the exception. There is further condition attached that the separate cultivating possession of an individual co- sharer or small body of co-sharers should not exceed his or their due share in the Shamilat land. There is no question of the entire proprietary body having its `respective share' in the shamilat. The proprietary body would be LPA No. 1622 of 2011 6 owning the entire Shamilat on a joint basis and cannot be said to have only a share in the Shamilat. There is no separate cultivating possession of the proprietary body on individual basis in the capacity of an individual co-sharer or a small body of co-sharers which could claim to be distinct and separate from the proprietary body so that he or they could have their respective shares in the Shamilat. The plaintiff-appellants are not shown to have been in cultivating possession of any separate parcels of the Shamilat land as co-sharers at the crucial time and there is nothing to stop the Shamilat land from vesting in the defendant-Panchayat on the coming into force of the Act.” The judgment in Ram Bahu's case (supra) was affirmed by a Division Bench of this Court in Tel Ram v. Gram Sabha Manakpur, 1976 PLJ 628 wherein it was also observed that the land if it falls under any of the clauses of Section 2(g), it is sufficient to bring the land within the definition of the word Shamilat Deh and the requirement of clause (1) is applicable to the said land and no further reference to any other clause is necessary to treat the land as Shamilat Deh. Therefore, the land having been described as Shamilat Deh, it would come within the ambit of clause (1) of Section 2(g) of the 1961 Act and vests in the Gram Panchayat by virtue of Section 4(1) thereof. Another aspect which is discernible from the Jamabandi for the year 1928 that has been placed on record is that the land has been recorded in the column of cultivation to LPA No. 1622 of 2011 7 be self-cultivation of the persons mentioned in possession in the column of ownership below the entry Shamilat Deh Hasab Rasad Raqba Khewat. However, the classification of the land is recorded primarily as Rasoli Barani and Mud Barani and Banjar Quadim. Such land, therefore, cannot be said to be in cultivating possession of the petitioners as the nature of the land is recorded as Rasoli Barani and Mud Barani or Banjar Barani. This position with regard to the nature of the land continues upto the Jamabandi for the year 1977-78 attached as Annexure P.8 in Ram Sarup's case (CWP No.19211 of 2004). Therefore, the stand of the petitioner that they are in cultivating possession of the land clearly stands belied when the land is recorded as Barani. The land which remains fallow and uncultivated for successive period of eight harvests is recorded as Banjar Quadim. The classification of the land as referred to above which is lying uncultivated dislodges the stand of the petitioners that they or their forefathers have been in cultivating possession of the same for the last 75 years as is the stand sought to be made out by them. Therefore, the stand of the petitioner that they are entitled to protection or the benefit of Section 4(3)(ii) of the 1961 Act which relates to the rights of the persons who were in cultivating possession of Shamilat Deh is also without any substance. The other contention raised by the learned counsel for the petitioners that the respondent Gram Panchayat has no right or title over the disputed land is also without any merit as the land in the revenue record has been described as Shamilat LPA No. 1622 of 2011 8 Deh and in terms of Section 4(1) of the 1961 Act it vests in the Gram Panchayat.” A perusal of the above leaves no manner of doubt that the Court had given a specific finding that the land in question is Shamlat Deh as defined in Section 2 (g) of the 1961 Act and it has also been specifically held that the appellant and the proforma respondents had no right or title over the land and the contention of the counsel for the appellants was repelled by this Court with regard to the assertion that the respondent- Gram Panchayat had no right or title over the disputed land. In the light of the above, the contention of the counsel for the appellant that the question of title was not decided by the Court in the petition preferred by the Gram Panchayat under Section 7 of the 1961 Act, cannot be accepted. The next contention of the counsel for the appellant that the proceedings initiated by the Gram Panchayat against the appellant and the proforma respondents under Section 7 of the 1961 Act being summary in nature and thus would not attract the principle of res-judicata in a petition preferred under Section 13-A of the 1961 Act as this petition has to be decided as a civil suit, for which reliance has been placed by him on a Division Bench judgment of this Court in the case of Tara Chand and Fateh Singh vs. Gram Panchayat and Gram Sabha of village Atail and others, 1979 PLR 1, also cannot be accepted in the light of the provisions of Section 13-A of the 1961 Act, which reads as follows:- “13-A Adjudication.- (1) Any person or in the case of a Panchayat, either the Panchayat or its Gram Sachiv, the concerned Block Development and Panchayat officer, Social Education and Panchayat Officer or any other officer duly LPA No. 1622 of 2011 9 authorized by the State Government in this behalf, claiming right, title or interest in any land or other immovable property vested or deemed to have been vested in the Panchayat under this Act, may file a suit for adjudication, whether such land or other immovable property is shamlat deh or not and whether any land or other immovable property or any right, title or interest therein vests or does not vest in a Panchayat under this Act, in the Court of the Collector, having jurisdiction in the area wherein such land or other immovable property is situated. Provided that no suit shall lie under this Section in respect of the land or other immovable property, which is or which has been the subject matter of the proceedings under Section 7 of this Act under which the question of title has been raised and decided or under adjudication. (2) The procedure for deciding the suits under sub-section (1) shall be the same as laid down in the Code of Civil Procedure, 1908 (5 of 1908).” There is no doubt that as per Sub-Section (2) of Section 13-A of the 1961 Act, the procedure for deciding a petition preferred under Section 13-A (1) has been prescribed to be the same as laid down in the Code of Civil Procedure, 1908 for deciding suits. However, this is subject to proviso to Section 13-A (1), wherein application under Section 13-A (1) is barred in respect of the land or other immovable property, which is or has been the subject matter of the proceedings under Section 7 of the 1961 Act under which the question of title has been raised and decided or under adjudication. LPA No. 1622 of 2011 10 In the present case, the question of title had been specifically raised by the appellant and proforma respondents in the proceedings initiated against them by the Gram Panchayat under Section 7 of the 1961 Act, which was pressed by the parties, led their respective evidence and on consideration thereof, findings were recorded by the Revenue Authorities that the land was Shamlat Deh which vested in the Gram Panchayat and the appellant and the proforma respondents were not the owners and they had no title over the disputed land and declared them to be in unauthorized possession of the land in question. These orders were challenged by the appellant and the proforma respondents, wherein this Court, in detail, dealt with the legal objections raised by the appellant and the proforma respondents as also the evidence, on the basis of which the appellant and the proforma respondents had claimed the title over the disputed land and on consideration thereof, this Court held that there was no merit in their submissions and contentions and the writ petition was dismissed on July 07, 2006 with the findings, reproduced above, that the appellants had no right or title over the land in question. Reliance on the Division Bench judgment of this Court by the counsel for the appellant in Tara Chand's case (supra) would not help the case of the appellant as the Division Bench decided that case as per the provisions of Section 13-A of the 1961 Act as prevalent then. Proviso to Section 13-A (1) was introduced by Haryana Act No. 9 of 1999 in the 1961 Act and as per this proviso, now no suit under Section 13-A (1) shall lie in respect of land or other immovable property which is or which has been the subject matter of proceedings under Section 7 of this Act where the question of title had been raised and decided or the same was under adjudication. With the introduction of the proviso, the whole complexion of LPA No. 1622 of 2011 11 Section 13-A (1) changes in a case where proceedings under Section 7 had been decided where the question of title also stood raised, decided or was under adjudication. In the case in hand, the matter having been so decided against the appellants with regard to their title, the petition under Section 13-A shall not be maintainable in the light of proviso to Section 13-A (1). The judgment passed by the learned Single Judge dated 16.08.2011 dismissing the writ petition of the petitioners and upholding the orders passed by the Revenue Authorities is in accordance with law which do not call for any interference in appeal. What is a cause of concern for this Court is the misuse of process of law by the litigants despite there being specific provisions and the matter having attained finality as after the decision of CWP No. 19211 of 2004 preferred by the appellants by the Division Bench of this Court vide order dated 07.07.2006 (Annexure P-12) and the same having attained finality, the appellants preferred a petition under Section 13-A of the 1961 Act which is specifically barred in the light of the fact that the question of title stood raised by the appellants adjudicated upon and finally decided against them. The litigation has been deliberately kept alive by the appellants by preferring a petition under Section 13-A, which they were aware in the light of the decision up-to the High Court with regard to their title in order to avoid compliance/execution of the order of eviction passed against them. This is total abuse of the process of law where a judgment, which has attained finality, has been circumvented by the appellants by preferring a petition, which is specifically barred under the Statute. The Courts are being used by unscrupulous litigants as institution and tool for perpetuating illegal possession over the property when it has been so held LPA No. 1622 of 2011 12 by the Revenue Authorities and even this Court. This is a very serious and thought provoking trend as it concerned the sanctity and credibility of the judicial system. If strict steps are not taken to curb this tendency, the process of adjudication and the institution of the judicial system would be put to serious discredit and its credibility would be eroded leading to anarchy and lawlessness, which cannot be permitted by the Courts. The purity and sanctity of the judicial proceedings and the verdicts of the Court of competent jurisdiction have to be upheld and maintained at all costs. The unscrupulous and mala-fide litigation needs to be curbed with a heavy hand and no leniency should be shown to such litigants who try to tarnish the image of the judicial system. These unscrupulous litigants are required to be prevented from taking undue advantage by invoking jurisdiction of the Courts to derive benefit from it by merely filing such a petition and then keeping it pending in one Court or the other on one or the other pretext with an effort to re-open the issue, which has already been adjudicated upon and settled finally by the Courts. A litigant cannot be allowed to take any benefit of his own wrongs so as to permit a litigation to turn into a fruitful industry which would be an encouragement for such and similar litigants to invoke the jurisdiction of the Court depriving the successful litigant his rightfully established and declared right for years together. This precisely is the situation in the case in hand where the question of title stood raised, adjudicated upon and decided. But by taking recourse to a fresh adjudication process, which was barred under the Statute itself, an effort has been made to misuse the judicial process which has enabled the appellant to continue in illegal possession of the land, on which they were held to be in un-authorized occupation and order of eviction stood passed against them. The appellants cannot be permitted to LPA No. 1622 of 2011 13 flout the orders of the Courts with such impunity, failing which the respect, sanctity and credibility of the judicial system would suffer badly and would encourage other unscrupulous litigations and litigants. This is a fit case where exemplary costs are required to be imposed so that this tendency is curbed. The order passed by the learned Single Judge being in accordance with law is upheld and the present appeal stands dismissed with ` 1 lac costs to be deposited with the Secretary, State Legal Services Authority, U.T. Chandigarh within three months. ( JASBIR SINGH ) ( AUGUSTINE GEORGE MASIH ) JUDGE JUDGE September 05, 2011 pj