R.S.A.No.1152 of 2006 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No.1152 of 2006 Date of decision: 22.10.2009 Sat Pal Singh ......Appellant Versus Sardara and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. R.M.Ravi, Advocate, for the appellant. Mr.Neeraj Sharma, Advocate, for Mr.Sandeep Goyal, Advocate, for respondent No.4. **** SABINA, J. Plaintiffs-respondents filed a suit for declaration and permanent injunction, which was decreed by the Civil Judge (Sr.Divn.), Kaithal vide judgment and decree dated 27.7.2002. In appeal filed by defendant No.1, the said judgment and decree were upheld by the Additional District Judge, Kaithal vide judgment and decree dated 30.11.2005. Hence, the present appeal by defendant R.S.A.No.1152 of 2006 2 No.1. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 and 3 of its judgment, are as under:- “ Brief facts need to be narrated here:- It is the case of the plaintiffs that agricultural land measuring 5020 kls. 1 marlas representing 100401/123183 share of the total land measuring 5751 kls 11 mls comprised in khewat No.590 khatoni No.679 to 861 as per jamabandi for the year 1971-72 (attached with plaint) is situated within the revenue estate of village Nauch Tehsil and Distt. Kaithal and the same land vested in Jumla Malkan Hasab Rasab Zare Khewat according to judgment and decree passed in civil suit No.1063 of 1966 decided on 15.3.1967 and the amended civil suit No.35 of 1968 decided on 7.1.69 vide copy of mutation No.1423 from Gram Panchayat Nauch tehsil and distt. Kaithal; that the agricultural land measuring 5632 kls 18 mls representing 99681/123183 share of the total land measuring 5725 kls 3 mls vide mutation no.2360 of 21.8.1992 revested in Gram Panchayat Nauch according to the Notification No.5491 of 15.5.1992 from Jumla Mustarka Malkan Hasab Rasab Zare Khewat; that the above said notification was struck down on 18.12.1994 by the Punjab and Haryana High Court and as such the above said land mentioned in para R.S.A.No.1152 of 2006 3 No.2 of the plaint, again revested in Jumla Mustarka Malkan Hasab Rasab Zare Khewat; that the proprietors of the Jumla Mustarka Malkan land mentioned in para No.1 of the plaint are large and numerous and as such the present suit is being filed by plaintiffs no.1 to 4 in their representative capacity under Order 1 Rule 8 of the CPC on behalf of all the proprietors of Jumla Malkan Land and they have no interest adverse to that of the proprietary body of the Jumla Malkan and their interest same is common; that the defendant No.1 filed a civil suit no.81 of 1973 on 24.2.1973 in the civil court claiming his title in the land measuring 36 kls 0 mls representing 720/123183 share out of the land mentioned in para No.1 of the plaint owned and possessed by the proprietary body and the same suit was decreed on 26.3.1973 in case Sat Pal Singh versus Churia etc. and a mutation in respect of the said decree was sanctioned on 7.6.1977 which is numbering 1621 and the said judgment and decree passed in civil suit No.81 of 1973 passed on 26.3.1973 in case of Sat Pal Singh versus Churia etc. and the mutation No.1621 sanctioning on 7.6.1977 is null and void, illegal, nonest and not binding over the rights of the plaintiff on the ground that defendant No.1 was not and is not the owner in possession of any portion of the land mentioned R.S.A.No.1152 of 2006 4 in para No.1 of the plaint and that the civil suit No.81 of 1973 was filed by defendant No.1 against defendants No.2 to 4 and the predecessor-in-interest named Khem Chand of defendant No.5 to 9 in representative capacity under Order 1 Rule 8 CPC and no due permission was granted to defendant No.1 to file that suit in representative capacity and the defendants of civil suit No.81/1973 were also not duly served which was essential in law; that the judgment and decree passed in civil suit no.81 of 1973 was a result of collusion in between defendant No.1 (of this suit) and defendants No.2 to 4 and one Khem chand the predecessor in interest of the remaining defendants (of this suit); that the impugned judgment and decree passed in civil suit No.81 of 1973 is nothing but a result of fraud played by the defendants upon the plaintiffs and upon the court as well that the impugned judgment and decree passed in civil suit No.81 of 1973 is nothing but a result of misrepresentation and concealment of facts before the court; that defendant No.1 claims title for the first time under the impugned judgment and decree passed in civil suit and the decree has not been duly stamped and registered and as such, the unstamped and unregistered impugned decree confers no right, or interest upon R.S.A.No.1152 of 2006 5 defendant No.1. The value of the land of impugned decree is nore than Rs.100/- and it goes against public policy if the same is not registered; that under the garb of the impugned judgment and decree passed on 26.3.1973 in civil suit noi.81 of 1973, defendant No.1 is bent upon to get the suit land partitioned in collusion with some co- sharers of the Jumla Malkan land and wants to get the possession of his alleged share by way of partition of which defendant No.1 has got no right, title or interest whatsoever, hence, the present suit. 3. Defendants contested the suit by way of filing written statement. Several preliminary objections regarding locus-standi; their representative capacity under Order 1 Rule 8 CPC; limitation; maintainability; estoppel etc. were taken. On merits, each plea taken in the plaint was controverted. It was alleged that the plaintiffs and proforma defendants had the knowledge of the suit and decree in question and the defendants of the previous suit made statement in the court and the mutation of the suit land on the basis of said decree has also been attested publically and each and every one of the proprietors had knowledge of the same. It was further pleaded that defendant No.1 is owner in possession of the suit land i.e. land measuring 36 kanal 0 mls. R.S.A.No.1152 of 2006 6 representing 720/123183 share out of the total land mentioned in para no.1 of the plaint. That the plaintiffs or any proprietors of the village are not in possession of this land which is exclusively in possession of defendant No.1. It was further pleaded that suit was filed by defendant No.1 with regard to his share 36 kls 0 mls which was owned and exclusively possession by defendant No.1 as his share and the said decree is within the four corners of law, legal and binding on the plaintiffs and others and there is no just ground for setting aside the same and defendant No.1 is the owner in possession of the land measuring 36 kls 0 mls as his share of the total land of the proprietary body. With these pleas dismissal of the suit was prayed for.” On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the judgment and decree dated 26.3.1973 passed in civil suit No.81 of 1973 is illegal null and void as per the averments taken in the plaint? OPP 2. Whether the suit is within time? OPP 3. Whether the plaintiff has no locus standi to file the present suit? OPD 4. Whether the plaintiff has no cause of action ? OPD R.S.A.No.1152 of 2006 7 5. Whether the plaintiffs are estopped from filing the present suit by their own act and conduct? OPD 6. Whether the plaintiffs have waived their rights if any to file the present suit? OPD 7. Whether the suit is not maintainable in the present form? OPD 8. Whether the suit is bad for non-joinder of the necessary parties? OPD 9. Relief. ” After hearing learned counsel for the parties, I am of the opinion that the present appeal is devoid of any merit and deserves to be dismissed. In the present case the plaintiffs had filed a suit for declaration that the judgment and decree dated 26.3.1973 passed in Civil Suit No.81 of 1973 were null and void. The said judgment and decree were challenged on the ground of fraud and that decree was not registered one. In the plaint in the said suit, plaintiff Satpal minor claimed himself to be a co-sharer and proprietor in the shamlat deh land. At that time, father of Satpal i.e. Man Singh was alive and was having land holding in his favour. It has been noticed by the learned Additional District Judge that Satpal, while appearing in the witness box as PW-2, admitted in his cross-examination that he was not owner of any other land apart from the suit land. In these circumstances, Satpal could not be a proprietor of Jumla Mustarkan R.S.A.No.1152 of 2006 8 land during the life time of his father Man Singh. Judgment Ex.P-3 was passed in civil suit filed by propritors of the village against Gram Panchayat and the suit of the proprietors was decreed. Plaintiff Satpal was not a proprietor as per the list attached thereto. Hence, the plaintiff could not get the judgment and decree passed in civil Suit No.1063 of 1996 as not binding on his rights merely on the admission made by the defendant in that case as the plaintiff was not a propritor of the suit land. It has been observed by the learned Additional District Judge in the impugned judgment that a perusal of the written statement in the said suit revealed that defendants No. 1 to 4 had filed the written statement in individual capacity and not in a representative capacity. In these circumstances, the Courts below rightly held that the said judgement was a result of fraud and collusion. Plaintiff Satpal in collusion with Churia, Hari Singh, Hari Ram and Khem Chand got the impugned decree Ex.P-8 dated 26.3.1973 in his favour. The land belonged to the Gram Panchayat and in order to usurp the said land, the collusive decree was got passed in favour of plaintiff Satpal. Such a decree was not binding on the rights of the present plaintiffs. The decree in question was not a registered decree. Since plaintiff Satpal in the said suit did not have any pre-existing right, the decree was required to be compulsorily registered. Since the impunged decree dated 26.3.1973 passed in civil suit No.81 of 1973 was not a registered R.S.A.No.1152 of 2006 9 one, the same was rightly held to be illegal, null and void. Since, the impugned decree was obtained by fraud and collusion, the suit of the plaintiffs was rightly held to be not barred by limitation. In these circumstances, the Courts below had rightly decreed the suit of the plaintiffs. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE October 22, 2009 anita