IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.11521 of 1990 (O&M) Date of decision:29 .04.2011 Sukhdev Singh ...Petitioner versus State of Haryana and others. ....Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Ms. Anjali Khosla, Advocate, for Mr. Vikas Singh, Advocate, for the petitioner. Mr. Satbir Singh Goripuria, DAG, Haryana. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? No. 2. To be referred to the reporters or not ? Yes. 3. Whether the judgment should be reported in the digest ? Yes. ---- K.Kannan, J. (Oral) 1. The writ petitioner challenges the action taken by the gram panchayat under the Punjab Village Common Lands (Regulation) Act of 1961 for ejectment under Section 7. The contention in defence to the gram panchayat's claim is that the property never vested in the panchayat and that there had been a decree passed already by a competent Civil Court in Civil Suit No.1241 of 1966 before the Civil Court at Kaithal. The present petitioner's mother Gurdial Kaur was the third plaintiff in the suit and the gram panchayat was the defendant in the suit. The Civil Court granted a decree declaring the petitioner's mother and others to be the owners of the property to the extent of 89966/185259 shares and a Civil Writ Petition No.11521 of 1990 (O&M) - 2 - decree for joint possession of the property had also been granted as a consequential relief. In respect of the very same property, the panchayat had laid claim as a property vested in the panchayat and sought action for ejectment. This was done subsequent to a mutation that was sanctioned by the Deputy Commissioner on 14.06.1988 in favour of the gram panchayat. The petitioner is aggrieved against the order sanctioning a mutation in favour of the gram panchayat and a direction for ejectment under Section 7 of the Punjab Village Common Lands (Regulation) Act of 1961. 2. If there is a Civil Court decree already between the same parties, the revenue authority cannot ignore the same and make any mutation of revenue entries. Revenue entries are not themselves documents of title itself but they definitely create an evidence of title and if an entry standing in the name of the original owners were said to be mutated and the entry of gram panchayat was sought to be included, it could not have been done in contravention of the Civil Court decree that existed already. It is pointed out by the counsel for the petitioner that even a notice of such mutation was not sent to the petitioner before such action was taken. 3. The learned counsel for the State contends that the Civil Court decree is a collusive decree and the property vest only with the gram panchayat. 4. When a Civil Court decree is relied on by a party, it might be possible for a person, who is defending an action to show that such a decree was collusive. However, no party can assume a decree to be Civil Writ Petition No.11521 of 1990 (O&M) - 3 - collusive without taking appropriate action to have it set aside if any attempt is made to do an act in contravention of a decree lawfully passed by a Civil Court. Section 44 of the Indian Evidence Act declares that any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under Section 40, 41 or 42 and which has been proved by the adverse party, was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion. Section 41 details the judgments which shall be treated as judgment in rem that includes decrees passed by competent court in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction. Section 42 refers to those judgments which are not described under Section 41 and treats such judgments to be relevant if they relate to matters of a public nature relevant to the enquiry, but such judgments, orders or decrees are not conclusive proof of that which they state. Section 43 refers to judgments other than those mentioned in Sections 40, 41 and 42 as irrelevant unless the existence of such judgment, order or decree is a fact in issue, or is relevant under some other provisions of this Act. Section 40 refers to situations of when previous judgments are relevant to bar a civil suit or a trial. 5. These purport of the provisions are set forth only to bring home the point that when a party asserts a right and stakes in defence to an action by the panchayat or the State authority making some modification in revenue entry as in contravention of a Civil Court decree, the fact that such a decree exists declaring the right of a person shall be treated as conclusive between the parties, unless the decree in its Civil Writ Petition No.11521 of 1990 (O&M) - 4 - enforcement is met by a person that can show in defence that the decree is not valid. If, on the other hand, any action is taken by a person, who is a party to the suit, such as in this case where the panchayat was seeking for a mutation of revenue entry to be entered in their name. After displacing the name of the petitioner's predecessor and others, the panchayat would be barred from enforcing such a right without taking appropriate action to have the Civil Court decree set aside. The Government that acts to pass an order sanctioning mutation cannot ignore the effect of a Civil Court decree, with no materials placed or no action taken to show that the decree was collusive. The Deputy Commissioner that passed the order sanctioning the mutation was acting without jurisdiction and the order passed by him entering the panchayat as the owner is illegal and liable to be quashed. For the same reason, the panchayat which has suffered a decree cannot ignore the same and seek for ejectment under Section 7. Such an action is also invalid and liable to be struck down. In the result, the writ petition is allowed and the impugned proceedings are quashed. (K.KANNAN) JUDGE 29.04.2011 sanjeev