R.S.A.No. 1427 of 2009 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 1427 of 2009 Date of decision: 31.7.2009 Narata ......Appellant Versus M.C.Cheeka .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Ms.Monisha Gandhi, Advocate, for the appellant. 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 7.8.2008. In appeal, the said judgment and decree were upheld by the Additional District Judge, Kaithal vide judgment and decree dated 17.12.2008. Hence, the present appeal by the defendant. Brief facts of the case, as noticed by the lower appellate R.S.A.No. 1427 of 2009 2 Court in para Nos. 2 and 3 of its judgment, are as under:- “2. Tersely a suit for possession of land measuring 19 kanals 17 marlas as fully detailed in para No.1 of the plaint was filed by plaintiff-respondent against the present appellant. A prayer for recovery of mesne profits w.e.f. 1.1.1998 was also made in the said suit. The Municipal Committee claimed ownership on the suit property on the basis of mutation No.1247 dated 11.6.1996 and it was contended that right of the plaintiff was protected by Hon'ble Punjab and Haryana High Court, Chandigarh in Civil Misc. No.5957-C of 1998 and Regular Second Appeal No.3811 of 1997. The present appellant was stated to be in unauthorised and illegal possession of the suit property and request was made to the appellant to hand over the vacant possession of the suit property to the Municipal Committee and on failure of the said person to comply with the request of the Municipal Committee, the necessity arose for filing the present suit. The suit was filed through Sh.Sat Pal Singla and Sh.Ujjagar Singh, who were duly authorised by Municipal Committee, Cheeka to file and pursue the suit vide resolution No.2 dated 20.7.1999. 3. On notice being given, the suit was contested by the appellant by submitting that the suit was not R.S.A.No. 1427 of 2009 3 maintainable and the plaintiff was having no locus standi or cause of action to file the suit. The jurisdiction of the trial Court was disputed as far as the relief of mesne profits is concerned. It was contended that the suit land is agricultural land and no suit for recovery of mesne profits is triable by civil court and under the provisions of Punjab Tenancy Act, the jurisdiction solely vests in the revenue courts. The plaintiff was termed guilty of concealment of material facts from the court and it was put forth that the present appellant is the owner of the suit land and his ownership rights were conferred in a civil court decree dated 29.1.1974 passed in civil suit No.78 of 1974 by the court of Sh.R.S.Garg, the then learned Sub Judge IInd Class, Kaithal in suit titled as “Tek Singh etc. vs. Gram Panchayat Sailimpur”. The said decree dated 29.1.1974 was challenged by some of the inhabitants of the village in civil suit No.478 of 1991 titled as “Ram Chander etc. vs. Tek Singh etc.” and the said suit was decreed by the Court of Sh.N.D.Achint, the then learned Sub Judge, Guhla vide judgment and decree dated 2.11.1992 and decree dated 29.1.1974 passed by the Court of Sh.R.S.Garg was set aside. The judgment and decree dated 2.11.1992 passed in civil suit No.478 of 1991 was set aside in appeal by the court of R.S.A.No. 1427 of 2009 4 Sh.S.P.Singh, the then learned Additional District Judge, Kaithal, vide judgment and decree dated 25.10.1997 and thereafter the plaintiffs of suit No.478 of 1991 preferred Regular Second Appeal No. 3811 of 1997 before the Hon'ble High Court of Punjab and Haryana, but the said RSA was withdrawn by the plaintiffs as is evident from the order dated 24.3.1999. It was put forth that the decree dated 29.1.1974 thus, remained intact and has not been set aside by any court of competent jurisdiction and the present appellant continues to be the owner of the suit property. It was also submitted that the suit has not been filed through a proper and authorised person. It was denied if the possession of the appellant over the suit property was unauthorised and a prayer was made 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 a decree for possession as prayed for? OPP 2. Whether the plaintiff is entitled for a decree of recovery of mesne profits from the plaintiff as prayed for? OPP 3. Whether the suit is filed within limitation? OPD R.S.A.No. 1427 of 2009 5 4. Whether the suit of the plaintiff is not maintainable in the present form? OPD 5. Relief. ” The lis involved in the present case is as to whether the defendant 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 possession and mesne profits. Both the Courts below have held in favour of the Municipal Committee. Learned counsel for the appellant has vehemently argued that the suit of the Committee was liable to be dismissed as the appellant was owner in possession of the suit property on the basis of civil Court decree dated 29.1.1974. The appellant had filed a suit seeking declaration that he was 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 defendant in the said suit was directed to deposit the arrears of mesne profits w.e.f. 1.1.1998. To avoid R.S.A.No. 1427 of 2009 6 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 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 was expied 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 R.S.A.No. 1427 of 2009 7 capacity as the Gram Panchayat, thus, was not challenging 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 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. R.S.A.No. 1427 of 2009 8 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, the say 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 defendant is that the Gram Panchayat had ceased to be owner of the suit property in the year 1994 on the basis of civil Court decree dated 29.1.1974. In fact 2173 R.S.A.No. 1427 of 2009 9 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. 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 R.S.A.No. 1427 of 2009 10 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 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 appellant 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 R.S.A.No. 1427 of 2009 11 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. 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 R.S.A.No. 1427 of 2009 12 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. 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 R.S.A.No. 1427 of 2009 13 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 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.” R.S.A.No. 1427 of 2009 14 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. 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