R.S.A.No. 797 of 2008(O&M) {1} In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 797 of 2008(O&M) Date of Decision:July 30, 2009 Col. Balwinder Singh(Retd.) and others ---Appellants versus Gram Panchayat, Bhanri and another ---Respondents Coram: HON'BLE MRS. JUSTICE SABINA *** Present: Mr.Arun Palli, Senior Advocate, with Mr. Kanwar Goyal, Advocate for the appellants None for the caveator-respondent. *** SABINA J. Plaintiff-Gram Panchayat had filed a suit for declaration. Civil Judge (Junior Division),Patiala,vide judgment and decree dated 26.3.2007decreed the suit of the plaintiff. Aggrieved by the same, defendant No.1and defendants No.2 to 4 preferred appeals and the same were dismissed R.S.A.No. 797 of 2008(O&M) {2} by Additional District Judge, Patiala vide judgment and decree dated 9.10.2007, Hence, the present appeal by the defendants No. 2 to 4. The facts of the case as noticed by the learned Additional District Judge, in paras 2 to 4 of its judgment read as under:- “The facts of the case are that Gram Panchayat through its Sarpanch Darshan Singh has filed a suit for declaration that the judgment and decree dated 26.7.1996 passed by Sh. Arun Veer Vashista, the then learned Civil Judge (Junior Division), Patiala, in suit No. 540 dated 11.12.1995, decided on 26.7.96, titled as Harnek Singh versus Gram Panchayat is based on fraud and collusion with the said Sarpanch Pal Singh and defendant Harbej Singh and are, therefore, void, ab-initio and are liable to be set aside and do not effect the rights of the plaintiff. It is added that Col. Balwinder Singh and Pushpinder Kaur became party by filing application under Order 1 Rule 10 CPC. The defendant obtained an order from the Collector, Patiala on 28.1.1991, under Section 11 of the Punjab Village Common Lands (Regulations)Act, by concealment of facts and also succeeded in getting the mutation sanctioned on the basis of the said order. The order dated 28.1.91 was challenged by the gram panchayat before the Commissioner (I.R.D.), Punjab Chandigarh to set aside the same. The defendant challenged the order of the Commissioner before the Hon'ble High Court, which upheld the order of the Commissioner, vide its order dated 31.7.1995. Thereafter, by concealment of factum of previous litigation, Harnek Singh filed suit in the court of Sh. R.S.A.No. 797 of 2008(O&M) {3} Arun Veer Vashista on 11.12.95, which decreed on 26.7.1996. During the pendency of said suit, the defendant transferred the suit property vide sale deeds dated 27.12.95, 10.1.96, 8.2.96 and lastly on 20.5.96 in favour of Balwinder Singh and others and handed over the possession to them. The defendant was in collusion with the then Sarpanch Lal Singh, who was elected in January, 1993. The order passed by the Commissioner and the Hon'ble High court was well within the knowledge of the then Sarpanch and the present defendants, but they did not disclose the same and did not produce the same before the court of Sh. Arun Veer Vashista, the then learned Civil Judge ( Junior Division), Patiala, which led to the passing of judgment and decree dated 26.7.96. The decree is based on fraud and collusion with the then Sarpanch and the defendant and is liable to be set aside and does not effects the rights of the plaintiff gram panchayat to proceed against the defendant and his successors Balwinder Singh etc. to whom the land was transferred during the pendency of the said suit. The plaintiff came to know about the judgment and decree, when Balwinder Singh and others produced the same before the A.C.Ist Grade, Nabha in mutation proceedings in September, 1999 and thereafter, after obtaining the copies thereof, the present was filed. Defendant No. 1 in his written statement took the preliminary objections that the suit of the plaintiff is false and frivolous; the suit land has already been sold to Balwinder R.S.A.No. 797 of 2008(O&M) {4} Singh and others and they in actual possession; the suit is bad for non joinder of necessary parties and is time barred and is not maintainable. It is also barred by the principle of res judicata and that no proper court fees has been affixed. ?The plaintiff has not come to the court with clean hands and concealed the material facts from the court. It was stated that order dated 28.1.91 was obtained by concealment of material facts. It was denied that the mutation was sanctioned on the basis of the said order. The order of the Collector was not set aside by the Commissioner. The writ petition was filed by the gram panchayat and dismissed on 7.6.96. The said judgments have become final. Now the gram panchayat is estopped from filing the present suit. Now the gram panchayat is estopped from filing the present suit. Balwinder Singh etc. have not been impleaded as party. The collusion with the then Sarpanch Pal Singh is denied. It is stated that gram Panchayat filed writ petition No. 8622 of 1996 before Hon'ble the High Court, but the same was dismissed on 7.6.96. It was denied that the decree is the result of fraud and collusion, as alleged. Defendants No. 2 to 4 in the written statement took the preliminary objections that the plaintiff has not come to the court with clean hands and the defendants are entitled to special costs. They claimed that they are bona fide purchaser and protected under Section 41 of the Transfer of Property Act. The fraud and collusion have been denied. The suit is alleged to be time barred.” R.S.A.No. 797 of 2008(O&M) {5} On the pleadings of the parties, on 5.9.2000 trial court framed the following issues:- “(1) Whether the plaintiff is entitled to decalration that the judgment and decree dated 26.7.21996 passed by the court of Sh. Arun Vir Vashista, PCS, Civil Judge, Sr. Division, Patiala, suit titled as Harnek Singh Vs. G.P. is based upon fraud and collusion and is not binding upon the defendants? OPP (2)Whether the suit bad for non joinder or necessary parties? OPD (3)Whether the suit is within limitation? OPP (4)Whether the suit is hit by principle of res judicata?OPD (5)Relief. The following additional issues were also framed by the learned trial court on 7.6.2002:- (4-A)Whether the suit is not maintainable in the present form?OPD (4-B)Whether the plaintiff is estopped by its own act and conduct from filing the present suit? OPD (4-C) Whether the defendants No. 2 to 4 are the bonafide purchasers for valuable consideration, if so, its effect? OPD On 30.1.2006, the following additional issue was also framed:- (4-D) Whether the plaint is not properly valued for the purpose of court fee? OPD (5)Relief After hearing learned counsel for the appellants, I am of the R.S.A.No. 797 of 2008(O&M) {6} opinion that the present appeal deserves to be dismissed. Plaintiff –Gram Panchayat had challenged the decree dated 26.7.1996 passed in a suit titled as Harnek Singh vs. Gram Panchayat on the ground of fraud. The said decree was obtained in a suit filed by Harnek Singh as the same was not contested by the then Sarpanch. Gram Panchayat was held to be owner of the property in dispute in earlier litigation up to this Court. Harnek Singh got an order under Section 11 of the Punjab Village Common Lands (Regulation)Act, 1961 dated 28.1.1991. The said order was challenged by the Gram Panchayat and was set aside and the order passed by the Commissioner (I.R.D.) Punjab, Chandigarh was upheld by this Court vide order dated 31.7.1995. However, when the decree, in question was passed on 26.7.1996, the said facts were not brought to the notice of the court. The arguments raised by learned senior counsel for the appellants that the appellants were bona fide purchasers as Harnek Singh was duly reflected as owner of the suit property in the revenue record is without any force as Harnek Singh could not have passed a better title to the purchaser. Harnek Singh was not owner of the property in dispute and the same was owned by the Gram Panchayat. Courts below had rightly held that the decree in question dated 26.7.1996 was a result of fraud and the appellants could not be described as bona fide purchasers. No substantial question of law arises in this appeal. Accordingly, this appeal is dismissed. (SABINA) JUDGE July 30, 2009 PARAMJIT R.S.A.No. 797 of 2008(O&M) {7}