Pat Ram vs Gram Sabha Digrota and others

B.S. Yadav, J.

Respondent Nos. l and 2, namely, Gram Sabha and Gram Panchayat of village Digrota, had filed a suit giving rise to this appeal for a declaration that they were owners and in possession of the suit land measuring 106 Kanals 12 Marlas and the order dated 7th September, 1967 passed by the Deputy Commissioner, Mohindergarh, under section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (for short the Act) was null and void, without jurisdiction and based upon fraud. According to the allegations in the plaint, the plaintiffs were owners of the suit land. Hanuman, defendant No. 3, who is brother of the remaining defendants, filed an application under section 42 of the Act before the Deputy Commissioner on 5th July 1967, who decided it in favour of the defendants vide order dated 7th September, 1967. No notice of that application was given to the plaintiff''s. The Sarpanch did not appear before the Deputy Commissioner on 7th Septenmber, 1967, nor admitted the claim of the defendant. Moreover, the Sarpanch nor the Gram Panchayat had any right to give away the land of the Panchayat. The said application had been filed by the Hanuman beyond limitation. Pat Ram, one of the defendants, at the relevant time was posted as Patwari in the Consolidation Department and in collusion with the other officers of that department, he got the said order passed. On the basis of that wrong order, mutation about change of ownership was sanctioned in favour of the defendants. The plaintiffs came to know of those proceedings when in June, 1968 the defendants filed a suit for permanent injunction. It was further prayed that in case the defendants were found in possession then a decree for possession of the land be passed in favour of the plaintiffs.

The suit was contested by defendant Nos. 1 to 4 and 7. They pleaded that they were in possession of the suit land which had been given to them under the above referred order dated 7th September, 1967 passed by the Deputy Commissioner. The validity of the order was defended. The other allegations of the plaintiffs were also denied. They took up other objections also but it is not necessary to refer to them.

Upon the allegations of the parties the learned trial Court framed as many as 13 issues. It is not necessary to reproduce them as only issue Nos. 6 and 12A were agitated before me. Those issues read as follows :

(6) Whether the Court has no jurisdiction to entertain the suit?

(12A) Whether the suit is within limitation keeping in view the amended plaint ?

Under issue No. 6 the learned trial Court held that in view of the finding under issue No. 5 that the order dated 7th September, 1967 was obtained either by fraud or collusion or, in any case, on the basis of the statement of the Sarpanch, which was without authority, the Court had jurisdiction to try the suit. Issue No. 12A was framed because in the original plaint, plaintiff No. 1 was described as Sabha Area, Digrota. Later on the plaintiffs filed an application that the name of plaintiff No. 1 should be Gram Sabha, Digrota. That amendment was allowed on 27th November, 1972. The defendants in the written statement filed to the amended plaint, took the objection that the suit would be deemed to have been filed on the date the amendment was allowed and as the suit ought to have been filed within one year of the date of impugned order passed by the Deputy Commissioner, it was barred by time. The learned trial Court held that the suit was for possession. Therefore, it could have been filed within 12 years and, thus, was within limitation. That Court decreed the suit of the plaintiffs. Feeling aggrieved, the defendants filed appeal which was heard by learned District Judge, Bhiwani. Under issue No. 6 that Court held that as the order passed by the Deputy Commissioner was non est, the plaintiffs could ignore it altogether. On the question of limitation it was held that the suit was governed by Article 65 of the Limitation Act, 1963 and as the plaintiffs had been dispossessed on 7th September, 1967, the suit was well within limitaiton. As a result of the above findings, the appeal was dismissed. Still not feeling satisfied, the defendants have come to this Court in second appeal.

The facts of the case are not in dispute. Hanuman defendant had filed an application under the Act which was heard by the Deputy Commissioner, Mohindergarh, exercising powers under Section 42 of that Act. He prayed that some lands allotted to him during the consolidation proceedings be cancelled and in lieu thereof he be allotted land out of Rectangle Nos. 106 and 107. It appears that the land comprised in the said Rectangles was vested in the Gram Panchayat of the village. Jaimal Singh, Sarpanch, of the Panchayat, in whose favour the Panchayat had passed a resolution under Rule 16(1) of the Punjab Village Common Lands (Regulation) Rules, 1964 (for short the Rules) framed under the Punjab Village Common Lands (Regulation) Act, 1961, to defend the said application, had appeared before the said Officer. According to the said resolution, Jaimal Singh had been authorised only to contest the said application and not to admit the claim of Hanuman. Rule 16(3) provides that Sarpanch so appointed shall not be competent to compound or admit the claim of the party suing the Panchayat without authorisation. In spite of the fact that the Panchayat had specifically asked Jaimal Singh to oppose the application of Hanuman, he agreed before the said Officer to the exchange sought by Hanuman. Thereupon the Deputy Commissioner passed the impugned order dated 7th September, 1967 allowing the exchange of some land of the Panchayat land comprised in Rectangle No. 107 with the land of Hanuman. In this suit which was filed on 13th May, 1969 the Gram Sabha and the Gram Panchayat of the village Digrota have challenged it on various grounds. However, the learned Courts below have upheld only one ground and it was that Jaimal Singh, Sarpanch, had not been empowered by the Gram Pancahyat to agree to the exchange and that he acted against the authority granted to him. As noticed earlier, the learned counsel for the appellants has only agitated issue Nos. 6 and 12A in this Court. The former issue relates to jurisdiction of the Civil Court to entertain the suit while the latter is about the limitation.

I will first take up the question of jurisdiction. In support of his argument that the civil Court has no jurisdiction to entertain the suit, the learned counsel for the appellants has placed reliance upon section 44 of the Act which reads as follows:

"S.44. No civil Court shall entertain any suit instituted or application made to obtain a decision or order in respect of any matter which the State Government or any Officer is, by this Act, empowered to determine, decide or dispose of."

In support of his argument, the learned counsel placed reliance upon Dhaunkal v. Man Kauri, 1970 PLJ 402 (Full Bench). That case has no application to the facts of the present case. In that case the difference between a decree or order which was void and decree or order which was voidable was noticed. It was held that where a decree or order is void, it is non est and could be ignored altogether but when it is voidable, the aggrieved party has to proceed to get rid of it in accordance with law and where it fails to do so, it being within jurisdiction remains and the party is then not in a position to say that it is non est. In the present case, the plaintiff''s contention was that the exchange allowed vide the impugned order by the Deputy Commissioner is against the Rules. The validity of the exchange cannot be determined under any of the provisions of the Act. The contention of the learned counsel for the respondents that no appeal or revision lies against an order passed on a petition under Section 42 of the Act, was not controverted by the learned counsel for the appellants. As the matter arising in the instant suit could not be determined, decided or disposed of by the State Government or any other officer empowered under the Act, the only other forum open to the plaintiffs was to approach the civil Court to have the matter determined.

The learned counsel for the appellants also placed reliance upon Ram Chander v. Dallu, 1982 PLJ 230. That ruling has no application to the facts of the present case. It is under section 25 of the Punjab Security of Land Tenures Act, 1953. That section reads as follows :

"S.25. Except in accordance with the provisions of this Act, the validity of any proceedings or order taken or made under this Act shall not be called in question in any Court or before any other authority."

Under the Land Tenures Act, an hierarchy of tribunals have been provided to hear appeals and revisions. Similar provision is not present in the Act and as noticed above there is no forum under the Act to hear grievance of a party against an order passed on an application under Section 42 of the Act.

Learned counsel for the appellants has further placed reliance upon Ram Saran v. Mehar Singh, 1977 PLJ 393, wherein it was remarked :

"The only grievance of the plaintiffs is that legally the land in dispute could not be allotted during the repartition proceedings to defendant Nos. 1 to 3. There can be no gainsaying that this question could and should have been agitated before the consolidation authorities. Section 44 of the Act in such a situation bars the filing of the civil suit and in view of that mandatory provision, we find no escape from this conclusion."

That ruling has no application to the facts of the present case. As noticed earlier, the matter in dispute could not have been agitated before the consolidation authorities and thus section 44 of that Act does not come into play. Hence it is held that the civil Court had jurisdiction to entertain the suit.

Now I will take up the question of limitation. The learned counsel for the appellants argued that the suit is governed by Article 100 of the Limitation Act, 1963 which prescribes the period of limitation at one year terminus quo being the date of the impugned order passed by the Deputy Commissioner. According to him, as the suit had been filed after the expiry of one year from the date of the impugned order, it is barred by limitation. Learned counsel for the appellants has also relied upon Gangu v. Mahanraj Chand, AIR 1934 Lahore 384, in support of his argument that it was necessary for the plaintiffs to get the impugned order set aside before they could be granted the relief prayed for. I am of the opinion that the said authority has no application to the facts of the present case. In that case the defendants No. 1 and 2 had made an application to the Collector under the Punjab Redemption of Mortgages Act, 1913 praying for redemption of the mortgage on payment of such sum as might be found due. The plaintiffs denied the defendant''s right to redeem alleging that the defendant''s ancestors had sold the equity of redemption to the predecessorsininterest of the plaintiffs. The Collector held that the sale to be unproved and ordered redemption on November 16, 1927. The defendants deposited the amount in the Treasury. In 1928, defendants Nos. 1 and 2, as landlords, instituted a suit against the plaintiffs as occupancy tenants for recovery of the rent due by them. That suit was decreed by the Revenue Officer. On 2nd November, 1929, the plaintiffs brought the suit asking for a declaration that they were the proprietors in possession of the land in dispute and that the defendants No.1 and 2 had no right to interfere in any way. They agitated the same matter which was agitated before the Collector. The lower Courts held that the suit was barred by time under Article 14 (of the old Limitation Act) and dismissed the suit. The plaintiffs filed an appeal in the Lahore High Court. The learned Single Judge before whom the case came up for hearing, referred it to a Division Bench which in turn referred it to a Full Bench. The question referred was as follows :

"Whether a suit under section 12, Redemption of Mortgages Act, instituted by a party to such proceedings to establish his right in respect of the mortgage is governed by Article 14, Limitation Act, and if so, whether it makes any difference that the suit is merely a declaratory one and no relief to set aside the order of the Collector has expressly asked in the plaint."

The leading judgment of the Full Bench was rendered by Tek Chand J. with whom Jai Lal and Monroe, JJ., concurred. The question was answered as follows:

"Accordingly my answer to the reference is that a suit under Section 12, Redemption of Mortgages Act, 11 of 1913, instituted by a person aggrieved by an order passed by the Collector under Sections 6, 7, 8, 9, 10 or 11 of the Act, to establish his right in respect of mortgage is governed by Art. 14, Limitation Act; and it makes no difference that the suit is one for a mere declaration and no relief to set aside the order of the Collector had been expressly asked in the plaint."

During the course of discussion it was remarked by Tek Chand, J. as follows :

"... ... Mr. Fakir Chand concedes that under the law the Collector had jurisdiction to entertain the application and make the aforesaid order. Under Section 12 of the Act, therefore the order became conclusive, subject to the result of a civil suit (if any) which the person aggrieved by it might institute in a Civil Court. Obviously the appellants were "aggrieved" by the order. It was therefore obligatory on them to institute a civil suit to get rid of that order. ... ... The conditions necessary for the applicability of this Article are : (1) that the suit is one to set aside an order; (2) which has been passed by an Officer of Government; (3) in the exercise of powers conferred on him by law; (4) which would be effective and conclusive unless set aside by a suit, and (5) there is no other provision in the Limitation Act or other statute, expressly governing it. As has been shown above, all these conditions are fulfilled in the case before us and therefore there is no escape from the conclusion that the suit is governed by Art. 14."

That ruling has no application to the facts of the present case. The order passed under section 42 of the Act has not been given finality. Therefore Article 100 of the Limitation Act which corresponds to Articles 13 and 14 of the Old Limitation Act has no application. Article 100 will come into play only if an order required to be set aside is one which the officer making it has jurisdiction to make it and has the effect of barring the claim for relief unless it is set aside.

Learned counsel for the appellants also placed reliance upon Ittyavira Mathai v. Varkey Varkey, AIR 1964 S.C. 907, wherein their Lordships remarked :

"Even assuming that the suit was barred by time, it is difficult to appreciate the contention of learned counsel that the decree can be treated as a nullity and ignored in subsequent litigation. If the suit was barred by time and yet, the Court decreed it, the Court would be committing an illegality and therefore the aggrieved party would be entitled to have the decree set aside by preferring an appeal against it. But it is well settled that a Court having jurisdiction over the subjectmatter of the suit and over the parties thereto, though bound to decide right, may decide wrong; and that even though it decided wrong it would not be doing something which it had no jurisdiction to do. It had the jurisdiction over the subjectmatter and it had the jurisdiction over the party and, therefore, merely because it made an error in deciding a vital issue in the suit, it cannot be said that it has acted beyond its jurisdiction. As has often been said, Courts have jurisdiction to decide right or to decide wrong and even though they decide wrong, the decree rendered by them cannot be treated as nullity."

That ruling only helps the learned counsel for the appellants to the extent that the order passed by the Deputy Commissioner cannot be held to be a nullity, as he had jurisdiction to pass the order which he has passed. However, as the order allowing the exchange has been passed in violation of Rule 5 of the Rules and as fraud was practised upon the Officer passing the order, it will have to be held as voidable at the instance of the aggrieved party.

Rule 5 of the Rules as applicable to Haryana reads as follows :

"Rule 5. A Panchayat, if it is of opinion that it is necessary so to do for the benefit of the inhabitants of the village may, with the prior approval of the Government, transfer any land in shamlat deh by exchange with the land of an equivalent value to be determined by the Tehsildar in whose jurisdiction the land is situate."

That rule came for interpretation in Dhaja Ram v. Gram Sabha, 1971 PLJ 751. In that case also exchange was allowed under Section 42 of the Act on the basis of an admission of the Sarpanch. The Gram Panchayat filed a writ petition in this Court challenging the impugned order of exchange. The writ petition was allowed by a learned Single Judge of this Court. The respondents of the writ petition filed Letters Patent Appeal which was dismissed. It was remarked therein as follows:

"The order allowing the exchange of Panchayat land with that of the appellants made under section 42 of the Act is based solely on the fact that the Sarpanch had agreed to do it. We agree with the learned Single Judge that this exchange is in contravention of the provisions of Rule 5 of the Punjab Village Common Lands (Regulation) Rules, 1964, as before the exchange could be effected it was necessary for the Panchayat to apply their mind and come to the conclusion that it was for the benefit of the inhabitants of the village, and also to obtain the approval of the Government. Even then the exchange could be only with the land of an equivalent value. Though this appeal has been pending for 16 months, no attempt has been made to place any material on the record or even an affidavit of the Sarpanch that any action to comply with the provisions of the said Rule 5 was taken."

In the present case also the exchange in question militates against the express provisions of law. The plaintiffs have prayed that the order of the Deputy Commissioner is illegal, without jurisdiction and based upon fraud. Jaimal Singh, Sarpanch of the Gram Panchayat, also practised fraud upon the Deputy Commissioner. Vide the resolution passed by the Gram Panchayat he had been directed not to compound the matter and to oppose the exchange sought by Hanuman. In spite of it he agreed to the exchange before the Deputy Commissioner. As noticed earlier, under Rule 16(3) he could not have acted against the authority given to him. Hence, I do not agree with the contention of the learned counsel for the appellants that the suit is governed by Article 100 of the Limitation Act.

Learned counsel for the respondents argued that as the order was based on fraud practised by Jaimal Singh, Sarpanch, upon the Deputy Commissioner, the suit could have been filed within 12 years as relief of possession has been prayed for. I do not agree with this contention either. The plaintiffs have also prayed for a declaratory decree declaring the impugned order of the Deputy Commissioner as based upon fraud etc. That declaration is necessary before the relief of possession can be granted.

I am of the opinion that in the instant case, considering the relief claimed for, the Article applicable is Article 58 which is the residuary Article for suits filed for declaration. It reads as follows:

"Article 58:

To obtain any other declaration. Three years. When the right to sue first accrues"

The right to sue accrued to the plaintiffs when the impugned order was passed. The suit had been filed well within three years from the date of the said order. It is, therefore, held that the suit was within limitation.

For the foregoing reasons, l do not find any force in the present appeal and dismiss the same. In the circumstances of the case, I make no order as to costs.