Gurdev Kaur vs Gram Panchayat Balad Kalan and Others

Hemant Gupta, J.—This order shall dispose of LPA No. 171 of 2004, arising out of the order dated 14.5.2003, passed by the learned

Single Judge of this Court, whereby Civil Writ Petition No. 419 of 1996 filed by the Gram Panchayat was allowed, and LPA No. 81 of 2004

against the order dated 27.2.2004, passed by the learned Single Judge, whereby an application filed by the appellant for setting aside the exparte

order dated 14.5.2003, was dismissed.

The relevant facts as made out from the paper book are that in the year 1974, Sarwan Singh; Sukhdev Singh; Kamikkar Singh and Chetan

Singh sons of Kartar Kaur widow of Mehar Singh filed a Civil Suit for declaration that land measuring 68 bighas and 17 biswas does not vest in

defendant No. 2 i.e. Gram Panchayat and that the order dated 28.7.1971 and 25.3.1974 passed by the Assistant Collector, Sangrur, are in

executable. The said suit was decreed on 16.8.1978. The first appeal was dismissed. However, in the second appeal against the aforesaid

judgment, this Court found that the jurisdiction of the Civil Court is barred vide its judgment dated 19.3.1981. However, liberty was given to the

plaintiffs to seek their remedy from the competent Court.

Thereafter, the aforesaid plaintiffs filed a suit u/s 11 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as ''the

Act''), before the District Development and Panchayat Officer. The present appellant was impleaded as proforma respondent No. 5. The prayer in

this suit was that the applicants and respondent Nos. 2 to 6 are the owners and in possession of the land measuring 68 bighas and 17 biswas and

that the order dated 28.3.1971 and 25.3.1974 passed by the Assistant Collector, 1st Grade, Sangrur, are without jurisdiction.

The said application was allowed by the District Development and Panchayat Officer on 5.5.1986. The appeal preferred by the Gram

Panchayat was dismissed on 20.6.1990. However, in the writ petition filed by the Gram Panchayat, the orders passed by the authorities under the

Act were set aside and it was held that the land in dispute vests with the Panchayat vide order dated 14.5.2003. The plaintiffs before the Collector

filed LPA No. 386 of 2003 which was dismissed as withdrawn after recording an argument of the Counsel for the Panchayat.

We have heard learned Counsel for the parties and find no merit in the present appeal. Firstly, the appellant, as a legal heir of Mehar Singh,

does not possess any better right than what her brothers had. The brothers of the appellant prosecuted application u/s 11 of the Act and when an

appeal was filed against the judgment of the learned Single Judge of this Court against the order dated 14.5.2003. In fact, it was Mehar Singh,

predecessor-in-interest of the appellant, who was alleged to be the right holder of the land in Jumla Musterka Malkan. It was after the death of

Mehar Singh on 11.4.1974, the brothers of the appellant and the appellant stepped into the shoes of the deceased Mehar Singh. It was on the said

pleadings, brothers of the appellant invoked the jurisdiction of the collector u/s 11 of the Act.

Thus, the rights of the appellant are not better than the rights of her brother. The estate of Mehar Singh was represented by the brothers of the

appellant. In fact, the brothers were the ones, who invoked the jurisdiction of the Collector and taken all steps as are required by a prudent person

to prosecute and defend the interest of Mehar Singh.

In N.K. Mohammad Sulaiman Vs. N.C. Mohammad Ismail and Others, , it was held that where on account of a bonafide error, the plaintiff

institutes suit against a person, who is not representing the estate of a deceased person against whom the plaintiff has a claim either at all or even

partially in the absence of any fraud or collusion or any other ground, which taints the decree, a decree passed against the person impleaded as

heirs binds the estate, even though the other persons interested in the estate are not brought on record. Following the said view, the Hon''ble

Supreme Court in Mohd. Hussain (dead) by LRs and Others Vs. Occhavlal and Others, , has held to the following effect:

Ordinarily the court does not regard a decree binding upon a person who was not impleaded in the action. However, there exist some important

exceptions:

(i) Where by the personal law governing the absent heir, the heir impleaded represents his interest in the estate of the deceased, the decree would

be binding on all the persons interested in the estate.

(ii) If there be a debt justly due and no prejudice is shown to the absent heir, the decree in an action where the plaintiff has after bona fide enquiry

impleaded all the heirs known to him will ordinarily be held binding upon all persons interested in the estate.

(iii) The Court will also investigate, if invited, whether the decree was obtained by fraud, collusion or other means intended to overreach the Court.

Therefore, in the absence of fraud, collusion or other similar grounds, which taint the decree, a decree passed against the heirs impleaded binds the

other heirs as well even though die other persons interested are not brought on record.

In P. Chandrasekharan and Others Vs. S. Kanakarajan and Others, , the Hon''ble Supreme Court held that some of the heirs and die legal

representatives of the deceased-Cross Objector being already party to the appeal, the estate of the deceased has substantially been represented.

The said view was followed by this Court in Padmawati and Others Vs. Kulwant Rai and Others, , wherein it was held to the following effect:

A Full Bench of this Court in Sardara Singh and Another Vs. Harbhajan Singh and Others, , has found that all the legal heirs are not required

to be served as their interest are fully protected by the other legal heirs, who are already on record. It was held that what is to be seen is whether

the estate is effectively represented. In Hari Singh v. Mangal Singh etc. 1968 CLJ (P&H) 922, this Court held that in the absence of any fraud or

collusion between the plaintiff to indicate that there has not been a fair or real trial, or that against the absent heir there was a special case which

was not and could not be tried in me proceeding, the doctrine of sufficient representation shall be attracted. A Division Bench of this Court in

Baldev Singh v. Hira (1972)74 P.L.R. 422, has held that despite the death of one of the legal representatives of the deceased party, his estate

continues to be fully represented by the remaining legal representative. Therefore, there is no question of total or partial abatement.

In view of the said fact, the proceedings initiated by the brothers of die appellant for the benefit of the estate of Mehar Singh will bind not only

the brothers of me appellant, but the appellant as well.

The matter can be examined from another angle as well. An LPA No. 386 of 2003 was filed against the judgment of the learned Single Judge

on 14.5.2003. LPA No. 386 of 2003 was dismissed as withdrawn on 18.12.2003, when the following order was passed:

LPA No. 3 86 of 2003 (O&M)

Present: Shri Ajay Kaushik, Advocate, for Shri Arun Jain, Advocate, for the applicant-appellants.

Shri S.S. Salar, Advocate, for the respondents.

Shri Ajay Kaushik, learned Counsel appearing on behalf of the applicant-appellants, after it was pointed out by the learned Counsel appearing on

behalf of the respondents, that the words ''Makbooja Charand'' mentioned in the document appended as Annexure P.3, with the writ petition,

which was die reasons best known to the applicant-appellants, has been omitted in the document filed with the appeal, prays to withdraw the

appeal.

Permission is granted and the Letters Patent Appeal is dismissed as withdrawn.

Since the appeal has been dismissed as withdrawn, prayer for stay is also dismissed.

A perusal of the said order would show that the appeal was withdrawn after the arguments were addressed before this Court and finding no

escape from the conclusion recorded by the learned Single Judge. Such withdrawal of the appeal amounts to merger of the order passed by the

learned Single Judge with the orders passed by the Letters Patent Bench.

A Full Bench of this Court in Smt. Daya Wanti Vs. Yadvindra Public School and Others, , has examined the doctrine of merger and over-

ruled a Division Bench judgment reported in Matu Ram v. Union Territory of Chandigarh (1988)93 P.L.R. 8. The Full Bench has relied upon the

judgments of the Hon''ble Supreme Court in State of U.P. v. Mohammad Nooh AIR 1958 S.C. 86 and Commissioner of Income Tax, Bombay

Vs. Amritlal Bhogilal and Co., . Reliance was also placed on State of Madras Vs. Madurai Mills Co., Ltd., as well as the earlier Full Bench

judgment reported as Bansi v. Additional Director, Consolidation of Holdings, Rohtak (1966)68 P.L.R. 52 (F.B.). It was held that dismissal of a

writ petition in, limine amounts to merger of the order.

In Chandi Prasad and Others Vs. Jagdish Prasad and Others, , the Hon''ble Supreme Court examined the earlier judgment in V.M. Salgaocar

and Bros. Pvt. Ltd. Vs. Commissioner of Income Tax, and Kunhayammed and Others Vs. State of Kerala and Another, , to return a finding that

when an Appellate Court passed a decree, the decree of the trial Court merges with the decree of the Appellate Court. The merger of the decree

takes place irrespective of the fact as to whether the Appellate Court confirms; modifies or reverses the decree passed by the trial Court. It was

held that when a SLP has been dismissed summarily, the doctrine of merger does not apply but when an appeal is dismissed, it does. It was held to

the following effect:

It is axiomatic true that when a judgment is pronounced by a High Court in exercise of its appellate power upon entertaining the appeal and a

full hearing in the presence of both parties, the same would replace the judgment of the lower Court and only the judgment of the High Court

would be treated as final. See: U.J.S. Chopra Vs. State of Bombay, .

When an appeal is prescribed under a statute and the appellate forum is invoked and entertained, for all intent and purport, the suit continues.

The doctrine of merger is based on the principles of propriety in hierarchy of the justice-delivery system. The doctrine of merger does not

make a, distinction between an order of reversal, modification or an ordei1 of confirmation passed by the appellate authority. The said doctrine

postulates that there cannot be more than one operative decree governing the same subject-matter at a given point of time.

It is trite that when an appellate court passes a decree, the decree of the trial Court merges with the decree of the appellate court and even if

and subject to any modification that may be made in the appellate decree, the decree of the appellate court supersedes the decree of the trial

Court. In other words, merger of a decree takes place irrespective of the fact as to whether the appellate court affirms, modifies or reverses the

decree passed by the trial court. When a SLP is dismissed summarily, doctrine of merger does not apply but when an appeal is dismissed, it does,

See: V.M. Salgaocar and Bros. (P) Ltd. v. CIT.

In Kunhayammed''s case (supra), the Hon''ble Supreme Court held to the following effect:

The logic underlying the doctrine of merger is that there cannot be more than one decree or operative orders governing the same subject-

matter at a given point of time. When a decree or order passed by an inferior court, tribunal or authority was subjected to a remedy available

under the law before a superior forum then, though the decree or order under challenge continues to be effective and binding, nevertheless its

finality is put in jeopardy. Once the superior court has disposed of the lis before it either way-whether the decree or order under appeal is set aside

or modified or simply confirmed, it is the decree or order of the superior court, tribunal or authority which is the final, binding and operative decree

or order wherein merges the decree or order passed by the court, tribunal or the authority below. However, the doctrine is not of universal or

unlimited application. The nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or which could

have been laid shall have to be kept in view.

In the aforesaid case, while drawing distinction between the Special Leave to Appeal and hearing of the Appeal, it was held that when the SLP

is dismissed, the Supreme Court does not comment on the correctness of or otherwise of the order from which the leave to appeal is sought. What

the Court means is that it does not consider it to be a case for exercising its jurisdiction under Article 136 of the Constitution of India. When the

appeal is dismissed, the doctrine of merger applies though, it may be by a non-speaking order.

In Shy am Sundar Sarna v. Pannalal Jaiswal and Ors. (2005)1 Supreme Court Cases 436, the question raised was that if the appeal is filed

against an ex-parte judgment and decree, whether an application for setting aside the exparte decree before the inferior Court would be

maintainable. It was held that the Explanation to Order 9 Rule 13 of the CPC does not apply to the doctrine of the merger though in the absence of

such Explanation, the decree would have merged with the decree of the Appellate Court. In the aforesaid case, the earlier judgment in Rani

Choudhury Vs. Lt.-Col. Suraj Jit Choudhury, was examined. It was held that the dismissal of appeal, may be on any ground and the withdrawal of

appeal, is also to be considered a dismissal of the appeal, but the same has been expressly exempted by the Explanation. It was held to the

following effect:

On the scope of the Explanation, it was stated that the disposal of the appeal as contemplated in the Explanation was not intended to mean or

imply a disposal on merits resulting in the merger of the decree of the trial court with a decree, if any, of the appellate court on the disposal of the

appeal. The disposal of the appeal may be on any ground and though the withdrawal of an appeal by an appellant is also to be considered a

disposal of the appeal, the same has been expressly exempted by the Explanation. It was also observed that he legislative intent incorporated in the

Explanation or Order 9 Rule 13 of the Code was to confine the defendant to a single course of action and to discourage the prolonging of the

litigation on the ex parte decree, namely, by preferring an application to the trial Court under Order 9 Rule 13 of the Code for setting aside the

decree and by filing an appeal to a superior Court against it. If he did not withdraw the appeal filed by him or allowed the appeal to be disposed of

on any other ground, he was denied the right to apply under Order 9 Rule 13 of the Code. The Court also clarified that by the introduction of the

Explanation, the area of operation of the doctrine of merger was enormously extended. By virtue of the Explanation, the disposal of the appeal on

any ground whatever, apart from its withdrawal, constituted sufficient reason for bringing the bar into operation.

In view of the above, we are of the opinion that though the withdrawal was not simpliciter, but if the same is considered as an unambiguous

withdrawal, still such withdrawal of appeal would amount to merger of the order passed by the learned Single Judge with the order passed by the

Letters Patent Bench. Thus, the present appeal filed after the dismissal of the Letters Patent Appeal as also the Special Leave Petition, is nothing

but an abuse of process of law.

Consequently, both the appeals are dismissed.