Sat Bir Singh vs Dhani Ram

B.S. YADAV, J.

Sheo Ram (who died during the pendency of the appeal in the lower appellate Court and whose legal representatives were brought on the record) and Risal Singh filed the suit for possession of 49 Kanals of land situated in village Saidpur with a prayer that the possession of the suit land be got delivered to Gram Panchayat of that village. Gram Sabha and Gram Panchayat of village Saidpur were arrayed as defendant Nos. 2 and 3 respectively. According to the averments in the plaint, the plaintiffs were proprietors and residents in village Saidpur. The said land was owned and possessed by the Gram Panchayat of the village and it was used for the common purpose. In 196465 Risal Singh was the Sarpanch of the Gram Panchayat. Against the interest of the Gram Panchayat he exchanged the suit on 13 January, 1965 with land measuring 8 Kanals belonging to Dhani Ram (defendant No. 1) by means of a registered document dated 13th January, 1965 and delivered the possession of the said land to him. The exchange deed was void as the Gram Panchayat had not passed any proper resolution authorising Risal Singh Sarpanch to effect this exchange nor the permission of the Gram Sabha was obtained. Even the permission from the Government was not obtained for this exchange. As the Gram Panchayat was in collusion with Dhani Ram and was not prepared to take any proceedings against him and this inaction on the part of the Gram Panchayat was against the interest of the residents of the village.

The suit was contested only by defendant No. 1. He pleaded that the exchange was perfectly valid and the same was effected after a proper resolution had been passed by the Gram Panchayat. Two similar suits had earlier been filed against him and were dismissed and, therefore, this suit was not maintainable. The second suit had been filed under Order 1 Rule 8, Civil Procedure Code, and thus the plaintiffs were also parties to it. The present suit was barred by the principles of res judicata. Some other pleas were also taken by him as will be clear from the following issues framed by the learned trial Court :

(1) Whether the exchange of land detailed in para No. 2 of plaint is illegal and void as alleged in para No. 5 of plaint ?

(2) Whether the suit has been filed in collusion with defendants No. 2 and 3 and its effect ?

(3) Relief.

(4) Whether the suit is barred by principles of res judicata.

(5) Whether the suit is within limitation ?

Under issue No. 1 the Court held that the transaction of exchange was clearly in violation of the statutory rules (i.e. Punjab Gram Panchayat Rules, 1965) and was based on fraud and, therefore, the exchange was illegal and void. Under issue No. 2 it was held that though the suit had been filed in collusion with Gram Panchayat but it had no effect on the suit as the Panchayat itself was not precluded from filing the suit. Under issue No. 4 it was held that the suit was not barred. Under issue No. 5 it was held that as the plaintif had filed the suit on the basis of the title vesting in the Gram Panchayat, therefore, the suit could be filed within 12 years from the date of exchange and since it had been so filed, it was clearly within limitation. In view of the above findings, the plaintiffs'' suit was decreed. Feeling aggrieved, Dhani Ram filed an appeal which was heard by learned Additional District Judge, Sonepat. He discussed only issue No. 4 and held that as the earlier suit on the same cause of action and between the same parties was pending when this suit was filed, therefore, the present suit was not maintainable as it amounted to abuse of the process of the Court. He accordingly dismissed the suit without giving any finding on the other issues. Feeling aggrieved, two of the legal representatives of Sheo Ram have come to this Court in appeal.

Before I take up the arguments of the learned counsel for the parties, I may narrate some facts. Gram Sabha of the village had filed a suit in May, 1967 for a declaration that it was owner of the suit land and the exchange in question was null and void as it had been effected without authority and was a fraudulent transaction. Exhibit DL is the copy of the plaint of that suit. It was stated before the learned trial Court by the parties that the Gram Sabha withdrew that suit with permission to file a fresh suit on the same cause of action. However, the Gram Sabha or the Gram Panchayat has not filed any fresh suit so far. In June, 1968 Siri Chand and others filed a suit under Order 1 Rule 8, Civil Procedure Code in a representative capacity. Gram Panchayat Saidpur, Dhani Ram, Risal Singh, who was Sarpanch at the relevant time, and others were arrayed as defendants. In that suit the plaintiffs claimed themselves as owners of the suit land and pleaded that it was never owned by the Gram Panchayat. Exhibit DK is the copy of that plaint. Vide order, copy Exhibit DB, the Gram Panchayat allowed the plaintiffs to sue in a representative capacity and ordered that proclamation be issued to all the remaining proprietors. That suit remained pending for about 3 years. On 22nd July, 1971 the counsel for the plaintiffs gave a statement, copy Exhibit DD to the effect that they did not want to prosecute the suit and they wanted to withdraw it. Vide order copy Exhibit DC the Court dismissed the suit as having been withdrawn. It may be mentioned here that the present suit had been filed on 14th June, 1971 i.e. before the dismissal of the suit filed by Siri Chand and others under Order 1 Rule 8, Civil Procedure Code. Relying upon Amir Din Shahab Din v. Shiv Dev Singh Jhanda Singh, AIR 1947 Lahore 102 , the learned Additional District Judge has held that the present suit was liable to be dismissed as it amounted to an abuse of the process of the Court. In that case during the pendency of the suit the plaintiff brought another suit against the same defendants for the same relief and for the same cause of action. The learned Additional District Judge in para No. 9 of his judgment has remarked as follows :

"I have gone through the contents of the plaint, copy of which is Ex. D.K. It was also a suit for possession of the land in dispute, measuring 49 Kanals. The only difference in the contents of that plaint from the plaint of the present suit is that in that earlier suit the plaintiffs had claimed the land in dispute as belonging to them and not to the Gram Panchayat while in the case before us it has been alleged that the land in dispute belongs to the Gram Panchayat. Otherwise, cause of action in both the suits is the same. The same exchange of land dated 13.1.65 has been challenged in both the suits on the similar grounds. Parties to both the suits are also similar."

It further remarked in para 10 :

"The facts of the case before us are quite parallel to the facts of the case of Amir Din Shahab Din and according to the view taken in that case, the present suit is liable to be dismissed because it amounts to an abuse of the process of Courts. If the plaintiffs found any defect in the contents of the plaint, filed by them earlier, proper remedy for them was to file an application for amendment of the plaint and not to file a fresh suit, without permission of the Court, on the same cause of action and against the same defendants."

The learned counsel for the appellant rightly contended that the learned Judge was in error in holding that the present suit was based upon the same cause of action. He argued that identity of some of the issues in the two suits did not bring an identity of the subject matter of the two suits. "Cause of action" consists of a bundle of facts which the plaintiff has to prove in order to entitle him to the relief claimed by him. In the earlier representative suit, proprietary body had claimed that the suit land belonged to the plaintiffs and Risal Singh, then Sarpanch, had given it in exchange to Dhani Ram after wrongly representing that the land belonged to the Panchayat. In the present suit the plaintiffs are claiming that the property belongs to the Gram Panchayat. The plaintiffs in the present suit have further pleaded that the land was being used for common purpose by the inhabitants and proprietors of the village. Thus the plaintiffs have filed this suit in a different capacity and, therefore, it cannot be said that the present suit has been filed on the same cause of action. In this respect reference can also be made to Sumer Chand v. Fateh Chand and others, 1964 P.L.R. 884. In that case one of the plaintiffs had earlier filed a suit in which they asserted their independent right. During the pendency of that earlier suit the said plaintiff along with others as member of the joint Hindu Family, filed another suit specifically claiming the same relief as was claimed in the previous one. It was held that the status of the plaintiff in the subsequent suit was separate and distinguishable from the one in which he along with others had instituted the previous suit. Thus it cannot be said that the present suit is based upon the same cause of action.

The learned counsel for the contesting respondents argued that the suit is not maintainable in view of section 13 of the Punjab Village Common Lands (Regulation) Act, 1961 (for short the Act). That section reads as follows :

"No civil Court shall have jurisdiction

(a) to entertain or adjudicate upon any question whether

(i) any land or other immovable property is or is not shamlat deh ;

(ii) any land or other immovable property or any right, title or interest in such land or other immovable property vests or does not vest in a Panchayat under this Act ;

(b) in respect of any matter which any revenue Court, officer or authority is empowered by or under this Act to determine ; or

(c) to question the legality of any action taken or matter decided by any revenue Court, officer or authority empowered to do so under this Act."

A bare perusal of the aforesaid section and the pleadings of the parties should show that none of these questions arose for decision in the instant case. There is no dispute between the parties that the property in dispute was shamilat Deh. The plaintiffs are only challenging the exchange of the suit land effected by the Gram Panchayat with the land of Dhani Ram, defendant.

The learned counsel for the appellant argued that in the plaint the plaintiffs have alleged that the possession of the defendants is that of trespassers and, therefore, in view of section 7 of the Act the Collector is authorised to put the Gram Panchayat in possession of the suit land and, therefore, the present suit is barred in view of section 13(b) of the Act. That provision reads as follows" :

"No Civil Court shall have jurisdiction, (a) ... ... ...

(b) in respect of any matter which any revenue Court, officer or authority is empowered by or under this Act to determine ; or .. ... ."

I am of the opinion that the said provision is also not applicable to the present case. The learned counsel for the contesting respondents has not been able to show any provision of the Act under which any Revenue Court, Officer or Authority is empowered by or under the Act to declare the exchange in question as void. It is settled principle that exclusion of the jurisdiction of the civil Court to try a suit is not to be readily inferred. In view of the pleadings of the present case it is held that the suit is not barred under section 13 of the Act.

The learned counsel for the contesting respondents next argued that the plaintiffs in the present case are claiming that a decree for possession of the suit land be passed and the possession be delivered to the Gram Panchayat. He argued that such a relief cannot be granted in the present suit. I need not discuss this point because, as noticed earlier, learned lower Appellate Court had dismissed the suit on a preliminary point i.e. after holding that the suit was an abuse of the process of the Court. That Court has not considered the relief prayed for or a lesser relief like declaration one can be granted to the plaintiffs or not.

For the foregoing reasons I accept the present appeal and set aside the impugned judgment and decree and direct that the learned lower Appellate Court to decide the appeal on merits. In the circumstances the parties are left to bear their own costs.

Parties are directed to appear in the lower Appellate Court on 27th August, 1985.