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CASE NO.: Appeal (civil)  2529 of 2006

PETITIONER: Babu Lal & Ors

RESPONDENT: Gram Panchayat, Deroli Jat & Ors

DATE OF JUDGMENT: 31/10/2007

BENCH: Tarun Chatterjee & P. Sathasivam

JUDGMENT: JUDGMENT WITH      CONTEMPT PETITION (C) NO. 90 OF 2007      IN      CIVIL APPEAL NO. 2529 OF 2006 P. Sathasivam, J.

1)      This appeal is preferred against the  judgment and order dated 02.09.2004 passed  by the Punjab and Haryana High Court in  R.S.A. No. 3120 of 2003 whereby the High  Court dismissed the regular second appeal  of the appellants herein. 2)      The brief facts giving rise to the  present appeal are as under:     Land measuring 277 canals 6 marlas  comprised in Khewat No.302 Khatoni No. 449  to 552 situated in village Daroli Jat was  in cultivating possession of Bohat Ram,  Ram Rattan, Chhaju, Cheema and Nathu in  the year 1957 B.K. i.e. in the year 1900  A.D.  The said land belonged to the  proprietary body of Village Daroli Jat  prior to the commencement of the Pepsu  Village Common Lands Act, 1954.  The  proprietors orally mortgaged the said land  to Moola for a consideration of Rs.500/-.   Possession was also delivered to  mortgagee. Mutation was also entered  regarding the said mortgage in favour of  Moola.  Moola died and his legal  representatives came into possession of  the suit land as mortgagees.  Appellants  herein purchased the said land from L.Rs.  of Moola and thus the appellants became  mortgagees of this land.  Bohat Ram etc.  were mortgagers and co-sharer being  proprietors of the common land which was  left out for common purposes by the  proprietors of the village.   In 1954, the  Pepsu Village Common Lands Act, 1953  (hereinafter referred to as \023the Act\024)  came into force.  As per Section 4 of the  Act, all the land which was Shamlat Deh  vested in Gram Panchayat.  But the Gram  Panchayat did not and could not disturb

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the possession of the L.Rs. of Moola from  the said land as 30 years had already  elapsed for redemption of the mortgaged  land.  In 1961, Punjab Village Common  Lands Act, 1961 (hereinafter referred to  as \0231961 Act\024) came into force and Pepsu  Village Common Lands Act, 1953 was  repealed.  Section 443 of 1961 Act makes  it clear that in case mortgagee is in  possession of Shamlat Deh land since  26.01.1950, the right of mortgagee was  protected and could not be disturbed.  On  27.09.1991, the L.Rs. of Moola filed Civil  Suit No. 616 of 1991 on the file of  Additional Senior sub-Judge, Mahendragarh  seeking decree for permanent injunction  restraining Gram Panchayat from  interfering in the possession of  mortgagees and seeking declaration that  mortgagees have become owners in  possession of the suit land as more than  30 years have expired and Gram Panchayat  has not redeemed the suit land thus right  of redemption has been lost.  The trial  Court dismissed the suit.  Against the  said order, Gram Panchayat filed Misc.  Civil Appeal No. 42 of 1992 on the file of  Additional District Judge, Narnaul.  The  Additional Dist. Judge, Narnaul dismissed  the same.  Challenging the said judgment,  R.S.A. No. 1638 of 1992 was filed by the  newly constituted Gram Panchayat which was  dismissed in limine by the High Court.   Newly constituted Gram Panchayat filed  Civil Suit No. 267 of 1992 in the Court of  Civil Judge (Junior Division),  Mahendergarh seeking declaration that the  judgment and decree dated 3.2.1992 in  Civil Suit No. 616 of 1991, dated  28.7.1992 in Misc. Civil Appeal No. 42 of  1992 and dated 15.10.1992 in R.S.A. No.  1638 of 1992   are null and void having  been obtained by playing fraud and  misrepresentation in collusion with the  L.Rs. of Moola  in Civil Suit No. 616 of  1991.  The Civil Judge after quashing the  orders in Civil Suit No. 616/1991, Misc.  C.A. No. 42 of 1992 and R.S.A. No. 1638 of  1992 decided the suit in favour of Gram  Panchayat.  Against the said judgment, the  L.Rs. of Moola etc. filed C.A. No. 315 of  2000 in the Court of District Judge,  Narnaul.  The District Judge relying on  Rule No.16 of the Punjab Village Common  Lands (Regulation) Rules, 1964 directed  the Addl. Senior sub-Judge to try the case  i.e. Civil Suit No. 267/2000/1992 from the  stage, the case was posted before it on  28.11.1991 and decide the same in  accordance with law.   Aggrieved by the said judgment, the  appellants herein filed R.S.A. No. 3120 of  2003 in the High Court and the same was  dismissed by the High Court holding that  the Additional Dist. Judge, Narnaul vide

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its order dated 13.6.2003 has rightly  relegated the parties to the trial Court  and rightly directed the trial Court to  start Civil Suit from the stage of  28.11.1991 and thus dismissed the appeal.   Aggrieved by that judgment, the appellants  filed special leave petition before this  Court.  On 25.10.2004, this Court issued  notice and granted status quo regarding  possession and on 5.5.2006, leave was  granted.  Hence the present appeal. 3)      Heard Mr. P.N. Misra, learned senior  counsel appearing for the appellants and  Mr. Mahabir Singh, learned senior counsel  appearing for the respondents.           4)      Though learned senior counsel appearing  for the appellants assailed the orders of  the Courts below including the judgment of  the High Court, in view of the reasoning  of the Civil Judge (JD), Mahendergarh in  Civil Suit No. 267/2000/1992 and the  Additional Dist. Judge, Narnaul in C.A.  No. 315 of 2002, we are unable to accept  the said contention.  It is relevant to  point out that though the Civil Judge,  Mahendergarh had set aside the judgment  and decree dated 3.2.1990 as well as the  subsequent confirmation order dated  28.7.1992  of the Dist. Judge and order  dated 15.10.1992 of the High Court,  learned Additional Dist. Judge, Narnaul in  his judgment dated 13.6.2003 observed as  follows: \023Resultantly the parties are relegated to  the stage which existed on 28.11.1991 and  the Civil Suit No. 267 of 2000/1992 filed  on 28.10.1992 is hereby restored and the  Addl. Senior sub-Judge shall try the case  from the stage, the case was posted  before it on 28.11.1991 and he will  decide the case in accordance with law.   The parties are directed to appear before  the trial Court on 18.7.2003.\024 The said order/direction has been  confirmed by the High Court.  The effect  of the direction of the Additional Dist.  Judge is that Civil Suit No. 267/2000/1992  filed on 28.10.1992 is now restored and  the additional sub-Judge is to try the  case from the stage existed on 28.11.1991.   In view of the same, we clarify and permit  both parties to amend their pleadings, if  need arise and free to raise additional  plea/defence in respect of the allegation  i.e. \023fraud or misrepresentation etc.\024   After completion of those formalities,  Additional Senior sub-Judge is to dispose  of the matter as directed by the  Additional Dist. Judge, Narnaul in his  judgment dated 13.6.2003.  Considering the  fact that the dispute is pending from  1991, we request the Court concerned to  dispose of the same as directed by the  Additional Dist. Judge within a period of  six months from the date of receipt of the

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copy of the judgment.       The Civil Appeal is disposed of on the  above terms.  However, there shall be no order  as to costs.        In view of the disposal of the appeal, no  further order is required in the contempt  petition and the same is closed.