Barkha Ram (Deceased) Through His ... vs The Commissioner Panchayat Land ...
2023 Latest Caselaw 5370 P&H

                        CWP No. 9632 of 2022 (O&M)             2023:PHHC:060905-DB               -1-


                                In the High Court of Punjab and Haryana at Chandigarh


                                                               CWP No. 9632 of 2022 (O&M)
                                                               Reserved on: 20.4.2023
                                                               Date of Decision: 26.4.2023


                        Barkha Ram (since deceased) through his LRs                       .....Petitioners



                                                         Versus


                        The Commissioner, Panchayat Lands for SAS Nagar                 .....Respondents
                        and Roopnagar and others


                        CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
                               HON'BLE MR. JUSTICE KULDEEP TIWARI

                        Argued by: Mr. D.V.Sharma, Senior Advocate with
                                   Mr. Tushar Sharma, Advocate
                                   for the petitioner.

                                     Mr. Maninder Singh, DAG, Punjab.

                                     Mr. Vikas Singh, Advocate with
                                     Mr. A.S.Pannu, Advocate
                                     for respondent No. 4.

                                                ****

                        SURESHWAR THAKUR, J.

Factual background

1. Earlier to the institution of the instant writ petition, before this

Court, whereby a challenge is made to the drawings of Annexure P-20, and,

to the drawing of Annexure P-25, the petitioner (since deceased), through his

LRs, accessed this Court, through theirs filing CWP No. 7067 of 1988.

Through a decision made thereons, on 23.1.2012, this Court after allowing

the said writ petition, had quashed and set aside the order(s), as, made

respectively on 4.9.1987, and, on 6.6.1988, thus as became respectively

GURPREET SINGH became made by the authorities concerned, but with a mandate, upon, the 2023.04.28 15:42 I attest to the accuracy and authenticity of this order/judgement CWP No. 9632 of 2022 (O&M) 2023:PHHC:060905-DB -2-

Collector/Divisional Deputy Director Panchayat, SAS Nagar, Mohali to

decide the lis afresh, but in accordance with law. Therefore, the decisions,

as respectively carried in Annexure P-20, and in Annexure P-25, are made in

pursuance to the above order of remand, as became made by this Court, after

its allowing, on 23.1.2012, CWP (supra).

2. The gravamen of the entire contest, as emerges amongst the

contesting litigants, is centered, upon the essential factum relating to the

consequentiality, and, the legality of the verdict, as made by the learned

Civil Judge concerned, (Annexure P-7) whereby, the suit of the plaintiff,

with impleadment thereins of the Gram Panchayat concerned, thus for joint

possession in respect of the khasra numbers, as detailed thereins, hence

became decreed. Moreover, the fulcrum of the entire lis, is hinged upon, as

respectively contended by the counsels appearing before this Court, that the

said Annexure is a sequel of collusion, and, fraud practiced, amongst the

plaintiff thereins, and, the defendants (supra), and/or is free from the above

vices.

3. Both the statutory authorities below, through theirs making the

impugned orders, as become enclosed in the above annexures, though,

concluded, that the judgment, and decree, as made by the learned Civil Court

concerned, verdict whereof becomes enclosed in Annexure P-7, and, which

became also affirmed by the learned First Appellate Court concerned, given,

uncontestedly, thus for want of a regular second appeal, being raised

thereagainst before this Court, thus though prima facie acquires but a

conclusive, and, binding effect. However, the statutory authorities below

declined to assign credence to Annexure P-7, but on the ground, that it

became stained with a vice of fraud, and, collusion rather becoming GURPREET SINGH 2023.04.28 15:42 practiced inter se the contesting litigants concerned. I attest to the accuracy and authenticity of this order/judgement CWP No. 9632 of 2022 (O&M) 2023:PHHC:060905-DB -3-

Statutory authorities below discarded Annexure P-7 on the premise that it was obtained by fraud and collusion inter se the plaintiff thereins and the Gram Panchayat concerned.

4. In making the above conclusions, the statutory authorities

below had assigned the reasons, that since no acerbic contest emerged from

the defendants in the said suit, besides also when cogent evidence to rebut

the presumption of truth, if any, as was assignable to the jamabandi, drawn

for the year 1942-43, and, to which in the said suit Ex. P-10, thus became

assigned, therefore the said judgment and decree was a collusively obtained

decree. The above conclusion was made irrespective of the factum, that

though in Ex. P-10, the predecessor-in-interest of the plaintiff, namely,

Chhaju, was shown to cultivate the suit land, but free from encumbrance of

his being a chakotedar under the recorded land owner concerned. Moreover,

though in Annexure P-7, a conclusion became arrived, that thus when but

within the ambit of the apposite exclusionary clause, to the definition of

shamilat lands, as becomes engrafted in Section 2(g)(5)(viii) of the Punjab

Village Common Lands (Regulation) Act, 1961 (for short 'PVCL Act,

1961'), the suit land in the said civil suit, became thus saved from vestment

in the panchayat deh concerned. As a sequel, though the learned Civil Court

concerned, proceeded to make the claimed for decree of joint possession in

favour of the plaintiff-Barkha Ram. However, yet the authorities below

appear to prima facie conclude, that the reliance, as placed upon Ex. P-10,

by the learned Civil Judge concerned, rather was inapt. The reason for

making the above inference became rested, upon the factum, that the

plaintiff thereins, had suppressed from the learned Court concerned, the

subsequent thereto jamabandis, as became respectively drawn for the year GURPREET SINGH 2023.04.28 15:42 1958, and, lasting upto the year 2008-09, whereins, in the column of I attest to the accuracy and authenticity of this order/judgement CWP No. 9632 of 2022 (O&M) 2023:PHHC:060905-DB -4-

ownership, the Gram Panchayat concerned, became entered as such, but in

the column of possession, the predecessors-in-interest of the petitioner,

became entered as a gair marusi. Therefore, the said revenue entry qua the

predecessor-in-interest of the petitioner, being a gair marusi over the petition

land, was but a limited status over the petition land, and, was amenable to be

terminated through his being ensured to be evicted therefrom, but through a

petition, being instituted under Section 7 of the PVCL Act, 1961, before the

Collector concerned. Therefore, the authorities below through theirs

respectively drawing Annexure P-20 and Annexure P-25, hence concluded,

that the decreeing of the plaintiff's suit for declaratory relief, yet did not

warrant its becoming accepted.

5. The above concurrently made disaffirmative verdicts, upon, the

plaintiff suit, by both the statutory authorities below, has caused pain to him,

and, has led him to file the instant petition, before this Court.

Submissions of the learned senior counsel for the petitioner

6. The learned senior counsel for the petitioner submits, that the

above made verdicts by both the statutory authorities below, rather are

legally infirm. In making the above submission, he rests the same, upon, the

factum, that since Section 13 of the PVCL Act, 1961, became engrafted

through an amendment made in the year 1976. Therefore, when the bar

against the exercise of jurisdiction by the Civil Court, in respect of the lands

designated, as shamilat deh lands, but operates prospectively, and, does not

operate retrospectively. Resultantly, he contends, that since the verdict of

the Civil Court, as enclosed in Annexure P-7, was made prior to the

insertion of the above statutory provisions, in the PVCL Act, 1961, whereby

there is a complete ouster of jurisdiction by the Civil Court, thus in respect GURPREET SINGH 2023.04.28 15:42 of the lands designated, as shamilat deh lands. Thus, he contends, that the I attest to the accuracy and authenticity of this order/judgement CWP No. 9632 of 2022 (O&M) 2023:PHHC:060905-DB -5-

statutory authorities below were required to assign credence to Annxure P-7.

7. The learned senior counsel further submits, that since there was

a verdict of remand, made on the said civil suit, therefore, it cannot be said,

that there was any collusion inter se the plaintiff, and, the defendants in the

said civil suit. Thus, he argues, that the inferences drawn by both the

statutory authorities below, that Annexure P-7 is ridden with a vice of it

being a collusive decree, or that the decree embodied thereins, being

collusive or being obtained by fraud, are required to be interfered with, by

this Court.

Reasons for rejecting the above submissions

8. Though, this Court would accept the submissions (supra), as

addressed before this Court, by the learned senior counsel for the petitioner,

that the decree of the Civil Court concerned (Annexure P-7), whereby the

suit of the of the plaintiff, whereby the espoused decree for a declaratory

relief qua his being declared to be in joint possession of the suit land, thus

became assigned to him, though does prima facie acquire immense

evidentiary value. Moreover, though it became rendered prior to the above

statutory provisions, being engrafted in PVCL Act, 1961 whereby, there is

an ouster of jurisdiction of the Civil Court against the trying, and,

adjudicating, upon, the suits, as become laid in respect of the shamilat deh

lands. In addition, though also immense sanctity may be enjoyed by the said

decree of the Civil Court concerned.

Annexure P-7 obtained by the parties thereins, through their collusively practicing the vice(s) of suggestio falsi and suppressio veri , upon the Civil Court concerned, inasmuch as, their concealing from the learned Civil Court concerned, the jamabandis post 1950 whereins, the predecessor-in-interest of the petitioner, is reflected to be a chakotedar GURPREET SINGH 2023.04.28 15:42 over the suit land, thus was not amenable to become assigned the benefit I attest to the accuracy and authenticity of this order/judgement CWP No. 9632 of 2022 (O&M) 2023:PHHC:060905-DB -6-

of the apposite saving(s) clause, which but requires his having an encumbered independent cultivating possession of the suit land, prior to

9. Nonetheless, for the reasons to be assigned hereinafter, this

Court is of the firm view, that the conclusions, as became made by both the

statutory authorities below, that Annexure P-7, was thus obtained by fraud or

collusion becoming practiced by the plaintiff, but in connivance with the

defendants therein, is but a validly drawn conclusion(s). Though, a perusal

of Annexure P-7 discloses, that the Civil Court concerned, did assign

credence to Ex. P-10 thereins, exhibit whereof is a jamabandi relating to the

suit land, hence drawn for the year 1942-43, whereins, the predecessor-in-

interest of the plaintiff thereins, was recorded to be holding an

unencumbered cultivating possession of the suit land, inasmuch as, his

cultivating the same without his paying rent to the land owners concerned.

Thus, through Annexure P-7, the Civil Court concerned, held, that the

relevant saving(s) clause against the vestment of shamilat dah lands in the

panchayat deh, thus required its becoming applied to the suit land thereins.

On the other hand, yet the statutory authorities below, did not assign

credence to Ex. P-10 in the said civil suit. The said non-assigning of

credence to Ex. P-10 but appears to become generated from the factum, that

the jamabandis post 1950, rather containing reflection(s), contrary to the

one, as carried in Ex. P-10 in the said civil suit, inasmuch as, the said

jamabandi(s) rather containing reflection(s), that the predecessor-in-interest

of the plaintiff-petitioner herein, becoming entered, as a chakotedar over the

suit land. Necessarily he became barred to become a valid recipient of the

apposite saving clause, which rather required his having an unecumbered,

and, independent cultivating possession over the disputed land, which GURPREET SINGH 2023.04.28 15:42 I attest to the accuracy and authenticity of this order/judgement CWP No. 9632 of 2022 (O&M) 2023:PHHC:060905-DB -7-

statutory nature of cultivation he did not have over the disputed lands.

Imperative premise for not assigning credence to Ex. P-10

10. The prime premise for not assigining any evidentiary value to

Ex. P-10, appears to also become embedded on the further plank, that the

said jamabandis post 1950, and, with the above reflection became neither

tendered into evidence by the plaintiff therein, nor obviously the respective

probative vigour thereof, became either deliberated upon nor became

adjudicated upon, thus by the learned Civil Court concerned, which made

Annexure P-1. Therefore, but obviously despite the fact, that the Gram

Panchayat concerned, became impleaded as a defendant in the said civil suit,

instituted on 10.1.1972, yet the defendants thereins, also appear to suppress

the jamabandis (supra), especially the one(s) which became drawn prior to

the institution of the suit (supra), before the learned Civil Court concerned,

whereins, there is a reflection that the predecessor-in-interest of the

petitioner, was though holding cultivating possession of the suit land, but yet

he was doing so, under an encumbrance of his attorning rent to the recorded

land owners concerned. Therefore, the factum of the predecessor-in-interest

of the petitioner, paying rent to the land owners concerned, did confer, upon

him, only the limited status of a tenant over the petition land(s), and, which

status was but amenable for being terminated through a lawful order of

eviction, being made, on a motion being cast against him, before the

competent statutory authority below. Resultantly, the petitioner's claim for

assigning credence to Annexure P-7, was to be rejected, as was tenably

done.

11. Be that as it may, the above suppression, at the instance of the

defendants thereins, of documents (supra) for their consideration by the GURPREET SINGH 2023.04.28 15:42 learned Civil Court concerned, especially with theirs carrying the above I attest to the accuracy and authenticity of this order/judgement CWP No. 9632 of 2022 (O&M) 2023:PHHC:060905-DB -8-

reflections, thus results in an inference, that though prima facie thereons, the

credence assigned to Ex. P-10 in Annexure P-7, rather was amenable to

become dislodged or rebutted. In other words, when the presumption of

truth assignable to Ex. P-10 in Annexure P-7, thus would have become

rebutted or overcome, through the jamabandis subsequent thereto carrying

the above reflections, thus, upon the said jamabandis becoming adduced into

evidence by the plaintiff thereins or by the defendant thereins, which is the

Gram Panchayat concerned. However, merely for suppression of the above

documents, at the instance of the defendants thereins, does mobilize an

inference, that the said suppression occurred at the instance of the

defendants, but, upon the defendants colluding with the predecessor-in-

interest of the petitioner herein.

12. The effect of the above, is that, the parties to the said civil suit

but conjointly practicing, upon the Civil Court concerned, the vice of

suggestio falsi and suppressio veri. Necessarily, it brings-forth an inevitable

inference from this Court, that it has obviously resulted in the Civil Court

concerned, rather upon the above, thus making but a collusive decree of joint

possession, on the plaintiff's suit. The said decree, since for the above

reasons, may not have been made in case, the jamabandis subsequent to the

drawing of Ex. P-10, had been placed before the Court concerned, which,

however, did not become either tendered nor exhibited, whereas, their

tendering, and, exhibition, was of the utmost importance, to dislodge the

presumption of truth, if any, assignable to Ex. P-10. Resultantly, if on the

above score, some view other than the one taken by the learned Civil Judge

concerned, could have been taken by him, thus when he has been preempted

to do so, only because obviously of such suppression (supra), besides when GURPREET SINGH 2023.04.28 15:42 he has been precluded to pronounce a fair, and, just decision on the lis I attest to the accuracy and authenticity of this order/judgement CWP No. 9632 of 2022 (O&M) 2023:PHHC:060905-DB -9-

concerned. Therefore, the result of the above suppression, is that, the learned

Civil Judge concerned, was misled by the parties to the said civil suit, to

draw a conclusion, other than one that may be drawable, on presentation of

all the relevant documents, before him. Obviously the said judgment, and,

decree, as obtained by the plaintiff is but in collusion with the defendants

thereins, through all practicing the vice of suggestio falsi and suppressio

veri, upon, the learned Civil Judge concerned.

13. Irrespective of the above, apart from the petitioners making

dependence, upon Annexure P-7, he did not even in the civil suit (supra),

make any challenge to the validity of the drawing of jamabandis subsequent

to the making of Ex. P-10. If he had made a recoursing to the above

endeavour, he could permissibly ensure, that credence was aptly assigned to

Ex. P-10, as done by the learned Civil Judge concerned, as the subsequent

thereto occurrence of entries in the jamabandis, displaying the predecessor-

in-interest of the petitioners, to be a chakotedar, became entered in the

revenue records, rather either unauthorizedly or without any valid order of

mutation, being made by the competent revenue officer concerned. Since the

above endevaour remained unrecoursed, therefore, it is not open for the

learned senior counsel for the petitioner to contend, that the entries in the

revenue records, subsequent to drawing of Ex. P-10, were unauthorizedly

made, and, they did not rebut the presumption of truth, as became assigned

to Ex. P-10, by the learned Civil Judge concerned. In consequence, the

petitioner cannot argue before this Court, that the dependence, as, made by

the learned Civil Judge concerned, upon Ex. P-10, was a valid dependence,

nor can they argue before this Court, that in the either the plaintiff or the

defendants, thus suppressing the revenue entries pertaining to the suit land, GURPREET SINGH 2023.04.28 15:42 and, which became so entered subsequent to the drawing of Ex. P-10, rather I attest to the accuracy and authenticity of this order/judgement CWP No. 9632 of 2022 (O&M) 2023:PHHC:060905-DB -10-

was not a collusive exercise inter se the plaintiff, and, the defendants, nor

can they argue, that Annexure P-7 has been drawn through the parties

concerned, practicing the vice(s) of suggestio falsi and suppressio veri,

upon, the Civil Court concerned.

Final order

14. In the wake of the above discussion, this Court finds no merit in

the petition, and, is constrained to dismiss it. Consequently, the petition is

dismissed. The impugned orders are maintained, and, affirmed.

(SURESHWAR THAKUR) JUDGE

(KULDEEP TIWARI) JUDGE April 26th, 2023 Gurpreet

Whether speaking/reasoned : Yes/No Whether reportable : Yes/No

GURPREET SINGH 2023.04.28 15:42 I attest to the accuracy and authenticity of this order/judgement