Gurmej Singh & Ors. v. Gram Panchayat & Ors.

The challenge in this appeal, filed by the appellant-defendants Gurmej Singh and others (hereinafter to be referred as “the defendants”), is to the impugned judgment dated 23.2.2010, vide which, the Ist Appellate Court has accepted the appeal filed by the respondent-plaintiffs Gram Panchayat and others (hereinafter to be referred as “the plaintiffs”), set aside the judgment and decree dated 13.11.2006 of the trial Court and remanded the matter back to decide the case afresh on the basis of evidence already produced after giving findings on all the issues.

2. As the Courts below duly recapitulated and described the factual matrix of pleadings and evidence brought on record by the parties in detail, therefore, there appears to be no necessity to again reproduce and repeat the same. However, the epitome of the facts, culminating in the commencement, relevant for the purpose of disposal of the present second appeal and emanating from the record, is that the suit for decree of declaration filed by the plaintiffs against the defendants Gurmej Singh, Gurmukh Singh and Swaran Singh and proforma respondent Nos.5 and 6, was dismissed, in view of findings on issue No.8 only, being not maintainable by the trial Court, vide judgment and decree dated

13.11.2006.

3. As is evident from the record, the plaintiffs have filed the present suit S.A.O.No.24 of 2010 2 for decree of declaration to the effect that the village proprietary body is owner of the land in dispute and its management and control vest in the Gram Panchayat. The plaintiffs have also sought declaration that the judgment and decree dated

25.10.2001 suffered by defendant No.1 in favour of defendant Nos.2 to 5 in Civil Suit No.278 dated 24.7.2001 titled “Gurmej Singh and others Vs. Kanwar Naresh Singh Sodhi” and that the sale deed dated 9.1.2002 executed by defendant No.1 in favour of defendant Nos.2 to 5, are illegal, null and void and are not binding on the rights of the plaintiffs, with a consequential relief of permanent injunction restraining the defendants from interfering in their possession over the suit land. It means, the plaintiffs have filed the suit on the basis of their title over the property in dispute, in the manner indicated here-in-above.

4. The defendants contested the suit and filed the written statement, inter-alia, pleading certain preliminary objections of, maintainability of the suit, locus standi of the plaintiffs, estoppel and jurisdiction of the civil Court etc. On merits, the case set up by the defendants, in brief in so far as relevant, was that plaintiff Nos.2 to 5 are members of village proprietary body, but they have no right or interest in the suit property. It was denied that the management and control over the suit land vest in the Gram Panchayat, as it was never reserved for any common purpose. Defendant No.1 was stated to be its owner and he had sold the same to defendant Nos.2 to 5 through a decree for specific performance of the contract. The sale deed and the decree were stated to be valid and legal. The defendants have denied the ownership and possession of the plaintiffs. It will not be out of place to mention here that the defendants have stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit.

5. Controverting the allegations contained in the written statement and reiterating the pleadings of the plaint, the plaintiffs filed the replication.

6. In the wake of pleadings of the parties, the trial Court framed the following issues for adjudication of the case:- S.A.O.No.24 of 2010 3

1. Whether the decree dated 25.10.2001 passed in suit No.278 dated 24.7.2001 by Miss Rajnish, PCS, Civil Judge (Jr.Division), Ferozepur is illegal, null and void?OPP.

2. Whether the sale deed dated 9.1.2002 executed by defendant No.1 in favour of defendant Nos.2 to 5 is illegal, null and void?OPP.

3. Whether the suit land is the ownership of village proprietary body which is under the management and control of gram panchayat?OPP.

4. Whether the plaintiffs are entitled to declaration and injunction as prayed for?OPP.

5. Whether plaintiffs No.2 to 5 have no locus standi to file the present suit?OPD.

6. Whether plaintiffs No.2 to 5 are estopped by their acts and conducts to file the present suit?OPD.

7. Whether this court has no jurisdiction to entertain and try the suit?OPD.

8. Whether this suit is not maintainable in the present form?OPD.

9. Relief.

7. The parties, in order to prove their respective pleas, produced on record the oral as well as documentary evidence depicted in para Nos.5 and 6 of the judgment of the trial Court.

8. On one fine day, the trial Court heard the matter and taken up issue No.8 regarding maintainability of the suit, without adhering to the decision of the remaining issues and dismissed the suit of the plaintiffs, being not maintainable on account of findings on issue No.8 only, vide judgment and decree dated

13.11.2006.

9. Aggrieved by the judgment and decree of the trial Court, the plaintiffs have filed the appeal. The Ist Appellate Court has accepted the same, set aside the judgment and decree dated 13.11.2006 of the trial Court and remanded the matter back to decide the case afresh on the basis of evidence already S.A.O.No.24 of 2010 4 produced, while giving findings on all the issues, vide impugned judgment dated

23.2.2010.

10. The appellant (defendants) did not feel satisfied with the impugned judgment of the Ist Appellate Court and filed the present appeal.

11. Having heard the learned counsel for the appellants, having gone through the record of the case with his valuable help and after considering the matter deeply, to me, there is no merit in the present appeal.

12. The main contention of the learned counsel for the appellants that, since the Ist Appellate Court remanded the case to the trial Court without setting aside the findings on issue No.8, so, the impugned judgment is illegal, is not only devoid of merit but misplaced as well. It is not a matter of dispute that the plaintiffs have filed the suit for declaration/injunction on 19.3.2002. They have examined four witnesses, besides tendering into evidence various documents (Ex.P1 to Ex.P17). Sequelly, the defendants have also examined two witnesses in oral evidence and produced certain documents (Ex.D1 to Ex.D7). The suit remained pending before the trial court for more than 4½ years.

13. As is evident from the record that, having completed all the codal formalities, the case was adjourned for arguments. Instead of deciding all the relevant issues in relation to the oral as well as documentary evidence brought on record by the parties, the trial Court adopted short cut method and dismissed the suit, being not maintainable on account of findings on issue No.8 only.

14. Here, to my mind, the trial Court has slipped into legal error in this relevant connection. Once, the parties have produced their oral as well as documentary evidence on all the issues and suit remained pending for more than 4½ years, in that eventuality, the trial Court ought to have recorded the findings on all the issues and decided the case on merits, instead of dismissing the suit on preliminary issue No.8 regarding maintainability of the suit. As the Ist Appellate Court has specifically set aside the judgment and decree of the trial Court and S.A.O.No.24 of 2010 5 remanded the case back to decide afresh on merits, therefore, the findings of the trial Court on issue No.8 would be deemed to have been set aside by the Ist Appellate Court in this relevant behalf and the contrary arguments of the learned counsel for the appellants “stricto sensu” deserve to be and are hereby repelled under the present set of circumstances.

15. Moreover, the Ist Appellate Court has only remanded the case for deciding all the issues on merits and no prejudice, in any manner, is going to be caused to the appellant-defendants and they would be at liberty to re-agitate all the pleas before the trial Court, in this regard.

16. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the appellants.

17. In the light of the aforesaid reasons and without commenting further anything on merits, lest, it may prejudice the case of either side during the trial of the suit, as there is no merit, therefore, the present appeal is hereby dismissed, in the obtaining circumstances of the case. (Mehinder Singh Sullar) Judge

8.7.2010 AS