RAM SINGH Vs. SOHAN LAL

JUDGEMENT

(1.) THIS shall dispose of Regular Second Appeals No. 1444 and 2260 of 1992, filed by the appellant, Ram Singh.

(2.) SOHAN Lal (respondent herein) was in possession of agricultural land measuring 13 kanals 8 marlas bearing Khewat No. 355/325, Khatoni No. 440, rectangle No. 16, Killa No. 9/2 (5-8), rectangle No. 21 killa No. 23 (8-0 ). The land belonged to the Rehabilitation Department. Sohan Lal continued to remain in possession till the property was put to restricted auction on 13. 10. 1984. Sohan Lal gave a bid of Rs. 11800/- and was declared as highest bidder. He deposited l/8th instalment, The sale was subject to confirmation by the Settlement Officer. The Settlement Officer did not confirm the sale. The property was again put to auction on 30. 1. 1985 and Ram Singh who gave a bid of Rs. 27,000/- was declared as highest bidder. Sohan Lal (respondent) filed a suit against the Government of Haryana through the Tehsildar (sales) and Ram Singh son of Ratti. The suit was for declaration to the effect that the sale made in his favour is valid and Tehsildar (Sales) has no right to re-auction the property. The suit was contested by the Government of Haryana through Tehsildar (Sales) alone as Ram Singh despite service, did not appear and was proceeded against ex-parte. The Government of Haryana took up all pleas including that the Civil Court has got no jurisdiction to entertain and try the suit. On contest, the suit was decreed and it was held that sale of the suit land in favour of Sohan Lal is valid and he has-become owner of suit land. The auction in favour of Ram Singh was held to be not valid. On appeal by the State of Haryana order of the trial Court was maintained. In appeal, Ram Singh was represented by a counsel. Ram Singh who was proceeded against ex-parte, filed an application Under Order 9 Rule 13 of the Code of Civil Procedure, but his application was dismissed as barred by time, At this stage, it may be mentioned that on 10. 6. 1987, during the pendency of the suit the Rehabilitation Department took possession from Sohan Lal and gave it to Ram Singh. After decision of the suit Sohan Lai filed an application Under Section 144 of the Code of Civil Procedure for restitution of the property on the ground that Ram Singh had no right to come into possession and since possession-was taken during the pendency of the suit, he was entitled to come into possession. This application was dismissed, being not maintainable. The Court found that possession of the land of was with Sohan Lal when he filed suit, but he was out of possession when suit was decreed. The possession taken from him was not under the decree and thus there was no question of restitution of the property in terms of Section 144 of the Code of Civil Procedure. Sohan Lal thereafter, filed an execution application, seeking possession. Ram Singh filed objection, but before the objections could be disposed of on merits, execution was got dismissed as withdrawn and rightly so, because it was only a decree for declaration for which no execution was maintainable. Ram Singh who had come into possession during pendency of the suit, in order to protect his possession, filed suit for declaration, challenging the decree in favour of Sohan Lal on the ground of fraud and collusion. When this suit was pending another suit was filed by Sohan Lal for possession on the basis of decree in his favour. Suit of Ram Singh was dismissed by the trial Court on 31. 1. 1991. On appeal by Ram Singh, judgment and decree of the trial Court was maintained. This decree is being impugned by Ram Singh in R. S. A, No. 1444 of 1992.

(3.) MR . Gopi Chand, Advocate, counsel for the appellant Ram Singh, contended that decree dated 4. 9. 1986 and as affirmed in appeal on 11. 12. 1986, was obtained by fraud as according to the counsel Sohan Lal suppressed material facts from the Court. He further contended that the other defendant i. e. State of Haryana was in collusion with Sohan Lal and because of collusion certain documents which had the direct bearing on the case were not produced. Lastly he contended that Court decreeing the suit had no jurisdiction to try the suit as the order not confirming the auction in favour of Sohan Lal could be challenged before the Authority under the Displaced Peons (Rehabilitation and Compensation) Act (in short the Act ). Thus, according to him, suit was barred Under Section 27 of the Act. In reply, learned counsel for respondent, Sohan Lal, contended that appellant was a party to the earlier suit and the contentions now put forth by the counsel are not available to the appellant. According to the counsel, judgment and decree in the fit suit is inter-partes and shall operate as res-judicata.