GRAM PANCHAYAT OF VILLAGE BHADDI Vs. OM PARKASH

JUDGEMENT

(1.) This is defendant's second appeal against who suit for declaration has been decreed by both the Courts below.

(2.) The facts giving rise to this appeal are that on 20.1.1982 vide resolution Ex.P.1, the Gram Panchayat of Bhaddi auctioned some trees standing on the Shamilat of the village. In the open auction, the plaintiff was the highest bidder. He paid a sum of Rs. 10,000/- at the spot and the resolution confirming the seal in favour of the plaintiff was passed by the Panchayat. Copy thereof is Ex.P.1. A copy of the resolution was sent to Breed Forest Officer for marking the trees as is required under Rule 6 of the Punjab Village Common Lands (Regulation) Rules, 1964. Thereafter, the plaintiff applied for permission to cut and remove the marked trees and the application is said to have been recommended by the Sarpanch. According to the plaintiff, he was also asked to deposit security of Rs. 1,500/-, which, according to him, was deposited on 15.3.1982. In the meantime, on 26.1.1982, vide copy of the resolution Ex. D.2, the Gram Panchayat cancelled the auction sale in favour of the plaintiff, directing the fresh auction of the trees. Earlier the plaintiff filed a suit for permanent injunction, restraining the defendant Panchayat from putting to re-auction the trees standing in plot No. 1. The said suit was filed on 18.3.1982. The said suit, later on, was dismissed as withdrawn, vide order dated 1.10.1982, copy Ex.D.4. Meanwhile, the plaintiff filed the present suit on 3.6.1982 for declaration to the effect that the plaintiff is a bona fide auction-purchaser of the trees standing in Shamilat area bearing plot No. 1 on the basis of an open auction dated 20.1.1982 for a sum of Rs. 38,000/- and the alleged proceeding dated 26.1.1982 (copy Ex. D. 2) of the defendant, vide which the said auction has been cancelled, is null and void, without jurisdiction, having no effect on the rights and interests of the plaintiff in the trees standing in plot No. 1. The said suit was contested by the Gram Panchayat, inter alia, on the ground that the plaintiff did not pay the 1/4th of the sale price, though time was allowed to him, vide resolution copy Ex. D. 1 dated 22.1.1982 and consequently, the Panchayat had no option, but to cancel the auction sale on 26.1.1982 vide copy resolution Ex. D. 2. The trial Court found that as per terms and conditions of the auction, as contained in Ex. P.1 the plaintiff gave the highest bid and deposited Rs. 10,000/- as 1/4th share of action money and it finds mention in those proceedings and the plaintiff never sought permission for extension of time for depositing this amount. As such, resolution Ex. D. 2 for the grant of extension and resolution Ex. D.3 to cancel the auction dated 20.1.1982 are illegal, null and void and without jurisdiction. As regards the plea of res-judicata because of the dismissal of the earlier suit, the trial Court came to the conclusion that the subject-matter and the relief sought in the first suit and the present suit are not the same, nor was the first suit decided on merits. As such, the order Ex. D. 4 does not operate as res judicata. In view of these findings, the plaintiff's suit for declaration, as prayed, was decreed. In appeal the learned Additional District Judge affirmed the said findings of the trial Court, thus maintaining the decree passed by the trial Court.

(3.) The learned counsel for the defendant-appellant Gram Panchayat, submitted that though the plaintiff never paid Rs. 10,000/- as contained in resolution Ex. D. 2, but, in any case, mere suit for declaration, as such, was not maintainable, in view of the provisions of section 34 of the Specific Relief Act. According to the learned counsel, the plaintiff was entitled to further relief of mandatory injection, directing the Gram Panchayat to allow the plaintiff to cut the trees which he never claimed in the suit. Not only that, argued the learned counsel, the Forest Department which was standing in the way of the plaintiff, was never made a party to the suit and, therefore, even if the plaintiff was allowed to amend the plaint at this stage to claim the relief of injunction, the same could not be granted. It was further contended that the auction was only for one year which ended in December, 1982 and by now the trees must have grown bigger and, therefore, the plaintiff cannot be allowed to cut the said trees at this stage which were auctioned in the year 1982. At the most, argued the learned counsel, the plaintiff is entitled to damages on account of the deposit of Rs. 10,000/- and Rs. 1,500/- subsequently. It was also contended that the auction was against the rules, as before the auction was made, sub rule (6) of Rule 6 of the Rules requires. "The Panchayat may auction every year the surplus and useless trees. All trees standing on the land in Shamilat Deh shall be marked with numbers and these numbers shall be specifically mentioned in the auction notice and the lease deed". Admittedly, this was not complied with at the time of auction notice and the lease deed". Admittedly, this was not complied with at the time of auction though, later on some marking was done by the Forest Department. On the other hand, the learned counsel for plaintiff-respondent submitted that in the written statement, the defendant never pleaded that the suit for declaration, as such, was not maintainable and, therefore, this plea is not available to the defendant/appellant at his stage. In any case, the plaintiff may be allowed to amend his plaint so as to claim the relief of mandatory injunction. It was further contended that the delay in not cutting the trees is on account of the conduct of the defendant Gram Panchayat and, therefore, it cannot be allowed to take the benefit of its own wrong.