IMPORTANT POINT
Judgment obtained by fraud – Such judgment and decree is void ab initio and is not required to be got set aside by filing a declaratory suit – Such decree can be ignored by the Court in any collateral proceedings.

ANIL KSHETARPAL, J.

1. The defendants-appellants are in the Regular Second Appeal against the concurrent findings of fact arrived at by both the Courts below.

2. Fraud has been played on the residents of the village. The office bearers of the Gram Panchayat, who are elected, are required to protect the property of the Gram Panchayat which is for the welfare of all the residents of the village like a trustee. However, trustees have behaved in totally irresponsible manner. Land reserved for common purposes is to be utilized not only by the members of the proprietary body but all the residents of the village, irrespective of the fact that they are owners of the agricultural land in the village or not.

3. The following substantial questions of law arise in the present case:-

1. Whether the judgment and decree passed by the Court which is a nullity, void ab initio, result of deceit and fraud is required to be set aside by the Court by filing a suit for declaration within the prescribed period of limitation or it can be ignored by the Court in collateral proceedings also?

2. Whether the suit is required to be filed within the prescribed period of limitation to set aside a declaratory decree which is void ab initio, result of deceit and fraud?

3. Whether the judgment and decree which is result of fraud operates as res judicata in the subsequent suit?

4. Whether the subsequent suit would be liable to be dismissed under Order 7 Rule 1(j) of Code of Civil Procedure, on the ground that the previous proceedings initiated in the year 1982 have not been disclosed?

5. Whether the Appellate Court in exercise of powers under Order 41 Rule 33 of Code of Civil Procedure is entitled to pass a judgment/order required to be passed in accordance with law irrespective of the fact that whether the cross-appeals/objections have been filed or not?

FACTS:-

4. Predecessors of the appellants filed a suit for declaration and permanent injunction on 19.08.1969. The Gram Sabha, Village Rajheri was impleaded as defendant through Sarpanch. On notice, Gram Sabha contested the suit in superfluous manner. Gram Panchayat only produced one witness on its behalf namely Lala Ram. When he appeared in the witness-box, he supported the case of the plaintiffs (in the previous suit). Hence, the suit was decreed on 29.06.1970. The land was described in the revenue record as Shamlat Deh Hasab Rasad Rakba Khewat.

5. Both the Courts below have recorded a finding which is not disputed before this Court that the family of then Sarpanch and Lala Ram, who appeared as a witness on behalf of Gram Panchayat, were beneficiaries of the previous suit. A huge land measuring 606 kanals and 8 marlas was involved. As per the revenue record, the land was being used for common purposes i.e. grazing ground for animals/pastures.

6. On 14.06.1982, the proceedings were filed challenging the validity of the judgment and decree dated 29.06.1970 before the Assistant Collector, Ist Grade. However, those proceedings were ultimately dismissed in default. The present suit was filed on 05.11.1999 pleading that the judgment and decree passed on 29.06.1970 is nullity, void ab initio, result of deceit and fraud, in collusion with the then Sarpanch of the Gram Sabha.

7. Both the Courts, as noticed above, decreed the suit filed by the plaintiffs.

8. This Court has heard the learned counsel for the parties at length and with their able assistance gone through the judgments passed by the Courts below and the record.

9. Learned counsel for the appellants has submitted as under:-

(A) The suit filed by the plaintiffs was barred by time.

(B) The land belongs to proprietary body, being described in the revenue record as Shamlat Deh Hasab Rasad Khewat and, therefore, the proprietors are owners of the land.

(C) The judgment and decree earlier passed on 29.06.1970 operates as res judicata and hence, the Courts below have committed an error.

(D) The suit is not maintainable as in the earlier proceedings initiated in the year 198