JUDGMENT

Sanjay Vashisth, J. (Oral)

CM-425-C-2020

For the reasons set out in the application, the same is allowed. Consequently, the delay of 06 days in re-filing the accompanying appeal is hereby condoned.

Civil Miscellaneous application stands disposed of.

RSA-162-2020 (O&M)

Present Regular Second Appeal (RSA) has been filed by the defendant (appellant herein) against the concurrent finding of decreetal of suit by the Courts below, which was filed by the Gram Panchayat.

2. Plaintiff - Gram Panchayat (respondent herein) filed a suit for declaration, to the effect that judgment & decree dated 11.04.1990, passed in Civil Suit bearing No.301 of 1988, by the Court of learned Senior Sub Judge, Sonipat, are wrong, void and illegal and for consequential relief of permanent injunction, restraining the defendant from dispossessing the plaintiff from the land comprised in Khewat No.21/22 (old No.390), Khata No.21 (old No.488), Rectangle and Killa No.45/1 min South (Gair Mumkin Gora), situated within the revenue estate of village Gumar, Tehsil Ganaur, District Sonipat.

3. In broader sense, plaintiff filed the suit for challenging the judgment & decree dated 11.04.1990 by submitting that same is wrong, illegal, null & void, which has been obtained by playing an act of fraud. When the defendant (appellant herein) appeared and filed his written statement, he took a specific stand that earlier to the impugned judgment & decree, there was a Civil Suit No.145/1986, for seeking a decree of permanent injunction against the Gram Panchayat. That suit had been decreed, however, there is no challenge to the judgment & decree, passed in Civil Suit No.145/1986. In the written statement, defendant pleaded that his declaratory rights over the land in question has been declared by way of impugned judgment & decree, and in fact, plaintiff has no concern with the said land.

4. After inviting all the required pleadings from the respective parties, learned Trial Court, vide order dated 01.08.2012, framed the following seven issues:-

"1. Whether the judgment and decree dated 11.4.1990 passed in Civil Suit No.301 of 1988 decided on 11.4.1990 and subsequent mutation No.2560 are null and void and have no bearing on the rights of plaintiff and defendant has no concern with the suit property as alleged ? OPP.

2. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for ? OPP.

3. Whether the suit of the plaintiff is not maintainable in the present form ? OPD.

4. Whether the plaintiff has not affixed the ad-valorem court fees on the plaint ? OPD.

5. Whether the plaintiff has not come to the court with clean hands and has suppressed the material facts from the Court ? OPD.

6. Whether the suit of the plaintiff is time barred ? OPD.

7. Relief."

5. After appreciating the evidence led by the respective parties, while examining the record, learned Trial Court held that initially, one Civil Suit No.145/1986, had been instituted by the defendant, and there being an objection by the Gram Panchayat that the Civil Court has no jurisdiction to decide the issue of ownership of the land belonging to the Gram Panchayat, defendant, withdrew his claim regarding rights/declaration, and confined his prayer only on the issue of injunction. Relevant extracted para passed in the Civil Suit No.145/1986, which has also been noticed by the learned Trial Court, is reproduced here-below:-

"At the very outset, the learned counsel for the plaintiff had given up his claim regarding declaration. Even otherwise, in view of section 13 of the Village Common Lands Act, any dispute which arises as to the lands which are Shamlat and bel