RAKESH KUMAR JAIN, J. - (1.) THE writ petition is directed against order dated 18.10.1985 (Annexure P-3) passed by the Commissioner, Ambala Division, Ambala, by which order of the Assistant Collector 1st Grade, Ferozepur Zhirka, dated 18.01.1985, ordering the suit filed by the Gram Panchayat, Gulalta under Section 13-A of the Punjab Village Common Lands (Regulation) Act, 1961 [for short "1961 Act"] to continue despite the plea of res judicata having been raised by respondent No.3 on the ground that an earlier Civil Court decree dated 18.04.1974 rendered in a suit for permanent injunction, wherein the Sarpanch appearing on behalf of the Gram Panchayat admitted claim of respondent No.3 in toto, has been set aside.
(2.) THE Regular Second Appeal has arisen from judgment and decree passed by both the Courts below by which suit filed by the Gram Panchayat, challenging the validity of collusive decree dated 18.04.1974, has been decreed. Since the appeal has been ordered to be heard along with the writ petition vide order dated 29.07.2008, therefore, both the cases are being disposed of together. The case of the Gram Panchayat, set out in the writ petition is that it had filed a suit under Section 13-A of the 1961 Act on 31.01.1983 in order to seek declaration that the land in question is Shamlat Deh and vests in the Panchayat. Two issues were framed in the said suit, namely, "whether the case is competent under the present form?OPD." and "whether the suit can not continue due to res-judicata?OPD." The private respondent No.3 raised the objection that Panchayat had earlier filed an application under Section 7 of the 1961 Act on 14.11.1979 which was dismissed as there is a Civil Court decree in his favour dated 18.04.1974 in a suit for permanent injunction, in which Rasoola S/o Bahadur, the then Sarpanch of the village, admitted respondent No.3 to be owner in possession of the land
(3.) THE Assistant Collector 1st Grade, vide his order dated in dispute. 18.01.1985, observed that the decree dated 18.04.1974 was a collusive decree and would not apply as res judicata. Thus, he ordered that the suit would continue in the present form. Aggrieved against that order, respondent No.3 filed an appeal before the Commissioner, Ambala Division, Ambala, which was allowed on the ground that decree dated 18.04.1974 is prior to the Amended Act by which power to decide the question of title was withdrawn from the Civil Court on 12.11.1974. It was observed that since the decree is final and binding on both the parties, therefore, it would operate as res judicata. The Gram Panchayat challenged the impugned order dated 18.10.1985 (Annexure P-3), passed by the Commissioner, Ambala Division, Ambala, by way of the present writ petition, which was admitted on 21.08.1986.;