Makundarao Ganpatrao Wakhle v. Durgaprasad Laxman Bharbhunja

1. The plaintiff who is the lambardar of mouza Jaisinagar, Tahsil and District Saugor, and owned field No. 19/1, area 6.18 in Chhota ghas rights, situate in the same village, instituted the present suit against the defendants for possession of an area 0.10, shown in red colour in the map attached to the plaint, out of this field No. 19/1, alleging that the defendants without any right had entered into possession of that piece of land and had begun excavating a well on that land. The plaintiff's case was that he was the owner of the land and also of the well situate on that land, and the defendants had absolutely no right to trespass thereon and excavate the well. The plaintiff therefore prayed that he be declared the owner of the field including the part of land in dispute and that actual possession thereof be granted to him, that the pit of land in field No. 19/1 which was about 0.10 in area should be filled up and the materials be removed and possession be granted to the plaintiff from the defendants, and that the defendants be perpetually restrained from digging a well and collecting materials on the land in suit in future. This suit was contested by defendant 1 Durga Prasad son of Lachhman Bharbhunja, who is also the President of the Village Panchayat Committee of that village. The suit was not however instituted against him as. President of the Village Panchayat, but was instituted against him and two others on the ground that they were the actual trespassers, on the land in dispute, irrespective of the capacity in which they entered, and as against them possession and injunction were claimed. The defence was that the Village Panchayat Committee of the village had passed a resolution that the well standing on this land be excavated for meeting the water-supply of the village, and it was in pursuance of that, resolution of the Village Panchayat Committee that the defendants had entered upon the land and excavated the well. The land in dispute was claimed to be the public property. It was urged that as these defendants had acted in the manner in which they did at the instance of the Village Panchayat Committee, the said committee should be joined as a party to the case. The plaintiff does not seem to have been asked whether he was willing to join the Village Panchayat Committee as a party to the case or not.

2. The trial Court which heard the case held that the land belonged to the plaintiff and was in his possession, that the old well standing on that land also belonged to the plaintiff and not to the public, and that if at any time the public had any right whatsoever, it was extinguished by long user.

3. It also held that the defendant did excavate the well in pursuance of a resolution passed by the Village Panchayat Committee, but the said resolution was ultra vires, and inasmuch as the resolution of the Village Panchayat Committee was ultra vires, the members of Village Panchayat Committee were not necessary parties to the suit, and plaintiff's suit as against the defendants was tenable. On these findings the plaintiff's suit was decreed.

4. The defendants went up in appeal. The lower appellate Court has dismissed the suit on the simple ground that the plaintiff did not join the Village Panchayat Committee as a party to the suit though the fact that the defendants were acting in pursuance of the resolution of the Committee was brought to the notice of the plaintiff during the pendency of the suit and though the plaintiff was aware of the fact even from before the institution of the suit. The lower appellate Court was of opinion that no effective decree could be passed in this case without the Village Panchayat Committee or its members being joined as parties to the suit, and, therefore, the suit as laid was not tenable. The plaintiff comes up in second appeal.

5. It is contended on behalf of the appellant that the lower appellate Court's decision dismissing the plaintiff's suit is not justified and that no suit should be defeated by reason of misjoinder or nonjoinder of parties. It is tether contended that the lower appellate Court was wrong in holding that this was a case in which non-joinder of the Village Panchayat Committee or its members has made the suit untenable. In any case, it is argued that the plaintiff was not given an opportunity of stating whether he wanted to join the Village Panchayat as a party to the suit or not. I find from the decision of the lower appellate Court that it has not entered into the question whether the Village Panchayat Committee's resolution was ultra vires or intra vires. The decision of the trial Court that the Village Panchayat Committee was not a necessary party to the suit and that the acts of the defendants which were in pursuance of the ultra vires resolution of the Village Panchayat Committee were unauthorised acts and therefore the said acts could be treated as their own acts for which they could be also responsible, has not been met by the lower appellate Court in its decision. The lower appellate Court refers to O. 1, R. 7 of the CPC, and states that if the plaintiff was in doubt as to the person from whom he was entitled to obtain redress, he could have joined the present defendants and also other defendants from whom he thought he would obtain redress. The plaintiff however knew only of the defendants as they are the wrong-doers who trespassed on his land and excavated the well. He had therefore no doubt about the persons from whom he had to obtain redress. Order 1, R. 7 of the CPC, therefore, does not apply to the facts of the present suit.

6. The mere fact that the defendants by their written statement stated, that they acted in pursuance of the Village Panchayat Committee's resolution did not deprive the plaintiff of his right to continue the suit against them by showing that the Village Panchayat Committee as well as the defendants were acting in excess of their powers and, therefore, they were individually liable. Without a decision on the question whether the resolution passed by the Village Panchayat Committee was ultra vires and whether the acts of the defendants in the case were in excess of their powers, the lower appellate Court was not justified in dismissing the plaintiff's suit on the ground that the Village Panchayat Committee was not joined as a party. The lower appellate Court in para. 6 of its judgment stated that it was established in the case that the act of excavation was not done by the defendants in their personal capacity, but was done by the defendants because of the resolution passed by the Jaisinagar Village Panchayat Committee. But if the Jaisinagar Village Panchayat Committee had no power to pass a resolution for excavating a well belonging to another and situate in the property of another, the Committee or those who were carrying out the illegal orders of the Committee, render themselves personally responsible for their acts. The lower appellate Court is wrong in thinking that protection is given to the members of the Committee under cl. (2) of Section 66 of the Village Panchayat Act. Under cl. (2) of the section no action, civil or criminal, shall lie against any Village Court or Village Bench, or any member thereof in respect of any act performed in the discharge of the duties imposed upon them by this Act. It is thus clear that it is only with respect to the acts of the members of the Village Court or Village Bench that some protection is afforded by S. 66(2). The resolution of the Village Panchayat Committee was not passed as that of a Village Court or a Village Bench, and therefore the members of the Village Panchayat Committee are not in any way protected by reason of S. 66, cl. (2).

7. The view taken by the lower appellate Court that a member of the Village Panchayat Committee is deemed to be a public servant and that he is entitled to a notice under Section 80 of the CPC, also appears to be based on the wrong conception of the law contained in S. 66(1). Section 66(1) enacts that every Panch and every member of a Village Court or Village Bench shall be deemed to be a public servant as defined in S. 21, Penal Code. It is only for the purpose of the Penal Code that the Panch or every member of the Village Court or Village Panchayat is regarded as a public servant; he is not regarded as a public servant for all purposes. There is no provision in the Village Panchayat Act that a notice under S. 80 should be given before a suit is instituted against any member of the Village Panchayat. All these considerations which have weighed with the lower appellate Court are really extraneous and not at all relevant for the enquiry which it had to conduct or which it had to enter upon in deciding the case. The Village Panchayat was not a party before the Court, nor was any application made before the lower appellate Court for joining it or its members as parties. The three defendants that were before the lower appellate Court were sued as they were the wrongdoers according to the plaintiff who had entered upon his land and excavated the well there. By their defence they wanted to justify their act on the ground that they were backed up by the resolution of the Village Panchayat Committee. If that backing of theirs goes and it is found that there was no intra vires resolution passed by the Village Panchayat Committee, then they become responsible for the acts done by them. The lower appellate Court has decided the case without deciding the essential points involved in it. I therefore set aside the decision of the lower appellate Court and direct that all the points involved in the appeal be properly dealt with according to law with advertence to the above remarks. Costs will abide the event.

8. Case remanded.