Basudeo vs A.D.M./D.D.C. & Others
2011 Latest Caselaw 4714 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
RESERVED
 
CIVIL MISC. WRIT PETITION NO. 54619 OF 2003
 
Basudeo--------------------------------------------------------Petitioner
 
Versus
 
Additional District Magistrate & others-----------------Respondents

Hon'ble Prakash Krishna,J

The dispute relates to khatauni Khata No. 113 Ba, which was recorded in the name of Ravi Nandan S/o Kamta. The land comprising in the said khata is in village Hariharpur, Pargana Shadiabad, District Ghazipur. The said village was brought under consolidation operation. The consolidation proceedings were concluded and on 9th June, 1970, the village was de-notified under Section 52 of the U.P. Consolidation of Holdings Act (hereinafter referred to as ''the Act').

Again for the second time on 26th December, 1983, the village was notified for consolidation by notification issued under Section 4(2) of the Act. For the purposes of filing the objection under Section 9-A(2) of the Act, the notification was issued on 9th October, 1986 and another notification under Section 20 of the Act was issued on 14th March, 1988. The Chaks were carved out and Chak No. 276 thereafter, was allotted to Ravi Nandan to whom the possession was delivered on 30th August, 1990.

After the finalization of all the proceedings under the said Act, Chandrama respondent no. 3 herein filed a belated objection on 7th November, 1996 (after ten years) under Section 9-A(2) of the Act along with an application to condone the delay in its filing. Respondent no. 3 in brief, pleaded that he has acquired bhumidhari right over the land in dispute being in adverse possession for more than the prescribed period of limitation. The objection was registered as a case and it was decided in terms of the compromise between Chandrama and Ravi Nandan by accepting the case of Chandrama. The compromise application is the basis of order of the Consolidation Officer dated 23rd September, 1998.

On coming to know of the said compromise, Ravi Nandan preferred a belated appeal being Appeal No. 6247 before the Settlement Officer, Consolidation (the S.O.C.) and sought the condonation of delay on the allegations that the proceedings before the Consolidation Officer were, all ex parte. He was not even served with any notice of the proceedings. The compromise filed before the Consolidation Officer is forged and fictitious document. The said compromise was not signed by him. The S.O.C. on the finding that no notice etc. on the petitioner was ever served as the notice was affected by affixation and the notice was also addressed to different village other than the one where Ravi Nandan was residing, has set aside the order of the Consolidation Officer and restored the case back for fresh consideration by providing proper opportunity of hearing to the parties, by the order dated 2nd September, 1999. Both Ravi Nandan as well as contesting respondent preferred revisions being Revision Nos. 1886 of 1999, Chandrama vs. Ravi Nandan and 1729 of 1999, Ravi Nandan vs. Chandrama before the Deputy Director of Consolidation (the D.D.C.) against the aforestated appellate order, who by the impugned order dated 15th November, 2003 allowed the revision, which was preferred by respondent no. 3 and dismissed the revision filed by Ravi Nandan, on the findings that:

i)The appeal before the S.O.C. was not maintainable as the proper course was to file a recall application before the Consolidation Officer; and

ii)The possession of respondent no. 3 over the disputed land beyond period of 12 years is established and as such he has perfected his title by way of adverse possession.

Challenging the aforesaid order dated 15th November, 2003, the present writ petition has been filed.

Heard Shri Awadhesh Kumar Singh, learned counsel for the petitioner and Shri Ramesh Singh, learned counsel for the contesting respondent.

Learned counsel for the petitioner submits that the revisional court has wrongly exercised the jurisdiction vested in it by law in setting aside the remand order passed by the S.O.C. Submission is that the proceedings before the Consolidation Officer were ex parte and the said proceeding was rightly set aside by the S.O.C. in exercise of its appellate jurisdiction, no interference by the revisional court was called for. The notice of the proceeding was served on the petitioner by affixation. The notices etc. were addressed to a different village which never reached to the petitioner and as such there was no service of notice on the petitioner. The statement of the witnesses who put their signatures on the notice has not been recorded. On legal plain, it was argued that during the first consolidation operation as also in the present consolidation operation, the plot was carved out after completing all the formalities in favour of Ravi Nandan. No objection at appropriate stage i.e. at the stage of Section 9-A(2) of the Act was preferred by respondent no. 3 and as such his objection, if any, on the ground of adverse possession was not maintainable. It was further submitted that under Section 11 of the Act, every order passed by the Consolidation Officer is appealable and as such the D.D.C. was legally not correct in holding that the appeal before the S.O.C. at the instance of Ravi Nandan was not maintainable. There is no cogent evidence to show that the said respondent no. 3 has perfected his title.

In reply, Shri Ramesh Singh, learned counsel for the contesting respondent no. 3 submits that the petitioner should have filed the restoration/recall application, if he was so aggrieved by the order of the Consolidation Officer before that very court and the appeal was not maintainable. On merits, he submits that the contesting respondent has been in possession for more than 12 years and as such he has perfected his title by way of adverse possession. Mere allegation of fraud is not sufficient unless it is proved. The petitioner has not given particulars of fraud, if any, and as such no interference under Article 226 of the Constitution of India is called for.

Having given careful consideration to the respective submissions of the learned counsel for the parties, the following points fall for consideration in the present writ petition.

i)Whether in view of the allegation of the petitioner that no notice etc. was served on Ravi Nandan about the proceeding which were before the Consolidation Officer and the alleged compromise application was not signed by Ravi Nandan, an appeal would lie or not, against the order of Consolidation Officer accepting compromise.

ii)Whether the D.D.C. has exceeded in its jurisdiction in deciding the revision on merits and holding that Chandrama respondent no. 3 has perfected his title by way of adverse possession.

iii)Whether after completion of all the proceedings carving, allotment etc., the delivery of possession of Chak was given to the petitioner, the objection under Section 9-A(2) of the Act is maintainable.

Section 11 of the Act deals with ''appeals'. Any person to the proceeding under Section 9-A aggrieved by an order of the Assistant Consolidation Officer or the Consolidation Officer, may file an appeal within 21 days before the Settlement Officer, Consolidation. The said section is widely worded. It uses the expression "any party" to the proceedings as also "aggrieved by an order". It follows that a person who is feeling aggrieved by an order of the Assistant Consolidation Officer or the Consolidation Officer may file appeal. Except the above, there is no restriction for filing the appeal under the aforesaid section. Filing of appeal is a substantive right and not a mere procedural one.

Here the remedy has been provided by statute to every "aggrieved person" from any proceeding under Section 9-A of the Act. There is no inhibition in exercise of right to file the appeal except as pointed out above.

According to the contesting respondent, Ravi Nandan was the opposite party in the proceeding before the Consolidation Officer. The said proceeding has been terminated by the Consolidation Officer in terms of compromise. Thus, Ravi Nandan was admittedly a party to the proceedings. Now the second question as to whether he could be an "aggrieved person" by the order of compromise arises. Ravi Nandan is disputing the very factum of compromise and has come out with a case that his signatures on compromise were forged.

The case of the petitioner, which has been found favour with the S.O.C. is that he was not served with notice of the proceeding nor he did sign the compromise application or vakalatnama. The S.O.C. has examined the said aspect of the case and he found that the record reveals that the notice was affected on the petitioner by affixation. The service of notice by affixation has been testified by two witnesses whose statements are not on record. The compromise application was signed under the purporting signature of the petitioner. He compared the signature of the petitioner with his admitted signature on the other documents and reached to a prima facie, finding that on the compromise application, the signature of the petitioner does not tally with his admitted signature. In other words, he has found that what the petitioner says is correct.

The D.D.C. has set aside the order of the S.O.C. by rigmarole. So far as, the service of notice is concerned, he has observed that it is not of much consequence as ultimately the petitioner appeared through an advocate and filed compromise application. With regard to the fact that the notice was addressed to Hariharpur, Pargana Shadiabad, District Ghazipur while the petitioner is resident of village Birbalpur, Pargana Pachotar, District Ghazipur, the D.D.C. held that since the disputed land lies in village Hariharpur and there is no evidence to show that the petitioner is not residing at Hariharpur therefore, sending of the notice at village Hariharpur is valid. Immediately thereafter, he jumped to the conclusion that as a vakalatnama was filed, the question of service looses its significance. The said approach is faulty. It is like putting cart before horse. A person may have the property at various places even, out side the State or the Country but it does not mean that such person is residing at every place where he possesses the property. There is neither any pleading nor any evidence that the petitioner was not residing in village Birbalpur, Pargana Pachotar, District Ghazipur. This being so, the fact that the disputed land lies in village Hariharpur, sending of notice at the village Hariharpur is obviously nothing but an eyewash as Ravi Nandan resides at a different village at Birbalpur. Even in the alleged compromise application. Ravi Nandan is resident of a different village, is mentioned there. Thus, the order of D.D.C. is vitiated. This clearly shows that Ravi Nandan was never served with notice. Viewed as above, the D.D.C. was not justified in saying that on the fact of the present case, the service of notice as the vakalatnama was filed looses significance, is correct or it is not a case of fraud.

Now, it is well settled principle of law that any judgment or order obtained by fraud, its validity can be challenged in any proceeding. Before three centuries, Chief Justice Edward Coke proclaimed;

"Fraud avoids all judicial acts, ecclesiastical or temporal".

It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the Court, Tribunal or Authority is a nullity and non est in the eye of law. Such a judgment, decree or order by the first Court or by the final Court has to be treated as nullity by every Court, superior or inferior. It can be challenged in any Court, at any time, in appeal, revision, writ or even in collateral proceedings.

In the leading case of Lazarus Estates Ltd. v. Beasley, (1956) 1 All ER 341 : (1956) 1 QB 702 : (1956) 2 WLR 502, Lord Denning observed:

"No judgment of a court, no order of a Minister, can be allowed to stand, if it has been obtained by fraud."

In Duchess of Kingstone, Smith's Leading Cases, 13th Edn., p.644, explaining the nature of fraud, de Grey, C.J. stated that though a judgment would be res judicata and not impeachable from within, it might be impeachable from without. In other words, though it is not permissible to show that the court was 'mistaken', it might be shown that it was 'misled'. There is an essential distinction between mistake and trickery. The clear implication of the distinction is that an action to set aside a judgment cannot be brought on the ground that it has been decided wrongly, namely, that on the merits, the decision was one which should not have been rendered, but it can be set aside, if the court was imposed upon or tricked into giving the judgment.

It has been said; Fraud and justice never dwell together (fraus et jus nunquam cohabitant); or fraud and deceit ought to benefit none (fraus et dolus nemini patrocinari debent).

Fraud may be defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another. In fraud one gains at the loss of another. Even most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. The principle of 'finality of litigation' cannot be stretched to the extent of an absurdity that it can be utilized as an engine of oppression by dishonest and fraudulent litigants.

In S.P. Chengalvaraya Naidu (dead) by LRs. V. Jagannath (dead) by LRs. & Ors. (1994) 1 SCC 1 : JT 1994 (6) SC 331, the Apex Court had an occasion to consider the doctrine of fraud and the effect thereof on the judgment obtained by a party. In that case, one A by a registered deed, relinquished all his rights in the suit property in favour of C who sold the property to B. Without disclosing that fact, A filed a suit for possession against B and obtained preliminary decree. During the pendency of an application for final decree, B came to know about the fact of release deed by A in favour of C. He, therefore, contended that the decree was obtained by playing fraud on the court and was a nullity. The trial court upheld the contention and dismissed the application. The High Court, however, set aside the order of the trial court, observing that "there was no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence". B approached this Court.

Allowing the appeal, setting aside the judgment of the High Court and describing the observations of the High Court as 'wholly perverse', Kuldip Singh, J. stated:

"The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean-hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax- evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court - process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation".

The Court proceeded to state:

"A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would he guilty of playing fraud on the court as well as on the opposite party".

The Court concluded:

"The principle of 'finality of litigation' cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants".

In Indian Bank v. Satyam Fibres (India) Pvt. Ltd., (1996) 5 SCC 550 : JT 1996 (7) SC 135, referring to Lazarus Estates and Smith v. East Elloe Rural District Council, 1956 AC 336 : (1956) 1 All ER 855 : (1956) 2 WLR 888, the Apex Court stated:

"22. The judiciary in India also possesses inherent power, specially under Section 151 C.P.C., to recall its judgment or order if it is obtained by Fraud on Court. In the case of fraud on a party to the suit or proceedings, the Court may direct the affected party to file a separate suit for setting aside the Decree obtained by fraud. Inherent powers are powers which are resident in all courts, especially of superior jurisdiction. These powers spring not from legislation but from the nature and the Constitution of the Tribunals or Courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behaviour. This power is necessary for the orderly administration of the Court's business".

In United India Insurance Co. Ltd. v. Rajendra Singh & Ors., (2000) 3 SCC 581 : JT 2000 (3) SC 151, by practising fraud upon the Insurance Company, the claimant obtained an award of compensation from the Motor Accident Claims Tribunal. On coming to know of fraud, the Insurance Company applied for recalling of the award. The Tribunal, however, dismissed the petition on the ground that it had no power to review its own award. The High Court confirmed the order. The Company approached the Apex Court.

Allowing the appeal and setting aside the orders, the Apex Court stated:

"15. It is unrealistic to expect the appellant company to resist a claim at the first instance on the basis of the fraud because appellant company had at that stage no knowledge about the fraud allegedly played by the claimants. If the Insurance Company comes to know of any dubious concoction having been made with the sinister object of extracting a claim for compensation, and if by that time the award was already passed, it would not be possible for the company to file a statutory appeal against the award. Not only because of bar of limitation to file the appeal but the consideration of the appeal even if the delay could be condoned, would be limited to the issues formulated from the pleadings made till then.

16. Therefore, we have no doubt that the remedy to move for recalling the order on the basis of the newly discovered facts amounting to fraud of high degree, cannot be foreclosed in such a situation. No Court or tribunal can be regarded as powerless to recall its own order if it is convinced that the order was wangled through fraud or misrepresentation of such a dimension as would affect the very basis of the claim.

17. The allegation made by the appellant Insurance Company, that claimants were not involved in the accident which they described in the claim petitions, cannot be brushed aside without further probe into the matter, for, the said allegation has not been specifically denied by the claimants when they were called upon to file objections to the applications for recalling of the awards. Claimants then confined their resistance to the plea that the application for recall is not legally maintainable. Therefore, we strongly feel that the claim must be allowed to be resisted, on the ground of fraud now alleged by the Insurance Company. If we fail to afford to the Insurance Company an opportunity to substantiate their contentions it might certainly lead to serious miscarriage of justice".

(See: (2007) 4 SCC 221, A.V. Papayya Sastry and others versus Government of A.P. and others)

In para-39 of the judgment of A.V. Papayya Sastry (supra), it has been laid down that it is established that when an order was obtained by a successful party by practising or playing fraud, it is vitiated. Such order cannot be held legal, valid or in consonance with law. It is non-existent and non est and cannot be allowed to stand. This is the fundamental principle of law and needs no further elaboration. Therefore, it has been said that a judgment, decree or order obtained by fraud has to be treated as nullity, whether by the court of first instance or by the final court. And it has to be treated as non est by every Court, superior or inferior.

Coming to the facts of the case, playing of fraud set up by the respondent no. 3 needs examination. The S.O.C. reached to a conclusion that the compromise was obtained by playing fraud. The surrounding facts and circumstances of the case are also indicative of the fact that the contesting respondent has obtained the compromise decree by inpersonation or by forging the signatures of Ravi Nandan. It does not appeal to reason that when a person is fighting the case to protect his right upto the High Court would concede his right in favour of a stranger who according to his own showing is a rank trespasser over the disputed land. The fact that the title of Ravi Nandan has not been disputed by any other person, there appears to be no reason as to why Ravi Nandan will accept the claim of the contesting respondent.

It was rightly submitted by the learned counsel for the petitioner that Section-11 of the Act does not bar the appeal against an order which has been obtained by playing fraud. A defrauded person has both the remedies, either to approach the Consolidation Officer or to challenge the order obtained by fraud by way of appeal.

In Devesh Singh and others versus Deputy Director of Consolidation, Banda and others, 2005 (98) RD 446, this Court has held that it can be the concern and option of the aggrieved party to choose that he is to pursue which remedy first i.e. to pursue recall application or to pursue appeal. The appeal has been held to be maintainable at the instance of such defrauded person. When an order has been obtained by fraud, it is nullity and its validity can be challenged at any stage including by way of appeal as has been laid down in the decisions referred to above. It is, therefore, held that an appeal at the instance of Ravi Nandan was maintainable and the D.D.C. was not legally correct to hold otherwise.

The D.D.C. and the learned counsel for the contesting respondent as well have placed reliance upon a decision of this Court in Som Datta versus Deputy Director of Consolidation, Saharanpur and others, 1999 (90) R.D. 212. The said decision is distinguishable on the facts of the present case and was decided on a totally different factual matrix. The issue of obtaining an order by playing fraud was not at all involved therein. The only issue involved therein was as to whether the fact as incorporated in the judgment, which according to the appellant is not correct, could be challenged. In that context, it was observed that if the record of a Court is to be assailed a review in that Court and not SLP or appeal in the Supreme Court is the remedy. The said decision was concerned with the statement of fact as recorded in the judgment, it is not so here. There was no such issue as to what would happen if an order is obtained by playing fraud. For the same reason, the decision given in the case of State of Bihar v. Mahabir Lal, AIR 1964 SC 377 also, is not applicable.

Other aspect of the case which heavily weigh against the contesting respondent is that the petitioner was held to be bhumidhar in the first consolidation proceeding as also in the second consolidation proceeding. The notification under Section 9-A, inviting the objection was issued on 9th October, 1986. Thereafter, the matter was fought by the petitioner with regard to the allotment of Chak upto the D.D.C. stage and then in the High Court by filing a writ petition and obtaining the stay order. It does not appeal to reason and a person, who has been fighting the litigation to protect his right upto the stage of High Court and obtaining the stay order, will suddenly give up his right in favour of a stranger.

The finding that notice was not served on Ravi Nandan, was rightly recorded by the S.O.C. The D.D.C., as observed above was not justified to dilute it as vakalatnama was filed when its very filing is disputed. Service of notice by affixation and not at the address where noticee resides, is no service. In such matters no interference at revisional stage was called for. Then, reliance was placed upon Mangaroo and others vs. Deputy Director of Consolidation and others, 2011 (4) ADJ 798 in support of the contention that mere allegation of fraud is not sufficient, it has to be established as a fact.

A copy of compromise application has been filed as annexure-10 to the writ petition. It is one sided document. Ravi Nandan accepts the claim of Chandrama. Ravi Nandan has been identified by counsel Shri Chandra Jeet. As found herein above that no notice of the proceeding was served on Ravi Nandan. The case of Ravi Nandan is that he neither engaged Shri Chandra Jeet, Advocate nor he signed vakalatnama or compromise application. Except a bare denial by Chandrama, there is no iota of evidence to show that Shri Chandra Jeet, Advocate was engaged by Ravi Nandan.

Considering all these facts together as also that Ravi Nandan is fighting upto the High Court in an earlier writ petition, to protect his right, the finding of fraud recorded by the S.O.C. is based upon the evidence available on record and fraud played by Chandrama in obtaining the compromise decree is established.

The other decision, State (Delhi Administration) v. Pali Ram, AIR 1979 SC 14, relied upon, states that a Judge should not take upon himself the task of comparing the admitted writing with the disputed one. The finding of S.O.C. is not solely based upon this.

The D.D.C. proceeded to hold that the respondent no. 3 has perfected his title by way of adverse possession as his name has been recorded in the revenue record for 12 years.

Mere long possession is not sufficient. It has to be established that the name of respondent no. 3 was recorded in accordance with the procedure prescribed under the Land Records Manual, for recording the name of trespasser. It has to be established as a fact that notice to the tenure holder before recording the name of trespasser was given. It has been held mandatory in various pronouncements.

Besides the above, It has to be established by evidence that the possession was open and hostile to the tenure holder. There is no such finding in the impugned judgment. Mere filing of khasras is not sufficient. Since the matter is being remitted back to the Consolidation Officer, it is not necessary to say anything further.

It was contended by the learned counsel for the petitioner that after the carvation of Chak and delivery of possession, the objection under Section 9-A(2) of the Act is not maintainable. He further submits that the delay in filing the objection has not been properly explained. It shall be open to the petitioner to raise the said issue before the Consolidation Officer.

Before parting with the case, it may be noted that the present writ petition has been filed by Basudeo S/o Hari Nandan. Upto the revisional stage, Ravi Nandan S/o Kamta was party. I could not get anything as to how the present petitioner has been introduced, in the present proceedings. It may also be placed on record that the learned counsel for the respondent did not raise any such question with regard to the maintainability of the writ petition at the instance of Basudeo.

Viewed as above, the impugned order is hereby, set aside and the order of the S.O.C. is restored back. The parties are directed to appear before the Consolidation Officer on 10th October, 2011. The Consolidation Officer shall decide the dispute in accordance with law expeditiously, preferably within a period of one year from the date of filing of certified copy of this judgment.

In the result, the writ petition succeeds and is allowed, with cost of Rs.5000/- (Rupees Five Thousand only) payable by the respondent no. 3 to the petitioner.

(Prakash Krishna,J)

Date: 19th September, 2011

MK/