Allahabad High Court
Ram Harakh And Others vs Bhagwati And Others on 3 July, 2019
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Reserved on 20.02.2019
Delivered on 03.07.2019
Court No. - 34
Case :- SECOND APPEAL No. - 142 of 1977
Appellant :- Ram Harakh And Others
Respondent :- Bhagwati And Others
Counsel for Appellant :- D.B.Misra,Chandra Kumar Rai,Dharam Veer Mishra,Dharmraj Chaudhary,J.P.Pandey,Om Prakash Pandey, U.S.M. Tripathi
Counsel for Respondent :- R.K.Chaubey,A.K.Srivastava, Hanuman Deen Verma,Preet Pal Singh Rathore
Hon'ble Sudhir Agarwal,J.
1. Heard Sri C.K.Rai, learned counsel for petitioners. None appeared on behalf of respondents though the case has been called in revise, hence I proceed to decide this appeal ex parte since it is a very old matter pending since last 41 years.
2. This is defendants' appeal under Section 100 of Code of Civil Procedure, 1908 (hereinafter referred to as "C.P.C.") arising from judgment and decree dated 13.12.1976 passed by Sri P.K.Sarin, IIIrd Additional District Judge, Basti, in Civil Appeal No.41 of 1974 whereby it has allowed appeal and set aside judgment and decree dated 10.01.1974 passed by Sri Prakash Narain Rai, Munsif Khalilabad at Basti in Original Suit No.139 of 1970.
3. The appeal was admitted on 27.01.1977 i.e. before amendment in Section 100 C.P.C., came into force on 01.02.1977 and therefore no substantial question of law was framed since at that time, grounds on which second appeal was entertainable were different.
4. Section 100 C.P.C., as it was prior to 01.02.1977, read as under:
"100. (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to a High Court on any of the following grounds, namely:
(a) the decision being contrary to law or to some usage having the force of law;
(b) the decision having failed to determine some material issue of law or usage having the force of law;
(c) a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits.
(2) An appeal may lie under this Section from an appellate decree passed ex parte." (emphasis added)
5. Thus, if Court below has decided an issue contrary to law, or a material issue of law has not been determined or there is substantial error or defect in procedure provided in C.P.C. or any other law, which has caused error or defect in decision upon merits or decision is ex-parte, this Court can interfere.
6. I proceed to consider arguments raised by learned counsel for appellant to examine whether judgment of Court below suffers any of such defect as pointed out above so as to warrant interference in the appeal on merits.
7. The facts in brief giving rise to this appeal are that, plaintiffs Bhagauati, Rudal, Ghamandi and Baburam, sons of Khelawan instituted Original Suit No.139 of 1970 in the Court of Munsif Khalilabad at Basti impleading Ram Harakh and Rajdei as defendants 1 and 2 (First Set) and Jagram and Smt Shoharta as defendants 3 and 4 (Second Set) for cancellation of order of Assistant Consolidation Officer, Circle No.12 (hereinafter referred to as "ACO") dated 13.12.1963, passed in Case No.169, Ram Harakh vs. Bhagauti.
8. Plaint case set up by plaintiffs shows that plaintiffs and defendants are part of same family tree and to show relationship, pedigree is given as under :
Sheo Narain
|
| | | | |
Gaya Gajadhar Vishun Behari Kalpoo
| _____|________________ |
Lakhai | | | | | |
____|____ Khelawan Karia Jaikaran Ram Harakh(deft.) |
| | | | | | |
Pyarey Raj Mani | Rajdei(deft.) X Jagram |
| | |
| Shoharata _____________|________________________
________________________________ | | | | |
| | | | Ram Nath Jageshar Jaishree Moti Rama Nand
Bhagauati Rudal Ghamandi Baburam _______|_________________
(plaintiff) (plaintiff) (plaintiff) (plaintiff) | | |
Bhagirathi Dhanpat Sitaram
9. Consolidation operation had already taken place in Village Reksa Dewai, Tappa Ujiyar and notification under Section 52 of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as "Act, Act, 1953") had also been published. Land, detailed in list-A, was holding of Gajadhar, common ancestor of plaintiffs and defendants of both the sets and after his death, was equally succeeded by successors. The property in List-B was joint family property wherein Gajadhar had one-fifth share, which came to be succeeded by plaintiffs and defendants in partition equally, therefore, in the properties mentioned in Lists- A and B, plaintiffs and defendants First and Second Set all had one-third and one fifteenth share, each. Land mentioned in List -C is the property of plaintiffs of which they are Bhumidhar and Sirdar and in sole possession. Plot nos. 351 and 352, mentioned in List-C were self-acquired by purchase by plaintiffs and remaining land mentioned in List-C is also their self-acquired property. Defendants (First Set) have no connection therewith and also have no possession thereof. Plaintiffs are separated from defendants (First Set) from the time of plaintiffs' father Khelawan and even their residence, kitchen and business were separate. Only in Revenue record, land mentioned in Lists- A and B were shown as joint property. During consolidation proceedings, plaintiffs 2 and 3 were not present in village as they were residing elsewhere. Defendants are very cunning litigants and persuaded plaintiffs 1 and 4 that if a single Chak is made out in consolidation, it will be convenient for agricultural purpose and they will get a good Chak while in case of partition, they will get separate and small Chaks, which may also include some bad quality of land. Though plaintiffs 2 and 3 were not present, but, defendant 1 by impersonation presented other persons and got a compromise prepared that plaintiffs and defendants are ready to have a single Chak and plaintiffs also signed the said compromise. With the intention of fraud, defendants also got land of List-C included in the compromise though it was self acquired land of plaintiffs in respect whereto defendants had no claim yet got the said land part of order passed by Consolidation Authorities i.e. A.C.O. on 13.12.1963. Defendants got compromise singed with an intention to include land of List -C to become a joint tenure holders of plaintiffs property though it was plaintiffs' self-acquired land over which defendants had no claim. Plaintiffs 2 and 3 were not present in the village and they were at Calcutta. Their signatures were been obtained in compromise by impersonation and plaintiffs 1 and 4 signed compromise under the impression that joint property is being amalgamated. In fact, compromise was neither read nor explained to plaintiffs and it was obtained by fraud and conspiracy of defendants.
10. Defendants contested the suit by filing a written statement dated 22.7.1970. They contended that land, detailed in Lists- A, B and C all were a joint property in respect whereto a compromise had taken place before Consolidation Authorities and allegation of fraud and misrepresentation are false. Land mentioned in List -C was purchased from income of joint family though in Revenue record, only names of plaintiffs were mentioned but entire land was acquired from family income and it was a joint property and for this reason, a compromise took place so that entire joint family property be amalgamated to obtain a big common Chak by the parties. Defendant 2 gifted her share to defendants 1 and 4 vide gift deed dated 22.7.1969. Plaintiffs have not taken above transaction in good sense and got annoyed from defendants.
11. Trial Court formulated four issues as under :
"i Whether the reconciliation in question is vitiated by fraud as alleged in the plaint? If so its effect upon the order of the ACO dated 13.12.63?
ii. Whether the suit is barred by Section 49 of the U.P.C.H. Act?
iii. Whether the suit is barred by time?
iv. To what relief if any are the plaintiffs entitled?"
12. Trial Court while considering issue (i) observed that compromise whether contained thumb impression/signatures of plaintiffs 2 and 3 or other persons, could not be proved by plaintiffs by placing any Expert opinion on thumb impression and, therefore, they have failed to discharge their burden on the question that at the time of compromise, plaintiffs 2 and 3 were not present and their Thumb Impressions were obtained by impersonation. He has also relied on statement of PW-1, Rudal, that certain land of other defendants, which was also recorded in Revenue records independently in the name of other family members, was made part of joint stock in the compromise, which shows that family did not have any serious objection in getting name of one or some of the family members recorded in Revenue Record, even if property was a joint family property. This shows that if some land, which was in the name of plaintiffs, if included in joint family property, it was not an exception but the same thing happened in respect of land which was similarly recorded in the name of other family members solely and there was no fraud or misrepresentation on this aspect. Trial Court has also relied on statement of Baburam that there was no separate Revenue entry, if as per the claim set up by plaintiffs, there was already a partition between family members. This shows that case set up by plaintiffs was not correct. It, therefore, answered issue (i) against plaintiffs. Trial Court also held while answering issue (ii) that suit is barred by Section 49 of Act, 1953. Answering issue (iii), Trial Court held that compromise order of Consolidation Authorities is dated 13.12.1963 while suit was filed on 11.4.1970 i.e. after more than six years hence it was barred by limitation. Consequently, Trial Court dismissed the suit vide judgment and decree dated 10.01.1974.
13. Plaintiffs preferred Civil Appeal no.41 of 1974 in the Court of District Judge, Basti, which came to be decided by IIIrd Additional District Judge, Basti vide judgment and decree dated 13.12.1976. Lower Appellate Court (hereinafter referred to as "LAC") has formulated following points for determination :
(i) Whether compromise in the consolidation proceedings was signed by plaintiffs no. 2 and 3?
(ii) Whether the said compromise was obtained by fraud or misrepresentation as alleged by plaintiffs?
(iii) Whether there was non compliance of Rule 25-A read with Section 9-A of Act, 1953 by A.C.O. when order dated 13.12.1963 was passed?
(iv) Whether the suit is barred by Section 49 of Act, 1953?
(v) Whether suit was barred by limitation?
14. Answering points (i) and (ii), LAC found that there was only oral evidence. Plaintiffs had examined four witnesses i.e. Rudal as PW-1, Baburam as PW-2, Ram Pyarey as PW-3 and Ganpat as PW-4 while defendants examined Ram Harakh as DW-1 and Ram Deo as DW-2. Plaintiffs' witnesses said that plaintiffs separated from defendants since long. PW-1 Rudal said that he was not present when compromise was entered into and he and his brother Ghamandi i.e. plaintiffs 3 were at Calcutta, in service, when consolidation proceedings took place. They did not sign the compromise. PW-2 also stated that plaintiffs 2 and 3 were not present when consolidation proceedings took place and they did not sign compromise. PW-2 further said that one Mani Ram impersonated plaintiff 2 and one Jai Ram impersonated plaintiff 3 and affixed their thumb impression on compromise. PW-2 also said that compromise was agreed only for getting a joint Chak in respect of joint family property and not for admitting defendants (First Set) as co-tenure holder in the plots of List-C. In the compromise, recital regarding co-tenure holding of defendants (First Set) in plots of List -C was fraudulently made and plaintiffs were not told about it. He also said that even defendants' witnesses admitted that compromise was entered for getting a joint Chak carved out. DW-1 stated that compromise was filed before A.C.O. At Semariawan and at that time Ram Jagat, Thakur din, Bal Raj, Bishambhar and Ram Anand were present. DW-2 said that parties affixed their thumb impression on the compromise in his presence at Semariawan. However, other persons, who were present, as stated by DW-1, were not examined by defendants. LAC relied on statements of witnesses of plaintiffs that PW-2 and 3 were not present and has recorded a finding that compromise in respect of plots of List C was obtained by fraud or misrepresentation. LAC has further held that Rule 25-A contemplates that A.C.O. shall record terms of conciliation in presence of at least two members of Consolidation Committee of the village. The terms of conciliation shall be read over to parties concerned and their signatures or thumb impression shall be obtained. Rule 25 further provides that two members of Consolidation Committee, present, shall sign terms of conciliation and A.C.O. then would pass order deciding the dispute in terms of conciliation. Under Section 9-A of Act, 1953, A.C.O. had right only to decide objections by conciliation. The order dated 13.12.1963, Exhibit 2, shows that Rule 25-A was not complied with as it neither contained signatures of members of Conciliation Committee nor mention that at least two members of Consolidation Committee were present and this leads to the inference that compromise was obtained by fraud or misrepresentation. When coming to third point that suit is barred by Section 49 of Act, 1953, LAC has held that suit founded on fraud and misrepresentation can be filed only when fraud comes to the knowledge of person who is alleging the same. In the present case plaintiffs have said that they detected fraud after consolidation operation was over and therefore, Section 49 of Act, 1953 is not attracted. With regard to presumption under Section 27 of Act, 1953, LAC held that it is rebuttable and placed reliance on this Court's decision in Yogendera Vikram Singh vs. Sri Krisha Kumar Singh 1976 LLJ 230. It therefore held that suit is not barred by Section 49 Act, 1953.
15. Then coming to limitation also, LAC has held that limitation will commence from the date fraud is detected by plaintiffs and as per statements of PWs-1 and 2, fraud came to their notice before three years from the date of filing of suit when notice of mutation in respect of gift deed made in favour of Smt.Rajdei was received. In view thereof suit is not barred by limitation.
16. Consequently, appeal has been allowed and order passed by A.C.O. dated 13.12.1963 has been declared null and void and cancelled after setting aside judgment and decree of Trial Court.
17. Sri C.K.Rai, learned counsel for appellants contended that entire suit was founded on allegation of fraud and misrepresentation in respect of land detailed in List-C of plaint, making it part of joint family property though as alleged by plaintiffs, it was their separate property. The fundamental ground to support plea of fraud was that plaintiffs 2 and 3 were not present when compromise was executed and it did not contain signatures /thumb impressions of plaintiffs 2 and 3 but some other persons' thumb impressions were obtained by impersonation. For this purpose, best possible evidence was not produced and merely on the basis of denial by plaintiffs' witnesses, LAC has recorded a finding in their favour ignoring the fact that, a document whether contain signature/thumb impression of plaintiffs 2 and 3, this fact could have been examined by an Expert but plaintiffs made no such effort though burden lay upon them to prove allegation of fraud, which they failed to discharge. Findings recorded by Trial Court to non suit plaintiffs on this aspect has not been found erroneous or illegal, yet, without reversing the same, simply relying on plaintiffs' evidence against defendants' evidence, LAC has reversed judgment, which is patently illegal.
18. Learned counsel for appellants further contended that compromise or conciliation is a voluntary act of parties and if that has been executed with the consent of parties, mere fact that order did not mention that conciliation was made in the presence of at least two members of Committee, it cannot be said that there is non compliance of Rule 25-A, inasmuch as, Rule 25-A nowhere require that order passed by A.C.O. must contain signatures of Committee. In any case, the said requirement is only directory and will not vitiate an otherwise valid compromise made part of order passed by A.C.O.
19. I find force in the submission of learned counsel for appellants. The plaint case is that plaintiffs 2 and 3 were not present during consolidation proceedings in the village. In oral depositions, it has come that they were in service at Calcutta. However, mere fact that plaintiffs 2 and 3 were in service in Calcutta, does not mean that they cold not have come to sign /put thumb impression on compromise on the date when compromise was executed. Statement of plaintiffs' witness and defendants constitute statement of fact stated on oath and it is oat versus oath. When a document is executed during statutory proceedings under Act, 1953, and an order of statutory authority is on record, possibility of any fraud cannot be lightly assumed. The presumption would lie in favour that everything is being done validly unless proved otherwise. The person, who is complaining about some fraud or misrepresentation has a heavy burden upon him to prove his case. In the present case, it was open to plaintiffs to get thumb impression on compromise document examined by an Expert and place evidence to show that thumb impressions of plaintiffs 2 and 3 were not present on the document. Neither any such report was obtained by plaintiffs on their own nor they requested Court to get document examined by an Expert.
20. When a documentary evidence was present, it prevails over oral evidence. If a person is challenging anything contained in the document, then heavy burden lie upon such person to prove such fact by adducing best evidence, which has not been done in the case in hand by plaintiffs. Mere assertion in oral testimony that plaintiffs 2 and 3 were not present and document did not contain their thumb impression is not sufficient when defendant said otherwise and a better evidence could have been adduced in the case in hand, which has not been done by the party whose responsibility it was to place best evidence.
21. In my view, LAC has committed manifest error. Plaintiffs have not discharged their burden to prove allegation of fraud still on mere oral deposition of plaintiffs, which was contradicted by defendants, LAC has chosen to rely on statement of plaintiffs ignoring the fact that plaintiffs could have adduced better evidence but they chose not to do so. That being so, inference ought to have been drawn adverse to plaintiffs in the case in hand.
22. So far as non compliance of Rule 25-A is concerned, in my view, requirement thereof is only to ensure that conciliation has arrived at between the parties voluntarily. Moreover, there is no such pleading in the plaint that at the time of execution of compromise, members of Consolidation Committee were not present and Rule 25-A was not complied with and no evidence was adduced in this regard. Only on the basis of perusal of order, LAC has made out a new case hence also it has committed manifest error since it has traveled beyond the pleadings and evidence of parties.
23. In view of above discussion, judgment of LAC is unsustainable. The appeal is allowed. Judgment and decree of LAC dated 13.12.1976 is set aside and judgment of Trial Court is hereby restored and confirmed. Consequently, suit of plaintiffs-respondents stands dismissed.
Order Date :- 03.7.2019
KA
