Madras High Court
S.A.M.Seyad Ali Akbar vs The District Legal Services ... on 20 April, 2021
W.P.(MD)Nos.1512 of 2020, 888 and 1091 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 17.12.2021
PRONOUNCED ON : 19.01.2022
CORAM
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
W.P.(MD)Nos.1512 of 2020, 888 and 1091 of 2021
and
W.M.P.(MD)Nos.1218 and 1219 of 2020 and 8189 of 2021
W.P.(MD)No.1512 of 2020:-
S.A.M.Seyad Ali Akbar ... Petitioners
vs.
1.The District Legal Services Authority,
Tirunelveli District Court Campus,
Palayamkottai, Tirunelveli District-627 002.
2.The Inspector General of Registration,
100, Santhome High Road,
Raja Annamalai Puram, Chennai – 600 028.
3.The Deputy Inspector General of Registration,
Office of Deputy Inspector General of Registration,
St.Marks Street, Behind Johns Higher Secondary School,
Palayamkottai, Tirunelveli District-627 002.
4.The District Registrar (Registration),
District Registrar Office,
Collectorate Campus, Kokkirakulam,
Tirunelveli – 627 009.
1/36
https://www.mhc.tn.gov.in/judis
W.P.(MD)Nos.1512 of 2020, 888 and 1091 of 2021
5.The District Registrar (Administration)
District Registrar Office,
Collectorate Campus, Kokkirakulam,
Tirunelveli – 627 009.
6.The Sub Registrar,
Sub Registrar Office,
35-B, Firthouse Complex, 1st Floor,
Ambai Road, Melapalayam,
Tirunelveli District-627 005.
7.Abuthahir
8.Abdul Karumm
9.Pathumuthu Sakara
10.I.Berkmans
11.V.O.A.Abdul Sukkoor
12.Sharmila
13.Hithayathulla
14.Kaleel Ahamed ... Respondents
(R10 impleaded vide order of this Court, dated 20.04.2021 in W.M.P.
(MD)No.4527 of 2020.)
(Petitioners 1, 2, 4 and 5 are transposed as Respondents 11 to 14 vide
order of this Court in W.M.P.(MD)No.18312 of 2021, dated 19.01.2022)
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India for issuance of Writ of Certiorarified Mandamus, to call for the
records of the first respondent herein relating to the Lok Adalat award
dated 08.07.2019 passed in O.S.No.275 of 2018 before the Principal
Subordinate Court, Tirunelveli between 7 to 9 respondents herein as a
collusive award and quash the same as illegal and consequently, to direct
the 2 to 6 respondents herein to remove all consequential encumbrances
https://www.mhc.tn.gov.in/judis
W.P.(MD)Nos.1512 of 2020, 888 and 1091 of 2021
in respect of land in Old Revenue Survey No.291/1, Old T.S.No.550/1,
T.S.Ward 4, Block No.7, New T.S.No.202/1, T.S.Ward-AV, Block No.54,
Kulavanigarpuram Village, Palayamkottai Taluk, Tirunelveli District
within a time stipulated by this Court.
For Petitioner :Mr.M.Vallinayagam
Senior Counsel
for Mr.D.Nallathambi
For R1 :No Appearance
For R2 to R6 :Mr.J.John Rajadurai
Government Advocate
For R7 to R9 :Mr.Mahaboob Athiff
for M/s.Ajmal Associates
For R10 :Mr.G.Prabhu Rajadurai
for Mr.C.Surikumar
W.P.(MD)No.888 of 2021:-
S.A.M.Seyad Ali Akbar ... Petitioner
vs.
1.The District Collector/Member Secretary,
Tirunelveli Local Planning Authority,
Tirunelveli.
2.The Commissioner,
Tirunelveli City Municipal Corporation,
Tirunelveli District.
3.I.Berkmans
4.B.Vivek ... Respondents
https://www.mhc.tn.gov.in/judis
W.P.(MD)Nos.1512 of 2020, 888 and 1091 of 2021
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India for issuance of Writ of Mandamus, to direct the 1 and 2 respondents
herein to consider the petitioner's representation, dated 20.02.2020 and
26.12.2020 and pass appropriate order not to grant or process be plan
approval/layout submitted by the 3rd and 4th respondents herein for doing
commercial activities in respect of land in Old Revenue Survey No.
291/1, Old T.S.No.550/1, T.S.Ward 4, Block No.7, Now T.S.No.202/1,
T.S.Ward-AV, Block No.54, Kulavanigapuam Village, Palayamkottai
Taluk, Tirunelveli District based upon the petitioner's objections.
For Petitioner :Mr.M.Vallinayagam
Senior Counsel
for Mr.D.Nallathambi
For R1 :Mr.J.John Rajadurai
Government Advocate
For R2 :No Appearance
For R3 and R4 :Mr.G.Prabhu Rajadurai
for Mr.C.Surikumar
W.P.(MD)No.1091 of 2021:-
S.A.M.Seyad Ali Akbar ... Petitioner
vs.
1.The District Collector,
Collectorate, Tirunelveli District.
2.The District Revenue Officer,
District Revenue Office,
Tirunelveli District.
https://www.mhc.tn.gov.in/judis
W.P.(MD)Nos.1512 of 2020, 888 and 1091 of 2021
3.The Tahsildar,
Palayamkottai Taluk, Tirunelveli District.
4.The Commissioner,
Tirunelveli City Municipal Corporation,
Tirunelveli District.
5.Abuthahir
6.Abdul Kareem
7.Pathumuthu Sakara
8.I.Berkmans
9.B.Vivek ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India for issuance of Writ of Mandamus, to direct the 1 to 4 Respondents
herein to consider the petitioner's representation, dated 20.02.2020 and
26.12.2020 and pass appropriate order to remove the entry of 8 and 9
respondents herein in the Patta/Town Survey Register (TSR) in respect of
land in Old Revenue Survey No.291/1, Old T.S.No.550/1, T.S.Ward 4m
Block No.7, Now T.S.No.202/1, T.S.Ward-AV, Block No.54,
Kulavanigarpuam Village, Palayamkottai Taluk, Tirunelveli District
obtained under fraudulent Lok-Adalat award dated 08.01.2019 in O.S.no.
275 of 2018 on the file of District Legal Services Authority, Tirunelveli
District Court.
For Petitioner :Mr.M.Vallinayagam
Senior Counsel
for Mr.D.Nallathambi
For R1 to R3 :Mr.J.John Rajadurai
Government Advocate
For R4 :No Appearance
For R5 to R9 :Mr.G.Prabhu Rajadurai
for Mr.C.Surikumar
https://www.mhc.tn.gov.in/judis
W.P.(MD)Nos.1512 of 2020, 888 and 1091 of 2021
COMMON ORDER
W.P.(MD)No.1512 of 2020 had been filed by three petitioners, who
are closely related. W.P.(MD)Nos.888 and 1091 of 2021 have been filed
by the third petitioner in W.P.(MD)No.1512 of 2020.
2.During the course of hearing, W.M.P.(MD)Nos.9188 and 18312
of 2021 had been filed by the third petitioner in W.P.(MD)No.1512 of
2020 seeking to transpose the other Writ Petitioners in W.P.(MD)No.
1512 of 2020 as respondents. In effect, the three Writ Petitions are
prosecuted only by the third Writ Petitioner in W.P.(MD)No.1512 of
2020, S.A.M.Seyad Ali Akbar.
W.P. (MD) No. 1512 of 2020 :
3.It would be judicious to take up the Writ Petition in W.P.
(MD)No.1512 of 2020 for consideration first, as the determination of the
same would have a direct bearing on the relief to be granted in the other
two Writ Petitions.
4.W.P.(MD)No.1512 of 2020 had been filed in the nature of
https://www.mhc.tn.gov.in/judis
W.P.(MD)Nos.1512 of 2020, 888 and 1091 of 2021
Certiorarified Mandamus seeking interference with a Lok-Adalat award,
dated 08.07.2019 in O.S.No.275 of 2018 which was pending before the
Principal Subordinate Court at Tirunelveli. In that particular suit, none
of the Writ Petitioners were parties. It was a suit for specific
performance filed by the seventh and eighth respondents, Abuthahir and
Abdul Kareem against the ninth respondent, Pathumuthu Sakara. It is
claimed by the Writ Petitioners that the suit was collusive, instituted
fraudulently and that the Lok-Adalat award should suffer being struck
down, as being the produce of a fraud committed affecting judicial
sanctity.
5.The controversy involved was with respect to lands in Old
Revenue Survey No.291/1, Old T.S.No.550/1, T.S.Ward 4m Block No.7,
Now T.S.No.202/1, T.S.Ward-AV, Block No.54, Kulavanigarpuam
Village, Palayamkottai Taluk, Tirunelveli District. It is stated that the said
land originally measured 2.14 acres and was owned by Nagoor Meeran
Ravuthar. It is stated that he had purchased the said property in 1889,
1891 and 1895. Out of the 2.14 acres, he sold 15 cents to one
Kumarasamy Reddiyar. He therefore retained 1.99 acres. It is claimed
https://www.mhc.tn.gov.in/judis
W.P.(MD)Nos.1512 of 2020, 888 and 1091 of 2021
that, on field, the available land was 1.95 acres. It is further claimed that
Nagoor Meeran Ravuthar died intestate in the year 1928. When he died
intestate, he left surviving him as his legal heirs, his widow, Mohideen
Meerakal Beevi, one son Mohemmed Miya Khan and two daughters,
Kuppameera Beevi and Chinna Meerakkal Beevi. His wife died in 1932.
6.It is stated that there is a controversy with respect to the life and
death of the son, Mohammed Miya Khan. The petitioners claim title
through a sale deed executed by Mohammed Miya Khan in 1942 to one
Mohideen Mohammed Abubakkhar Tharangara. It is the claim of the
seventh to ninth respondents that such sale deed is improbable, since they
claim that Mohammed Miya Khan had died in 1937. It is the claim of the
said respondents that the other sister KuppaMeera Beevi died on
21.12.1961 leaving behind the ninth respondent Pathumuthu Sakara as
the only surviving legal heir.
7.It is stated in the affidavit filed in support of the Writ Petitions
that the said ninth respondent, Pathumuthu Sakara was the defendant in a
suit instituted by the seventh and eighth respondents, Abuthahir and
https://www.mhc.tn.gov.in/judis
W.P.(MD)Nos.1512 of 2020, 888 and 1091 of 2021
Abdul Kareem in O.S.No.275 of 2018 seeking specific performance of an
alleged oral agreement in June 2018. It was claimed in the plaint that the
seventh and eighth respondents had also paid the entire sale
consideration of Rs.10,00,000/- on 31.07.2018 and that, the ninth
respondent had executed a receipt.
8.The said receipt was the basis on which the suit for specific
performance was filed. That suit was referred to the Lok Adalat on the
first hearing date, when the defendant appeared. Within a week, the Lok-
Adalat passed an award enforcing specific performance. A power of
attorney was however executed by the ninth respondent in favour of the
seventh and eighth respondents. As on date, the said property had been
conveyed by them to the tenth respondent.
9.It is claimed by the Writ Petitioners that the claim of an oral
agreement of sale, and the filing of the suit on the said alleged oral
agreement of sale, and the receipt produced to substantiate the oral
agreement of sale were false pleadings and the reference to Lok Adalat
and the subsequent compromise were collusive, fraudulent and that
https://www.mhc.tn.gov.in/judis
W.P.(MD)Nos.1512 of 2020, 888 and 1091 of 2021
therefore, the Lok-Adalat award is non est in the eyes of law and should
be interfered with.
10.After purchase by the tenth respondent, the revenue records
have been mutated and planning permission had also been granted for
construction of building. Questioning such mutation of revenue records
and grant of planning permission, the other two Writ Petitions, namely,
W.P.(MD)Nos.888 and 1901 of 2021 had been filed.
11.The contention of the seventh to tenth respondents in their
counter affidavit was that the original owner, Nagoor Meeran Ravuthar
owned 2.14 acres and later sold 15 cents, which meant that he retained
1.99 acres. He died in 1928. The property devolved to his wife, son and
two daughters. The wife died in 1932. The son died in 1937. The entire
property devolved to the two daughters, Kuppameera Beevi and Chinna
Meerakkal Beevi. It is claimed that they were each entitled to 81.5 cents.
The ninth respondent claimed to be the legal heir of Kuppa Meera Beevi,
who died on 21.12.1961.
https://www.mhc.tn.gov.in/judis
W.P.(MD)Nos.1512 of 2020, 888 and 1091 of 2021
12.She claimed that she wanted to convey a portion of the property
and therefore, entered into an oral agreement of sale with the seventh and
eighth respondents for a consideration of Rs.10,00,000/-. She received
the consideration of Rs.10,00,000/-. The seventh and eighth respondents
instituted a suit in O.S.No.275 of 2018 before the Subordinate Court,
Tirunelveli. She claimed that she was a pardanashin lady. She subjected
herself to the award of the Lok-Adalat.
13.The said respondents claimed that the suit was instituted bona
fide and as a matter of fact, they also claimed that the Writ petitioners had
no title, since Mohammed Miya Khan had actually died in the year 1937
and therefore, could not have conveyed the property in the year 1942 to
their father. They urged that the Writ Petitions should be dismissed.
14.The facts outlined above clearly show that it is a lis between
two groups of private individuals and the other respondents, namely,
Inspector General of Registration, Deputy Inspector General of
Registration, District Registrar (Registration), District Registrar
(Administration) and Sub Registrar, Melapalayam, Tirunelveli, are
https://www.mhc.tn.gov.in/judis
W.P.(MD)Nos.1512 of 2020, 888 and 1091 of 2021
parties who can never agitate the issue whether the award of the Lok
Adalat, complained as fraudulent by the Writ Petitioners, is actually
fraudulent. They are however necessary parties in W.P.(MD)Nos.888 and
1091 of 2021, where their orders have been called in question. Fate of
such orders would depend on the finding in W.P. (MD)No.1512 of 2020.
15.Heard arguments advanced by Mr.M.Vallinayagam, learned
Senior Counsel appearing on behalf of the Writ Petitioners, Mr.Prabhu
Rajadurai, learned Counsel for Mr.C.Surikumar for the tenth respondent
in W.P.(MD)No.W.P.(MD)No.1512 of 2020, third and fourth respondents
in W.P.(MD)No.888 of 2021 and fifth to ninth respondents in W.P.
(MD)No.1091 of 2021 and who mainly contested the claim of the Writ
Petitioners, Mr.Mohaboob Athiff, learned Counsel for the seventh to
ninth respondents in W.P.(MD)No.1512 of 2021 and Mr.J.John
Rajadurai, learned Government Advocate for the official respondents.
16.The primary issue which this Court should examine is whether
the Writ Petition itself is maintainable, since it questions the legality of
the award of the Lok-Adalat and the consequent decree passed in O.S.
https://www.mhc.tn.gov.in/judis
W.P.(MD)Nos.1512 of 2020, 888 and 1091 of 2021
No.275 of 2018 on the file of the Principal Subordinate Court,
Tirunelveli.
17.Chapter-VI of the Legal Services Authorities Act, 1987, deals
with Lok-Adalat. Section 19 relates to organising Lok-Adalats either in
State level or at the Taluk level, as the case may be.
18.Section 19(5)(i) of the Act provides that “a Lok-Adalat shall
have jurisdiction to determine and to arrive at a compromise or
settlement between the parties to the dispute in respect of –
i) any case pending
(ii) any matter which is falling within the jurisdiction of and is not
brought before, any court for which the Lok Adalat is organized”
19.In the instant case, O.S.No.275 of 2018 was pending before the
Principal Subordinate Court at Tirunelveli. It was referred to the Lok-
Adalat conducted by the District Legal Services Authority.
20.Section 20 of the Act provides that where the parties to a suit
https://www.mhc.tn.gov.in/judis
W.P.(MD)Nos.1512 of 2020, 888 and 1091 of 2021
agree or any application is made to the Court and if the Court is satisfied
that there are chances of settlement, then the Court shall refer the case to
the Lok Adalat. Section 20(3) of the Act reads as follows:
“20(1)....
(2)......
(3) Where any case is referred to a Lok Adalat under sub-section
(1) or where a reference has been made to it under sub-section
(2), the Lok Adalat shall proceed to dispose of the case or matter
and arrive at a compromise or settlement between the parties.”
21.Section 20(4) of the Act reads as follows:
“20(1)....
(2)......
(3)......
(4)Every Lok Adalat shall, while determining any reference
before it under this Act, act with utmost expedition to arrive at a
compromise or settlement between the parties and shall be
guided by the principles of justice, equity fair play and other
legal principles.”
22.Section 21 of the Act reads as follows:
“21. (1) Every award of the Lok Adalat shall be deemed to be a
decree of a civil court or, as the case may be, an order of any
other court and where a compromise or settlement has been
arrived at by a Lok Adalat in a case referred to it under sub-
section (1) of section 20, the court-fee paid in such case shall be
refunded in the manner provided under the Court-fees Act, 1870.
https://www.mhc.tn.gov.in/judis
W.P.(MD)Nos.1512 of 2020, 888 and 1091 of 2021
(2) Every award made by a Lok Adalat shall be final and binding
on all the parties to the dispute, and no appeal shall lie to any
court against the award.”
23.Section 22(iii) of the Act reads as follows:
“22(1)....
(2).....
(3)(3) All proceedings before a Lok Adalat “or Permanent Lok
Adalat” shall be deemed to be judicial proceedings within the
meaning of sections 193, 219 and 228 of the Indian Penal Code
and every Lok Adalat shall be deemed to be a civil court for the
purpose of section 195 and Chapter XXVI of the Code of
Criminal Procedure, 1973.”
24.Examination of the above provisions reveals that if a reference
is made with the consent of the parties to the Lok-Adalat to examine an
issue in a pending suit, the Lok-Adalat must formulate its own procedure
and try to bring about an amicable settlement between the parties. If a
settlement is reached, an award may be passed. Such an award is signed
by the parties to indicate their acceptance to abide with such award and
thereafter, they cannot file an appeal against the said award. It is binding
on them.
25.It is also seen that the Lok-Adalat stipulates following the
https://www.mhc.tn.gov.in/judis
W.P.(MD)Nos.1512 of 2020, 888 and 1091 of 2021
principles of natural justice. The parties have to be given an opportunity
of being heard. They must be heard. Therefore, when a settlement or
compromise is reached and when an award is passed in terms of the
settlement or compromise, the parties cannot turn around and claim that
the award was on the basis of fraud played by one on the other. In effect,
the award of a Lok-Adalat is binding on the parties to the suit. They had
accepted reference of the issues before the Lok-Adalat. They had
participated in the proceedings. They had entered into a settlement or a
compromise. They had accepted to the terms of such settlement or
compromise. They had held out a promise to the other party that they
would abide by the terms of the settlement or the compromise. They had
then consented for an award to be passed in terms of the settlement or
compromise. They had also signed the award.
26.The award and any consequent decree so passed is not a
judgment of the Court. In an adversial litigation, the facts averred by one
side and disputed by the other side are framed as issues and put up for
trial, This is adversial process. Evidence is adduced and tested during
cross examination. Documents produced are questioned and disputed. A
https://www.mhc.tn.gov.in/judis
W.P.(MD)Nos.1512 of 2020, 888 and 1091 of 2021
judgment is finally passed by the Court giving a ruling favouring the
interpretation of the facts projected by one side and/or rejecting the other
version.
27.However, an award by the Lok Adalat is passed based on a
settlement or compromise entered into by the parties to the suit,
voluntarily, and with the sanction of the Court. The signatories to the
award are not only the plaintiff and defendant, but also the Presiding
Officer and the Members of the Lok-Adalat. All of them agree that a
settlement or compromise had been reached and that the terms of the
settlement or compromise as written down are the terms of settlement or
compromise agreed between the parties. Thus, the award is binding on all
of them. This position is clear. There can be no doubt about it. No party
can file an appeal against the terms, since they are themselves parties to
the award.
28.In the instant case, the Writ Petitioners however allege
collusion and fraud in the award passed by the Lok Adalat. They claim
that the suit in O.S.No.275 of 2018 was the result of collusion between
https://www.mhc.tn.gov.in/judis
W.P.(MD)Nos.1512 of 2020, 888 and 1091 of 2021
the seventh and eighth respondents on the one hand and the ninth
respondent on the other hand. The suit was for specific performance of
an oral agreement of sale. The date of the agreement of sale was not
given in the plaint. There is no mention of witnesses to the oral
agreement of sale. But rather it was only mentioned that the oral
agreement was in June 2018. To examine this, the plaint averments will
have to be examined. The relevant portions are extracted. They are as
follows:
“2),e;jepiyapy; thjpfs; kw;Wk; gpujpthjp ed;F
gof;fKs;sth;fs; vd;gjhy; jgrpy; nrhj;jpy;
gpujpthjpapd; gq;if nghWj;J gpujpthjp tpw;gid
nra;a tpUk;GtjhfTk;> thjpfis gpuhJ jgrpy;
nrhj;jpd; gpujpthjpapd; gq;fpid fpiuak; Kbj;Jf;
nfhs;SkhWk;> tpUg;gk; njhptpj;Js;shh;. mjd;
mbg;gilapy; thjpfSk; gpujpthjpAld; ,Ue;j
gof;fj;jpd; fhuzkhf jgrpy; nrhj;jpid fpiuak;
thq;Ftjw;F rk;kjpj;J jgrpy; nrhj;jpw;F nkhj;j
fpiuanjhif &.10>00>000/- (&gha; gj;J ,yl;rk;
kl;Lk;) vd Ngrp KbT nra;ag;gl;L thjpfs;
gpujpthjpfSf;fpilNa fle;j 2018k; tUlk; [_d; khjk;
tha;nkhopahf xg;ge;jk; Vw;gLj;Jg;gl;Ls;sJ. i\
xg;ge;jj;jpd; Njjpad;W gpujpthjpf;F rhl;rpfs;
Kd;dpiyapy; nfhLj;J i\ tha;nkhop xg;ge;jk;
kw;Wk; thjpfs; KO fpiua njhifia nfhLj;jij
cWjp nra;Ak; tiff;fhf gpujpthjp thjpfs;
ngaUf;F Nkw;gb 31.07.2018 Njjpapy;
gzg;gw;W ,urPJk; vOjpf; nfhLj;Js;shh;.”
https://www.mhc.tn.gov.in/judis
W.P.(MD)Nos.1512 of 2020, 888 and 1091 of 2021
29.When any enforcement is sought of an oral agreement of sale,
one cardinal principle is that the date of the agreement and the witnesses
to the agreement must be clearly mentioned. Pleadings on those aspects
are conspicuously missing. It is however stated in the plaint that a receipt
was given towards the sale consideration of Rs.10,00,000/-. The
plaintiffs can only seek repayment of the amount on the receipt. This
receipt was not in June 2018, but on 31.07.2018. The only relevant
document filed along with the plaintiff was this receipt dated 31.07.2018.
30.Section 54 of the Transfer of Property Act, 1882 defines
“Sale”. The provision also examines the effect of a Contract of Sale, and
provides as follows :
“-A contract for the sale of immoveable property is a
contract that a sale of such property shall take place on terms
settled between the parties. It does not, of itself, create any
interest in or charge on such property.”
(Emphasis Supplied)
31.Thus, a Contract of Sale does not, of itself create any interest in
or charge on such property. It is inconceivable how a receipt can create
an interest over the property, and be a cause of action to institute a suit
https://www.mhc.tn.gov.in/judis
W.P.(MD)Nos.1512 of 2020, 888 and 1091 of 2021
for specific performance. Collusion states in the face of the parties to the
suit.
32.In Gram Panchayat of Village Naulakha v. Ujagar Singh,
(2000) 7 SCC 543 : 2000 SCC OnLine SC 1381, it had been held as
follows :
“6.It appears from the commentary in Sarkar's Evidence
Act (13th Edn., Reprint, at p. 509) on Section 44 that it is the
view of the Allahabad, Calcutta, Patna and Bombay High
Courts that before such a contention is raised in the latter suit
or proceeding, it is not necessary to file an independent suit.
The passage from Sarkar's Evidence which refers to various
decisions reads as follows:
“Under Section 44 a party can, in a collateral proceeding in
which fraud may be set up as a defence, show that a decree or
order obtained by the opposite party against him was passed by a
court without jurisdiction or was obtained by fraud or collusion
and it is not necessary to bring an independent suit for setting it
aside (Bansi Lal v. Dhapo [ILR (1902) 24 All 242] , Rajib
Panda v. Lekhan Sendh Mahapatra [ILR (1900) 27 Cal 11 : 3
CWN 660] , Parbati v. Gajraj Singh [AIR 1937 All 28 : 1936 All
LJ 1162] , Prayag Kumari Debi v. Siva Prosad Singh [AIR 1926
Cal 1 : 42 CLJ 280] , Hare Krishna Sen v. Umesh Chandra
Dutt [AIR 1921 Pat 193 (FB)] , Aswini Kumar Samaddar v.
Banamali Chakrabarty [(1916-17) 21 CWN 594] ,
Manchharam v. Kalidas [ILR 19 Bom 821] , Rangnath
Sakharam v. Govind Narasinv [ILR 28 Bom 639 : 6 Bom LR
592] , Jamiraddin v. Khadejanessa Bibi [AIR 1929 Cal 685] ,
Bhagwandas Narandas v. D.D. Patel & Co. [AIR 1940 Bom 131
: 42 Bom LR 231] , Bishunath Tewari v. Mirchi [AIR 1955 Pat
66] and Gurajada Vijaya Lakshmamma v. Yarlagadda
Padmanabham [AIR 1955 AP 112] ).”
Thus, in order to contend in a later suit or proceeding that an
earlier judgment was obtained by collusion, it is not necessary to
file an independent suit as stated in Jagar Ram case [AIR 1991
https://www.mhc.tn.gov.in/judis
W.P.(MD)Nos.1512 of 2020, 888 and 1091 of 2021
P&H 159 (FB)] for a declaration as to its collusive nature or for
setting it aside, as a condition precedent. In our opinion, the
above cases cited in Sarkar's Commentary are correctly decided.
We do not agree with the decision of the Full Bench of the
Punjab and Haryana High Court in Jagar Ram case [AIR 1991
P&H 159 (FB)] . The Full Bench has not referred to Section 44
of the Evidence Act or to any other precedents of other courts or
to any basic legal principle.
“7. The law in England also appears to be the same, that no
independent suit is necessary. In Spencer-Bower and Turner on
Res Judicata (2nd Edn., 1969) it is stated (para 359) that there
are exceptions to the principle of res judicata. If the party setting
up res judicata as an estoppel has alleged all the elements of an
estoppel (i.e. ingredients of res judicata), it is still open to the
latter (the opposite party) to defeat the estoppel by setting up and
establishing certain affirmative answers. Of these there are four
main classes — fraud, cross-estoppel, contract and public policy.
The authors clearly say that no active proceedings for
“rescission” of the earlier judgment are necessary. They state
(para 370) as follows:
“The avoidance of a judicial act on the ground of fraud or
collusion is effected not only by active proceedings for rescission
… but also by setting up the fraud as a defence to an action on
the decision, or as an answer to any case which, whether by way
of estoppel or otherwise, depends for its success on the decision
being treated as incontrovertible.”
Thus, the law is well settled that no independent suit as a
condition precedent is necessary.
“8. Collusion, say Spencer-Bower and Turner (para 378), is
essentially play-acting by two or more persons for one common
purpose — a concerted performance of a fabula disguised as a
judicium — an unreal and fictitious pretence of a contest by
confederates whose game is the same. As stated by Lord
Selborne, L.C. in Boswell v. Coaks [(1894) 6 Rep 167 : 86 LT
365n (HL)] :
There is no Judge; but a person invested with the ensigns of a
judicial office, is misemployed in listening to a fictitious cause
proposed to him, there is no party litigating … no real interest
brought into question and to use the words of a very sensible
https://www.mhc.tn.gov.in/judis
W.P.(MD)Nos.1512 of 2020, 888 and 1091 of 2021
civilian on this point, fabula non judicium, hoc est; in scena,
non in foro, res agitur.
That, in our view, is the true meaning of the word “collusion”
as applied to a judicial proceeding.”
(Emphasis Supplied)
33.The suit was taken on file by the Principal Subordinate Court,
Tirunelveli and summons was directed to the defendant/ninth respondent
herein. On the first day of appearance, the suit was referred to the Lok-
Adalat. The learned Principal Sub Judge ought to have examined
whether the defendant therein had any subsisting right over the property
to even enter into an agreement, much less an oral agreement and to
receive consideration. The encumbrance certificate of the property was
not produced. If it had been produced, the sale in the year 1942 would
have been noticed by the learned Sub Judge. There was thus not only
collusion, but also suppression of vital facts before the Court.
34.The Lok-Adalat, however proceeded to pass an award. The
same is reproduced below:
“AWARD
The Dispute between the parties having been referred for
determination to the Lok Adalat and the parties having
compromised / settled the case / matter, the following award is
https://www.mhc.tn.gov.in/judis
W.P.(MD)Nos.1512 of 2020, 888 and 1091 of 2021
passed in terms of settlement.
Terms of Settlement
Plaintiffs and Defendant present. Both side counsel
present. Joint Compromised memo filed and recorded. Award is
passed in terms of joint compromised memo. Joint compromised
forms part of award. Court fee is to be refunded as per rules.”
35.Thereafter, the defendant/ninth respondent herein, who was to
execute a sale deed in favour of the plaintiffs/seventh and eighth
respondents herein, in terms of the alleged oral agreement of sale and as
averred in the plaint, however, executed a power of attorney on
06.03.2019 in favour of the plaintiffs/seventh and eighth respondents
herein. On the basis of the said power of attorney, the seventh and eighth
respondents herein sold the property to the tenth respondent.
36.The suit in O.S. No. 275 of 2018 instituted on the file of the
Principal Subordinate Court, Tirunelveli is, as pointed out by the Hon’ble
Supreme Court, “a fictitious cause proposed..there is no party
litigating..no real interest brought into question.” The entire exercise
was a fraud on Court, a fraud on the Lok Adalat, in view of the collusion
between the plaintiffs and the defendant therein.
https://www.mhc.tn.gov.in/judis
W.P.(MD)Nos.1512 of 2020, 888 and 1091 of 2021
37.There are disputed facts. If it is established that Mohammed
Miya Khan died in the year 1937, he could not have executed a sale deed
in 1942. However, it is a fact that there was a sale in the year 1942. A
glance at the Encumbrance Certificate would establish that. If that sale
was a fraud, still, that should have been pleaded. If there had been oral
agreement of sale, then such oral agreement of sale will have to be
necessarily established and proved in manner known to law. The date of
the oral agreement had not been given. The receipt for consideration of
Rs.10,00,000/- was given only 31.07.2018. A suit can be filed only to
recover the money under the receipt. A receipt cannot create an interest
or charge over the property. Even an agreement of sale does not do so.
38.One thing clear is that there is a dark cloud of suspicion over
the entire process. The fact was that the suit was instituted on the basis of
an oral agreement of sale, which necessitates proof. But, on the very first
hearing date, when the defendant appeared, it was referred to the Lok-
Adalat. When the defendant in an affidavit filed before this Court claims
that she is Pardanashin lady, the entire process creates further suspicion,
whether she was made aware of the entire process. The Court should
https://www.mhc.tn.gov.in/judis
W.P.(MD)Nos.1512 of 2020, 888 and 1091 of 2021
have re-examined the facts in the plaint and should have come to a
subjective satisfaction whether the defendant had title to enter into an
agreement of sale, oral or written, whether the said agreement is
enforceable and whether the issues can be compromised through Lok-
Adalat. Failure to do so, has unfortunately sullied the entire process. The
plaintiffs and the defendant should realize that if they were to indulge in
polluting the sanctity of the judicial process, law will catch up with them
one day.
39.The Principal Sub Court should have examined the plaint and
should have come to a prima facie opinion that settlement is possible. If
settlement is possible, the Court should have examined the defendant,
questioned her about the date of actual agreement. Particularly since she
claimed that she is a Pardanashin lady, the Court should have exercised
much more caution and care before referring the parties for Lok-Adalat.
The entire process is vitiated by collusion and fraud. This Court cannot
keep its eyes close when a sham judicial process had been initiated and
perpetrated and when fraud and collusion stares on the face of the
litigating parties.
https://www.mhc.tn.gov.in/judis
W.P.(MD)Nos.1512 of 2020, 888 and 1091 of 2021
40.It is asserted by the learned Counsel for the tenth respondent
that the award of the Lok-Adalat is binding. I agree. However, I must
place a small caveat. The award of the Lok-Adalat is binding only on the
parties to the award. Here, the Writ Petitioners are the third parties and
they claim that their property had been dealt with in a collusive manner
by the seventh to ninth respondents. They also claim title to the said
property. They claim that they are victims of a fraud. When that is
pleaded, any Court and, and in fact, every Court should examine whether
their claim has some bona fide or not.
41.Neither of the parties have produced the death certificate of
Mohammed Miya Khan. There is a statement of affidavit that he died in
the year 1937. A copy of the sale deed of the year 1942 is produced,
which is said to have been executed by Mohammed Miya Khan. Either
one of the two facts asserted must be false. To establish that, the parties
must go before a Civil Court, adduce evidence and subject such evidence
to be tested during cross examination.
https://www.mhc.tn.gov.in/judis
W.P.(MD)Nos.1512 of 2020, 888 and 1091 of 2021
42.The issue whether a Court under Article 226 of Constitution of
India can examine the issue of fraud in a Lok-Adalat had been examined
by the Hon’ble Supreme in State of Punjab vs Jalour Singh, reported in
AIR 2008 SC 1209. It had been held as follows:
“12. It is true that where an award is made by the Lok
Adalat in terms of a settlement arrived at between the
parties (which is duly signed by parties and annexed to the
award of the Lok Adalat), it becomes final and binding on
the parties to the settlement and becomes executable as if it
is a decree of a civil court, and no appeal lies against it to
any court. If any party wants to challenge such an award
based on settlement, it can be done only by filing a petition
under Article 226 and/or Article 227 of the Constitution,
that too on very limited grounds.”
43.A broad principle had been laid that an award can be questioned
in a petition under Article 226 of the Constitution.
44.The facts of the instant case cry out for such interference.
45.In S.P.Chengalveraya Naidu vs V.Jagannath, reported in 1994
AIR 853: (1994) 1 SCC 1, where it was found that fraud was evident on
the face of the records, it had been held as follows:
“5. The High Court, in our view, fell into patent error. The
https://www.mhc.tn.gov.in/judis
W.P.(MD)Nos.1512 of 2020, 888 and 1091 of 2021
short question before the High Court was whether in the
facts and circumstances of this case, Jagannath obtained
the preliminary decree by playing fraud on the court. The
High Court, however, went haywire and made observations
which are wholly perverse. We do not agree with the High
Court that “there is no legal duty cast upon the plaintiff to
come to court with a true case and prove it by true
evidence”. 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. 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.
“6. The facts of the present case leave no manner of doubt
that Jagannath obtained the preliminary decree by playing
fraud on the court. A fraud is an act of deliberate
deception with the design of securing something by taking
unfair advantage of another. It is a deception in order to
gain by another's loss. It is a cheating intended to get an
advantage. Jagannath was working as a clerk with Chunilal
Sowcar. He purchased the property in the court auction on
behalf of Chunilal Sowcar. He had, on his own volition,
executed the registered release deed (Ex. B-15) in favour of
Chunilal Sowcar regarding the property in dispute. He knew
that the appellants had paid the total decretal amount to his
master Chunilal Sowcar. Without disclosing all these facts,
he filed the suit for the partition of the property on the
ground that he had purchased the property on his own
behalf and not on behalf of Chunilal Sowcar. Non-
production and even non-mentioning of the release deed at
https://www.mhc.tn.gov.in/judis
W.P.(MD)Nos.1512 of 2020, 888 and 1091 of 2021
the trial is tantamount to playing fraud on the court. We do
not agree with the observations of the High Court that the
appellants-defendants could have easily produced the
certified registered copy of Ex. B-15 and non-suited the
plaintiff. 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
be guilty of playing fraud on the court as well as on the
opposite party.”
46.In T. Arivandandam v. T.V. Satyapal, reported in (1977) 4 SCC
467, it had been held as follows :
“5. We have not the slightest hesitation in condemning the
petitioner for the gross abuse of the process of the court…
The learned Munsif must remember that if on a meaningful
— not formal — reading of the plaint it is manifestly
vexatious, and meritless, in the sense of not disclosing a
clear right to sue,…and, if clever drafting has created the
illusion of a cause of action, nip it in the bud at the first
hearing…”
Emphasis Supplied
47.The aforementioned judgments re-enforces the fact that when
fraud had been played or collusion had been entered into between the
parties, the suit will have to be struck down. A Lok-Adalat can facilitate a
compromise in an adversial litigation and bring about a settlement or
compromise among the parties who are contesting the claims of each
other. But, when there is collusion, the Lok-Adalat cannot simply remain
https://www.mhc.tn.gov.in/judis
W.P.(MD)Nos.1512 of 2020, 888 and 1091 of 2021
a mute spectator and be an active participant sanctifying collusion and
fraud.
48.The entire process in O.S.No.275 of 2018 has an underlying
stench. This has to be cleaned and the only way possible is to strike down
both the suit and the award of the Lok Adalat. The Lok-Adalat award will
necessarily have to be interfered with. It is only a scrap of paper and
unfortunately, the judiciary has been made use of by two collusive parties
and still unfortunately, the Court and the Lok-Adalat have fallen prey to
such a nefarious plan hatched by the parties. The clock has to be set back.
The Lok Adalat award has to be set aside. It is declared a nullity. It is set
aside.
49.The Writ Petition in W.P.(MD)No.1512 of 2020 is allowed with
costs of Rs.10,000/- (Rupees Ten Thousands only), payable by each of
the seventh to tenth respondents to the State Legal Services Authority,
Chennai. They had taken advantage of the services extended for their
nefarious purpose. It is payback time now. Connected Miscellaneous
petitions are closed.
https://www.mhc.tn.gov.in/judis
W.P.(MD)Nos.1512 of 2020, 888 and 1091 of 2021
W.P. (MD) Nos. 888 and 1091 of 2021 :
50.W.P.(MD)No.888 of 2021 had been filed in the nature of a Writ
of Mandamus, to direct the 1 and 2 respondents herein to consider the
petitioner's representations, dated 20.02.2020 and 26.12.2020 and pass
appropriate order not to grant or process be plan approval/layout
submitted by the 3rd and 4th respondents herein for doing commercial
activities in respect of land in Old Revenue Survey No.291/1, Old
T.S.No.550/1, T.S.Ward 4, Block No.7, Now T.S.No.202/1, T.S.Ward-AV,
Block No.54, Kulavanigapuam Village, Palayamkottai Taluk, Tirunelveli
District
51.W.P. (MD) No. 1091 of 2021 had been filed in the nature of a
Writ of Mandamus, to direct the 1 to 4 Respondents herein to consider
the petitioner's representation, dated 20.02.2020 and 26.12.2020 and pass
appropriate order to remove the entry of 8 and 9 respondents herein in
the Patta/Town Survey Register (TSR) in respect of land in Old Revenue
Survey No.291/1, Old T.S.No.550/1, T.S.Ward 4m Block No.7, Now
T.S.No.202/1, T.S.Ward-AV, Block No.54, Kulavanigarpuam Village,
https://www.mhc.tn.gov.in/judis
W.P.(MD)Nos.1512 of 2020, 888 and 1091 of 2021
Palayamkottai Taluk, Tirunelveli District obtained under fraudulent Lok-
Adalat award dated 08.01.2019 in O.S.No.275 of 2018 on the file of
District Legal Services Authority, Tirunelveli District Court.
52.It had been held in W.P.(MD)No.1512 of 2020 that the suit in
O.S.No.275 of 2018 had been instituted collusively before the Principal
Sub Court, Tirunelveli. The award of the Lok Adalat had also been set
aside. Naturally, any right claimed under the Lok Adalat award or any
document executed pursuant to the said Award will stand nullified. The
award is non est in the eyes of law. It is a fraud played on judicial
process.
53.It logically follows that the respondents cannot seek any right
over the property in question, either to put up construction or seek
mutation of names in the revenue records.
54.In view of the fact that the respondents claim rights only
pursuant to the award of the Lok Adalat and which Lok-Adalat award has
been set aside by the aforementioned reasoning, without any further
https://www.mhc.tn.gov.in/judis
W.P.(MD)Nos.1512 of 2020, 888 and 1091 of 2021
discussion, the Writ Petitions in W.P.(MD)Nos.888 and 1901 of 2021, are
also allowed and the entire process as consequent to the award of Lok-
Adalat are set side and interfered with.
55.In the result :
i.W.P.(MD)No.1512 of 2020 is allowed with costs of Rs.10,000/-
(Rupees Ten Thousands only), payable by each of the seventh to tenth
respondents to the State Legal Services Authority, Chennai. Total costs
Rs. 40,000/- (Rupees forty thousands only). Connected Miscellaneous
Petitions are closed.
ii. W.P.(MD)No.888 of 2021 is allowed. No costs. Connected
Miscellaneous Petition is closed.
iii.W.P.(MD)No.1091 of 2021 is allowed. No costs. Connected
Miscellaneous Petition is closed.
iv. O.S. No. 275 of 2018 on the file of the Principal Subordinate
Court, Tirunelveli is struck off the suit records. Consequently, the Lok
Adalat Award dated 08.01.2019 is set aside. Registry is directed to
forward a copy of this order to the Principal Subordinate Court,
https://www.mhc.tn.gov.in/judis
W.P.(MD)Nos.1512 of 2020, 888 and 1091 of 2021
Tirunelveli with instructions to strike off O.S.No.275 of 2018 from the
Suit Register and to record that the Lok Adalat Award dated 08.01.2019
has been set aside.
Index :Yes / No .01.2022
Internet :Yes
cmr
https://www.mhc.tn.gov.in/judis
W.P.(MD)Nos.1512 of 2020, 888 and 1091 of 2021
To
1.The District Legal Services Authority,
Tirunelveli District Court Campus,
Palayamkottai, Tirunelveli District-627 002.
2.The Inspector General of Registration,
100, Santhome High Road,
Raja Annamalai Puram, Chennai – 600 028.
3.The Deputy Inspector General of Registration,
Office of Deputy Inspector General of Registration,
St.Marks Street, Behind Johns Higher Secondary School,
Palayamkottai, Tirunelveli District-627 002.
4.The District Registrar (Registration),
District Registrar Office,
Collectorate Campus, Kokkirakulam,
Tirunelveli – 627 009.
5.The District Registrar (Administration)
District Registrar Office,
Collectorate Campus, Kokkirakulam,
Tirunelveli – 627 009.
6.The Sub Registrar,
Sub Registrar Office,
35-B, Firthouse Complex, 1st Floor,
Ambai Road, Melapalayam,
Tirunelveli District-627 005.
7.The Principal Subordinate Judge,
Tirunelveli, Tirunelveli District-627 005.
https://www.mhc.tn.gov.in/judis
W.P.(MD)Nos.1512 of 2020, 888 and 1091 of 2021
C.V.KARTHIKEYAN, J.
cmr
Common Order made in
W.P.(MD)Nos.1512 of 2020, 888 and 1091 of 2021
19.01.2022
https://www.mhc.tn.gov.in/judis
