Abubakar vs State Of Chhattisgarh

@JUDGMENT-JUDGMENT

Sanjay K. Agrawal, J

The substantial question of law involved, formulated and to be answered in this second appeal preferred by the appellant/defendant is as under:-

Whether both the courts below were justified in setting aside the judgment and decree dated 05.12.96 passed in Civil Suit No.6A/95 by First Civil

Judge, Class I, Mahasamund, without looking into the aspect of pleadings and proof regarding fraud in its legal & proper perspective ?

[For the sake of convenience, the parties would be referred hereinafter as per their status shown in the suit before the trial Court].

The suit land bearing Khasra No.70/3C area 1.214 hectares was allotted by Naib-Tahsildar, Basna in favour of defendant No.1 on 9.11.92 (Ex.P-9)

under the provisions of the Revenue Book Circular, which was revoked by the Additional Collector, Raipur in exercising of suo moto jurisdiction on

10.4.95 (Ex.P-10) and the land was directed to be mutated in the name of the State/plaintiff, against which, the defendant preferred Civil Suit

No.6A/95 (Abubakar v. State of of Madhya Pradesh and another) for declaring the Additional Collector's order dated 10.4.95 as void and ineffective,

which was ultimately granted by decree of Civil Court dated 5.12.96 (Ex.P-1). Thereafter, the State Government/plaintiff filed Civil Suit NO.62A/2003

(State of Madhya Pradesh v. Abubakar) for declaring the judgment and decree dated 5.12.96 (Ex.P-1) as null and void stating inter-alia that decree

has been obtained by fraud as the defendant was not entitled for allotment of said land being non-resident of village Basna under the provisions of the

Revenue Book Circular, which was seriously opposed by the defendant by filing written statement stating inter-alia that decree has been granted on

valid ground and no fraud was practiced upon the Court by the defendant while obtaining decree from jurisdictional civil Court, as such, the suit

deserves to be dismissed.

The trial Court after appreciating oral and documentary evidence available on record, by its judgment and decree dated 20.9.2004, decreed the suit

holding that decree dated 5.12.96 (Ex.P-1) obtained by the defendant is null and void and it was obtained by playing fraud on the Court, against which,

the defendant preferred first appeal under Section 96 of the CPC, which was also dismissed by the first appellate Court by the impugned judgment and

decree. Questioning the judgment and decree of the first appellate court, this second appeal under Section 100 of the CPC has been filed by the

appellant/defendant, in which substantial question of law has been formulated by this Court, which has been set-out in opening paragraph of this

judgment.

Mr.Sanjay Agrawal, learned counsel for the appellant/defendant, would submit that both the Courts below have committed jurisdictional error in

holding that the decree dated 5.12.96 (Ex.P-1) was obtained by fraud as there was no pleading of fraud in express terms in the suit now filed by the

State/plaintiff in terms of Order 6 Rule 4 of the Code of Civil Procedure read with judgment of the Supreme Court in the matter ofE lectrical Rengali

Hydro Electric Project v. Giridhari Sahu(2019) 10 SCC 695 and in absence of that, decree dated 5.12.96 (Ex.P-1) could not have been set aside by

both the Courts below particularly when the order passed by the Additional Collector, Raipur dated 10.4.1995 (Ex.P-10) in exercise of suo moto

jurisdiction was absolutely without jurisdiction and without authority of law, as such, the judgment and decree of both the Courts below deserve to be

set aside and the plaintiff's suit be dismissed.

Mr.Ravi Bhagat, learned Deputy Government Advocate for the respondent/plaintiff, would submit that the trial Court has rightly granted decree in

favour of the plaintiff as Ex.P-1 was ex-parte judgment and decree and against which the plaintiff has right and remedy to file suit for setting aside ex-

parte decree in terms of judgment of the Supreme Court in the matter of State of Orissa and another v. Fakir Charan Sethi (dead through legal

representatives) and others (2015) 1 SCC 466 and fraud has been pleaded and established as in earlier suit the defendant has suppressed the fact

though he was not eligible to get the land allotted by the competent authority and therefore, that has rightly been revoked by the Additional Collector,

Raipur by order dated 10.4.1995 (Ex.P-10) and the defendant without disclosing and suppressing the fact of his ineligibility got the suit decreed by

playing fraud upon the Court and as such, decree dated 5.12.96 (Ex.P-1) has rightly been set-aside by the Courts below and the appeal deserves to be

dismissed.

I have heard learned counsel appearing for the parties and considered their rival submissions made hereinabove thoughtfully and also went through

the records with utmost circumspection.

The suit land bearing Khasra No.17/3 Ka area 1.210 hectares was settled in favour of the Dependant herein under the provisions of the Revenue

Book Circular by order of the competent authority dated 9.11.1992, but that order was revoked by the Additional Collector, Raipur in exercise of suo

moto jurisdiction under the Chhattisgarh Land Revenue Code, 1959 by order dated 19.4.1995 (Ex.P-10).

The defendant herein instituted civil suit seeking invalidity of order dated 19.4.1995 passed by the Additional Collector, Raipur. The jurisdictional

civil Court by its judgment and decree dated 5.12.96 in Civil Suit No.6A/95 (Abubakar v. State of Madhya Pradesh and another) (Ex.P-1) declared

that order dated 19.4.1995 passed by the Additional Collector, Raipur is void and inoperative and restrained the State from interfering with the

possession of Abubakar-defendant therein.

Thereafter, the State of MP/plaintiff filed the instant suit stating that the plaintiff has obtained the judgment and decree dated 5.12.96 in Civil Suit

No.6A/95 by suppressing the material fact that as per Revenue Book Circular the defendant was not entitled for allotment of government land as he is

not the landless person and as such, decree obtained by fraud is nullity and as such, decree passed by the trial Court in Civil Suit NO.6A/95 be

declared void, which was declared void by the trial Court and affirmed by the first appellate Court.

The question for consideration would be, whether both the Courts below are justified in holding that decree was obtained by the defendant by

playing fraud upon the Court.

A defendant against whom an ex-parte decree has been passed under Rule 6 for default of appearance at the hearing has following courses open

to him as remedies:

(i) he may appeal from the ex parte decree under Section 96 CPC.

(ii) he may apply for a review of judgment under Order 47, Rule 1 or file a suit for setting aside the ex parte decree on the ground of fraud.

(iii) he may apply under Rule 13 for an order to set aside the ex parte decree, provided the application is made, within 30 days from the date of the

decree, or where the summons were not duly served, when he had knowledge of the decree, the relevant provision now would be Article 123 of the

Limitation Act, 1963.

The Supreme Court in the matter of Bhanu Kumar Jain v. Archana Kumar and another (2005) 1 SCC 787 has indicated the remedies open to the

party against whom ex parte decree has been passed and held as under:

26.When an ex parte decree is passed, the defendant (apart from filing a review petition and a suit for setting aside the ex parte decree on the ground

of fraud) has two clear options, one, to file an appeal and another to file an application for setting aside the order in terms of Order 9 Rule 13 of the

Code. He can take recourse to both the proceedings simultaneously but in the event the appeal is dismissed as a result whereof the ex parte decree

passed by the trial court merges with the order passed by the appellate court, having regard to Explanation appended to Order 9 Rule 13 of the Code a

petition under Order 9 Rule 13 would not be maintainable. However, Explanation I appended to the said provision does not suggest that the converse is

also true.

Similarly, the principle of law laid down in Bhanu Kumar Jain (supra) has been followed with approval by the Supreme Court in the matter of

Rabindra Singh v. Financial Commissioner Cooperation, Punjab and others (2008) 7 SCC 663.

Thus, ex parte decree can be set aside in a suit on the ground of fraud only.

The plaintiff in his plaint pleaded that the defendant who was allotted land was not eligible to be allotted land under the provisions of the Revenue

Book Circular earmarked for SC, ST, freedom fighter, sainik etc. and revoking the order granting allotment was declared void by Civil Court at the

instance of the defendant by playing fraud upon the Court who granted decree in favour of the defendant.

The trial Court on full-fledged trial held that the suit land being located in urban area, it could not have been allotted for agricultural purpose. It was

further held that the defendant was having land in his titleship 2.463 hectares (Exs.P-4 to P-6) and he is not landless person which he suppressed

while filing the earlier suit, as such, he was not eligible to be allotment for suit land.

The trial Court in para-16 recorded following finding to this effect, which states as under:-

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The Supreme Court in the matter of Hamza Haji v. State of Kerala and another (2006) 7 SCC 466 held that where the party to suit has

deliberately misled the Court by suppressing vital information and putting forward a false claim and obtained order, the said order is vitiated by fraud.

It was held as under:-

The law in India is not different. Section 44 of the Evidence Act enables a party otherwise bound by a previous adjudication to show that it was

not final or binding because it is vitiated by fraud. The provision therefore gives jurisdiction and authority to a court to consider and decide the question

whether a prior adjudication is vitiated by fraud. In Paranjpe Vs. Kanade ILR (1882) 6 Bom 148, it was held that:

it is always competent to any Court to vacate any judgment or order, if it be proved that such judgment or order was obtained by manifest fraud.

Thus, it appears to be clear that if the earlier order from the Forest Tribunal has been obtained by the appellant on perjured evidence, that by itself

would not enable the Court in exercise of its power of certiorari or of review or under Article 215 of the Constitution of India, to set at naught the

earlier order. But if the court finds that the appellant had founded his case before the Forest Tribunal on a false plea or on a claim which he knew to

be false and suppressed documents or transactions which had relevance in deciding his claim, the same would amount to fraud. In this case, the

appellant had purchased an extent of about 55 acres in the year 1968 under Document No. 2685 of 1968 dated 2-6-1968. He had, even according to

his evidence before the Forest Tribunal, gifted 5 acres of land to his brother under a deed dated 30-1-1969. In addition, according to the State, he had

sold, out of the extent of 55.25 acres, an extent of 49.93 acres by various sale deeds during the years 1971 and 1972. Though, the details of the sale

deeds like the numbers of the registered documents, the dates of sale, the names of the transferees, the extents involved and the considerations

received were set out by the State in its application for review before the High Court, except for a general denial, the appellant could not and did not

specifically deny the transactions. Same is the case in this Court, where in the counter-affidavit, the details of these transactions have been set out by

the State and in the rejoinder filed by the appellant, there is no specific denial of these transactions or of the extents involved in those transactions.

Therefore, it stands established without an iota of doubt as found by the High Court, that the appellant suppressed the fact that he had parted with

almost the entire property purchased by him under the registered document through which he claimed title to the petition schedule property before the

Forest Tribunal. In other words, when he claimed that he had title to 20 acres of land and the same had not vested in the State and in the alternative,

he bona fide intended to cultivate the land and was cultivating that land, as a matter of fact, he did not have either title or possession over that land.

The Tribunal had found that the land was a private forest and hence has vested under the Act. The Tribunal had granted relief to the appellant only

based on Section 3(3) of the Act, which provided that so much extent of private forest held by an owner under a valid registered document of title

executed before the appointed day and intended for cultivation by him and that does not exceed the extent of the ceiling area applicable to him under

Section 82 of the Kerala Land Reforms Act, could be exempted. Therefore, unless, the appellant had title to the application schedule land and proved

that he intended to cultivate that land himself, he would not have been entitled to an order under Section 3(3) of the Act. It is obvious that when he

made the claim, the appellant neither had title nor possession over the land. There could not have been any intention on his part to cultivate the land

with which he had already parted and of which he had no right to possession. Therefore, the appellant played a fraud on the Court by holding out that

he was the title-holder of the application schedule property and he intended to cultivate the same, while procuring the order for exclusion of the

application schedule lands. It was not a case of mere perjured evidence. It was suppression of the most vital fact and the founding of a claim on a

non-existent fact. It was done knowingly and deliberately, with the intention to deceive. Therefore, the finding of the High Court in the judgment under

appeal that the appellant had procured the earlier order from the Forest Tribunal by playing a fraud on it, stands clearly established. It was not a case

of the appellant merely putting forward a false claim or obtaining a judgment based on perjured evidence. This was a case where on a fundamental

fact of entitlement to relief, he had deliberately misled the Court by suppressing vital information and putting forward a false claim, false to his

knowledge, and a claim which he knew had no basis either in fact or on law. It is therefore clear that the order of the Forest Tribunal was procured by

the appellant by playing a fraud and the said order is vitiated by fraud. The fact that the High Court on the earlier occasion declined to interfere either

on the ground of delay in approaching it or on the ground that a Second Review was not maintainable, cannot deter a Court moved in that behalf from

declaring the earlier order as vitiated by fraud.

Similarly in the matter of Fakir Charan Sethi (supra) the Supreme Court held as under:-

The effect of fraud on judicial orders has also been exhaustively considered in State of Orissa v. Harapriya Bisoi (2009) 12 SCC 378 and it will

not be necessary to reiterate the views expressed therein except to say that on the slightest of doubt or even prima facie proof of fraud, the matter

must be thoroughly investigated by the court to arrive at the truth. Judicial order must be based on strong foundational facts free from any doubt as

regards the correctness and authenticity thereof. In the light of the facts noticed by us the High Court, in our considered view, ought to have

investigated the matter a little further instead of summarily holding the objections of the State to be mere claims or assertions of fraud without legal

proof.

Reverting to the facts of the present case, in light of legal analysis made hereinabove, it is quite vivid that the defendant herein was not eligible of

allotment of land as he was not landless person as he is owning land and consequently the Additional Collector, Raipur exercising suo-moto revisional

jurisdiction rightly revoked that order granting land in his (defendant) favour, but the defendant filed the suit and obtained ex-parte decree only on the

ground that suo-moto revisional jurisdiction could not have been exercised by the Additional Collector. The fact as to whether the defendant was

eligible for allotment of land was neither disclosed nor considered as he was not indigent/landless person and decree in Civil Suit No.6A/95 came to be

passed and finding suppression of material and vital fact in obtaining decree and by playing fraud, the trial Court rightly declared the decree to be void

and rightly affirmed by the first appellate Court, which is neither perverse nor contrary to record.

In view of finding recorded hereinabove, the judgment relied upon by Mr.Agrawal, learned counsel for the appellant, in the matters of Saroja v.

Chinnusamy (Dead) by LRS. and another (2007) 8 SCC 329 L,ynette Fernandes v. Gertie Mathias since deceased by legal representatives (2018) 1

SCC 271 and Electrical Rengali Hydro Electric Project (supra) are clearly not helpful to him.

I do not find any illegality or perversity in the finding recorded by both the Courts below. The substantial question of law is answered in favour of

the plaintiffs and against the defendant. The second appeal being devoid of merit is liable to be and is hereby dismissed leaving the parties to bear their

own cost(s).

Decree be drawn-up accordingly.