Prem Kumar vs Additional Commissioner (Judicial) Lucknow Division and Others

S.S. Chauhan, J.—Through this petition the petitioner has challenged the orders dated 08.08.2002 and 07.09.2001 passed by opposite parties No. 1 and 2.

The facts in brief relating to the present case are that the dispute relates to plot No. 1138 (new) of which old number was 1402 of Khata No. 319 situated in Village Alinagar Sunehra, Pargana, Tehsil and District Lucknow. As stated, a lease deed was executed in favour of the petitioner by the erstwhile zamindar Keshav Ram who was an intermediary of Mohal Munnu Singh. In 1372 fasli for the first time the name of the petitioner came to be recorded. Jagdish Kumar, minor brother of the petitioner, filed an objection claiming co-tenancy right in the khata in dispute alleging therein that the lease was obtained in representative capacity and he was entitled to co-tenancy right. The Consolidation Officer rejected the claim of Jagdish Kumar. Feeling aggrieved against the order of the Consolidation Officer dated 12.03.1964, an appeal was preferred before the Settlement Officer Consolidation, which was dismissed vide order dated 18.06.1965. A revision was preferred u/s 48 of the U.P. Consolidation of Holdings Act (for short "the Act"), which was dismissed by the Deputy Director of Consolidation vide order dated 08.12.1965. Jagdish Kumar preferred a second appeal, which also came to be dismissed vide order dated 02.02.1968.

On 05.04.1999, an application was moved by one Basant Kumar Arora alleging therein that name of 12 khata holders has been fraudulently recorded in Gata No. 1138-Sa which was 90 bigha 3 biswa. The Tehsildar proceeded to make an enquiry in the matter on the direction of the Government. The Tehsildar as well as the then Sub Divisional Officer made an enquiry and submitted report on 21.08.1999.

The petitioner was issued with a notice who filed his objection on 23.12.1999. The Sub Divisional Magistrate after considering reply and the evidence on record rejected the claim of the petitioner vide order dated 07.09.2001 u/s 33/39 of the U.P. Land Revenue Act (for short "the Revenue Act"). The petitioner preferred a revision against the order dated 07.09.2001 and the revisional court also dismissed the revision holding that the entry made in favour of the petitioner was a forged entry, without any basis and there was no such lease existing as claimed by him and the ''sanad'' which was issued was also found to be doubtful.

Submission of learned Counsel for the petitioner is that long standing entries could not have been corrected u/s 33/39 of the Revenue Act. The lease deed executed in favour of the petitioner could not have been disbelieved so easily by the courts below. Title of the petitioner stood perfected on the basis of various judgements of the consolidation authorities. The petitioner was in possession since long and has perfected his title on the basis of the aforesaid lease executed by the intermediary. His further submission is that no opportunity was given to the petitioner to participate in the enquiry proceedings and only a notice was given to which he submitted his reply.

Learned Addl. Chief Standing Counsel, on the other hand, has submitted that the lease deed alleged to be executed by Keshav Ram being an intermediary of Mohal Munnu Singh on 29.12.1951 cannot confer any right in favour of the petitioner in view of the provisions contained in Sections 8, 23 and 24 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (for short "the UPZA & LR Act"). The petitioner was required to have a written lease from the owner consistent with the provisions of Sections 55 & 56 of the U.P. Tenancy Act (for short "the Tenancy Act"). No such lease has been placed on record. Only averment has been made. The entry in favour of the petitioner was a forged entry as the land in question is recorded as ''araji jis par pani hai'' in 1356 fasli and in khatuani of 1371 fasli it was recorded as ''jalmagna bhumi''. So all of sudden name of the petitioner could not have been recorded in the khatauni of 1372 fasli which was the basic year when the consolidation started without any basis and without any order of a competent authority. The land vested in the Gaon Sabha and no right could have accrued on the basis of the alleged lease deed and the land would be covered u/s 132 of the UPZA & LR Act.

I have heard learned Counsel for the parties and gone through the record.

The Sub Divisional Officer after evaluating the evidence on record found that name of the petitioner was found to be recorded without any basis in 1372 fasli and in 1356 fasli to 1371 fasli plot No. 1138 (old No. 1402) was recorded as 1 bigha 6 biswa as ''old parti'', 65 bigha 10 biswa and 10 biswansi as ''talab land'' whereas in the present khatauni, the name of Gaon Sabha was not existing. If the lease deed was executed in favour of the petitioner, then efforts ought to have been made by the petitioner for getting his name recorded after 29.12.1951 but no such effort was made and the land continued to be recorded in the name of Gaon Sabha as ''jalmagna bhumi''. The lease deed has also not been placed on record. Section 55 of the Tenancy Act requires that when an asami is admitted to a holding, then he has to be admitted on the basis of written lease from his owner consistent with the provisions of the Act and it should be by registered document only in view of the provisions contained in Section 56 of the Tenancy Act.

Sections 8, 23 and 24 of the UPZA & LR Act provide as under:

Contract entered into after August 8, 1946 to become void from the date of vesting - Any contract for grazing or gathering or produce from land or the collection of forest produce or fish from any forest of fisheries entered into after the eighth day of August, 1946, between an intermediary and any other person in respect of any private forest, fisheries or land lying in such estate shall become void with effect from the date of vesting.

Transfer by way of sale or gift not to be recognized. - (1) Notwithstanding anything contained in any law, no transfer, by way of sale or gift, of any estate or part thereof -

(a) made on or after the first day of July, 1948, shall be recognized for the purpose of assessing the amount of rehabilitation grant payable to the intermediary,

(b) [ * * *]

(2) Nothing in Sub-section (1) shall apply to -

(a) any sale made under order of a court in execution of any decree or order for payment of money, or

(b) any sale or gift made in favour of a waqf, trust, endowment or society established wholly for charitable purposes, unless the State Government in any particular case directs otherwise.

Contract or agreement to defeat provisions of this Act to be void. - Any contract or agreement made between an intermediary and any person on or after the first day of July, 1948, which has the effect, directly or indirectly -

(a) of relieving, whether in whole or part, a bhumidhar or sirdar from the liability for the land revenue, to be paid by him for any land comprised in his holding, or

(b) of entitling an intermediary to receive, on account of rehabilitation grant an amount higher than what he would, but for the contract or agreement, be entitled to under this Act - shall be and is hereby declared null and void.

Considering the provisions of Section 8 of the UPZA & LR Act, it is evident that any such contract was bad since August, 1946 and that is why no deed has been placed on record. Name of the petitioner was also not recorded in 1356 fasli and onwards.

Since the land owners were to get compensation for their land, so it was highly improbable that they will execute a lease to a person creating a new right to any of their land depriving themselves from getting compensation. The alleged lease deed, therefore, is a fictitious document.

The question of conferment of certain right in favour of the petitioner on the basis of the consolidation proceedings also does not withstand the test of law in view of the fact that there was no adjudication regarding the rights of the petitioner vis-a-vis Gaon Sabha and the Gaon Sabha was never impleaded as party nor any notice was given by the Gaon Sabha. So, the case of the Gaon Sabha was never before the consolidation authorities and co-tenancy claim was decided. The title of the petitioner was never investigated nor it was gone into. Any order obtained by fraudulent means from any court would be a nullity and can be ignored even in collateral proceedings as held by the Apex Court in the case of A.V. Papayya Sastry and Others Vs. Government of A.P. and Others, . Relevant paragraphs-21, 22, 23, 24, 25, 26 and 39 of said case are as under:

Now, it is well settled principle of law that if any judgment or order is obtained by fraud, it cannot be said to be a judgment or order in law. 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.

The above principle, however, is subject to exception of fraud. Once it is established that the 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.

Whenever it comes to the knowledge of the Collector that such fraudulent entries have been made, it is always open for the Collector to enquire into the title and correct the entries u/s 33/39 of the Revenue Act. This Court has laid down in the case of Lutawan v. Gaon Sabha 1993 RD 103 to the same effect. The petitioner has not been able to establish his right, title or claim based on any genuine document. How his name appeared all of sudden in 1372 fasli is also not known and is amazing. It was a device at the behest of the petitioner to usurp the Gaon Sabha land and with that motive and intention he got his name fraudulently recorded in the basic year although earlier to the basic year name of the Gaon Sabha was continuing and the land in question was recorded as land covered under water (jalmagana bhumi).

In view of the aforesaid discussion, I find that the authorities have committed no mistake in correcting the entry u/s 33/39 of the Revenue Act and the name of the petitioner was rightly expunged from the revenue record.

The petition is devoid of merit. It is accordingly dismissed.