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2012 DIGILAW 2619 (ALL)

MANOJ GIRI v. MAHANT JOONA BHARTI

2012-11-07

A.P.SAHI

body2012
JUDGMENT Hon’ble A.P. Sahi, J.—Heard Sri Rahul Srivastava learned counsel for the applicant-revisionists and Sri Ajay Srivastava holding brief of Sri C.P. Singh for all the opposite parties. This revision arises out of a miscellaneous order passed by by learned District Judge, Bareilly dated 6th January, 2001 refusing to entertain the application filed by the applicant-revisionists for setting aside the order dated 25.10.1994. 2. The proceedings in which the order dated 25.10.1994 appears to have been passed is on an application moved under Section 34 of the (Indian) Trusts Act, 1882 where the scheme of management appears to have been drawn under the said order on the basis of an alleged compromise, and by doing so the order has been passed for the management of the properties of the trust, which according to the said proceedings also includes Bhumidhari Agricultural holding Plot No. 49 of Village Magri Nawada, Pargana Richcha, Tehsil Baheri, District Bareilly. 3. In paragraph 8 of the affidavit filed in support of the stay application in the present revision, the applicants have asserted that they had no knowledge of the said order of 1994 and they came to know about it when mutation came to be ordered in the year 2000. There is only a bald denial in para 10 of the counter-affidavit filed by the opposite parties with no denial about the date of mutation being carried out in the year 2000. 4. The applicants on coming to know of the order dated 25.10.1994 in the year 2000 moved an application under Section 151 C.P.C. before the learned District Judge for setting aside the order dated 25.10.1994 copy whereof has been filed alongwith a supplementary affidavit which is on record. A perusal of the said application indicates that Plot Nos. 49/1, 49/2 and 49/3 according to the applicants was the Bhumidhari of one Pancham Bharti whereafter the applicants succeeded to the same as Bhumidhars under the U.P. Z.A. & L.R. Act. They allege that their names have been recorded and, therefore, without making the applicants a party to the proceedings before the learned District Judge, the order dated 25.10.1994 was obtained, which deserves to be set aside. They allege that their names have been recorded and, therefore, without making the applicants a party to the proceedings before the learned District Judge, the order dated 25.10.1994 was obtained, which deserves to be set aside. It is the said application which has been rejected by the learned District Judge on 6th January, 2001 stating that the same has been moved after 6 years and if the applicants want any relief against the trust or its property, they can file a declaratory suit. Aggrieved, the applicants are before this Court praying for setting aside the order as it suffers from material irregularities in the exercise of jurisdiction under Section 115 C.P.C. 5. Sri Rahul Srivastava submits that primarily under the garb of framing a scheme of administration under Section 34 of the (Indian) Trust Act, 1882, the compromise order was obtained on 25.10.1994 without making the applicants a party inspite of the fact that they were the recorded Bhumidhars of Plot Nos. 49/1, 49/2 and 49/3. He submits that the opposite parties were concerned only with Plot No. 49/4 and for that he presses into service the Judgment and decree in Original Suit No. 356 of 1990 dated 19.8.1991 to contend that even the opposite parties have admitted the possession of the applicants. 6. His thrust of submission, therefore, is that fraud has been played on the learned District Judge by concealing material facts with regard to the status of the land and obtaining the order without making the applicants a party in proceedings. He, therefore, submits that the applicants were justified in moving the application for setting aside the order dated 25.10.1994 and so far as the delay is concerned, it is apparent from the pleadings noted hereinabove that they only came to know about it in the year 2000 when mutation was sought to be carried out at the instance of the respondents. 7. Replying to the said submissions Sri Ajay Srivastava for the opposite parties contends that the order dated 25.10.1994 had been passed after due public notice and the applicants failed to file any objections. He, therefore, contends that the applicants are now estopped from raising this plea of not having knowledge about the said proceedings or being ex-parte. 7. Replying to the said submissions Sri Ajay Srivastava for the opposite parties contends that the order dated 25.10.1994 had been passed after due public notice and the applicants failed to file any objections. He, therefore, contends that the applicants are now estopped from raising this plea of not having knowledge about the said proceedings or being ex-parte. He further submits that even otherwise the property in question namely Plot No. 49 in its entirety belongs to the trust and if the applicants are seeking any declaration to that effect then they have to file a civil suit, that has been rightly observed in the impugned order. He, therefore, contends that there is no irregularity much less a material irregularity in the impugned order so as to exercise jurisdiction under Section 115 C.P.C. 8. In rejoinder Sri Rahul Srivastava submits that the public notice which may have been issued was for only the scheme of management of the trust and not for any declaration of the properties of the trust. In such a situation it cannot be presumed that there was any dispute with regard to Plot No. 49 that was being entertained in the proceedings under Section 34 of the (Indian) Trust Act, 1882. He, therefore, submits that it was not necessary for the applicants to file any objection even otherwise as they were not claiming any right of management over the trust. 9. He further submits that so far as delay is concerned that has been appropritely explained and the application under Section 151 C.P.C. was rightly filed as the order dated 25.10.1994 has been obtained by concealment and playing fraud on the learned District Judge 10. I have perused all the documents on record and the affidavits filed and a perusal of the order dated 25.10.1994 indicates that the applicants were not made a party to the said proceedings. The compromise which has been made the basis of the order dated 25.10.1994 for managing the trust under the scheme of administration indicates the entire area of Plot No. 49 to which the applicants are not a party. The relevant Khatauni extracts have been relied upon by the learned counsel for the applicant to indicate that the names of the applicants had been recorded in the revenue records. The relevant Khatauni extracts have been relied upon by the learned counsel for the applicant to indicate that the names of the applicants had been recorded in the revenue records. This fact was, therefore, not stated in the compromise and, therefore, was obviously not in the knowledge of the learned District Judge when he passed the order dated 25.10.1994. In such a situation the opposite parties concealed the aforesaid facts, and then proceeded to contest the matter and compromised the same for the purpose of obtaining management of the trust property. 11. The question, therefore, clearly is as to whether the plots referred to by the learned counsel for the applicants were part of the trust property or not and in such a situation if this was sought to be done through a miscellaneous order, then the applicants were proper and necessary party. The order dated 25.10.1994 prima facie could not have been passed without impleading the applicants. 12. The issue has not been examined by the learned District Judge while passing the impugned order dated 6.1.2001. In the aforesaid circumstances, the observation of the learned District Judge that the applicants should file a declaratory suit is absolutely misplaced when there is a clear allegation of concealment and an attempt to obtain an order on such concealment. It is well-settled that fraud vitiates all solemn proceedings and, therefore, the application of the applicant under Section 151 C.P.C. was very much maintainable. The learned District Judge committed a manifest error and thereby indulged in material irregularity by rejecting the same. 13. So far as the dispute of delay is concerned, it is apparent that the applicants came to know of the attempt made by the opposite party to regain possession of the property through mutation only in the year 2000. There is no evidence of service of notice of the proceedings and there is no proof or finding that the applicants had either actual or constructive knowledge of the same. The knowledge, therefore, to the applicants can be clearly attributed in the year 2000 and, therefore, there was no delay of 6 years as observed by the learned District Judge in the impugned order dated 6.1.2001, which has been casually passed without looking into these aspects. 14. Thus on both counts the order dated 6.1.2001 suffers from material irregularities and cannot be sustained. It is hereby set aside. 14. Thus on both counts the order dated 6.1.2001 suffers from material irregularities and cannot be sustained. It is hereby set aside. The revision is allowed. The application filed by the applicants to set aside the order dated 25.10.1994 shall be entertained and after hearing the parties the learned District Judge shall proceed to pass an appropriate order in accordance with law. The revision is allowed. ——————