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2014 DIGILAW 2236 (ALL)

Dulari v. Board of Revenue U. P. at Allahabad

2014-07-28

RAM SURAT RAM (MAURYA)

body2014
JUDGMENT Ram Surat Ram (Maurya), J. 1. Heard Sri Arvind Kumar Shukla, for the petitioner and Sri B.B. Paul, assisted by Sri A.P. Paul, for the respondents. This writ petition has been filed against the orders of Board of Revenue U.P. dated 28.7.1988, deciding Second Appeal Nos. 24 & 25 of 1981-82 in terms of the compromise, 15.12.2004 rejecting the recall application of the petitioner and 10.11.2005, rejecting the review application of the petitioner. 2. Parma (now represented by re-spondents-4 to 6) (hereinafter referred to as the respondents) filed a suit (registered as Suit No. 62 of 1976) under section 229-B of U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the Act) for declaration that Smt. Dulari (the petitioner) was not the daughter of Leeladhar and her name was wrongly recorded over the land recorded in khata 193 (consisting plots 5-Sa (area 2-13-0 bigha), 31-Aa (area 0-14-10 bigha), 70-Sa (area 0-11-0 bigha), 115-Sa (area 0-11-0 bigha), 144 (area 5-0-3 bigha), 173 (area 1-17-5 bigha), 220 (area 6-10-15 bigha), 224-Sa (0-11-18 bigha) and 232-Sa (0-0-10 bigha) of village Prakashpur, pargana Dibai, district Buland Shahar. The petitioner contested the aforesaid suit and also filed a suit (registered as Suit No. 110 of 1976), under section 176 of the Act, for partition of her 1/2 share in the land in dispute. Both the suits were consolidated and decided by Assistant Collector Buland Shahar, who by his judgment dated 30.7.1979 held that the petitioner was daughter of Leeladhar and had 1/2 share in the land in dispute. 3. Parma filed two appeals (registered as Appeal Nos. 396 and 408 of 1979) from the aforesaid decrees. Both the appeals were consolidated and heard by Additional Commissioner, who by his judgment dated 16.9.1981, dismissed both the appeals. Parma filed two second appeal (registered as Second Appeal Nos. 24 and 25 of 1981-82) from the aforesaid decrees, which were admitted by order dated 22.12.1981. In the second appeals, written compromise supported with joint affidavit of Parma, Smt. Dulari and Amar Singh (husband of Smt. Dulari) (in which photographs of these persons were also affixed and identified by their respective counsels) were filed on 30.4.1987. Dr. P. Singh, Member, Board of Revenue, U.P. by order dated 18.5.1987 send the compromise for verification to the Trial Court. Dr. P. Singh, Member, Board of Revenue, U.P. by order dated 18.5.1987 send the compromise for verification to the Trial Court. The compromise was verified by Trial Court and returned to Board of Revenue U.P. Thereafter, Sri S.K. Lakhtakia, Member, Board of Revenue, U.P. by order dated 28.7.1988 decided the second appeals in terms of compromise. 4. The petitioner filed an application dated 17.1.2003, along with delay condonation application, for recall of the order 28.7.1988. In the affidavit filed in support of the recall application, it has been stated by the petitioner that she had no notice of the second appeals nor engaged any Counsel. Forged compromise was filed, on the basis of which second appeals were decided by order dated 28.7.1988. After death of Parma, the respondents moved an application on 15.12.1999 for mutation of their names over the land in dispute. Notice of this mutation application was published in news paper on 21.12.2002. Then the petitioner filed a written statement in that case, then she came to know about the order dated 28.7.1988 passed in the second appeals. The respondents filed Counter Affidavit in the aforesaid affidavit and stated that notices issued in the second appeals were served upon the petitioner and she put appearance through Sri Manish Chandra Tiwai, Advocate. Later on the compromise along with joint affidavit of Parma, Smt. Dulari and Amar Singh (husband of Smt. Dulari) (in which photographs of these persons were also affixed and identified by their respective counsels) were filed on 30.4.1987, which was send for verification to Trial Court and was duly verified by the parties before Trial Court. On receiving back the compromise, after verification, Board of Revenue U.P. decided the second appeals in terms of compromise by order dated 28.7.1988. The allegations that the compromise was forged document was denied. It has been stated that Smt. Dulari took  Rs. 50,000/- from Parma and settled the dispute with him and voluntarily filed compromise. After such a long time, recall application was mala fide moved. The allegations that notice of the mutation case was published in news paper on 21.12.2002, was denied. In the Rejoinder Affidavit, genuineness of photographs affixed in the joint affidavit has not been denied. The recall application was heard by Board of Revenue, U.P., who by order dated 15.12.2004 held that the compromise was duly verified by Trial Court. The allegations that notice of the mutation case was published in news paper on 21.12.2002, was denied. In the Rejoinder Affidavit, genuineness of photographs affixed in the joint affidavit has not been denied. The recall application was heard by Board of Revenue, U.P., who by order dated 15.12.2004 held that the compromise was duly verified by Trial Court. The order dated 28.7.1988 was passed in presence of the Counsel for the parties. There is no explanation of inordinate delay of more man 15 years. On these findings, recall applications were rejected. 5. The petitioner filed review applications dated 19.1.2005. In the review application, the petitioner also filed an affidavit of Sri M.S. Khan, Advocate, stating therein that he was not engaged as Counsel in the second appeals by any of the parties nor filed his vakalatnama and he had not verified signature of the petitioner on the compromise dated 14.5.1987. Review applications were heard by Board of Revenue U.P. who by order dated 10.11.2005 rejected the review applications. Hence this writ petition was filed. 6. The Court vide order dated 8.5.2014 directed Standing Counsel to produce the original record of Second Appeals, Recall Applications and Review Applications, which were produced. The original compromise and vakalatnama of Sri M.S. Khan, Advocate are not on record of the Second Appeals. One vakalatnama of Sri Manish Chandra Tiwari, Advocate, on behalf of Smt. Dulari filed on 24.9.1984 in Second Appeal No. 24 of 1981-82 is on record. A perusal of order sheet shows that second appeals were admitted by order dated 22.12.1981. In the second appeals, written compromise supported with joint affidavit of Parma, Smt. Dulari and Amar Singh (husband of Smt. Dulari) (in which photographs of these persons were also affixed and identified by their respective counsels) were filed on 30.4.1987. Dr. P. Singh, Member, Board of Revenue, U.P. by order dated 18.5.1987 send the compromise for verification to the Trial Court. Trial Court verified the compromise and returned to Board of Revenue U.P. Thereafter, Sri S.K. Lakhtakia, Member, Board of Revenue, U.P. by order dated 28.7.1988 decided the second appeals in terms of compromise. Photostat copy of certified copy of the compromise and joint affidavit is also on the record. 7. The Counsel for the petitioner submitted that the notices of the second appeals were never served on the petitioner nor she ever appeared before Board of Revenue. Photostat copy of certified copy of the compromise and joint affidavit is also on the record. 7. The Counsel for the petitioner submitted that the notices of the second appeals were never served on the petitioner nor she ever appeared before Board of Revenue. A forged compromise and affidavit allegedly signed by the petitioner and her husband were filed. The affidavit contains false recitals that suit filed by the petitioner was dismissed by Trial Court on 30.7.1979 and first Appellate Court has confirmed the same vide judgment and decree dated 16.9.1981 although suit filed by the petitioner was decreed by Trial Court. It further contains false recital that the petitioner was not daughter of Leeladhar. There was no reason for the petitioner to gave up her 1/2 share in the land in dispute, total area of which was 18 bigha 11 biswa. Thus the compromise was contrary to the provisions of sections 17 and 23 of the Indian Contract Act, 1872. Entire proceedings before Board of Revenue U.P. in the second appeals were forged. Original compromise was cleverly removed from the record and in its place a photostat copy of certified copy of the compromise was placed without any order of the Court. Even on the date of order dated 28.7.1988, none of the Counsel for the parties were present. The order sheet in the second appeals were not maintained according to the provisions of Para-graph-161 of Revenue Court Manual. The orders based upon forged compromise were causing grave and irreparable loss and liable to be recalled. However Board of Revenue has illegally rejected the recall applications. He relies upon the judgment of Supreme Court in S.P. Chengal Varaya Naidu v. Jagan Nath 1994 All CJ 355 (SC), in which has been held that judgment obtained by fraud is nullity. 8. I have considered the arguments of Counsel for the parties and examined the record. First question raised by the Counsel for the petitioner that notices of the second appeals were not served upon the petitioner nor she ever appeared before Board of Revenue U.P. in second appeals. The appeals were admitted by order dated 22.12.1981 and notices were directed to be issued to the respondents in the appeals. Steps for service of the notices were also taken. The appeals were admitted by order dated 22.12.1981 and notices were directed to be issued to the respondents in the appeals. Steps for service of the notices were also taken. Although there is no report of service on the order sheet but there is a vakalatnama of the petitioner engaging Sri Manish Chandra Tewari, Advocate High Court, 502 Mamford Ganj, Allahabad, filed on 24.9.1984, is on the record. His name was also noted on the order sheet of various dates. The petitioner has not challenged this vakalatnama either in her affidavit filed in support of the recall application or in the writ petition. Therefore, the allegations that notices of the second appeals were not served upon the petitioner nor she ever appeared before Board of Revenue U.P. in second appeals, are not liable to be believed. 9. There is another reason to disbelieve the statement of the petitioner that she had no notice of the second appeal. The petitioner, herself, filed suit for partition of joint holding. Preparation of final decree has been stayed by Board of Revenue U.P. by order dated 22.12.1981. There is nothing on record to show that prior to 22.12.1981, final decree was prepared and exclusive possession over half share of the petitioner was given to her. It is not expected that a reasonable man, who has won the case from two Courts below, would not take any care to get the interim order vacated and remained silent for 20 years. The petitioner derived knowledge of the order dated 28.7.1988 through publication of notice in the mutation case on 21.12.2002. The respondents specifically denied the allegations and asked the petitioner to produce original news paper dated 21.12.2002 but it was not produced by the petitioner. Thus Board of Revenue U.P. did not commit any illegality in not condoning inordinate de-lay. 10. The allegations that order sheet in the second appeals were not maintained according to the provisions of Paragraph-161 of Revenue Court Manual, is mere irregularity committed by Reader of Board of Revenue U.P. On its basis no inference can be drawn that record of Second Appeals were fabricated. As noticed above, a perusal of order sheet shows that second appeals were admitted by order dated 22.12.1981. As noticed above, a perusal of order sheet shows that second appeals were admitted by order dated 22.12.1981. In the second appeals, written compromise supported with joint affidavit of Parma, Smt. Dulari and Amar Singh (husband of Smt. Dulari) (in which photographs of these persons were also affixed and identified by their respective counsels) were filed on 30.4.1987. Dr. P. Singh, Member, Board of Revenue, U.P. by order dated 18.5.1987 send the compromise for verification to the Trial Court. Trial Court verified the compromise and returned to Board of Revenue U.P. Thereafter, Sri S.K. Lakhtakia, Member, Board of Revenue, U.P. by order dated 28.7.1988 decided the second appeals in terms of compromise. Similarly allegations that recital of the affidavit filed in support of compromise that suit of the petitioner was dismissed, was false, was inadvertent error of the Counsel, who drafted the affidavit. By making this false recital, the respondents would not derive any benefit. Similarly by removing original compromise, joint affidavit and vakalatnama of Sri M.S. Khan, Advocate, the respondents will not get any benefit. The petitioner has not challenged her photograph and her husband's photograph affixed on the affidavit. The compromise was verified by Trial Court. By removing these papers from the record of second appeal, the respondents will not get any benefit but they were put in disadvantage of these original documents. 11. Now it has to be examine as to whether the compromise was unlawful? The petitioner claimed to be daughter of father's brother of Parma, namely Leeladhar. Parma contested the case, on the allegations that Leeladhar was married to Smt. Shyama and after her death, he was again married one Smt. Chamba widow of Panna Lal of village Chaudhera. The petitioner was daughter of Panna Lal and came to the house of Leeladhar along with her mother Smt. Chamba. In the compromise, the petitioner accepted the case of the respondents. Accepting the case, of the defendant at the second appeal stage cannot be said to be illegal in any manner. In paragraph-22 of the Counter Affidavit, filed in recall application, the respondents have stated that dispute between the parties were amicably settled for which they had given  Rs. 50,000/- to the petitioner. Allegations made in paragraph-22 of the Counter Affidavit has not been denied in the Rejoinder Affidavit. In paragraph-22 of the Counter Affidavit, filed in recall application, the respondents have stated that dispute between the parties were amicably settled for which they had given  Rs. 50,000/- to the petitioner. Allegations made in paragraph-22 of the Counter Affidavit has not been denied in the Rejoinder Affidavit. Even if, the case of the petitioner that she was daughter of Leeladhar, is correct, being a married daughter, the petitioner took money in respect of her share from her cousin brother and left her share to him. This conduct is reasonable and cannot be said to be illegal. Thus compromise is not illegal within the meaning of sections 17 and 23 of Indian Contract Act, 1872 under which the agreement is voidable nor it vitiates by committing fraud. A Division Bench of this Court in Mirza Husain Yar Beg v. Radha Krishna AIR 1935 All 137 (DB), held that a voidable agreement is also lawful agreement. Supreme Court in Mahalaxmi Cooperative Housing Society Ltd. v. Ashabhai Atmaram Patel 2013 (99) ALR 18 (SC), held that allegations that dispute was amicably settled out side the Court is sufficient and fulfill requirements of Order XXIII Rule 3 C.P.C. 12. The Counsel for the petitioner submitted that Sri M.S. Khan, Advocate filed his affidavit before Board of Revenue U.P., denying filing his vakalatnama in second appeals on behalf of the petitioner or verifying the signatures of the petitioner and her husband in the affidavit but it has been ignored by Board of Revenue U.P. The affidavit was not filed in the recall application and no reason has been given for not filing this affidavit in the recall application. It was filed in the review application. In the absence of any explanation for not filing in the recall application, Board of Revenue has not committed any illegality in ignoring it. In view of the aforesaid discussions, I do not find any illegality in the impugned orders of Board of Revenue U.P. and no interference is required in this Court. The writ petition has no merit and is dismissed.