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2017 DIGILAW 682 (ORI)

State of Orissa v. Rahasmani Samal

2017-07-10

A.K.RATH

body2017
JUDGMENT : Dr. A.K. Rath, J. The defendants are the appellants against a confirming judgment. 2. The respondent as plaintiff instituted T.S. No.34 of 1984-I in the court of the learned Sub-Judge, Balasore for declaration of right, title and interest and permanent injunction impleading the appellants as defendants. The case of the plaintiff is that the suit schedule property originally belonged to Harendra Narayan Ray, ex-intermediary. It was a big tank. The same was recorded under Anabadi khata. In course of time, the tank was silted up and fit for cultivation. The ex-intermediary granted amalanama pata in favour of her husband on payment of salami on 15.5.1946. Her husband reclaimed the land and used to pay rent to the ex-intermediary. The land vested in the State in the year 1953. The ex-intermediary had not submitted rafa (rent schedule) in favour of her husband, as a result of which, the land was recorded wrongly as Anabadi land. Thereafter she filed an application before the Tahasildar, Balasore for fixation of rent, which was registered as R.F. case no.513 of 1966. In the said case, rent schedule was issued in her favour in the year 1969. Arrear as well as current rent was collected from her. She was in peaceful possession of the suit land. While the matter stood thus, the Tahasildar, Balasore, defendant no.2, initiated Misc. Case No.1 of 1983 against her for cancellation of rent schedule. Notice was issued to her on 1.10.1983 for show-cause. She appeared and sought for an adjournment. But then without affording any opportunity, the defendant no.2 cancelled the rent schedule on 27.7.67. It is pleaded that her husband was a settled raiyat. He was in cultivation and possession of the same. With this factual scenario, the suit has been filed seeking the reliefs mentioned supra. 3. Pursuant to issuance of summons, the defendants entered appearance and filed written statement denying the assertions made in the plaint. The specific case of the defendants is that on a public petition filed by the public, misc. case no.1 of 1983 was initiated by the Tahasildar, Balasore. It was ascertained that T.L. page-481 of village Nuapur was opened for the disputed land in favour of the plaintiff during the year 1978-79 on the strength of forged rent schedule quoting R.F. No.513 of 1966. case no.1 of 1983 was initiated by the Tahasildar, Balasore. It was ascertained that T.L. page-481 of village Nuapur was opened for the disputed land in favour of the plaintiff during the year 1978-79 on the strength of forged rent schedule quoting R.F. No.513 of 1966. Rent in respect of the said T.L. was realized for the first time on 23.3.79 with retrospective effect from 1953-54. From the relevant case register, it appeared that the said R.F. case did not relate to the disputed land nor the land of the plaintiff. An opportunity was provided to the plaintiff to show-cause as to why the aforesaid rent schedule should not be deemed to be a forged piece of paper and T.L. opened on the strength of so-called rent schedule would not be cancelled. Neither she produced any documents nor filed any written statement. It was held that the above said rent schedule with fictitious R.F. case no.513 of 1966 was a forged one. The T.L. opened on the strength of the same was cancelled under orders of Collector, Balasore vide District Office Letter No.11037/Rev. dated 23.12.83. As per ROR of 1927, the classification of disputed land are “Tank” and Tank-Adi and Puruna Padia. The same vested in the State during the year 1953-54 free from all encumbrances under Sec.5(a) of the O.E.A. Act. The disputed tank was never in possession of the plaintiff. It was a public tank and its water is being used by the public till date. The Government is the paramount owner of the land. The plaintiff cannot claim any raiyati right over the same on the strength of the receipts with “without prejudice” mark, granted in her favour on the basis of the T.L. opened on a forged and fabricated rent schedule with fictitious R.F. case no.513 of 1966. 4. On the interse pleadings of the parties, learned trial court struck six issues. To substantiate the case, the plaintiff had examined three witnesses and on her behalf three documents had been exhibited. On behalf of the defendants, one witness was examined and four documents had been exhibited. 5. 4. On the interse pleadings of the parties, learned trial court struck six issues. To substantiate the case, the plaintiff had examined three witnesses and on her behalf three documents had been exhibited. On behalf of the defendants, one witness was examined and four documents had been exhibited. 5. Learned trial court came to hold that since the rent schedule was issued in favour of the plaintiff in respect of the suit land and rent was collected from her, she cannot again be disposed from the suit land by cancelling rent schedule on the ground that the same was obtained by fraud. Held so, learned trial court decreed the suit. The defendants unsuccessfully challenged the judgment and decree of the learned trial court before the learned Additional District Judge, Balasore in S.J.A. No.46/96 of 1990/87-I, which was eventually dismissed. 6. The second appeal was admitted on the substantial questions of law enumerated in ground nos.B, C and G of the memorandum of appeal. The same are: “B. Whether the plaintiff having solely based her right, title and interest on the suit land by virtue of the rent schedule Ext.1 said to have been issued in R.F. Case No.513/69 by the Tahasildar and the said rent schedule having been cancelled in Misc. Case No.1/83, the learned trial court could have held that once the schedule having been issued and rent having been collected, she cannot be disposed out of the suit land by cancelling the rent schedule on the ground that it was obtained by fraud. C. Whether in view of Ext.A the R.F. Case Register which shows that Case No.513/69 relate to a case of village Ganjia and not of the suit village Nuapur and the order in Ext.C, holding that Ext.1 was obtained by fraud, the learned Courts below, could find in law that Ext.1 having been issued by a Government Officer, it cannot be declared as void or fraudulent. G. Whether the principle of estoppel has absolutely any application to the facts and circumstances of the case as has been held by the learned courts below in as much as whether even if Ext.1 was issued by the Tahasildar who is otherwise not competent to issue such schedule in respect of a tank, the said action could bind the State Government.” 7. Heard Mr. Swyambhu Mishra, learned Additional Standing Counsel for the appellants. None appeared for the respondent. Heard Mr. Swyambhu Mishra, learned Additional Standing Counsel for the appellants. None appeared for the respondent. 8. Mr. Mishra, learned Addl. Standing Counsel, submitted that the suit property is a big tank having area of Ac.1.16 dec. The land originally belonged to ex-intermediary. It vested in the State free from all encumbrances. Neither the plaintiff nor her husband was a settled raiyat in the village. By playing fraud, the plaintiff filed application for fixation of rent. The same was allowed. The public made a complaint. Thereafter the defendant no.2 cancelled the rent schedule. He further submitted that since fraud has been played, the defendant no.2 has cancelled the rent schedule. 9. In S.P. Chengalvaraya Naidu (dead) by L.Rs., vs. Jagannath (dead) by L.Rs. and others, AIR 1994 SC 853 , the apex Court held thus: “Fraud-avoids all judicial acts, ecclesiastical or temporal” observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and nonest in the eyes of law. Such a judgment/decree—by the first court or by the highest court—has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings.” 10. Since fraud has been played, the defendant no.2 has rightly cancelled the rent schedule. Further there is no prayer to set aside the order of cancellation of rent schedule. 11. In State of Kerala vs. M.K. Kunhikannan Nambiar, AIR 1996 S.C. 906 , the apex Court held that even a void order or decision rendered between parties cannot be said to be non-existent in all cases and in all situations. Ordinarily, such an order will, in fact be effective inter parties until it is successfully avoided or challenged in higher forum. Mere use of the word "void" is not determinative of its legal impact. The word "void" has a relative rather than an absolute meaning. It only conveys the idea that the order is invalid or illegal. It can be avoided. There are degrees of invalidity, depending upon the gravity of the infirmity, as to whether it is, fundamental or otherwise. The apex Court held : “7. xxxx xxxx xxxx An order, even if not made in good faith, is still an act capable of legal consequences. It can be avoided. There are degrees of invalidity, depending upon the gravity of the infirmity, as to whether it is, fundamental or otherwise. The apex Court held : “7. xxxx xxxx xxxx An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders. This must be equally true even where the brand of invalidity is plainly visible: for there also the order can effectively be resisted in law only by obtaining the decision of the court. The necessity of recourse to the court has been pointed out repeatedly in the House of Lords and Privy Council without distinction between patent and latent defects." 12. The suit schedule land is a big tank having an area of Ac.1.16 dec. It was recorded under Anabadi khata. After coming into force of the Orissa Estate Abolition Act, the tank vested in the State free from all encumbrances. Learned courts below came to an abrupt conclusion that the Tahasildar has no right to cancel the tenancy ledger opened in the name of the plaintiff without discussing the evidence adduced by the defendants. The specific case of the defendants is that T.L. page-481 of village Nuapur opened in favour of the plaintiff during the year 1978-79 on the strength of the forged rent schedule quoting R.F. Case No.513 of 1966. From the relevant case register, it was found that the said R.F. case neither relate to the disputed land nor the plaintiff. Opportunity of hearing was provided to the plaintiff to show-cause. She did not produce any document nor filed any show-cause. On taking a holistic view of the matter that the rent schedule was forged one, the same was cancelled. As held by the apex Court in the case of S.P. Chengalvaraya Naidu (dead) by L.Rs. (supra), a judgment or decree obtained by playing fraud on the court is a nullity and nonest in the eyes of law. Such a judgment/decree—by the first court or by the highest court—has to be treated as a nullity by every court, whether superior or inferior. (supra), a judgment or decree obtained by playing fraud on the court is a nullity and nonest in the eyes of law. Such a judgment/decree—by the first court or by the highest court—has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings. Accordingly, the substantial questions of law are answered. 13. Resultantly, the appeal succeeds and the same is allowed. The judgment and decree of the courts below are set aside resulting in dismissal of the suit filed by the plaintiff.