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2019 DIGILAW 448 (ORI)

Prafulla Kumar Nayak v. Khetramohan Nayak

2019-07-10

A.K.RATH

body2019
JUDGMENT : A. K. RATH, J. 1. This petition challenges the order dated 12.4.2014 passed by the learned Civil Judge (Junior Division), Jagatsinghpur in C.S. No.454 of 2014. By the said order, learned trial court disposed of the suit in terms of the compromise entered into between the plaintiff-opposite party no.1 and defendant no.2-oppoiste party no.1. 2. This case has a chequered history. The area in which the suit land falls, came under the purview of consolidation operation. Opposite party no.1 filed Consolidation Revision No.492 of 1993 before the Commissioner, Consolidation against Jhatu Nayak, father of the petitioners and husband of opposite party no.2. On 31.3.1995, the Commissioner, Consolidation, on the consent of the parties, remanded the matter to the Consolidation Officer, Balikuda for effecting compromise. On 21.8.1996, father of the petitioners, opposite party no.1 and husband of opposite party no.2 filed a compromise petition along with the trace map for partition. By order dated 30.9.1996, the Consolidation Officer allotted 1/3rd share to each in accordance with the trace map. The said order has attained finality. Thereafter, opposite party no.1 filed Misc. Case No.51 of 2004 before the Tahasildar, Balikuda, opposite party no.4, for issuance of record-of-rights. Opposite party no.4 issued record-of-rights in the name of the father of the petitioners, opposite party no.1 and husband of opposite party no.2 respectively. While the matter stood thus, after lapse of fourteen years, opposite party no.1 instituted Civil Suit No.454 of 2014 on 28.3.2014 for permanent injunction impleading opposite party no.2 as defendant. A compromise petition was filed by the parties on 4.4.2014. The matter was placed before the Lok Adalat on 12.4.2014. The suit was decreed on compromise. Thereafter, opposite party no.1 filed OLR Case No.40 of 2016 before the Tahasildar, Balikuda for conversion from agricultural land to homestead. The same was allowed. The petitioners filed OLR Appeal No.8 of 2016 before the Sub-Collector, Jagatsinghpur, which is sub judice. 3. Heard Mr. R.K. Rath, learned Senior Advocate along with Ms. Sandipani Nayak, learned counsel for the petitioners and Mr. Bikram Rath, learned counsel for opposite party no.1. None appears for opposite party no.2. 4. Mr. R.K Rath, learned Senior Advocate for the petitioners argued with vehemence that the Consolidation Officer, Balikuda allotted 1/3rd share to the father of the petitioners, opposite party no.1 and husband of opposite party no.2. He allotted plots horizontally in accordance with the sketch map. Bikram Rath, learned counsel for opposite party no.1. None appears for opposite party no.2. 4. Mr. R.K Rath, learned Senior Advocate for the petitioners argued with vehemence that the Consolidation Officer, Balikuda allotted 1/3rd share to the father of the petitioners, opposite party no.1 and husband of opposite party no.2. He allotted plots horizontally in accordance with the sketch map. Thereafter, opposite party no.4 issued record-of-rights. The order passed by the Consolidation Officer has attained finality. Thereafter, the opposite party no.1 instituted Civil Suit No.454 of 2014 on 28.3.2014 for permanent injunction impleading opposite party no.2. He has produced a forged and imaginary vertical sketch map. Both the parties filed an application on 4.4.2014. The matter was compromised in the Lok Adalat on 12.4.2014. Opposite party no.1 played fraud on the court and obtained the decree. The decree is a nullity. Basing on the same, he filed OLR Case No.40 of 2016 under Sec.8A of the Orissa Land Reforms Act ("OLR Act") for conversion from agricultural land to homestead. He suppressed the facts. The petition was allowed. Being emboldened by the order passed by the Tahasildar, Balikuda, opposite party no.1 stacked earth as well as stone over the land of the petitioners. To buttress the submission, he placed reliance on the decisions of the apex Court in the case of Nagubai Ammal v. B. Shama Rao, (1956) AIR SC 593, S.P. Chengalvaraya Naidu v. Jagannath, (1994) AIR SC 853 and Badami v. Bhali, (2012) 11 SCC 574 . 5. Per contra, Mr. Bikram Rath, learned counsel for the opposite party no.1 submitted that since the opposite party no. 2 disturbed the possession of the opposite party no.1, he was constrained to institute Civil Suit No.454 of 2014 for permanent injunction. During pendency of the suit, both the parties agreed to the compromise the matter and accordingly the matter was compromised in the Lok Adalat. He further submitted that against the order passed by the opposite party no.4, OLR Appeal No.8 of 2016 has been filed. The same is sub judice. The petitioners are not adversely affected. 6. Before delving deep into the matter, it is apt to refer to the decisions cited by Mr. R.K. Rath, learned Senior Advocate. 7. In Nagubai Ammal, the apex Court held that there is a fundamental distinction between a proceeding which is collusive and one which is fraudulent. The same is sub judice. The petitioners are not adversely affected. 6. Before delving deep into the matter, it is apt to refer to the decisions cited by Mr. R.K. Rath, learned Senior Advocate. 7. In Nagubai Ammal, the apex Court held that there is a fundamental distinction between a proceeding which is collusive and one which is fraudulent. "Collusion in judicial proceedings is a secret arrangement between two persons that one should institute a suit against the other in order to obtain the decision of a judicial tribunal for some sinister purpose". (Wharton's Law Lexicon, 14th Edition, page 212). In such a proceeding, the claim put forward is fictitious, the contest over it is unreal, and the decree passed therein is a mere mask having the similitude of a judicial determination and worn by the parties with the object of confounding third parties. But when a proceeding is alleged to be fraudulent, what is meant is that the claim made therein is untrue, but that the claimant had managed to obtain the verdict of the court in his favour and against his opponent by practising fraud on the Court. Such a proceeding is started with a view to injure the opponent, and there can be no question of its having been initiated as the result of an understanding between the parties. While in collusive proceedings the combat in a mere sham, in a fraudulent suit it is real and earnest. 8. In S.P. Chengalvaraya, the apex Court quoted the classic words of Chief Justice Edward Coke of England "Fraud avoids all judicial acts, ecclesiastical or temporal". The apex Court held that it is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est 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. 9. The same view was echoed in Badami. The apex Court held : "31. A person whose case is based on falsehood has no right to approach the Court. A litigant who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. 9. The same view was echoed in Badami. The apex Court held : "31. A person whose case is based on falsehood has no right to approach the Court. A litigant who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If a vital document is withheld in order to gain advantage on the other side he would be guilty of playing fraud on court as well as on the opposite party. 32. In Shrisht Dhawan v. Shaw Bros, it has been opined that the fraud and collusion vitiate even the most solemn proceedings in any civilised system of jurisprudence. It has been defined as an act of trickery or deceit. XXX XXX XXX 34. Yet in another decision Hamza Haji v. State of Kerala, it has been held that no court will allow itself to be used as an instrument of fraud and no court, by way of rule of evidence and procedure, can allow its eyes to be closed to the fact it is being used as an instrument of fraud. The basic principle is that a party who secures the judgment by taking recourse to fraud should not be enabled to enjoy the fruits thereof." 10. Reverting to the facts of the case and keeping in view the law laid down by the apex Court in the decisions cited supra, this Court finds that a sketch map was appended to the compromise petition filed in C.S. No.454 of 2014. It is crystal clear that the same is diametrically opposite to the sketch map filed in the consolidation case inasmuch as three plots have been allotted to the parties horizontally in the consolidation case, whereas in the suit, the same are vertical. In the suit, the petitioners were not parties. The order passed by the Consolidation Officer in R.C No.492 of 1993 as well as the sketch map appended to the compromise petition had not been produced before the Tahasildar, Ballikuda in OLR Case No.40 of 2016. Opposite party no.1 had played fraud on the court and obtained the decree. The decree is a nullity. 11. Resultantly, the order dated 12.4.2014 passed by the learned Civil Judge (Junior Division), Jagatsinghpur in C.S. No.454 of 2014 and the order dated 4.2.2016 passed by the Tahasildar, Balikuda in OLR Case No.40 of 2016 are quashed. Opposite party no.1 had played fraud on the court and obtained the decree. The decree is a nullity. 11. Resultantly, the order dated 12.4.2014 passed by the learned Civil Judge (Junior Division), Jagatsinghpur in C.S. No.454 of 2014 and the order dated 4.2.2016 passed by the Tahasildar, Balikuda in OLR Case No.40 of 2016 are quashed. It is open to the opposite party no.1 to make a fresh application before the Tahasildar, Balikuda, opposite party no.4 under Sec.8A of the OLR Act for conversion of agricultural land in accordance with the order passed by the Consolidation Officer, Balikuda. The petition is allowed with the aforesaid observation.