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2020 DIGILAW 1307 (ALL)

Manoj Kumar v. Mahendra Prasad

2020-11-10

ANJANI KUMAR MISHRA

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JUDGMENT : Anjani Kumar Mishra, J. 1. Heard Shri Sharad Malviya, who has filed the instant recall application seeking recall of the order dated 25.1.2019, whereby the writ petition was dismissed as withdrawn. 2. It has been submitted by him that the erstwhile Counsel withdrew the writ petition without seeking permission of the petitioners. The matter was carried up to the Apex Court in S.L.P., which was dismissed as withdrawn granting liberty to them to approach the High Court for appropriate relief and, thereafter, the instant recall application has been filed. 3. The next submission made is that a suit under section 229-B of the U.P. Zamindari Abolition and Land Reforms Act, was decreed on the basis of an admission made in the written statement filed by the defendant, Laxmi Narain; An application to recall this judgment and decree filed 27 years later has been allowed, although there was no cogent explanation given for the condonation of delay of 27 years. The third contention is that no fraud has either been resorted to nor was proved by the respondents. 4. Lastly it has been submitted that this Court may decide the writ petition on its merits. 5. I have considered the submissions made by Shri Sharad Malviya now appearing for the petitioner in the writ petition and perused the record. 6. At the very outset, it would be relevant to note that Shri Sharad Malviya was not a Counsel when the writ petition was filed and was got dismissed as not pressed. 7. In the writ petition, the main challenge to the orders allowing the restoration application was that it was passed on the ground that both the plaintiff and defendant in the suit were represented by the same Counsel. This assertion had been challenged in the petition. The record of the proceedings before the Courts below, had therefore been summoned and perused by the Court to verify this argument: 8. After the record had been obtained, the writ petition was got dismissed as not pressed by the then Counsel. The presumption being that the main ground in the writ petition did not stand established or that there was material on the record to justify the finding returned in the impugned order. 9. In my considered opinion, the recall application should have been filed by the Counsel who was then appearing in the matter. The presumption being that the main ground in the writ petition did not stand established or that there was material on the record to justify the finding returned in the impugned order. 9. In my considered opinion, the recall application should have been filed by the Counsel who was then appearing in the matter. A new Counsel cannot maintain the recall application as he is clearly not aware of what transpired in Court which led to the passing of the order sought to be recalled. 10. Moreover, nothing as to what transpired in Court prior to the passing of the order dated 25.1.2018 has been stated in the affidavit filed in support of the recall application, except the fact that the entire Lower Court record summoned and had been received in the High Court. 11. The facts of the case briefly stated are that the dispute pertains to two plots being plot No. 35 area 13 decimal and 36 area area 1.79 decimal, which were recorded in the name of one Laxmi. Narain. The land in dispute is a pond situated in village Bheeti, Pargana Ramnagar, District Varanasi. The suit was filed alleging that the plaintiff was in long standing possession over the said plot and that the name of the defendant Laxmi Narain had wrongly been entered, thereon. 12. The claim under the circumstances was one of adverse possession. It appears that the suit was decreed as a written statement was filed, allegedly by Laxmi Narain, admitting the claim of the plaintiff. The plaintiff is also alleged to have been mutated over the land in question consequent to the decree passed by the Trial Court. 13. Against the judgment and decree, a restoration application was filed on 4.12.2013 alongwith a section 5 application for condonation of delay, by the son of Laxmi Narain, alleging fraud and that Laxmi Narain had never signed either the vakalatnama or the written statement and that both were by some imposter. 14. The Trial Court vide order dated 12.4.2016 allowed the restoration application. A categorical observation was made that the application dated 21.9.1985, whereby Laxmi Narain supported the plaintiff's case was not supported by any affidavit. Neither the oral testimony of Laxmi Narain was recorded. It was also observed that in the original suit under section 229-B, a restoration application was filed on behalf of the plaintiff. A categorical observation was made that the application dated 21.9.1985, whereby Laxmi Narain supported the plaintiff's case was not supported by any affidavit. Neither the oral testimony of Laxmi Narain was recorded. It was also observed that in the original suit under section 229-B, a restoration application was filed on behalf of the plaintiff. The signatures of the plaintiffs were identified by the same Counsel who had verified the signatures of Laxmi Narain on the application dated 21.9.1985, which render the entire proceedings, doubtful. 15. It was observed that since the case Was that the name of Laxmi Narain had been wrongly entered, the plaintiff should have resorted to proceedings for correction of papers and not filed a declaratory suit. 16. On the question of delay, it was observed that if an order has been obtained without bringing complete facts to the notice of the Court, it could always recall its order, on correct facts being brought to notice. Although, the word fraud has not been specifically used in the order passed by the Sub-Divisional Officer, Sadar, Varanasi on the recall application yet upon considering the order as a whole, it necessarily emerges that the Trial Court found it to be a case of fraud. 17. Against the order of the trial Court, the petitioners filed a: revision before the Commissioner, which was allowed. The order passed by the Trial Court was set-aside on 30.5.2016 and the matter was remanded back to the Trial Court for fresh consideration. 18. Against the order passed by the Commissioner on 30.5.2016, the respondents preferred a revision before the Board of Revenue. The Board of Revenue allowed the revision and set aside the appellate order vide its order dated 19.9.2018. As a consequence, the order passed by the Trial Court allowing the restoration application revived and the suit filed by the petitioners requires a decision on its merits after hearing the parties. 19. As noticed above, this writ petition challenging the order passed by the Board of Revenue on 19.9.2018 was initially entertained and the record of the proceedings before the three Courts below were summoned. They were duly received and were perused by this Court. Thereafter, the writ petition was got dismissed as not pressed and now the instant application seeking recall of the order dismissing the writ petition as not pressed, is being pressed. 20. They were duly received and were perused by this Court. Thereafter, the writ petition was got dismissed as not pressed and now the instant application seeking recall of the order dismissing the writ petition as not pressed, is being pressed. 20. In the context of the arguments made that there was no justification for setting aside a decree after 27 years especially when it had been passed on the basis of an admission made by the defendant and especially after the defendant died sometime in the year 2005-06, it would be relevant to state that in cases of fraud, the question of limitation is of no consequence. This is so because fraud vitiates of solemn proceedings. 21. As already noticed above, the Trial Court has categorically returned a finding that both plaintiff and defendant in the suit had been identified by the same Counsel, which render the entire matter extremely doubtful. This finding has also been reiterated by the Board of Revenue in the impugned order. Nothing in this regard has been submitted by Shri Sharad Malviya while pressing the recall application, even though he specifically urged that the petition be decided on its merits. 22. Apart from the above, the Board of Revenue have also categorically held that a suit for adverse possession could not have been decreed on the basis of either a compromise or an admission because for a claim of adverse possession to succeed the plaintiff has to clearly establish open hostile possession for the statutory period. No documentary evidence in support of the plaint case was ever brought on record and the only evidence that was filed so the oral testimony of the petitioner and her karinda. 23. In my considered opinion, a case for adverse possession cannot be established by oral testimony alone. The only material namely the admission made by Laxmi Narain has been discarded by the Trial Court as also the Board of Revenue for cogent reasons, which call for no interference. 24. It would also be relevant to note that in the restoration application filed in the Trial Court, a categorical averment is to be found that Laxmi Narain was residing in Jharkhand in connection with his employment. Under the circumstances, the order impugned in the writ petition, calls for no interference even on its merit. 25. 24. It would also be relevant to note that in the restoration application filed in the Trial Court, a categorical averment is to be found that Laxmi Narain was residing in Jharkhand in connection with his employment. Under the circumstances, the order impugned in the writ petition, calls for no interference even on its merit. 25. However, the recall application filed through a new Counsel seeking recall of an order whereby the writ petition was dismissed as not pressed on the statement of the erstwhile Counsel is not maintainable. 26. Moreover, since even on merits," the writ petition is found to be devoid of substance as a categorical finding of fraud has been returned against the petitioner or their predecessor-in-interest, I consider it appropriate not only to reject this restoration application but to reject it with cost of Rs. 10,000/- to be deposited by the petitioner within a period of one month from today, failing which the same would be recoverable as arrears of land revenue.