Allahabad High Court
Smt Manju Devi vs Board Of Revenue Allahabad & Ors on 28 May, 2020
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Reserved on: 11.12.2019 Delivered on: 28.05.2020 Case :- MISC. SINGLE No. - 3392 of 2018 Petitioner :- Smt Manju Devi Respondent :- Board Of Revenue Allahabad & Ors Counsel for Petitioner :- Mohammad Aslam Khan,Indrajeet Shukla,Nitin Srivastava Counsel for Respondent :- C.S.C,Amrendra Nath Tripathi,Jai Kumar,Santosh Kumar Tripathi Hon'ble Mrs. Sangeeta Chandra,J.
1. This writ petition has been filed by the petitioner praying for quashing of the order passed by the opposite party no.1 dated 11.1.2018, upholding the order dated 30.7.2014 passed by the opposite party no.2, and for consequential reliefs.
2. The dispute relates to four plots of land situated in village Laxmanpur, Pargana, Tehsil and District Gonda.
3. It has been stated in the writ petition that initially the four plots of land were recorded in the name of Smt. Ram Raji, widow of Sheetla Prasad. On the death of Smt. Ram Raji, the name of Smt. Sampata, wife of Shiv Prasad being the only daughter, was recorded by the Supervisor, Kanoongo through PA-11 entry. On 6.7.1974, Bhikhu, Ram Sumran and Ram Kumar filed a suit under Section 229B/209 of the U.P.Z.A. and L.R. Act against Sampata by impleading the State of U.P. and the Gaon Sabha as parties and claiming Bhumidhari rights on the basis of an unregistered Will dated 5.9.1972, alleged to have been executed by Smt. Ram Raji and in the alternative, claimed to be heirs of Smt. Ram Raji being the nephews of her Late husband Shiv Prasad, and denying the existence of Sampata as a daughter of Ram Raji and Sheetla Prasad. The suit was contested by Sampata, who pleaded that she is the only daughter of Smt. Ram Raji and had inherited the property in dispute. The suit was also contested by the State of U.P. by filing written statement.
4. Initially, the trial court decreed the suit by judgment and order dated 20.1.1977 against which order, Sampata filed an Appeal, which was allowed on 6.12.1979 and the suit was dismissed. Against the order dated 6.12.1979, the plaintiffs filed a Second Appeal, which was allowed by judgment and order dated 18.10.1995. The Board of Revenue set aside the order passed by the Additional Commissioner in Appeal and remanded the matter to the Sub Divisional Officer, Tarabganj, Gonda (hereinafter referred to as ''the opposite party no.2'). After remand of the suit to the opposite party no.2, the plaintiffs died and were substituted by their legal heirs. Similarly, the defendant Sampata also died and was substituted by her legal heir Kallu Ram, whose name had been recorded in PA-11 by the Supervisor, Kanoongo. Kallu Ram, whose name was recorded in the revenue records as Bhumidhar, executed two Sale Deeds on 31.7.2010 and 6.7.2012 in favour of the petitioner and one Sushila Devi. Kallu Ram also executed a Power of Attorney in favour of the Suraj Lal, husband of Smt. Manju Devi, authorizing him to prosecute the declaratory Suit, which was pending before the opposite party no.2 on behalf of the defendant Kallu Ram. In the meantime, the other purchaser, Smt. Sushila Devi transferred her share of purchased land through a registered Sale Deed on 17.1.2014 in favour of Smt. Manju Devi.
Kallu Ram after executing a Power of Attorney in favour of the husband of the petitioner on 31.7.2010 also executed another Power of Attorney on 21.2.2014 in favour of one Ayodhya Prasad. In the suit that was pending before the opposite party no.2, the plaintiffs made an application before the Collector, Gonda for transfer of the case to another Court and the said application was allowed on 7.7.2014 and the case was transferred from the Court of Sub Divisional Officer, Sadar, Gonda to the Court of Sub Divisional Officer, Tarabganj, Gonda. The record was received on 18.7.2014 and the Court fixed the date of 7.8.2014. The new Power of Attorney holder Ayodhya Prasad filed an application before the opposite party no.2 for preponing the date, which had earlier been fixed as 7.8.2014. The application was allowed and new date was fixed as 23.7.2014. It has been submitted that all this was done behind the back of the petitioner/her husband. After getting the date preponed, Ayodhya Prasad filed a collusive compromise between the plaintiffs and Kallu Ram, who had already sold off all his property and had no right or title or interest left in the same. On the basis of this compromise dated 23.7.2014 entered into by the new Power of Attorney on behalf of Kallu Ram, and the plaintiffs, Kallu Ram abandoned the entire claim in favour of the plaintiffs Bhikhu, Ram Kumar and Ram Sumran and others, and stated that they may be declared as Bhumidhar of the land in dispute. The declaratory Suit was decreed by opposite party no.2 on 30.7.2014, in terms of the compromise.
5. On coming to know of this compromise Decree, the petitioner filed an appeal before the Commissioner, which was allowed on 14.10.2015 and the matter was remanded to the opposite party no.2 to decide afresh after framing issues and after affording opportunity of hearing to all concerned.
6. Being aggrieved by the order passed by the Appellate Court, the opposite party no.3 filed a Second Appeal, which was allowed at the admission stage by the opposite party no.1 without serving the opposite parties therein, on the ground that the transfer was made by Kallu Ram during the pendency of the suit, where there was already a stay order in favour of the plaintiffs, hence, the Sale Deed was void. Further, the transferer Kallu Ram had not filed any Appeal against the judgment dated 30.7.2014 and the transferee pendente lite had no right to file such an appeal.
7. In Para-21 of the writ petition, it has been specifically stated that during the pendency of the suit, there was no restraint order passed by the trial court. It has also been submitted that a Suit for Declaration under Section 229-B of the Act could not have been decreed in terms of the compromise when the State of U.P. and the Gaon Sabha, who were parties to the suit, did not join in the compromise.
8. Learned counsel for the petitioner has placed reliance upon judgments rendered by this Court in Raja Ram and another versus Deputy Director of Consolidation, Siddharth Nagar and others, 2006 (101) RD 121; Shiv Prasad versus Deputy Director of Consolidation, Ghazipur and others, 2006 (101) RD 624; Surendra Narain Dubey versus Deputy Director of Consolidation, 1973 RD 328; Smt. Phenki versus Board of Revenue, Allahabad and others, 2011 Allahabad Civil Journal 2057; Saral Tiwari alias Jagdish Tiwari versus Board of Revenue, U.P. at Allahabad and others, 2007(103) RD 54; and Sita Ram versus Sia Ram, an order of the Board of Revenue, reported in 1995 RD 161, to buttress his arguments.
9. It has been submitted that any person who is aggrieved by the judgment could have filed an appeal and, therefore, the ground taken by the Board of Revenue in its order impugned, is misconceived.
10. Learned counsel for the petitioner has submitted that in Hardevinder Singh versus Paramjit Singh, 2013 AIR SCW 447, and in Deposit Insurance and Credit Guarantee Corporation versus Raghupathi Ragavan and others, 2015 Allahabad Civil Journal 2084, the Supreme Court has held that even if the appellant was not a party in the learned Court below, but he was adversely affected by the judgment and he could file an application for grant of leave and prefer an appeal before the Appellate Court. Additionally, reliance has also been placed upon judgment rendered by this Court in Smt. Lal Dei through LRs and others versus Deputy Director of Consolidation, Varanasi and others, 2005 Allahabad Civil Journal 1908.
11. It has further been submitted by Sri Mohd. Arif Khan, learned Senior Advocate appearing for the petitioner, that a Second Appeal before the Board of Revenue against an order of remand passed in First Appeal was not maintainable.
12. Learned counsel for the petitioner has placed reliance upon the judgment rendered by the Supreme Court in M/s. Jethanand and Sons versus the State of U.P. AIR 1961 SC 794, where the Supreme Court has held that an order is final if it amounts to a final decision relating to the rights of the parties in a dispute in civil proceedings. If after the order of remand, the civil proceedings still remain to be tried and the rights in dispute between the parties have still to be determined by the trial court, the order is not a final order within the meaning of Article 133 of the Constitution of India and the order remanding the case is not a judgment, Decree or final order against which, a regular Second Appeal would lie.
13. It has been submitted by the petitioner's counsel that the order of remand, which was passed by the Additional Commissioner was an order passed under Rule 23A of Order XLI of the Code of Civil Procedure (hereinafter referred to as ''CPC') and against such an order of remand, only FAFO would lie before the Board of Revenue and for the said proposition of law, learned counsel for the petitioner has placed reliance upon a judgment rendered by this Court in Mani Ram and others versus Viresh Kumar and others, 1985 RD 375.
14. It has been further argued that under Section 341 of the U.P. Zamindari Abolition and Land Reforms Act (hereinafter referred to as ''U.P.Z.A. and L.R. Act'), the provisions of the CPC are applicable on the proceedings under the Act, unless expressly provided otherwise. Elaborating his argument, learned counsel for the petitioner submitted that a perusal of Schedule-II attached to the U.P.Z.A. and L.R. Act and Item no.34 would show that in such a case, a regular Second Appeal would not lie.
15. In the counter affidavit filed by the private respondents, the writ petition has been opposed as not being maintainable on behalf of Manju Devi, as she purchased the land in dispute pendente lite. It has been submitted that the Sale Deeds executed by Kallu Ram were void, as the matter was subjudice before the Revenue Courts for declaration of his rights over the property in question and there was already a stay on the sale of the property. The petitioner had knowledge of the pending litigation, as her husband was given Power of Attorney by Kallu Ram on 31.7.2010 to prosecute the suit pending in the Court of Sub Divisional Officer, Gonda. The petitioner made no attempt to get impleaded as a party to the said suit. Kallu Ram revoked the Power of Attorney given to the husband of the petitioner and executed a fresh Power of Attorney on 21.2.2014, appointing Ayodhya Prasad and the subsequent Power of Attorney being valid, Ayodhya Prasad rightly moved an application on behalf of Kallu Ram for settling the dispute on the basis of a compromise entered into between the legal heirs of the erstwhile plaintiffs and the legal heir of the erstwhile defendant.
16. It has been submitted that the petitioner had no right to challenge the compromise Decree dated 30.7.2014 as Kallu Ram did not challenge such compromise Decree. The appeal was wrongly entertained by the Additional Commissioner and the order dated 14.10.2015 was without jurisdiction, therefore, the respondents filed a Second Appeal, which was rightly entertained and allowed by the Board of Revenue. The petitioner was neither a person aggrieved nor had filed any application seeking leave to file appeal. The respondents had continued possession of their share of the property in question.
17. In the course of arguments, Sri Amarendra Nath Tripathi, appearing for the private respondents has refuted the argument raised by the learned counsel for the petitioner that no Second Appeal against an order of remand simpliciter was maintainable under Order XLI Rule 23A of the CPC.
18. Learned counsel for the respondents has read out Section 341 of the U.P.Z.A. and L.R. Act to say that the provisions of the CPC shall be applicable to the proceedings under the Act, unless otherwise provided for.
19. Learned counsel for the respondents has read out Section 331 also of the U.P.Z.A. and L.R. Act and has pointed out that the competent Courts are mentioned in Column-4 of Schedule-II, which have been designated to deal with certain types of Suits as mentioned in the Schedule. Reference has also been made to Column-5, which deals with first Appellate Court and thereafter, Section 331(4) of the Act has been read out to show how and where a Second Appeal can be filed against an order of the first Appellate Court i.e. before a Court mentioned in Column-6 of Schedule-II. It has been submitted that since the U.P.Z.A. and L.R. Act has substantive as well as procedural provisions, no forum of appeal could be created by the CPC, which is not provided in the U.P.Z.A. and L.R. Act itself.
20. Learned counsel for the respondents has placed reliance upon judgment rendered in Jagdish and others versus Shaukeen and others, (2006) 100 RD 175, to argue that the provisions of CPC would not be applicable when there is a specific provision contained in U.P.Z.A. and L.R. Act with regard to filing of Suit under Section 229-B for declaration of Bhumidhari or Sirdari rights or for ejectment under Section 209.
21. It has further been submitted that if the counsel for the petitioner is relying upon the CPC instead of U.P.Z.A. and L.R. Act, then under Section 96(3) of the CPC, no appeal against a compromise Decree could have been filed. Therefore, the First Appeal filed by the petitioner before the Court of Additional Commissioner was also not maintainable. In the alternative, if the learned counsel for the petitioner says that Section 96(3) is not applicable, then Order XLI Rule 23A would also not be applicable.
22. Learned counsel for the respondents has also pointed out that the argument with regard to the State of U.P. and the Gaon Sabha being essential signatories to the compromise under Section 229-B of the Act is also misconceived. A suit under section 229-B of the Act is only for those rights as are conferred under the Act itself. No new right was being asked for, by the plaintiffs. Ram Raji, the widow of Sheetla Prasad was already a Bhumidhar and the dispute related only to succession of a recorded tenure holder as it was claimed by the plaintiffs that Sampata was not the daughter of Ram Raji and Sheetla Prasad. It was nobody''s case that the Gaon Sabha and the State Government were not the owners of the land in question.
23. Learned counsel for the respondents has placed reliance upon Saral Tiwari alias Jagadish Tiwari versus Board of Revenue, U.P. at Allahabad and others, (2007) 103 RD 54 and Raja Ram and another versus Joint Director of Consolidation, Allahabad and others, AIR 1993 Allahabad 72, to buttress his argument that the requirement of the State or Gaon Sabha being a party in a Compromise is only when fresh rights are claimed from the State or the Gaon Sabha.
24. Additionally, it has been argued that the Sale Deeds were executed on 31.7.2010 and 6.7.2012 by Kallu Ram and a Power of Attorney in favour of husband of the petitioner was also executed on 31.7.2010, giving him the authority to prosecute the pending Suit for Declaration in the Court of the Sub Divisional Officer, as is evident from the language of the Power of Attorney itself. It is evident that the Sale Deeds were subsequent to the filing of the Suit and, therefore, subservient to the rights of the defendant therein. The property was purchased by the petitioner during pendency of the Suit and during currency of an interim stay on alienation of property by the Court concerned, therefore, the doctrine of lis pendens under Section 52 of the Transfer of Property Act would apply.
25. Learned counsel for the respondents has also placed reliance upon Guruswamy Nadar versus P. Lakshmi Ammal, (2008) 5 SCC 796 and Smt. Ram Peary and others versus Gauri and others, AIR 1978 Allahabad 318, to buttress his argument.
26. Learned counsel for the respondents has submitted that the subsequent Power of Attorney executed in favour of Ayodhya Prasad was validly executed by Kallu Ram and in the said Power of Attorney, the earlier one was specifically revoked. It is not the case of the petitioner that the Power of Attorney issued in favour of the husband of the petitioner was irrevocable. Moreover, the subsequent Power of Attorney was a registered one, whereas the earlier Power of Attorney made out in favour of Suraj Lal was an unregistered document. Moreover, the Power of Attorney was made out in favour of Suraj Lal in 2010 and in favour of Ayodhya Prasad in 2014, and that for four long years, no application for impleadment was filed by Manju Devi despite knowledge of the pending Suit at the time when the Sale Deed had been executed. The recorded tenure holder was already dead and Kallu Ram had been impleaded as the defendant, but his right had not yet been confirmed. Also, the suit was pending since 1974 and the compromise was filed in 2014. In between, forty years had elapsed, but no attempt was made by the defendant to produce any evidence that Sampata was the daughter of the recorded tenure holder Ram Raji.
27. It has also been submitted by the respondents' counsel that Kallu Ram could have sold only that over which, he had ownership. The ownership of the plot in question was not declared by the competent Court. Kallu Ram only had a PA-11 entry in his name, which conferred no right. The mutation proceedings had indeed been decided in favour of Sampata in 1974, but mutation itself does not confer any right, title or interest in the property in question when a regular Declaratory Suit has been filed, which is pending.
28. It has further been submitted that when the Appeal was filed by Manju Devi before the Additional Commissioner against the compromise Decree, saying that no compromise Decree could have been validly made without the Gaon Sabha and the State Government being signatories to the compromise, neither the Gaon Sabha nor the State Government filed any Appeal against the compromise Decree. If they were aggrieved, they did not challenge the order and it became final against them also. It has been argued that the Gaon Sabha and the State Government were only proforma parties and had no stake in the pending Declaratory Suit, as is evident from their subsequent conduct.
29. It has also been submitted by the learned counsel for the respondents that the compromise was filed on 23.7.2014 and the Suit was decreed on 30.7.2014. No objections were filed, either by Manju Devi or the Gaon Sabha or the State Government to the said compromise. If the compromise Decree had been passed without their knowledge, the proper remedy would have been to file an application for recall of the order and the First Appeal was not maintainable by Manju Devi alone.
30. Learned counsel for the respondents has also argued that if the compromise was collusive in nature, it could have been challenged in a separate Suit by the petitioner and the First Appeal was not maintainable.
31. Learned counsel for the respondents has placed reliance upon a judgement rendered in Y. Sleebachen and others versus State of Tamil Nadu and another, (2015) 5 SCC 747, to say that against a compromise Decree, the party aggrieved should have approached the Court of first instance and it was not open to it to file an appeal.
32. Learned Senior Counsel appearing for the petitioner, in rejoinder, has submitted that Section 229-B of the U.P.Z.A. and L.R. Act relates to declaration of right against the recorded tenure holder. Sub-section (3) by its language itself makes it clear that the State Government and the Gaon Sabha are necessary parties. Notice under Section 80 of CPC/Section 106 of the U.P. Panchayat Raj Act is necessary. The Declaratory Suit filed against the recorded tenure holder i.e. Sampata did not deny the title of Ram Raji, but denied that Sampata was the daughter.
33. Learned counsel for the petitioner has read out the plaint of the Suit filed as Annexure to the writ petition along with its relief clause and has argued that the plaintiffs were claiming Bhumidhari rights over a certain plot of land and Sirdari rights on the other plots of land. The ground for such claims was that Ram Raji, the erstwhile recorded tenure holder, had made out a Will in their favour and also that Sampata was not the daughter of Ram Raji and Sheetla Prasad, and on the death of the couple, plaintiffs being the nephews of Sheetla Prasad, were entitled to succession. In such a suit, if the parties agreed to a compromise and the defendant abandoned his claim, then it would only mean that the plaintiffs became Bhumidhar/Sirdar. It would result in a fresh declaration of a right of Bhumidhar or Sirdar, not only against the defending private persons, but also against the world at large, including the State and the Gaon Sabha. Sampata was already a recorded tenure holder in PA-11 and had also won the mutation proceedings upto the stage of Revision. If the suit failed, then Sampata would have remained the Bhumidhar and if the suit was allowed, then Ram Sumran and others would have become Bhumidhar.
34. It has also been argued that fraud and justice cannot go hand-in-hand. Once Kallu Ram had sold off the property in question, he had no right to enter into a compromise with the plaintiffs, as he had no interest left in the property. Moreover, if the property was being conveyed through a compromise, then it was compulsorily to be registered under Section 17 of the Registration Act.
35. It has also been argued by the petitioner's counsel that the Suit was transferred from the Court of Sub Divisional Officer, Sadar to the Court of Sub Divisional Officer, Tarabganj and a date of 7.8.2014 was fixed, which was preponed for extraneous consideration and a compromise was filed on 23.7.2014 and the Suit itself was decreed in terms of the compromise on 30.7.2014. In such a short period of time, neither the Gaon Sabha nor the State could file any objections thereto.
36. Learned counsel for the petitioner has pointed out the part of the order passed by the first Appellate Court, on Page 64 and 65 of the paper book and has argued that no finding has been returned by the Board of Revenue with regard to the specific statements made in the order of First Appeal against the conduct of the respondents.
37. It has also been submitted that Ayodhya Prasad, the subsequent Power of Attorney, bought the land in question from the private respondents in favour of his own father on 7.8.2014 soon after the Suit was decreed in favour of the respondents. A copy of the Sale Deed has been produced, which shows that Lalta Prasad, father of Ayodhya Prasad had bought two plots of land in dispute.
38. It has been submitted that since the Suit had been filed by the plaintiffs, the burden of proof was also on them. It has again been reiterated that under Section 341 of the Act, an order of remand is an order under Rule 23A of Order XLI of CPC and no Second Appeal would lie against such an order, but only an FAFO could have been entertained by the Board of Revenue.
39. It has further been submitted that under Order XXIII Rule 3 of the CPC, "parties to the compromise decree" cannot file an appeal against the same. However, the petitioner was not a party to the compromise and it was entered behind her back and to the prejudice of her interest. The vendor had deprived the Vendee of the right to property bought in exchange of valuable consideration. It has also been submitted that the doctrine of lis pendens does not mean that a Sale Deed executed during the pendency of litigation would automatically become void. It only means that the transferee shall step into the shoes of the transferer and his rights shall be subservient to the rights of the parties as determined in the suit.
40. Having heard the parties at length, this Court has also perused the pleadings on record. It appears that Bhikhu, Ram Sumran and Ram Kumar, sons of Ram Prasad had filed a Suit for Declaration under Section 229-B of the Act and for ejectment under Section 209 of the Act against Sampata, wife of Shiv Prasad, who was substituted by her son Kallu Ram. During the pendency of the said Suit, the Gaon Sabha, Laxmanpur through its Pradhan was the defendant no.2, and the State of U.P. through the Deputy Commissioner, Gonda was the defendant no.3. In the said Suit, it was alleged that one Dhondey was the original tenure holder, who had two sons; Sheetla Prasad and Ram Prasad. Sheetla Prasad was married to Smt. Ram Raji and they were issue-less. Ram Prasad had three sons, i.e. the plaintiffs. On certain plot of land in village Laxmanpur, the mother of defendant no.1 Ram Raji was recorded as Bhumidhar and on other plots of land, she was recorded as Sirdar and on still other plots of land, she was recorded as co-Sirdar along with the plaintiffs. On the death of Smt. Ram Raji, the plaintiffs claimed that being the nephews, they succeeded on one plot in question as Bhumidhar, and on all the remaining land as Sirdar. Also, that Ram Raji had made out a Will dated 5.9.1972 in favour of the plaintiffs also. It was also alleged that the defendant no.1 Sampata was not the daughter/legal heir of Ram Raji and Sheetla Prasad, but without any basis, she claimed to be their legal heir and successor. The plaintiffs had filed an application for mutation and correction of papers in the Court of Tehsildar, which application was rejected on 10.9.1972 against which, the plaintiffs had filed a Revision, which was also rejected on 23.3.1974. Hence, the need arose to file a Suit for Declaration and the same was actually filed on 6.7.1974. In Paragraph 8 of the Suit, it had been mentioned that defendant nos.2 and 3, as per statutory provisions, were necessary parties and had been given notice under Section 106 of the U.P. Panchayat Raj Act read with Section 80 of CPC and despite service of notice on 26.4.1974, the defendant nos.2 and 3 had neither replied to the notice nor had recognized the rights of the plaintiffs as Bhumidhar/Sirdar of the property in question. In the prayer clause, a decree/declaration of Bhumidhari/Sirdari rights over the property in question was sought against all the defendants. Also, a decree of ejectment of the defendant no.1 was sought under Section 209 of the U.P.Z.A. and L.R. Act.
41. Initially the said Suit was decreed in favour of the plaintiffs against which, Sampata filed a First Appeal before the Court of Commissioner of Faizabad Division, Faizabad. The First Appeal was allowed on 6.12.1979. Aggrieved by the order passed in First Appeal, dismissing the Suit of the plaintiffs, the plaintiffs had filed a Second Appeal, which was allowed by the Board of Revenue on 18.10.1995, remanding the matter back to the Court of the Sub Divisional Officer, Sadar, Gonda with the direction that issues be framed and evidence be taken afresh of all parties concerned. After remand of the Suit, the plaintiffs died and were substituted by their legal heirs. The defendant no.1 also died and was substituted by her son Kallu Ram. Kallu Ram after selling off the property in dispute initially made out a Power of Attorney in favour of the husband of the petitioner so that he may pursue the pending litigation on 31.7.2010. Later on, a fresh Power of Attorney was executed by him in favour of one Ayodhya Prasad, who moved an application on 23.7.2014 before the trial court that the parties had willingly entered into a compromise to settle the Suit out of court.
42. In the compromise, mention was made of a fresh Power of Attorney executed in favour of Ayodhya Prasad in 2014, but neither the petitioner nor the respondents herein have filed a copy of the Power of Attorney so executed in favour of Ayodhya Prasad in this Court.
43. The Sub Divisional Officer by his order dated 30.7.2014, first mentioned the brief facts relating to the litigation and thereafter referred to the compromise filed before him on 23.7.2014 and thereafter, decreed the Suit in terms of the compromise, which was directed to become part of the order.
44. Learned counsel for the private respondents has pointed out from the contents of the compromise dated 23.7.2014 that Kallu Ram not only gave up his right to the property in question, but also admitted that his mother Sampata was not the daughter of Ram Raji and Sheetla Prasad. In the said compromise, mention has also been made of the fact that on the property in dispute, the plaintiffs alone had possession and that Kallu Ram was in no way interested in the property in question nor had possession over it.
45. The contents of the compromise filed in the Court of Sub Divisional Officer show that Kallu Ram gave up the claim of Sampata to be the daughter of Ram Raji and Sheetla Prasad. He also gave up all of his claim therefore, to the property in question. He undermined the very basis of his ownership of the property in dispute, which he had already sold off by two Sale deeds in the year 2010 and 2012. He in effect rendered himself open to be prosecuted for knowingly committing fraud with the transferee pendente lite and apparently for no good reason, as in the compromise, he gave up all his rights without getting anything in return. Such a compromise was highly unlikely to have been entered into with the knowledge of Kallu Ram. The application for taking the compromise on record was signed by Ayodhya Prasad, the new Power of Attorney holder and for disposing of the case also. The order sheet was signed only by Ayodhya Prasad, alleging that Kallu Ram was not available at the time.
46. It has come to the notice of the Court that Kallu Ram also sold off the very same property, which he had already disposed off in 2010 and 2012 through registered Sale Deeds, in favour of the father of Ayodhya Prasad, one Lalta Prasad on 7.8.2014 soon after the Declaratory Suit was disposed of on the basis of the compromise Decree.
47. The basic question that arises for decision of this dispute is whether such a compromise, which was not signed either by the Gaon Sabha or the Collector on behalf of State Government, could have been relied upon by the trial court to decide the matter.
48. Apparently, the date fixed by the trial court for hearing of the case in the presence of the parties was 7.8.2014. Later on, on an application moved by Ayodhya Prasad behind the back of the petitioner, it was preponed to 23.7.2014. On 23.7.2014, the compromise was filed in Court and on 30.7.2014, the Suit was decreed in favour of the plaintiffs on the basis of the compromise. The State Government impleaded through the Deputy Collector and the Gaon Sabha impleaded through the Gram Pradhan, were contesting defendants, as the relief claimed in the Prayer clause of the Suit was also for a declaration of Bhumidhari rights and Sirdari rights against all the defendants. This Court has noticed Para-8 of the plaint, where a specific averment in this regard was made.
49. This Court has already held in Jag Ram and another vs. Deputy Director of Consolidation, Gonda and others: Writ Petition No.459 (Consolidation) of 2002, decided today i.e. 28.05.2020, that no such compromise could have been made the basis of decreeing the suit by the trial court.
50. In the case of Parsottam vs. Narottam; 1970 ALJ 505, it was held by the Division Bench that a suit for declaration of Bhumidhari or Sirdari rights is to be filed against the State Government and the Gaon Sabha and any other person who claims Bhumidhari or Sirdari rights, in such land has to be impleaded as a party. It was held that the State Government and the Gaon Sabha are necessary parties to such a suit and, therefore, any Decree on the basis of compromise without their consent could be validly ignored by the Consolidation Authorities. The appellants therein claimed themselves to be Bhumidhars. The dispute whether the defendant-respondents were still Sirdars had to be adjudicated only in a suit under Section 229-B where the State Government and the Gaon Sabha were also necessary parties. The Revenue Court was not competent to look into the agreement between the parties and to give effect to it in view of the clear provisions of sub-section (3) of Section 229-B. It is well settled that there is no estoppel against the statute. If the statute requires that declaration of rights of a Sirdar can take place only in the presence of the State Government and the Gaon Sabha, then an agreement in the absence of these parties would be violative of such a statutory provision.
51. In Saral Tiwari alias Jagdish Tiwari (supra), a co-ordinate Bench of this Court was considering whether a compromise between the parties in a Suit for Declaration of Bhumidhari rights under Section 229-B of the U.P.Z.A. and L.R. Act, which was not signed by the Gaon Sabha or the State, could result in a valid Decree. The Court considered this fact that the plaintiff was seeking tenancy right in the land in dispute on the basis of possession. It was not a case where declaration of already existing tenancy right was being claimed by the plaintiff whose name even though he was in possession, was not recorded in the Khatauni for some reason. This Court held that tenancy rights being regulated by the provisions of U.P.Z.A. and L.R. Act, a fresh tenancy right could not be created in favour of a person on the basis of a compromise without Gaon Sabha and the State either conceding or being signatories to the said compromise.
52. The Explanation under Order XXIII Rule 3 of C.P.C. provides that an agreement or a compromise which is void or voidable under the Indian Contract Act shall not be deemed to be lawful within the meaning of this Rule. This Explanation gives a requirement that a compromise should be lawful to become binding. In a Suit under Section 229-B of the U.P.Z.A. and L.R. Act, the State Government and the Gaon Sabha are necessary parties. If they do not join in the compromise, then it is not a lawful compromise.
53. This Court is not convinced with the argument made by the learned counsel for the petitioner that only an FAFO was maintainable before the Board of Revenue and not a second appeal under Order XLI, Rule 23A of CPC.
54. This Court has perused Section 341 and the Schedule attached to the Act and finds that there is a specific provision of Second Appeal given in Column-6 against an order passed by the Divisional Commissioner in First Appeal. Because of the specific provision given in the Schedule to the Act and also for the reason that under Section 341(3), both substantive and procedural provisions have been given in the Act itself, which is a special Act, the provisions of the CPC, a general Act would not apply.
55. Now coming to the argument raised by the learned counsel for the respondents that the First Appeal itself was not maintainable before the Divisional Commissioner against the compromise Decree by a person, who was not a party to the Suit proceedings. This Court has carefully perused the judgment relied upon by the learned counsel for the respondents, namely, Y. Sleebachen (supra). A perusal of the same would show that the Supreme Court was considering a matter arising out of Arbitration and Conciliation Act, 1996. Three awards were passed in favour of the contractor against which, the State-respondents filed appeals, which were pending. During the pendency of the Appeals, a proposal to negotiate an out of Court settlement was mooted. During the negotiations, no definite amicable solution could be reached between the parties. As a result, the Appellate Court proceeded to hear the arguments. When the matter was being argued before the District Judge, the contractor came out with a proposal where he agreed to give certain concessions, which had earlier been asked for by the State, but had been refused by him. The District Government Pleader found that the action of the contractor was fair and just and, therefore, accepted the proposal of the contractor and the District Judge passed three consent Decrees. Before the High Court, it was pleaded that the District Government Pleader was not authorized to enter into any such settlement. The High Court set aside the consent Decree passed by the District Judge. The Supreme Court in Appeal filed by the contractor against the order of the High Court made certain observations that if the consent Decree contained certain concessions, which had not actually been agreed upon by the State Government and that the Government Pleader was not actually authorized to record the compromise on its behalf, then the State Government should have approached the District Judge concerned who had passed the consent Decree. The Supreme Court observed that it is not even remotely suggested in any of the grounds taken before the High Court that the Government Pleader had acted improperly. On the contrary, it was suggested that there was a failure of the compromise or that no compromise was recorded or agreed upon before the Court. The contents of the compromise itself being doubted, the Supreme Court observed that it is contrary to the record of the Appellate Court, and the statements recorded in the judgment of the District Judge, which was an impermissible ground of challenge raised for the first time in Appeal. The Supreme Court relied upon the observations made by the Court in State of Maharashtra versus Ramdas Shrinivas Nayak, (1982) 2 SCC 463, to observe that matters of judicial record are unquestionable. They are not open to doubt, and that they were bound to accept the statement of the Judge recorded in the judgment as to what transpired in Court. If a party thinks that the happenings in Court have been wrongly recorded in the judgment, it is incumbent upon such a party, while the matter is still fresh in the mind of the Judge, to call the attention of the very Judge, who had made the record, to the fact that the statement made with regard to his conduct was a statement that had been made in error. That is the only way to have the record corrected. If no such step is taken, the matter necessarily ends there. It observed that since no application was filed by the respondents before the District Judge immediately after the passing of the Decrees in terms of the compromise, or even thereafter, for recall of the compromise Decree with a plea that such a compromise was unacceptable to the Government and the Government Pleader was not authorized to enter into such settlement, the High Court could not have looked into such a ground raised for the first time in Appeal. This judgment of the Supreme Court is distinguishable and not applicable to the facts of the instant case.
56. The judgments cited by the learned counsel for the petitioner with regard to the permissibility of a person, not being a party to the proceedings to file an Appeal, if his rights are affected, are more in line with the general principles of law that any aggrieved person, may file an appeal, if his rights are being prejudiced or affected.
57. In the case of Hardevinder Singh (supra), the Supreme Court observed in Paragraphs 13, 14, 15 and 19 of the judgment thus:-
"13. Presently, it is apt to note that Sections 96 and 100 of the Code make provisions for preferring an appeal from any original decree or from a decree in an appeal respectively. The aforesaid provisions do not enumerate the categories of persons who can file an appeal. If a judgment and decree prejudicially affects a person, needless to emphasise, he can prefer an appeal. In this context, a passage from Smt. Jatan Kanwar Golcha v. M/s. Golcha Properties Private Ltd. [(1970) 3 SCC 573 : AIR 1971 SC 374] is worth noting:
"It is well settled that a person who is not a party to the suit may prefer an appeal with the leave of the appellate Court and such leave should be granted if he would be prejudicially affected by the judgment."
14. In State of Punjab v. Amar Singh and another [(1974) 2 SCC 70 : AIR 1974 SC 994], Sarkaria, J., while dealing with the maintainability of an appeal by a person who is not a party to a decree or order, has stated thus:
"84. Firstly, there is a catena of authorities which, following the doctrine of Lindley, L.J., in re Securities Insurance Co., (1894) 2 Ch 410 have laid down the rule that a person who is not a party to a decree or order may with the leave of the Court, prefer an appeal from such decree or order if he is either bound by the order or is aggrieved by it or is prejudicially affected by it. As a rule, leave to appeal will not be refused to a person who might have been made ex nominee a party- see Province of Bombay v. W.I. Automobile Association, AIR 1949 Bom 141; Heera Singh v. Veerka, AIR 1958 Raj 181 and Shivaraya v. Siddamma, AIR 1963 Mys 127; Executive Officer v. Raghvan Pillai, AIR 1961 Ker 114. In re B, an Infant (1958) QB 12; Govinda Menon v. Madhavan Nair, AIR 1964 Ker 235."
15. In Baldev Singh v. Surinder Mohan Sharma and others [(2003) 1 SCC 34], a three Judge- Bench opined that an appeal under Section 96 of the Code would be maintainable only at the instance of a person aggrieved by and dissatisfied with the judgment and decree. In the said case, while dealing with the concept of ''person aggrieved', the Bench observed thus:
"A person aggrieved to file an appeal must be one whose right is affected by reason or the judgment and decree sought to be impugned. It is not the contention of Respondent 1 that in the event the said judgment and decree is allowed to stand, the same will cause any personal injury to him or shall affect his interest otherwise."
19. At this juncture, we may usefully reproduce a passage from Banarsi and others (AIR 2009 SC 1989 : 2003 AIR SCW 1494) (supra) wherein it has been stated thus:-
"Sections 96 and 100 CPC make provision for an appeal being preferred from every original decree or from every decree passed in appeal respectively; none of the provisions enumerates the person who can file an appeal. However, it is settled by a long catena of decisions that to be entitled to file an appeal the person must be one aggrieved by the decree. Unless a person is prejudicially or adversely affected by the decree he is not entitled to file an appeal. See Phoolchand v. Gopal Lal [AIR 1967 SC 1470], Jatan Kumar Golcha v. Golcha Properties (P) Ltd. (AIR 1971 SC 374)(supra) and Ganga Bai v. Vijay Kumar (AIR 1974 SC 1126)(supra). No appeal lies against a mere finding. It is significant to note that both Sections 96 and 100 CPC provide for an appeal against decree and not against judgment." (Emphasis supplied)
58. A coordinate Bench of this Court in Smt. Lal Dei (supra), observed in Paragraphs 14, 15 and 16 thus:
"14. Similarly, in another decision given in case of Bramadeo (supra), this Court was ceased with similar issue and in this decision also the matter was considered in detail which will also be useful to be quoted here. The analysis as made in paras 8 to 11 in this judgment is quoted here:- (All. CJ p.355) "8. At this stage I consider it proper to have Dictionary meaning of word 'Party'. In view of dictum in P.B. Samant v. A.R. Antuley, dictionary meaning of a word can be ascertained to have correct interpretation. In Webster Third New International Dictionary word 'Party' denotes one directly disclosed by record to be so involved in the prosecution of defence of a proceeding as to be bound by the decision or judgment therein; one indirectly disclosed by the record as being directly interested in the subject-matter of a suit or as having power to make a defence or control the proceedings or appeal from the judgment meaning of 'Party' is.
9. According to 'Bourvier's Law Dictionary' 'Parties' in law may be said to be those united in interest in the performance of an act. That term includes every party to an act. In equity all persons materially interested, either legally or beneficially in the subject-matter of a suit, are to be made parties to it, either as plaintiff or defendant so that there may be a complete decree that may bind them all (see Christian v. R. Co.). It is not indispensable that all the parties should have an interest in all the mattes contained in the suit, but it is sufficient if each party has an interest in some material matter in suit, and it is connected with the orders (see Brown v. Safe Deposit Co). In the absence of parties and without their having an opportunity to be heard, a Court is without jurisdiction to make an adjudication affecting them. Active parties are those who are so involved in the subject-matter in controversy that no decree can be made without their being in Court. Passive parties are those whose interests are involved in granting complete relief to those who ask it.
10. According to Words and Phrases (Permanent Edition) Volume 31 in its broadest meaning, the word party includes one concerned with, conducting, or taking part in any matter or proceeding, whether he is named or participates as formed party or not. A party to a judicial proceedings is one whose interest in subject matter, whether favourable or adverse is such that his presence on the record is either necessary or proper.
11. In view of the aforesaid meaning of the word 'party' it is evidence that if a person is concerned with conducting or taking part in any matter or proceeding he is a party even though he may not have been impleaded or made a party by the objector. Further the words under Section 11 of the Act are, 'any party' and not 'any person impleaded as party'. Legislature cannot make such provision that if an interested person is not made a party by the objector he cannot file an appeal; and he is helpless. Assuming he does not file an appeal he shall have to file an objection afresh which would be barred by Section 11-A in case he files a civil suit for cancellation of the order of the Consolidation Officer or Assistant Consolidation Officer that can abate under Section 5. In case he does not file an appeal or objection during consolidation operation, and if he prefers to file a suit after denotification under Section 52, his suit would be barred by Section 49 of the Act. By enacting Section 11 and using word 'any party' the intention of the Legislature cannot be to deprive a person from right of appeal. The interpretation of a particular statutory provision has to be effective and operative. I am accordingly, of the view that petitioners have a right of appeal even though they were not impleaded as a party in the objection filed by Smt. Rama Devi, respondent No. 4."
15. In these cases it was held that appeal filed by any aggrieved person is maintainable.
16. In another decision, in case of Sumer Chandra (supra) again the matter was considered and it was held that appeal by any aggrieved person is maintainable. In this decision reliance has been placed on the decision given by the Apex Court in case of Jatan Kunwar Golcha v. Golcha Properties Pvt. Limited., 1971 SC 374 and AIR 1979 Orissa, page 175. The extract of paras 18 and 19 will be useful to be noticed here-
"18. In Abdul Rasid Khan v. S.K. Rahimmullam, it has been held that a person who is not a party to the suit may prefer an appeal. Reliance was also placed in the judgment of the Apex Court which is quoted below-
"In Smt. Jatan Kunwar Golcha v. Golcha Properties Pvt. Ltd., AIR 1979 Orissa 175, it has been held that it is well settled that a person who is not a party to the suit may prefer an appeal with the leave of the Appellate Court and such leave should be granted if he would be prejudicially affected by the judgment. This decision has also been followed by a Division Bench of this Court in Teja Singh v. A.D.M. (Executive) Suldargarh. It was open to the petitioner to ask for leave to appeal to the Appellate Court and if he is prejudicially affected, leave was to be granted, as has been held by the Supreme Court in the case referred to above. But the petitioner did not take recourse to his position."
19. In the aforesaid judgment reliance has been placed on the judgment of the Apex Court reported in Smt. Jatan Kunwar Golcha v. M/s Golcha Properties Pvt. Ltd., AIR 1971 SC 374 (V 58 C 91) (in Liquidation). The relevant portion of the Apex Court is quoted below-
"In our opinion apart from Rule 139 to which reference has been made by the High Court, the Official Liquidator as well as the learned Company Judge were bound by the rules of natural justice to issue a notice to the appellant and hear her before making the order appealed against. If there was default on their part in not following the correct procedure it is wholly incomprehensible how the appellant could be deprived of her right to get her grievance redressed by filing an appeal against the order which had been made in her absence and without her knowledge. It would be a travesty of justice if a party is driven to file a suit which would involve long and cumbersome procedure when an order has been made directly affecting that party and redress can be had by filing an appeal which is permitted by law. It is well settled that a person who is not a party to the suit may prefer an appeal with the leave of the Appellate Court and such leave should be granted if he would be prejudicially affected by the judgment." (Emphasis supplied)
59. Learned counsel for the respondents has placed reliance upon Guruswamy Nadar (supra) to argue that since the land in dispute had been bought by the petitioner during pendency of the Suit for Declaration and ejectment before the Sub Divisional Officer, Gonda, she did not have a right greater than that of the original defendant.
60. This Court has carefully perused the judgment rendered in Guruswamy Nadar (supra), where it was observed that normally as a public policy, once a suit has been filed pertaining to any subject matter of the property, in order to put an end to such kind of litigation, principals of lis pendens has been evolved so that litigation may finally terminate without the intervention of a third party. This is because of public policy, otherwise no litigation will come to an end. Therefore, in order to discourage that same subject matter of property being subjected to subsequent sale to a third person, this kind of transaction is to be checked. Otherwise, litigation will never come to an end.
61. This Court has also perused the judgment in Smt. Ram Peary (supra), which has been affirmed in the judgment of the Supreme Court. However, several judgments of the Supreme Court have dealt with the doctrine of lis pendens in a more comprehensive manner.
62. In the case of Raj Kumar versus Sardari Lal and others, 2004 AIR SCW 470, the doctrine of lis pendens as expressed in Section 52 of the Transfer of Property Act was considered by the Supreme Court. The transfer took place during the pendency of the suit, but the Decree passed ex-parte in the suit was sought to be set aside, not by the defendant on record, but by a person, who did not come or was not brought on record promptly, and hence, apparently appeared to be a third party. The Supreme Court observed that such a person in accordance with the principles incorporated in Section 52 of the Transfer of Property Act would be a representative-in-interest of the defendant-judgement debtor. Under Section 52 of the Transfer of Property Act, a decree passed against the defendant transferor would also be executed against the lis pendens transferee of the defendant, even though he was not a party to the suit. Such a person can prefer an appeal being a person aggrieved. The person who is liable to be proceeded against in execution of the decree can file an appeal against the decree. Such a person can also file an application for recall under Rule 13 of Order IX of the CPC, as such, a person stepped into the shoes of the defendant and the decree was sought to be executed against him. It was held by the Supreme Court that a lis pendens transferee, though not brought on record under Order XXII Rule 10 of CPC, is entitled to move an application under Order IX Rule 13 of CPC to set aside a decree passed against his transferor, the defendant in the suit.
63. In the case of A Nawab John and others versus V.N. Subramaniyam, 2012 AIR SCW 4248, the Supreme Court was considering a case where a specific performance of a registered agreement and delivery of possession was sought by the plaintiff in a suit before the trial court. During the pendency of the suit, the sole respondent V.N. Subramaniam filed an application, praying that he may be impleaded as a party-defendant to the said suit on the ground that he had purchased the suit property. His application for impleadment was allowed and the plaint came to be amended mentioning the details of subsequent events. The Supreme Court examined the background of insertion of the doctrine of lis pendens in Section 52 of the Transfer of Property Act. It referred to a judgement rendered by it earlier, reported in (1972) 2 SCC 200, which in turn relied upon "Commentaries on the Laws of Scotland", by Bell, where it was observed that "during pendence of an action of which the object is to vest the property or obtain the possession of the real estate, a purchaser shall be held to take that estate as it stands in the person of the seller, and to be bound by the claims which shall ultimately be pronounced".
64. The Supreme Court referred to the language of Section 52 of the Transfer of Property Act and observed in Paragraph-17 that it is settled legal position that the effect of Section 52 is not to render transfers effected during pendency of a suit by a party to the suit void, but only to render such transfers subservient to the rights of the parties to such suit, as may be, eventually, determined in the suit. In other words, the transfer remains valid subject, of course, to the result of the suit. The pendente lite purchaser would be entitled to, or suffer the same legal rights and obligations of his vendor as may be eventually determined by the court. The mere pendency of the suit does not prevent one of the parties to the suit from dealing with the subject matter of the suit. The Section only postulates a condition that the lis pendens alienation will in no manner affect the rights of the other party under any decree, which may be passed in the suit unless the property alienated with the permission of the Court. In Paras 18 and 19 of the said judgment, the Supreme Court observed thus:-
"18. Such being the scope of Section 52, two questions arise: whether a pendente lite purchaser: (1) is entitled to be impleaded as a party to the suit?; (2) once impleaded what are the grounds on which he is entitled to contest the suit.
19. This Court on more than one occasion held that when a pendente lite purchaser seeks to implead himself as a party-defendant to the suit, such application should be liberally considered. This Court also held in Saila Bala Dassi v. Nirmala Sundari Dassi [AIR 1958 SC 394] that, "justice requires", a pendente lite purchaser "should be given an opportunity to protect his rights". It was a case, where the property in dispute had been mortgaged by one of the respondents to another respondent. The mortgagee filed a suit, obtained a decree and "commenced proceedings for sale of the mortgaged property". The appellant Saila Bala, who purchased the property from the judgment-debtor subsequent to the decree sought to implead herself in the execution proceedings and resist the execution. That application was opposed on various counts. This Court opined that Saila Bala was entitled (under Section 146 CPC) to be brought on record to defend her interest because, as a purchaser pendente lite, she would be bound by the decree against her vendor. There is some divergence of opinion regarding the question, whether a pendente lite purchaser is entitled, as a matter of right, to get impleaded in the suit, this Court in Amit Kumar Shaw v. Farida Khatoon [(2005) 11 SCC 403]: (AIR 2005 SC 2209: 2005 AIR SCW 2078), held that:
"Further pending the suit, the transferee is not entitled as of right to be made a party to the suit, though the court has a discretion to make him a party. But the transferee pendente lite can be added as a proper party if his interest in the subject-matter of the suit is substantial and not just peripheral. A transferee pendente lite to the extent he has acquired interest from the defendant is vitally interested in the litigation, where the transfer is of the entire interest of the defendant; the latter having no more interest in the property may not properly defend the suit. He may collude with the plaintiff. Hence, though the plaintiff is under no obligation to make a lis pendens transferee a party, under Order 22 Rule 10 an alienee pendente lite may be joined as party. As already noticed, the court has discretion in the matter which must be judicially exercised and an alienee would ordinarily be joined as a party to enable him to protect his interests. The court has held that a transferee pendente lite of an interest in immovable property is a representative-in-interest of the party from whom he has acquired that interest. He is entitled to be impleaded in the suit or other proceedings where his predecessor-in-interest is made a party to the litigation; he is entitled to be heard in the matter on the merits of the case."
The preponderance of opinion of this Court is that a pendente lite purchaser's application for impleadment should normally be allowed or "considered liberally."
(emphasis supplied)
65. In the case of Thomson Press (India) Limited versus Nanak Builders and Investors Private Limited and others 2013 (5) SCC 397, the Supreme Court was considering an appeal arising out of a suit for specific performance of prior agreement to sell filed by the buyer against the original owner/transferor/seller pendente lite. In Paragraph 26 to 29 of the said judgment, the Supreme Court after referring to Section 52 of the Transfer of Property Act, observed that transfer during pendency of suit does not automatically render such transfer void. The provisions of the Section only render such transfers subservient to the rights of the parties to a litigation. The transferees acquiring any immovable property during litigation over it, are held to be bound, by application of the doctrine of lis pendens and by the decree passed in the suit even though they may not have been impleaded in it. "The whole object of the doctrine of lis pendens is to subject parties to the litigation, as well as others who seek to acquire rights in immovable property, which are the subject matter of litigation, to the power and jurisdiction of the Court so as to prevent the object of a pending action from being defeated." The Supreme Court further observed in Paragraphs 55 and 56 that a transferee pendente lite can be added as a party to the suit lest the transferee suffered prejudice on account of the transferor losing interest in the litigation post such transfer. Sometimes a transferor pendente lite may not even defend the title properly as he has no interest in the same or may collude with the plaintiff in which case the interest of the purchaser pendente lite will be ignored. To avoid such situations, transferee pendente lite can be added as a party defendant to the suit provided his interest is substantial and not just peripheral. This is particularly so where the transferee pendente lite acquires the interest in the entire estate that forms the subject matter of the dispute.
66. It is evident from a careful consideration of latest judgments of the Supreme Court dealing with Section 52 of Transfer of Property Act that the Supreme Court has emphasized that a transferee pendente lite is not void ab initio. It only makes such transfer subject to the rights of the parties finally determined. Also, if the transferee pendente lite can prove that the Decree had been obtained on collusion by the plaintiffs and the original defendant, the transferor pendente lite, such transferee is entitled to file Recall application or an Appeal against such a Decree on showing the Court that its interest had been prejudicially affected by failure of the transferor pendente lite to properly defend the action. Hence, this Court holds that Smt. Manju Devi was entitled to file the First Appeal before the Court of the Additional Commissioner against the compromise Decree dated 30.7.2014. The private respondents have been unable to produce any interim order of the trial court prohibiting alienation without permission of the Court.
67. Also, when the First Appeal was being heard by the Additional Commissioner, the Gaon Sabha and the State had filed objections to the compromise Decree that it could not have been passed without their participation in terms of Section 229-B(3) of the Act. If the Gaon Sabha and the State Government were not parties to the compromise, the trial court could not have decreed the Suit in their absence. The compromise Decree dated 30.7.2014 was rightly set aside by the First Appellate Court. The Second Appeal though maintainable before the Board of Revenue was improperly allowed by it only on the ground that transferee lis pendens is void.
68. The judgment and order passed by respondent no.1 dated 11.1.2018 is hence, liable to be set aside and is set aside.
69. The order of the Additional Commissioner in First Appeal dated 14.10.2015 being affirmed by this Court, the matter is remanded to the Court of the Sub Divisional Officer, Tarabganj, Gonda, who shall, after framing issues, give a reasonable opportunity of hearing to all concerned, including the subsequent purchasers, and pass appropriate orders in accordance with law within a period of six months from the date, a certified copy of this order is produced before him, as the Suit for Declaration was initially filed in his Court on 6.7.1974.
70. The writ petition stands allowed.
Dated: May 28th, 2020 Sachin