Allahabad High Court
Lal Bahadur & Others vs Board Of Revenue U.P. At Allahabad on 5 July, 2010
Author: Prakash Krishna
Bench: Prakash Krishna
1 Reserved/Court No. - 6 Case :- WRIT - B No. - 14847 of 2007 Petitioner :- Lal Bahadur & Others Respondent :- Board Of Revenue U.P. at Allahabad Petitioner Counsel :- Sankatha Rai,Dr. Vinod Kumar Rai,Vijay Kumar Rai Respondent Counsel :- C.S.C.,Anuj Kumar,Anupam Kulshrestha,H.K. Sharma,Indra Singh Tomar,K.K.Shukla,Satya Prakash Shukla, S.C.Verma Hon'ble Prakash Krishna,J.
The above petition has been filed by the plaintiffs of Suit no.81/252/63 of 1995 (Lal Bahadur and others versus Vijay Shankar and others). The contesting respondent Nos. 5 & 6 are the defendants of the suit while respondent No. 7 has purchased the property in dispute by means of a sale deed during the pendency of the proceedings. The afore stated suit was filed under section 229-B of U.P.Z.A & L.R Act on the pleas inter alia that their ancestor Raghai was the sole tenant of the plot in question (Old No. 20) (New No.15, 21, 22/1190) which was recorded, at the time of the commencement of the consolidation in the Village in his name. During consolidation operation by playing fraud and without any knowledge to Raghai or the ancestor of the plaintiffs, the names of the defendants were got recorded and as such the revenue entry is of no consequence. The fraud was detected in the year 1995 when the copy of the revenue extract was obtained, by them (plaintiffs).
The suit was contested by denying the plaint allegations, on the pleas inter alia that during consolidation operation a compromise was arrived at among Raghai, Chekhuri and Badri. In the said compromise it was agreed upon that Raghai and Chekhuri each will have 1/4th share and the remaining ½ share shall be that of Badri. The said compromise has been acted upon as in the light thereof, the Consolidation Officer passed the order dated 18.11.1971 in case No. 11289. The revenue records were prepared accordingly and the necessary entries were made in C.H.Form No. 23 and C.H.Form No.45. The suit is barred by limitation as the consolidation operation came to an end in the Village long ago i.e on 13.12.1982. Raghai has died about 15 years ago and after his death his sons Bhagawati and Jitu never raised any such objections and the revenue entries continued to remain the same. The suit is barred by acquiescence and estoppel as well by Section 49 of U.P C.H. Act. The parties led evidence oral and documentary in support of their respective cases. The plaintiff examined Ram Abhilakh PW-1 and Lal Bahadur PW-2.
2The defendants examined Pannalal S/0 Badri as DW 1 and Ramkhelari as DW 2.
As many as 11 issues were struck by the Trial Court, who decreed the suit by its judgement dated 3.1.2005 on the finding that the order of the Consolidation Officer is against the law and names of Badri and Chekhuri were ordered to be recorded wrongly as they were not the members of the family of the recorded tenure holder Raghai. Their names were ordered to be recorded on the basis of wrong judgement of the Consolidation Officer which falls in the category of judgement obtained by fraud and as such the suit is within the prescribed period of limitation and it will not come in the grip of section 49 of the C.H.Act. The said judgement was carried in appeal No. 109 of 2005 by the defendants which ultimately resulted in their favour vide judgement dated 16.11.2006. In further appeal, being second appeal No. 06/07 filed by the plaintiff-petitioners before the Board of Revenue, the judgement of the First Appellate Court has been confirmed.
The learned counsel for the plaintiff-petitioners submits that the first appellate court although allowed the appeal but it has not reversed the findings recorded by the Trial Court. It was submitted that the first appellate court has failed to exercise proper care and caution by not thoroughly examining the reasons given by the Trial Court especially when it allowed the appeal. The argument in nut shell is that the operative portion of the judgement of the First Appellate Court is not in consonance with its discussion part and therefore, the Board of Revenue was not justified in dismissing the second appeal summarily.
The learned counsel for the contesting respondent Nos. 5 (Panna Lal, s/o Badri) on the other hand submits that the present suit on the face of it is barred by Section 49 of U.P.C.H Act. It is also barred by time. This Court should not exercise its discretion in such matter. Elaborating the arguments, it was submitted that even if the judgement is not very happily worded, on admitted facts, no useful purpose is going to be served by restoring the matter back to the appellate Court or to the trial court, as the case may be.
Considered the respective submissions of the learned counsel for the parties and perused the record.
Before proceeding further, it is essential to have a look to the plaint averments wherein a pedigree has been set out showing that Raghai was the common ancestor who had got two sons Bhagawati and Jitu and the plaintiffs are the 3 sons of Bhagawati and Jitu. The old number of the disputed plots was 20 area 3 bigha and 6 biswa. Raghai was an old and aged person who used to be ill and he died as such. Paragraph 5,6 & 7 are material paragraphs wherein only this much has been stated that the defendants No. 1 & 2 on forged and fabricated proceedings without any knowledge and information of the plaintiffs and their ancestor Raghai got their names recorded in the revenue records. No notice was given to the plaintiffs with regard to the recording of the names of the defendant Nos. 1 & 2 in the revenue record either to the plaintiffs or to their ancestors and the proceedings were carried on in a false and fabricated manner without any information and as such the defendants No. 1 & 2 will not acquire any right on the basis of the false and fabricated entries. They came to know about it on 13.3.1995 when they obtained copy of the revenue extract and hence the suit.
The defendant respondents pleads that Raghai whose name was recorded in the basic year entered into compromise with Chekhuri and Badri and agreed to have 1/4th share in the old Plot No.20. Further it was agreed upon that Chekhuri will have 1/4th share and Badri will have remaining half share. An order dated 18.11.1971 was passed by the Consolidation Officer. In pursuance of the order of the Consolidation Officer, separate chaks were carved out and the possessions were delivered to the respective parties over the newly carved out chaks.
The undisputed fact is that the names of Chekhuri and Badri were recorded in the revenue record in pursuance of the order dated 18.11.1971 of the Consolidation Officer. It is also not in dispute that the said entry in the revenue record has been continuing since then. The Consolidation Operation in the Village came into effect in view of notification under section 4(1) dated 7.8.1965 and the Village was de notified on 13.12.1982. No attempt was made nor any step was taken by Raghai during the course of the consolidation operation in the Village to dispute or challenge the said compromise or the order of the Consolidation Officer on any ground including fraud. The suit giving rise to the present writ petition was filed in the year 1995 i.e after about 24 years of the order of the Consolidation Officer.
Now the question which falls for consideration is whether the order of the Consolidation Officer can be ignored or set aside on the ground that it was obtained by fraud; suit is barred by time and by section 49 of C.H.Act.
4Taking plea of fraud first, the plaint allegations in this regard have already been noticed above. It is well established that the particulars of fraud are necessarily required to be pleaded in the plaint. A general or vague plea of fraud is of no use. It is a plain and basic rule of pleadings that in order to make out a case of fraud or coercion there must be (a) an express allegation of coercion or fraud and (b) all the material facts in support of such allegations must be laid out in full and with a high degree of precision. In other words, if coercion or fraud is alleged, it must be set out with full particulars . In Bishundeo Narain versus Seogeni Rai reported in 1951 SCR 548 = AIR 1951 SC 280, it has been held as follows:
"We turn next to the question of undue influence and coercion. Now it is to be observed that these have not been separately pleaded. It is true they may overlap in part in some cases but they are separate and separable categories in law and must be separately pleaded.
It is also to be observed that no proper particulars have been furnished. Now if there is one rule which is better established than any other, it is that in cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any court ought to take notice however strong the language in which they are couched may be, and the same applies to undue influence and coercion."
In Chief Engineer, MSED and Another vs.Suresh Raghunath Bhokare AIR 2005 SC 1622 it is held that the basic principle of Rule of Evidence which requires a party alleging fraud to give particulars of the fraud and having found no such particulars the person concerned could not be held guilty of fraud. Absence of such particulars in the notice for the fact that the person concerned himself had the knowledge of such fraud and he knowingly or in collusion with other officials indulged in the fraud, no one can be held guilty of fraud.
In Management, Mettur Beardsell Lt. vs.Workmen of Mettur Beardsell Ltd, AIR 2006 SC 2056 it has been held that in order to establish fraud there should be specific averments or material adduced to establish the same. If there is no specific averment in that regard and in any event no evidence lead, the fraud cannot be presumed. Fraud in public law is not the 5 same as fraud in private law, nor can the ingredients which establish fraud in commercial transactions be of assistance in determining fraud in administrative law.
Seheb Khan vs.Mohd.Yusufuddin AIR 2006 SC 1871: 2006 SCFBRC 429 is an authority for the propostion that a charge of fraud or material irregularity under Order 21 Rule 90 of CPC must be specifically made with sufficient particulars. Bald allegations would not do. The facts must be established which could reasonably sustain such a charge.
In the present case, the plaintiffs have failed to furnish full and precise particulars with regard to the alleged fraud. They have only come out with the case that since Raghai was sole recorded tenant in the basic year, the names of other two persons as co tenants have been fraudulently entered into the revenue record in pursuance of the order of the Consolidation Officer. Merely on these facts it cannot be said that it is a case of fraud or forgery. No attempt was made to show as to how the order of the Consolidation Officer stands vitiated as having been obtained by fraud. The Trial Court who has decreed the suit has not recorded a finding of any such fraud. It proceeded to decide the suit on the footing that the order of the Consolidation Officer on merits is bad. The basis of the judgement of the Trial Court is that the defendants being not members of the same family as that of the plaintiffs, the inclusion of names of Badri and Chekhuri as co tenants (who are outsiders of the family which is wrong, as discussed in the latter part of this judgment). It proceeds on the presumption and assumption that as Badri was Pradhan for certain duration, it is possible that under his influence these two persons have been made co tenure holders along with recorded tenure holder Raghai. A reading of the judgement of the Trial Court would show that it has proceeded on the basis of presumptions and assumptions. The Trial Court decreed the suit on the basis of suspicion alone without recording any clear finding on the plea of fraud. It has not recorded any definite finding of fraud etc. and decreed the suit on the suspicion that Badri and Chekuri being outsiders, their names could not have been included, forgetting that in a co tenancy, it is not necessary that only family members can be co tenants. Co tenants need not necessarily be of the same family. Instances are not unknown when persons of different family caste or religion may acquire co tenancy rights, say by joint purchase, under a will or gift or the like.
It was rightly pointed out by the learned counsel for the respondents that 6 Section 9-A(1) of Consolidation Act requires Assistant Consolidation Officer to settle the dispute, as far as may be by conciliation between the parties appearing before him and he stand empowered to pass order on the basis of such conciliation. No registration of such conciliation, which can also be a compromise between parties, has been made necessary under the Act. The basic year entry can be corrected by Assistant Consolidation Officer as the dispute stands settled on such conciliation.
What transpired in the year 1971 among the ancestors of the plaintiffs and the defendants at this distance of time can only be a matter of guess. Two generations of plaintiffs have gone before the filing of the suit and one generation of the defendant No.5 had gone by that time, but none of them raised any objection which is indicative of fact that the parties entered into compromise willingly and with their wide opened eyes. Re-opening of the issue after 24 years by the plaintiffs in negation of the compromise is not permissible. The upshot of the above discussion is that the plaintiffs have utterly failed to plead and prove that the order of the Consolidation Officer, was obtained by playing fraud.
Section 49 of U.P Consolidation of Holdings Act bars jurisdiction of Civil Court and of Revenue Court in respect of declaration of rights of tenure holders in respect of land lying in an area for which a notification has been issued under section 4(2) of the Act. The Apex Court in Sita Ram versus Chhota Bhondey and others AIR 1991 SC 249 has examined the scheme of the Act as also "bars to civil jurisdiction" as contained in Section 49 thereof. It has been held that suit for declaration or adjudication of any right in regard to which a proceeding can or ought to have been taken under the Act has to be done in accordance with the provisions of the U.P.C.H Act only. The power of other Courts has been completely taken away by Section 49 of the Act and the adjudication of these rights is to be done by the consolidation authorities in accordance with the provisions of the Act and the rules made thereunder. Civil Courts and Revenue Courts have no role in the matter of determination of rights or interest in any land lying in the area for which a notification has been issued under section 4(2) of the Act or for declaration of adjudication of any right in regard to which proceedings can or ought to be taken under the Act.
In my considered view, Section 49 of the Act completely bars the present suit. The Trial Court has ruled otherwise on the ground that the order of 7 Consolidation Officer dated 18.11.1971 is not legal, vide findings returned under issues 2 & 3. In other words, the Trial Court was of the view that the order dated 18.11.1971 being not in accordance with law is, therefore, a fraudulent order. The said approach of the Trial Court is faulty and cannot be approved.
As noticed herein above, the particulars of fraud have not been pleaded nor proved in evidence. On the other hand, on the admitted facts neither Raghai nor his two sons namely Bhagawati and Jitu challenged the order during their life time shows that these persons never treated the recording of the names of the defendants as fradulent act and as such the plaintiffs who are the descendants cannot be permitted to challenge the order of the Consolidation Officer at this distance of time.
In the pedigree as set out in Paragraph 4 of the writ petition, it has been shown that Raghai and Chekhuri were brothers being sons of Ramessar. Vijay Shanker, respondent No. 6 herein who was the defendant No.1 in the suit is the great grand son of Chekhuri as per the pedigree given by the plaintiffs in the writ petition. This also belies the case of the plaintiffs that Chekhuri was not a family member of Raghai. Father of Raghai and Chekhuri is Ramessar.
In view of the above discussions, the suit is barred by Section 49 of U.P Consolidation of Holdings Act.
This leads us to second issue as to whether the suit is barred by limitation or not which was filed in the year 1995 in respect of an order of Consolidation Officer passed on 18.11.1971. The Trial Court has decided the issue of limitation along with issue relating to bar by Section 49 of U.P.C.H. Act simultaneously.
I have examined the oral testimony of the plaintiffs in this regard. Lal Bahadur who has examined himself as PW-2 is the lone witness to depose that he came to know about the disputed entry in the revenue record in the year 1995 when he sought the mutation of his name in the revenue record in place of his father's name. He further states that Raghai had two sons Jitu and Bhagawati and Bhagawati was the eldest one who had died 15-16 years ago before the death of Raghai. When he was cross examined, he pleads ignorance as to whether in place of Raghai after his death name of Bhagawati, S/o Raghai was recorded or not. This shows that he is not prepared to say the things in straight manner. It is common case of the parties, that separate 8 chaks of all the three persons namely Raghai, Chekhuri and Badri were carved out during the consolidation operation and they were delivered possessions accordingly. Even Ram Abhilakh , DW-I has stated in his cross examination that after close of chakbandi, the separate chaks of each persons were carved out and each of them are cultivating their chaks separately. It is admitted to plaintiffs that Raghai was alive at the time of consolidation operation as per statement of Lal Bahadur PW-2. Not only Raghai his two sons namely; Bhagawati and Jitu were also alive till the close of consolidation operation. This being so, it is but obvious that Raghai and his two sons were fully aware about the order of the Consolidation Officer and they took no steps to challenge the same during their life time. The plaint has been very cleverly drafted and is deficient in material respects, for obvious reasons. The dates of deaths of Raghai and his sons have not been disclosed purposely therein or in evidence. After death of Raghai, whether names of his sons were mutated or not has not disclosed. Sons of Raghai had occasion to come to know the actual state of affairs, if not known earlier, at the time of mutation of their names at least. Lal Bahadur when cross examined could not give any reply in this regard. Except the bald statement of PW-2, there is no material to show that either Raghai, or his two sons were not aware of the order of the Consolidation Officer. The attending facts and circumstances belies the version of the PW-2.
In the result, I find that the suit is barred by time as it was not filed within the period of 12 years from the date of de notification i.e 13.12.1982. The suit was filed in the month of May 1995.
Noticeably in the present case, the orders and judgements of the Trial Court are of the First Appellate Court are wholly unsatisfactory. For these reasons, as was suggested by the learned counsel for the respondents, the entire material was scanned by me. The Trial Court, as noticed herein above, without appreciating that plea of fraud have been set out on vague and general allegations, decided the suit without recording any definite finding. The findings recorded by the Trial Court are conjectural in nature. The judgement of the first appellate Court who allowed the appeal is also no better. There appears to be disharmony in the finding part and the operative part of the judgement. Several pages were devoted in noticing the arguments of the respective parties at great length, it disposed of the appeal by recording almost no reason in one paragraph by reiterating the conclusion as was 9 recorded by the Trial Court and then abruptly jumped to the conclusion that the appeal be allowed and the judgement of the Trial Court be set aside. Resultantly both the judgments are bad. The Board of Revenue in second appeal has dismissed it summarily.
The argument of the learned counsel that no useful purpose is going to be served by remanding the matter back to the Trial Court for re-consideration impressed me and that is the reason, it was thought prudent to consider the pleadings and available material to avoid remand of the case. By remanding a matter, time money and energy spent, all go waste. Fifteen years have already gone and by restoring the matter to the Court below, no useful purpose would be served. These factors weighed heavily in my mind to decide the writ petition finally on merits after looking into the record, to shorten the litigation. Along with the writ petition, the petitioners have annexed the entire pleadings and the evidence which facilitated the Court to examine the issues in depth.
In Roshan Deen versus Preeti Lal J.T 2001 (10) SC 309, the Apex Court has held that -
"Time and again this Court has reminded that the power conferred on the High Court under Article 226 and 227 of the Constitution of India is to advance justice and not thawart it (vide State of U.P versus District Judge, Unnao & others 1984(2) SCC 673). The very purpose of such constitutional powers being conferred on High Court is that no one should be subjected to injustice by violating the law. The look out of the High Court is, therefore, not merely to pick out any error of law through an academic angle but to see whether injustice has resulted on account of any erroneous interpretation of law of justice became the by product of an erroneous view of law the High Court is not expected to erase justice in the name of correcting the error of law. "
The upshot of the above discussions is that the plea of fraud and want of knowledge of order of Consolidation court or compromise, raised in the suit is frivolous and vexatious plea, for the reasons recorded herein below:
(i) Raghai did not come forward during his life time to challenge the said compromise.
(ii) His two sons also did not come forward during the life time to challenge the compromise entered into by their father Raghai.10
(iii)It is admitted case of the parties and as also the scheme of the Consolidation of Holdings Act so provides, the chaks were carved out as per order passed by the Consolidation Officer and the possessions were given to the respective parties accordingly. This belies the case of the plaintiffs that neither Raghai nor his sons had no knowledge of the compromise order. The carving out of Road through the plot in dispute is not disputed. The road land was set apart from the plot in question and was ordered to be recorded as road.
This also belies the case of the petitioners, regarding no knowlege.
(iv)The petitioners have not given any cogent evidence or material to show their possession over the disputed plots.
It is not a fit case for interference under Article 226 of the Constituton of India.
In view of above discussions, it is held that the suit is barred by Section 49 of U.P C.H Act and is also barred by time. The plaintiffs have filed to plead or prove the allegations of fraud, if any.
In the result, I find no merit in the writ petition. The writ petition is dismissed but no order as to costs.
(Prakash Krishna,J) Order Date :- 5.7..2010 IB