Rajasthan High Court - Jodhpur
Kuma Ram vs State Of Raj. & Ors on 2 September, 2011
Author: Dinesh Maheshwari
Bench: Dinesh Maheshwari
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S.B. CIVIL WRIT PETITION NO. 9704/2010.
Kuma Ram Vs. State of Rajasthan & Ors.
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Date of Order :: 2nd September 2011.
HON'BLE MR. JUSTICE DINESH MAHESHWARI
Mr. J.L. Purohit, Senior Advocate with
Mr. Ajay Purohit, for the petitioner.
Mr. J.R. Beniwal, Senior Advocate with
Mr. B.L. Choudhary, for the respondents.
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BY THE COURT:
The petitioner has filed this writ petition seeking the following reliefs:-
"(i) By an appropriate writ, direction or order, the mutation No. 764 (Annex. 6) ordered by Gram Panchayat Bawri in favour of Sayarchand may be quashed and set aside.
(ii) By an appropriate writ, direction or order, it may be declared that respondents no. 3 & 4 do not have any title over the lands in khasra No. 769, 773 and 774 of village Bawri on the basis of sale deed executed by Sayarchand.
(iii) Cost of this writ petition may kindly be awarded in favour of the petitioner.
(iv) Any other appropriate direction or order which this Hon'ble Court deems fit in the facts and circumstances of the case may kindly be granted."
The petitioner has claimed the reliefs aforesaid, essentially against the mutation effected in the revenue record way back in the year 1964. The petitioner has averred that his grandfather Mana Ram son of Ratna Ram was the khatedar tenant of the land comprised in khasras Nos. 575, 726, 727, 728, 729, 746, 769, 773, 774, 782, 578 and 773/1 admeasuring 121 bighas 7 biswas and situated at village Bavdi, Tehsil Osian, District Jodhpur; that a Civil Suit bearing No.5/1959 was filed against the 2 said Shri Mana Ram in the Court of Civil Judge, Jodhpur for recovery of a sum of Rs.4,650/- that was decreed on 21.08.1959; and that in execution of the decree so passed, the house of Mana Ram situated at Bavdi, and 'Bera' of Mana Ram situated in khasra No. 773/1 measuring 1 bigha 2 biswas were attached and ultimately auctioned on 26.10.1960 wherein the said 'Bera' was auctioned in favour of Sayar Chand son of Sumer Mal, the uncle of the respondents Nos.3 and 4.
The petitioner asserts that only the said 'Bera' (the well) in khasra No. 773/1 was auctioned in execution of the decree but the Gram Panchayat perhaps wanted to favour Sayar Chand and, therefore, even in the absence of any sale certificate of other khasras in favour of Sayar Chand, proceeded to pass an order for mutating other khasras in the name of Sayar Chand and thereby, the questioned mutation No. 764 came to be effected. It is noticed that by way of the questioned mutation, the land comprised in Khasra Nos.769, 773, 773/1, and 774 came to be recorded in the name of the said Shri Sayar Chand. According to the petitioner, Shri Mana Ram was in jail and was not aware of the said proceedings; and even after release, was not aware of the fraud and remained under bona fide belief that the land was auctioned by the Civil Court and did not claim any right. The averments in this regard as taken in the petition read as under:-
"7. That Shri Mana Ram was in jail and was not aware of the same. After release from the jail, he could not know of the fraud by which lands were mutated in favour of Sayarchand in bonafide belief that the lands were auctioned by the Civil Court and he did not claim any right in the lands.
8. That after the death of Mana Ram, his sons also were not aware of this fraud committed by Sayarchand with the aid of Patwari and Gram panchayat."3
The petitioner has further averred that Sayar Chand purportedly transferred the land in khasra Nos.769, 773 and 774 in favour of his nephews, the respondents Nos. 3 and 4, under the registered sale deed dated 18.11.1971 (Annex.7) and the respondents Nos. 3 and 4 got a plan prepared proposing a residential colony in the name of Mahadeo Nagar on the said land of khasra Nos. 769, 773 and 774 alongwith other parcels of land.
According to the petitioner, he has been advised to the effect that agriculture land could not have been sold in execution of the money decree by the Civil Court; and, after obtaining the copies of the relevant documents and on the legal advice, he is satisfied that Sayar Chand had obtained the questioned mutation No.764 from the Panchayat fraudunently with the help of the then Patwari.
With the submissions as above, the petitioner has filed this writ petition seeking to assail the said mutation No.764. The learned counsel appearing for the petitioner has referred to Section 37 of the Rajasthan Tenancy Act, 1955 ('the Act of 1955') and the decision of this Court in Bogaram Vs. Mohanram & Ors. : AIR 1972 Rajasthan 116 and strenuously argued that the rights of a khatedar tenant in the agriculture holding cannot be attached or auctioned in execution of a decree of the Civil Court; and that in the present case, no such auction was even carried out. It is submitted that the auction had only been in relation to 'Bera' (the well) of Shri Mana Ram; and that was comprised in khasra No.773/1 only. Therefore, 4 according to the learned counsel, mutation of other parcels of land in favour of Sayar Chand had been an act fraudulent and deserves to be pronounced against. The learned counsel has referred to the decisions in A.V. Papayya Sastry & Ors. Vs. Government of A.P. & Ors. : (2007) 4 SCC 221, Meghmala & Ors. Vs. G. Narasimha Reddy & Ors. : (2010) 8 SCC 383, T. Vijendradas & Anr. Vs. M. Subramanian & Ors. : (2007) 8 SCC 751 and Santosh Vs. Jagat Ram & Anr. : (2010) 3 SCC 251 and submitted that the fraud vitiates every proceedings; and anything obtained from the Court or from the Executive Officers by way of fraud remains null and void, and could be challenged at any stage and in any of the proceedings.
The contesting respondents have entered caveat and have filed a preliminary reply taking objections against the right of the petitioner to challenge the mutation made more than 40 years back by way of this writ petition involving several disputed questions of fact. It is submitted that the mutation could have been challenged by way of regular remedies before the Revenue Authorities and the petitioner is not entitled to challenge the same by way of writ petition. While placing on record the copies of the proceedings in execution, the respondents assert that mutation had rightly been effected as the land in question was indeed sold in execution. It is also submitted that Mana Ram was clearly aware of such proceedings and in fact, while executing a sale deed in relation to the land comprised in Khasra No.782 in favour of the respondents Nos.3 and 4 on 23.07.1984 (Annex.R/3/2), Mana Ram specifically referred to the fact that the adjoining land belonged to the purchasers. It is submitted 5 that the late attempt on the part of the petitioner to question the mutation remains baseless.
Having given a thoughtful consideration to the submissions made and having perused the material placed on record, this Court is not persuaded to entertain the matter in writ jurisdiction.
There is no and there cannot be any quarrel with the propositions expounded and explained by the Hon'ble Apex Court in the decisions aforesaid that fraud is an aspect that vitiates all the acts and actions whether in rem or in personam; and any judgment, decree or order obtained by playing fraud on the Court, Tribunal or Authority is to be regarded as nullity and non est. The principles being well settled, it does not appear necessary to notice in detail the ratio from each decision cited by the learned counsel for the petitioner; and suffice it would be to notice the principles in A.V. Papayya Sastry (supra) wherein the Hon'ble Supreme Court has been pleased to hold as under:-
"22. It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the court, tribunal or authority is a nullity and non est in the eye of law. Such a judgment, decree or order by the first court or by the final court has to be treated as nullity by every court, superior or inferior. It can be challenged in any court, at any time, in appeal, revision, writ or even in collateral proceedings."
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26. Fraud may be defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another. In fraud one gains at the loss of another. Even most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. The principle of ''finality of litigation'' cannot be stretched to the extent of an absurdity that it can be utilised as an engine of oppression by dishonest and fraudulent litigants." Thus, if it is established that the impugned action is vitiated by fraud, obviously, it would be treated as nullity and non est and 6 shall be pronounced so but then, equally necessary it is that the basic ingredients of fraud are pleaded with all particulars and proved with cogent evidence. A fraud cannot be presumed on the basis of allegations alone or even on a party making out some points raising suspicion. When the allegations are of a fraud having been committed, a higher standard of proof is required; and the person who alleges fraud has to clearly and distinctly prove the fraud he alleges. On the other hand, mutation in the revenue record being essentially an official act, it would be presumed to have been done in accordance with law; and mere raising of certain doubts is not decisive of the matter.
The question in the present case is as to whether the mutation in question, effected way back in the year 1964, could be considered vitiated by fraud on the basis of the pleadings as taken by the petitioner and the material as placed on record in this writ petition filed in the year 2010?
On a perusal of the petition averments and the material placed on record, this Court is unable to find it to be a case of such indisputable nature where the mutation in question could directly be held to be an outcome of fraud.
To assert that it were a case of fraud, the petitioner has relied upon two major factors. One: that what was taken up for auction in execution of the decree was only the 'Bera' of Manaram as comprised in khasra No.773/1 and no other piece of land; and second: that as per the Act of 1955, the rights of a khatedar tenant in agricultural holding cannot be sold in execution of a decree of the Civil Court. Both the factors aforesaid, when examined in the light of the documents placed 7 on record, fall short of bringing the mutation in question within the four-corners of fraud.
The documentary evidence as placed on record though suggests in the first look that it was the 'Bera' (the well) of Manaram that was put to auction but it cannot be lost sight of that in the local parlance, an agriculture field having its own source of irrigation is itself referred to as 'Bera'. Then, the warrant for possession placed on record as Annexure-4 makes it clear that it was 'the well with the land' that were auctioned and given in possession of Sayar Chand in the year 1961. The mutation as effected pursuant to such proceedings cannot be regarded as fraudulent.
Noticeable it is that the property sought to be auctioned was specified with four-boundaries in the process and the notices issued by the executing Court and thereafter auction proceedings were conducted with no objection having been taken for or on behalf of the judgment-debtor. In the said notices, of course, the precise khasra numbers were not mentioned but the boundaries were indeed mentioned; and thus, it becomes a matter of serious question of fact as to what was the property comprised within the boundaries as given in the auction notices? Neither an enquiry into such intricate question of fact could be made in the writ jurisdiction of this Court nor by mere raising of such question, the petitioner could assert that there had been fraudulent mutation in the year 1964.
So far the submissions based on Section 37 of the Act of 1955 are concerned, as to whether the land in question could have been sold or not is a matter entirely different; and even if 8 the submissions of the petitioner are taken on their face value, they suggest some allegations to the extent of illegality or irregularity. However, a case of fraud is not made out therefrom. It goes without saying that if at all it were a case of illegality or irregularity in the execution proceedings, challenge thereto ought to have been made at the appropriate stage and before the appropriate Court/Authority. As noticed infra, not only that no challenge was made to the auction proceedings or to the mutation in question at the appropriate stage or before the appropriate forum, the position obtainable from the said mutation was distinctly in the knowledge of Shri Mana Ram and he, in fact, accepted the same.
Noticeable it is from the document placed on record by the contesting respondents as Annexure-R/2 that the same Shri Mana Ram sold to the said respondents in the year 1984 another but adjoining piece of land comprised in khasra No.782 admeasuring 1 bigha 4 biswas. In this sale deed, there has been a specific recital that the land was not affected by ceiling nor would be so affected even after inclusion of the same in the land already available with the purchasers. There is another recital in the sale deed about the subject land being situated near the khatedari land of the purchasers. From the aforesaid sale deed, evident it is that Mana Ram was aware about the respondents Nos.3 and 4 having the adjoining land with them. If at all there was any objection in relation to the said mutation No.764 regarding the land of khasra Nos.769, 773 and 774, Mana Ram had ample time, opportunity and reasons for challenging the same at the relevant time. Mana Ram not only 9 did not challenge the same but even entered into other dealings indicative of his having accepted the position which is sought to be put to contention now by way of this writ petition by the petitioner, who is said to be the grandson of Mana Ram.
As noticed, the mutation in question was effected way back in the year 1964. Admittedly, it had never been challenged until filing of this writ petition in the month of October 2010 by the present petitioner, the grandson of the then khatedar Mana Ram. The cursory pleadings in relation to Mana Ram and then his sons, as taken in paragraphs 7 & 8 of the writ petition (as reproduced hereinabove) hardly give out any convincing reason for not challenging the mutation in question for about 46 years. On the contrary, from such pleadings and surrounding circumstances what appears is the admission that Mana Ram and thereafter his sons never questioned the mutation and rather accepted the same.
As observed above, even if it be assumed for the sake of argument that the property in question could not have been sold, the submission only relates to some illegality or irregularity committed by the Executing Court but and yet, a case of fraud is not made out; and rather the khatedar concerned having accepted the position and acted on the same further, his alleged successor cannot be acceded the right to challenge the same now at this stage.
In continuity of what has been discussed above, the aspect of delay itself is fatal to the present petition for writ. When the mutation had been in the conscious knowledge of khatedar, an attempt to challenge the same after about 46 years can only be 10 said to be suffering from gross delay and laches and this petition is required to be dismissed on this count alone. It appears that to side-track the impact of delay, the petitioner has chosen to suggest that mutation in question was tainted with fraud. However, as aforesaid, an official act cannot be considered tainted with fraud unless proved by cogent and concrete evidence. Mere allegations or mere raising of some doubts or even raising the ground of illegality do not take the case within the ambit of fraud.
Contrary to the suggestion of fraud, as sought to be made in this petition, what comes out is that the present petitioner has chosen to take up this litigation after the respondents entered into further dealings regarding the land in question and when the land was being converted for residential purpose.
Viewed from any angle, this petition remains totally baseless and does not merit admission.
As a consequence and result of the above, this writ petition stands dismissed.
(DINESH MAHESHWARI), J.
/Mohan/