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Delhi Sainik Co-operative House Building Society Ltd. Vs. the Financial Commissioner, Delhi Administration and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberLetter Patent Appeal No. 358 of 1971
Judge
Reported inAIR1983Delhi81; 23(1983)DLT109
ActsCode of Civil Procedure (CPC), 1908 - Order 22, Rule 3; Delhi Land Reforms Act, 1954 - Sections 85; Constitution of India - Article 227
AppellantDelhi Sainik Co-operative House Building Society Ltd.
RespondentThe Financial Commissioner, Delhi Administration and ors.
Advocates: H.L. Dutt and; S.S. Dalal, Advs
Cases ReferredNaronah v. Prem Kumari
Excerpt:
.....by fraud from one revenue assistant was liable to be rescinded and set aside by another revenue assistant. every court today is a court of law as well as of equity. that the order was a judicial order is not a ground to hold that it cannot be shown to be a nullity. it can be shown to the tribunal trying the case that the order which is sought to be relied upon by a party is a nullity because it was obtained by fraud. fraud is an extrinsic, collateral act which vitiates the most solemn proceedings of courts of justice. this is fundamental in our law.; 4. this is settled law that from the decisions of the single judge under article 227 no appeal lies to a division bench under clause 10 of letters patent. - - sen 125. every court today is a court of law as well as of equity. it is an..........the order which is sought to be relied upon by a party is a nullity because it was obtained by fraud. fraud is an extrinsic, collateral act which vitiates the most solemn proceedings of courts of justice. (duchess of kingstone's case (1776) (3) 2 smith l.c. (13th ed.) 644 at 651 per de greh cj) (8). this is fundamental in our law. (21) in our opinion the revenue assistant mr. k. n. srivastva was wrong in disallowing the evidence. this evidence is admissible. (22) we had dictated the judgment up to this point. it was then brought to our notice that the society had in fact made a petition under art. 227 of the constitution. we then beard the parties again on this question. the petition originally was under articles 226 and 227 of the constitution. it came for admission on 19-4-71.....
Judgment:

Avadh Behari Rohatgi, J.

(1) This is an appeal from the order of a learned single Judge dated 23-9-1971.

(2) The case has a long chequered history. Smt. Sarupi and Shame Singh were the owners of 99 bighas 13 bids was of land in village Khanpur in equal shares. On 6-8-1963 the appellant, Delhi Sainik Co-operative House Building Society Ltd., (the society) purchased from Shrimati Sarupi her half share in the land for Rs. 77,000. On 4-10-65 the society's name was mutated in the revenue records.

(3) On 16-10-1969 seven persons Puran. Nathua, Yad Ram and four sons of Kalley, namely, Narain Singh, Ram Pershad, Har Pershad and Dhani (shortly referred to as Puran and others) brought a suit under section 85 of the Delhi Land Reforms Act, 1954 (the Act). Tins was a claim for the declaration of bhumidari rights in their favor on the ground that they were in possession of 8 bighas of land which forms part of the land purchased by the society from Smt. Sarupi. Puran and others alleged that they were in 'forcible possession' of eight bighas of land and that they were entitled to a declaration of bhumidari rights under section 85 of the Act because no proceeding for their ejectment had been instituted within aperiod of three years as required by the Act. On June 16, 1970 the society in its turn brought a suit for ejectment of Puran and others under section 84 of the Act. While the suit under section 85 of the Act was being tried by the Revenue Assistant, Mr. K. N. Srivastava, the society sought to prove before him that certain revenue entries on which Puran and others relied were not binding on it because those entries were got recorded behind the back of Smt. Sarupi, Shame Singh and without any notice to the society. What are those entries on which Puran and others founded their claim, it is necessary to know at this stage.

(4) In the revenue record for the period 1953-54 to 1957-58 Smt. Sarupi and Shame Singh were recorded in cuitivatory possession (khudkast) in respect of the two khasra numbers which were in dispute before the Revenue Assistant in the proceedings under section 85. These are 454 (4 bighas 16 biswas) and 46211 (3 biglias 4 biswas). The entire land is 8 bighas which is in dispute before the Revenue Assistant as being the subject matter of the declaration of bhumidari rights. From 1958 to 1962 Puran and others were entered as non-occupancy tenants paying one half of the produce to Smt. Sarupi and Shame Singh. For the years 1963-64 and 1964-65 Sarupi and Shame Singh were again recorded in khudkast. In 1966 the name of the society was recorded along with Shame Singh in khudkast. This was so because the sale had taken place in 1963 and mutation had been effected to the purchaser's rights in the revenue record in 1965.

(5) On February 9, 1965 Puran, Nathua, Yad Ram and the sons of Kalley made an application to the Revenue Assistant Mr. S. L..Dua for the rectification of the entries in the Khasra Girdawari. Notice of the application was issued to Sarupi and Shame Singh but they never appeared before him. He, thereforee, held that Sarupi and Shame Singh had been properly served and started ex parte proceedings against them. No notice was issued to the society. Witnesses were examined in support of the claim of Puran and others. In the result Mr. Dua accepted the application of Puran and others and ordered that the entries of 196364, 1964-65 and 1965-66 be corrected and in place of the original entries the possession of Puran and others be entered as 'badastoor' (as before). This-was Mr. Dua's decision dated 30-11-1966.

(6) When the society came to know of this order of Mr. S. L. Dua, an application was made by the society to another Revenue Assistant, Mr. S. L. Malhotra, for setting aside the order of Mr. Dua. Mr. Malhotra rejected this application by order dated July 24, 1967 on the ground that the order being of an officer of co-equal jurisdiction he had no authority to set aside the order.

(7) Now in the proceedings before Mr. K. N. Srivastava under section 85 of the Act Puran and others apparently relied upon the corrected entries and the order of Mr. S. L. Dua dated 30-11-1966 in support of their claim. The society contested the right of Puran and others. The main ground of opposition was that the order of Mr. Dua was obtained fraudulently and that the order did not bind the society. The ground of complaint was that neither Sarupi nor Shame Singh were validly served. Nor was the society ever given notice of the application made to Mr. Dua. The society says that Narain Singh son of Kalley who was the village Pradhan at the material time knew about the sale in favor of the society and it was in the presence that the mutation was effected. But the society was kept in the dark throughout with what was happening before Mr. Dua. society wanted to adduce evidence before Mr. Srivastava to establish fraud and supression of summons and fraudulent concealment of true facts. They wanted to produce in evidence tehsildar, naib tehsildar, a process server, a clerk of the record room and Mr. S. L. Dua himself to establish their case. Mr. Srivastava by order dated 7-10-1970 refused permission to the society to produce this evidence. He said:

'THEevidence cannot be allowed to be led here because it will mean challenging the order of Shri S. L. Dua for which this court is not the proper forum.'

(8) From his order a revision petition was taken to the Financial Commissioner. The revision was rejected on 7-12-1970.

(9) On 15-3-1971 the society and Shame Singh brought a petition under Art. 226 and 227 of the Constitution in this court requesting that the order of the Financial Commissioner dated 7-12-1970 and the order of the Revenue Assistant, Mr. K. N. Srivastava, dated 7-10-1970 be quashed. This was treated as C.M. (Main) No. 77 of 1971 under Article 227 of the Constitution. The learned single judge dismissed the petition by order dated 23-9-1971. He took the view that the order of Mr. S. L. Dua was a judicial order and the society was precluded from attacking the said order collaterally. This was the ground of his decision. From his decision this appeal under clause 10 of the Letters Patent has been brought.

(10) Mr. Dalal on behalf of the respondents, Puran and others has taken a two-fold objection before us. In the first place he says that this appeal has abated by reason of the death of Yad Ram and Ram Pershad. Yad Ram was one of the original claimants in the suit. Ram Pershad is one of the four sons of Kalley. The legal representatives of Yad Ram and Ram Pershad were not brought on record in time and the application for condensation of delay was made which was refused by a division Bench of this court. Mr. Dalal contends that if the appeal is allowed there will be two conflicting orders. We are not impressed by this argument.

(11) It is necessary to examine at this stage the allegations of Puran, Nathua, Yad Ram and Kalley's sons in their suit under section 85 of the Act. In the application dated 15-10-1969 they alleged that they took 'forcible possession' of the land in the year 1957-58 and remained in possession of the same in their own rights. The claimants describe their possession as 'forcible and unauthorised' and 'without the consent of the bhumidhars', namely, Sarupi and Shame Singh. Their case was that they have 'completed their title' to bhumidari rights 'after a period of three years of adverse possession which commenced in the year 1957-58 and became entitled to be declared as Bhumidhars'. The expression 'adverse possession' is misleading. What is meant is that Puran and others have been in forcible possession for three years viz., 1963-64, 1964-65 and 1965-66. This claim is founded on the entries of these years ordered to be corrected by Mr. S. L. Dua, Revenue Assistant. It is not true to say that it is an 'adverse possession' as understood in law, 'Adverse possession' designates a possession in opposition to the true title and real owner, and implies that it commenced in wrong and is maintained against right. (Allexander v. Polk 39 Miss 755). It must be for a period of twelve years before the possession ripens into ownership. Here we are concerned only with three years.

(12) In Schedule I to the Delhi Land Reforms Act, 1954 the period of limitation is prescribed. Entry 19 reads; 'Suit for ejectment of a person occupying land without title and damages' (S. 84) the period of limitation is three years 'from the 1st of July following the date of occupation.'

(13) The only question thereforee is: What is the nature of possession of Puran and others The Act says that it must be an occupation of land without title, of a person whose ejectment is sought. Such a suit has to be brought within three years. On their own showing the possession of Puran and others is described as 'forcible possession' and 'forcible and unauthorised'. The claim made is that for more than three years they have been in such possession and no ejectment suit having been brought against them for three years under section 84, they were entitled to be declared as Bhumidhars. Where a person claims that he is in 'forcible possession' or that his possession is 'forcible and unauthorised' it is admittedly a possession without claim of right. The claim of Puran and others is founded on such an act of possession which means a trespass in law and the element of force is admittedly present in their claim. 'Every invasion of property, be it ever so minute, is a trepass' (Entick v. Carrington (1765) 19 Si T. 1029. The act of entering on another man's land without lawful authority is the type of claim that Puran and others have advanced in their suit. The wrongful entry upon the society's land by breaking or entering into the close of the society is by means of application of force. Such a right is claimed by Puran, Nathua, Yad Ram and sons of Kalley. In any event the claim of each of the trespassers is distinct. On the death of one such trespasser the appeal will not abate. Non-substitution of his legal representatives does not result in abatement (Hari Chand v. Bachan Kaur, Air 1971 Punj. 355. The trespass is several. (Raja Himanshudhar Singh v. Ram Hitkari, : AIR1963All496 .

(14) If the order of Mr. S. L. Dua was obtained in fraud of the rights of the society it will be unconscionable for a person to avail himself of the advantage which he has obtained. It would certainly give a wrong doer an advantage of his own wrong. Extrinsic fraud, if proved, justifies equitable relief against a judgment or decree. Fraud means some intentional act or conduct by which the prevailing party has prevented the successful party from having a fair submission of the controversy.

(15) It would be difficult, if not impossible to define fraud 'in such a way as to provide for every case in which the term may be used and we do not propose to attempt to do so. It normally refers to something dishonest and normally wrong, particularly the acquisition of pecuniary or material benefits by unfair means. Fraud is inconsistent with a claim of right made in good faith to Jo the act complained of. As long ago as 1715 Lord Hardwick said, 'this court has an undoubted jurisdiction to relieve against every spec ies of fraud' (Earl of Chesterfield v. Janssen (1715) (2) Ves. Sen 125. Every court today is a court of law as well as of equity. We cannot agree that the Revenue Assistant hearing the case will have no power to rescind and set aside the order of Mr. Dua if it is shown to him that it was obtained by fraud.

(16) The whole case of Puran and others is based on force. The use of words, 'forcible possession' shows that unlawful or wrongful action is meant. Force means such display of physical power as is reasonably calculated to inspire fear of physical harm to those opposing possession of premises by a trespasser. If these people have entered upon another's possession by use of force it will be wrongful. It means that they took possession without a claim of right. It means taking is intentional and deliberate, that is to say, without mistake. You must know when you take the property that it is the property of another person and that you are taking it deliberately, not by mistake, and with intent to deprive that person of his property. Force is implied in every trespass. This is not a case where a man takes possession of a property which he really believes to be his own, does not take it fraudulently, however unfounded his claim may be.

(17) So this case has to do with force or fraud. The whole case of Puran and others is based on naked force. Avowedly the claim as made in the suit is founded on 'forcible possession'. As regards the entries on which they rely in support of their claim of bhumidari rights, the society says that the entries were obtained from the Revenue Assistant fraudulently. We do not see why the society cannot show that a claim founded on force or fraud ough not to be upheld by the court. 'Any possession is a legal possession against a wrongdoer' per Lord Kenyon Cj in Graham v. Peat (1804) 1 East 244. The possession of the society is founded on title. It has .purchased the land. What is the effect of entries on their title and possession This is the question to be tried. '

(18) In our opinion on this ground the suit does not abate.

(19) There is another reason also. No application has been made in respect of bringing Yad Ram and Ram Pershad's heirs on the record of the trial court before the Revenue Assistant. If the suit can continue without Yad Ram and Ram Pershad so can this appeal. If the death of Yad Ram and Ram Pershad does not result in the abatement of the suit, their death will nto result in the abatement of this appeal. '.

(20) Mr. Dalal next argued that Mr. K. N. Srivastva was right in holding that the invalidity of the order of Mr. Dua could not be urged before him and ought to have been challenged in a proper forum. The learned single judge put it differently. He said that the order of Mr. Dua was a judicial order and it cannot be attacked collaterally meaning thereby that before another Revenue Assistant its validity cannot be questioned. We do not agree with this reasoning. The main ground of the society is that this order has been obtained by fraud from Mr. Dua Fraud is a conduct which vitiates every transaction known to the law. It then vitiates a judgment of the court. It is an insidious disease, and if clearly proved to have been used so that it might deceive the court, it spreads to and infects the whole body of the judgment. (Jonesco v. Beard 1930 Ac 298. 'A judgment obtained by fraud or collusion, even it seems a judgment of the House of Lords, may be treated as a nullity.' (Halsbury 4th ed. Vol. 16 Para 1533). This proposition has been applied by the supreme court in Naronah v. Prem Kumari 1979 Dlt 116. Now if the case is that the order was obtained by fraud and that there was no valid service of summons on Sarupi and Shame Singh and that the society was never heard by Mr. S. L. Dua, though Narain Singh, one of the claimants, kneW about the sale and of the society's title to the land and fraudulently suppressed this vital fact, these facts ought to be allowed to be asserted and proved. These are facts which can be proved by the society before the Revenue Assistant. The reason is that the society was never a party to the judgment of Mr?. S. L. Dua dated 30-11-1966. No notice was sent to it. Now that judgment is being used against the society for the acquisition of bhumidari rights and the society has been imp leaded as a defendantin addition to Sarupi and Shame Singh, can the order dated 30-11-1966 be used against the society with a retrospective effect for defeating the title of the society and for acquiring bhumidari rights in the land of one who was never heard in the proceedings resulting hi the correction of revenue entries That the order was a judicial order is not a ground to hold that it cannot be shown to be a nullity. It can be shown to the tribunal trying the case that the order which is sought to be relied upon by a party is a nullity because it was obtained by fraud. Fraud is an extrinsic, collateral act which vitiates the most solemn proceedings of Courts of justice. (Duchess of Kingstone's case (1776) (3) 2 Smith L.C. (13th ed.) 644 at 651 per De Greh CJ) (8). This is fundamental in our law.

(21) In our opinion the Revenue Assistant Mr. K. N. Srivastva was wrong in disallowing the evidence. This evidence Is admissible.

(22) We had dictated the judgment up to this point. It was then brought to our notice that the society had in fact made a petition under Art. 227 of the Constitution. We then beard the parties again on this question. The petition originally was under Articles 226 and 227 of the Constitution. It came for admission on 19-4-71 before a division bench. The bench was of the view that petition under Art. 226 was not maintainable. The petitioner's counsel sought leave to amend the petition. The amended petition under Art. 227 came before a single judge for admission on 11-5-71. It was admitted by him. It was thereafter decided by another single judge. From the decisions of the single judge under Art. 227 no appeal lies to a division bench under clause 10 of Letters Patent. This is settled law. thereforee we have no option but to dismiss the appeal as not maintainable. We have said' enough to show that it is a case of force and fraud. The revenue assistant will not feel constrained from doing justice to the society if he independently comes to the conclusion that the respondents are reaping benefit of their own fraud and force.

(23) For these reasons the appeal is dismissed. The parties are left to bear their own costs.

(24) The parties are directed to appear before the Revenue Assistant on 4-10-82. Records besent down immediately.


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