Dr. Chandra Mohan Singhal & Ors. vs State Of U.P.

Hon'Ble Chandra Kumar Rai, J.

Heard Mr. Ashish Kumar Singh, learned Senior Counsel assisted by Mr. Imran Syed, learned Counsel for the petitioner in Matter Under Article 227 No. 12514 of 2023 and Matter Under Article 227 No. 12515 of 2023 for petitioners and Mr. Manish Goel, learned Additional Advocate General assisted by Mr. Madan Mohan, learned Standing Counsel for State in the aforementioned two petitions.

Heard Mr. Manish Goel, learned Additional Advocate General assisted by Mr. Madan Mohan, learned Standing Counsel for petitioner/ State in Matter Under Article 227 Nos. 12516 of 2023, 12517 of 2023, 12518 of 2023 and Mr. Ashish Kumar Singh, learned Senior Counsel assisted by Mr. Imran Syed, learned Counsel for respondent in the aforementioned three petitions.

The aforementioned five petitions are nominated to this Court by the order of Hon'ble The Chief Justice.

Common question of law and facts are involved in the aforementioned five petitions, as such, all the five petitions are clubbed and heard together.

Brief facts of the case are that dispute relates to plot nos. 3,4,5,6,7,9 of Mohal Madan Mohan and plot nos. 16,17,18 of Mohal Lala Ram Swaroop situated in Village Meerapur Danda Tehsil and District Hamirpur hereinafter referred to as plots in dispute. The above mentioned plots in dispute were recorded in the name of predecessor of the petitioners as owners/ zamindars of " Kothi Narayan Rao". The aforementioned plots in dispute are situated adjacent to Bungalow of Collector Hamirpur and the plots in dispute were let out to State Government for raising construction of Collector Bungalow. In the revenue records, the plots in dispute are recorded in occupancy tenancy of "Sarkar" whereas the name of petitioners' predecessors were recorded as zamindars/ landlord. The plot in dispute were initially within the limit of town area but subsequently came within municipal limit of Hamirpur from 7.7.1949. The provisions of U.P. Zamindari Abolition and Land Reforms Act, 1950 hereinafter referred to as U.P.Z.A. and L.R. Act were not applicable to the plots in dispute but subsequently on coming into force of U.P. Urban Areas Zamindari Abolition and Land Reforms Act, 1956 hereinafter referred to as U.P.U.A.Z.A. and L.R. Act, proceeding were started for demarcation of agricultural area under Chapter II of the Act accordingly plots in dispute were declared as non-agricultural plots and declaration became final vide order dated 5.9.1964. So far as the agricultural area falling in the urban area was concerned, it was demarcated and compensation roll was prepared finally in 1965 as well as compensation was paid. So far as plots in dispute were concerned, they were non-agricultural, no compensation role was prepared nor any compensation was paid to petitioners. Plots in dispute were taken on lease for beautification of the Collector Bungalow but due to breach of terms of lease in respect to the plot in dispute, petitioners filed original suit no. 21 of 1972 on 27.1.1972, Dr. Chandra Mohan Singhal Vs. State of U.P. and original suit no. 88 of 1972 Jagdish Saran Singhal and Others Vs. State of U.P., for the relief of ejectment of State from the plots in dispute as well as rent and damages for use and occupation by the State. In the aforementioned suit, State Government filed his written statement which was verified by the then Collector Hamirpur. State of U.P. (defendants in the suit) filed an application dated 30.11.1972 raising preliminary issue, firstly as to whether the Civil Court has jurisdiction to try suit or revenue Court has jurisdiction and secondly about the valuation of the suit. Trial Court vide order dated 17.9.1973 held that Civil Court has jurisdiction to try the suit and they were correctly valued. Against the order dated 17.9.1973 State of U.P. filed civil revision Nos. 5 and 6 of 1974 which were dismissed by District Judge Hamirpur vide judgement dated 20.9.1975. Against the order of District Judge dated 20.9.1975, State of U.P. filed a civil revision no. 2290 of 1975 and civil revision no. 2291 of 1975 before this Court which were dismissed by this Court vide judgement dated 28.1.1976. Part of the disputed plot nos. 5 and 7/2 (area 7.83 acres) was acquired under the Land Acquisition Act and compensation was paid on 15.4.1978 to the petitioners/ petitioner's predecessors of Matter Under Article 227 No. 12514 of 2023 and Matter Under Article 227 No. 12515 of 2023. The aforementioned original suits were contested and finally decided by the Trial Court vide judgement and decree dated 19.12.1977 decreeing the suit no. 21 of 1972 and 88 of 1972 for ejectment as well as arrears of rent and damages. Against the judgement and decree of Trial Court dated 19.12.1977, Jagdish Saran Singhal, father of petitioner nos. 1,2 and 3 of Matter Under Article 227 No. 12515 of 2023 put his decree in execution which was registered as execution case no. 36 of 1978. Against the judgement and decree of Trial Court dated 19.12.1977, State of U.P. filed first appeal nos. 12 and 13 of 1978 in which interim order was granted staying the execution of the decree passed in the civil suit. The aforementioned first appeals were finally dismissed by First Appellate Court vide judgement and decree dated 30.3.1980. State of U.P. filed second appeal no. 1741 of 1980 and appeal no. 1747 of 1980 before this Court without any stay application. During pendency of second appeals before this Court, the decree in original suit no. 88 of 1972 was executed and possession of disputed plot nos. 16, 17, 18 area 15.31 acre was delivered to decree holder- Jagdish Saran Singhal on 30.8.1980. State of U.P. subsequently filed a stay application in both the second appeals accordingly this Court passed an order for status quo on 10.9.1980. During pendency of aforementioned second appeal before this Court, an application was filed on behalf of Collector, Hamirpur before Sub Divisional officer for changing the revenue entries of the disputed land from "Non Agricultural" to "Agricultural" accordingly proceeding was registered as case no. 11 of 1980 Collector Vs. Sarkar. Sub Divisional Officer changed the entry of disputed plot from "Non-Agricultural plot" to "Agricultural plot" vide order dated 25.11.1980. Jagdish Saran Singhal (father of petitioner in Matter under Article 227 No. 12515 of 2023) filed a contempt application no. 51 of 1981 in which notices were issued to the then Collector as well as Sub Divisional Officer Hamirpur. The aforementioned second appeal was heard finally by this Court and the same was dismissed by judgement and decree dated 28.5.1982 holding that land could not be held to be agricultural and the suits were rightly decreed against the State Government. Against the judgement and decree dated 28.5.1982 passed in aforementioned second appeal, State of U.P. preferred a special leave petition before the Apex Court in which leave was granted and the same were registered as civil appeal no. 8388 of 1983 and appeal no. 8389 of 1983. As soon as Jagdish Saran Singhal came to know about the order dated 25.11.1980 changing the entry from non-agricultural to agricultural, a writ petition no. 4129 of 1981 was filed before this Court which was heard and allowed by the Division Bench of this Court on 27.4.1988 holding impugned order dated 25.11.1980 as illegal and without jurisdiction as well as ''Non-Agricultural'' entry of the plot in question has been maintained. Against the judgement of this Court dated 27.4.1988 passed in writ petition no. 4129 of 1981, State of U.P. filed Special Leave Petition(civil) No. 3522 of 1988 before the Apex Court. The aforementioned two civil appeals as well as one special leave petition were heard by the Apex Court and the civil appeal no. 8388 of 1983, civil appeal no. 8389 of 1983, special leave petition no. 3522 of 1988 were dismissed by the Apex Court confirming the judgement and decree dated 19.12.1977 as well as the judgement dated 27.4.1988. In contempt application no. 51 of 1981, the then Collector Hamirpur, Sri S.P. Gaur has been found guilty of gross contempt of the order passed by this Court. Jagdish Saran Singhal filed an original suit no. 108 of 1991 for damages for illegal possession of plot No. 16,17,18 situated in Mohal Lala Ram Swaroop. State of U.P. filed a suit no. 44 of 1993, 45 of 1993 on 26.5.1993 against Dr. Chandra Mohan Singhal and Jagdish Saran Singhal for declaration, cancellation of the decree, mandatory injunction in respect to the plots in dispute. In the aforementioned suit, application under Order 7 Rule 11 Civil Procedure Code 1908 hereinafter referred to as C.P.C. was filed on behalf of Dr. Chandra Mohan Singhal and Jagdish Saran Singhal. Third Additional District Judge Hamirpur rejected the aforementioned application filed under Order 7 Rule 11 C.P.C. vide order dated 27.9.1993. Against the order dated 27.9.1993, writ petition nos. 38645 of 1993 and 38647 of 1993 were filed before this Court and Division Bench of this Court vide judgement dated 29.10.1993 directed the Collector to deliver possession to petitioner within 24 hours but by the subsequent order, the earlier order dated 29.10.1993 was modified to the extent that further proceeding of the suit shall remain stayed. This Court vide order dated 23.4.1997 dismissed the aforementioned two writ petitions with liberty to petitioners to file revisions against the order rejecting the application under Order 7 Rule 11 C.P.C. In pursuance of the order dated 23.4.1997, revision no. 51 of 2002 and the revision no. 52 of 2002 were filed before this Court along with application under Section 5 of Limitation Act. The aforementioned revisions were heard and allowed vide order dated 25.7.2002 and plaint of suit nos. 44 of 1993 as well as 45 of 1993 were rejected. Recall/ review application filed against the judgement dated 25.7.2002 was rejected on 5.12.2002. State of U.P. filed Special Leave Petition Nos. 8675 of 2003, 8676 of 2003, 8922 of 2003, 8923 of 2003 before the Apex Court against the judgement/ order dated 25.7.2002 and 5.12.2002 passed in civil revision nos. 51 of 2002 and 52 of 2002. The aforementioned special leave petition were heard and dismissed on 13.10.2003 by the Apex Court. After the disposal of special leave petition by the Apex Court on 13.10.2003, the execution proceeding was proceeded and executing Court on 1.11.2003 and 24.1.2009, passed orders in execution case no. 12 of 1991 and 11 of 1991 for attachment of the car of District Magistrate/ Collector Hamirpur as well as official furniture etc. of the office of District Magistrate/ Collector Hamirpur. Against the order passed by executing Court on 1.11.2003 & 24.1.2009, State of U.P. filed revision before the revisional Court. State of U.P. further filed an application dated 21.7.2009 in original suit no. 108 of 1991 which was registed as independent Misc case no. 10/74 of 2010. State filed another application (5Ga) dated 16.8.2010 in Misc case No. 10/74 of 2010. Against the application dated 16.8.2010, petitioners filed an objection dated 18.9.2010 on the ground that suit no. 108 of 1991 has nothing to do with the present execution case filed by petitioner hence the application is liable to be rejected. The Trial Court vide order dated 4.12.2010 rejected the application 5-Ga dated 16.8.2010 filed by state. Against the order dated 4.12.2010 and formal order dated 13.10.2010, State of U.P. preferred revision no. 2 of 2011 before the revisional Court. The aforementioned revision was allowed vide order dated 20.4.2011 hence this petition initially under Article 226 but later on converted into under Article 227 No. 12514 of 2023 for the following relief:-

Matter under Article 227 No. 12515 of 2023 has been filed for the following relief:-

State of U.P. has filed petition under Article 227 No. 12516 of 2023 for the following relief:-

Matter under Article 227 No. 12517 of 2023 has been filed by State of U.P. for the following relief:-

Matter under Article 227 No. 12518 of 2023 has been filed by State of U.P. for the following relief:-

This Court entertained all the five petitions accordingly pleadings are exchanged between the parties.

Learned Senior Counsel for the petitioners submitted that State has raised the question of fraud which has been decided against him and the same has been confirmed up to Apex Court, as such, the same cannot be raised again and again. He submitted that provision contained under Section 44 of Indian Evidence Act and Section 4-A of Civil Procedure Code are not applicable in the facts and circumstances of instant case. He submitted that application 280 Ga filed by defendant/ State in suit no. 108 of 1991 was rightly rejected by the Trial Court but revision has been allowed setting aside the order of Trial Court and remanding the matter before Trial Court which is total abuse of the process of law as well as contempt of the order of Apex Court. He submitted that in view of the judgement and decree passed in suit no. 21 of 1972 as well as suit no. 88 of 1972 which have been maintained up to Apex Court, the proceeding of suit no. 108 of 1991 cannot be kept pending on misconceived ground. He further submitted that plots in question were recorded in the name of predecessor of the petitioners of Matter under Article 227 Nos. 12514 of 2023 and 12515 of 2023 as owner/ zamindar and plot in question were let out to the State Government for beautification of the Collector's Bungalow. He further submitted that in the revenue record, the State was recorded in "occupancy tenancy" of "sarkar" whereas the name of predecessor of petitioners were recorded as zamindar/ landlord. He further submitted that provisions of U.P.Z.A. and L.R. Act were not applicable to the plot in question as the same were within the municipal limit of District Hamirpur w.e.f. 7.7.1949. He further submitted that agricultural area falling in urban area was demarcated and compensation role was prepared finally in 1965 accordingly compensation was paid. So far as plot in question are concerned, the same being (non-agricultural), no compensation role was prepared nor any compensation was paid to anyone. He submitted that part of plot no. 5 and 7/2 (area 7.83 acres) was acquired under the Land Acquisition Act on 23.1.1974 and compensation was paid on 15.6.1976 but area of 0.58 acre of plot no. 7 was left from acquisition. He submitted that in view of the adjudication taken place in the civil suit which has been affirmed up to Apex Court, petitioners of Matter under Article 227 No. 12514 of 2023 and 12515 of 2023 are entitled for vacant possession of land forthwith. He submitted that civil suit was not decided in ex-parte manner rather full opportunity was given to State in suit, first appeal, second appeal as well as in civil appeal/ special leave petition before the Apex Court, as such, it cannot be said that State has not contested the proceeding or State was not given opportunity before the Trial Court/ Appellate Court/ Second Appellate Court/ Apex Court. He submitted that allegation of collusion of private respondent with State authorities is totally misconceived as there was proper adjudication of the dispute by the Court at every stage of the proceeding. He submitted that application filed by State in civil revision no. 11 of 2009 was not maintainable as neither any lis was pending before any Court nor there was any such permission for re-opening of the matter. He submitted that Matter under Article 227 Nos. 12514 of 2023 as well as 12515 of 2023 should be allowed and Matter under Article 227 Nos. 12516 of 2023, 12517 of 2023, 12518 of 2023 should be dismissed with cost. He placed reliance upon the following judgment of Apex Court as well as of Madras High Court in support of his argument:-

On the other hand, Mr. Manish Goel, learned Additional Advocate General, assisted by Mr. Madan Mohan, learned Standing Counsel for the State, submitted that the impugned order dated 01.11.2003 and revisional order dated 17.03.2012 are fundamentally perverse, jurisdictionally flawed, and legally unsustainable. He further submitted that the Executing Court committed a patent factual error in rejecting application paper no. 52-Gha for filing supplementary objections under Section 47 of the Code of Civil Procedure, 1908 (C.P.C.), on the mistaken assumption that the original objections had already been decided, whereas they were merely dismissed in default and subsequently restored. Consequently, directing the delivery of possession while objections questioning the very maintainability of the execution remained pending is illegal. He submitted that the Revisional Court acted in direct breach of constitutional mandates under Articles 141 and 144 of the Constitution of India by bypassing the binding order of the Hon'ble Supreme Court dated 23.02.2009, erroneously treating its explicit directives as non-binding obiter dicta, and leaving the State's application under Section 151 C.P.C. regarding systematic fraud undecided. He submitted that the Revisional Court's reliance on prior threshold rejections under Order VII, Rule 11 C.P.C. and withdrawn contempt proceedings to declare the issue of fraud "closed" is factually and legally perverse, as a technical rejection never adjudicates the underlying merits of "fraud." He further submitted that under Section 44 of the Indian Evidence Act, 1872, execution proceedings serve as a valid collateral forum to demonstrate institutional fraud and collusion involving sovereign Nazul land. He further submitted that fraud vitiates every solemn act, rendering a decree a complete nullity ab initio. He further submitted that absolute finality of litigation cannot operate as a bar of res judicata to shield a decree built upon deception. He submitted that the petition no. 12514 of 2023 as well as 12515 of 2023 should be dismissed and petition no. 12516 of 2023, 12517 of 2023, 12518 of 2023 should be allowed. He further placed reliance upon the following judgements of Hon'ble Apex Court as well as of this Court:-

I have considered the arguments advanced by learned Counsel for the parties and perused the records.

In order to appreciate the controversy involved in the matter, first for all, the perusal of the issues framed in suit no. 88 of 1972 filed by Jagdish Saran Singhal will be relevant for perusal which are as under:-

In the aforementioned suit, State of U.P. through Collector Hamirpur was defendant who filed written statement and admitted that disputed plots were let out to the state.

Perusal of the finding recorded on issue no. 7 will also be relevant which is as under:-

The Trial Court ultimately decreed the plaintiff's suit with cost for ejectment of the defendant from the disputed plot, as detailed in the copy of the plaint, and for delivery of possession thereof as well as claim for recovery of rent and damages was also decreed in view of the evidence on record, vide judgement and decree dated 19.12.1977. The judgement passed by the Trial Court, after contest, has been maintained up to Apex Court.

The perusal of the relevant portion of the judgement passed by this Court dismissing the second appeal of State will also be relevant which is as under:-

The perusal of the adjudication taken place in respect to the agricultural/ non-agricultural entry of the plot in question, the judgement of this Court dated 27.4.1988 passed in the writ petition will also be relevant which is as under:-

Perusal of relevant portion of another judgment passed by this Court in Civil Revision No. 51 of 2002 and 52 of 2002 rejecting the plaint of suit No. 44 as well as 45 of 1993 filed by state for cancellation of judgment and decree dated 19.12.1977 will be relevant which are as under:-

Considering the adjudication taken place in respect to the civil suit and nature of the entry of the plot as agricultural/ non-agricultural, the question arises as to whether the State can raise objection that earlier judgement and decree passed in the suit proceeding as well as in the writ petition with respect to the nature of the entry of the plot in question are collusive and cannot be relied upon.

In order to answer the abovementioned controversy as raised by State, the adjudication taken place from Trial Court up to Apex Court fully demonstrate that State was given full opportunity to file written statement before the Trial Court as well as adduce evidence before the Trial Court. The judgements from Trial Court to Apex Court further demonstrate that at every stage, State was given opportunity through Counsel/special Counsel to argue the matter, as such, it cannot be said that the judgement was passed on the basis of collusion between the plaintiff of the suit and State authorities.

It is material to mention that controversy raised by the plaintiff of the two suits who are petitioners in Matter under Article 227 No. 12514 of 2023 and Matter under Article 227 No. 12515 of 2023 has been adjudicated by the Trial Court in the original suit, First Appellate Court in first appeal, second Appellate Court (High Court) in second appeal by passing well reasoned judgement, as such, it cannot be said that State was not given opportunity to contest the proceeding in proper manner. The Apex Court has dismissed the special leave petition/ appeal filed by State against the judgement/ decree passed in the suit proceeding initiated by plaintiff.

The instant case is not in one of those case in which in writ petition, any order has been passed by the Court against the State in absence of any counter affidavit by State or without any opportunity of hearing to the State rather the controversy was adjudicated in the suit proceeding after filing of written statement, framing all issues, giving opportunity to the parties to lead evidence in the suit proceeding. It is further material to mention that judgement of the Trial Court was further maintained by the First Appellate Court as well as by this Court in the second appeal by passing the detailed judgement on merit, as such, the objection cannot be raised by State that they have not been given opportunity to contest the proceeding in proper manner.

Considering the aforementioned facts and circumstances of the case, it is fully demonstrated that there is no illegality in the exercise of jurisdiction by the Trial Court while deciding the suit no. 21 of 1972 and original suit no. 88 of 1972 and answer to the query as mentioned in paragraph no.17 of this judgment is that judgment and decree passed in suit no. 21 of 1972, suit no. 88 of 1972 as well as in writ petition no. 4129 of 1981 which have been maintained up to Apex Court are not collusive and have binding effect.

Considering the aforementioned facts and circumstances of the case, there is no illegality in the order dated 4.12.2010/ 13.12.2010 passed by Additional Civil Judge (Senior Division) Hamirpur by which application 5-C filed by State in Misc. Case No.10/74/10 has been rejected but the revisional Court vide impugned order dated 20.4.2011 has allowed the revision no. 2 of 2011 filed by State as well as revision no. 3 of 2011 filed by State which are liable to be set aside and the same are hereby set aside. The Matter under Article 227 No. 12514 of 2023 and Matter under Article 227 No. 12515 of 2023 are accordingly allowed. It is directed that pending suit no. 108 of 1991 shall be decided in accordance with law expeditiously preferably within period of 4 months.

So far as the impugned orders passed in Matter under Article 227 No. 12516, 12517 and 12518 of 2023 are concerned, there is no illegality in the impugned orders passed in the pending execution proceeding as the judgement and decree passed in the original suit has been affirmed up to Apex Court, as such, raising the objection in the execution proceeding that decree passed by Trial Court which has been affirmed up to Apex Court is the result of collusion between the plaintiff and State authorities cannot be accepted in any manner.

Considering the aforementioned facts and circumstances of the case, Matter under Article 227 No 12516 of 2023, Matter under Article 227 No 12517 of 2023 and Matter under Article 227 No 12518 of 2023 are liable to be dismissed and the same are hereby dismissed. It is directed that executing court shall decide the pending execution proceeding arising out of suit no. 21 of 1972 and suit no. 88 of 1972 expeditiously preferably within period of 3 months from the date of production of certified copy of this order.

No order as to costs.