Smt. Naumi Mathews vs Board of Revenue and Others

Rajiv Sharma, J.—Heard learned Counsel for the parties.

The dispute in the instant writ petitions revolves around the plot No. 120 area 52 dismal and plot No. 23 area 68 dismal situated in Village Jangal Shalik Ram Patima Bye-pass Road, P.S. Shahpur, District Gorakhpur. The said land was recorded in the name of late Bharath, who is the father of the Petitioner.

It is said that Smt. Naumi Mathews, the Petitioner was looking after the affairs of her father and being pleased with the help and assistance rendered by the daughter, he executed a Will Deed on 18.7.1977 in favour of the Petitioner, who later an filed an application u/s 34 of Land Revenue Act for recording her name over the plot No. 23 area 68 dismal. The Tahsildar vide order dated 31.10.1987 allowed the application and directed for recording her name in the revenue records. When the sons of late Bharath, namely, George Bharath and Pritam Bharath, came to know the aforesaid fact, they moved an application 11.12.2001 before the Tehsildar to recall the order dated 31.10.1987. This application was allowed by the Tahsildar and vide order dated 30.4.2003, recalled his earlier dated 31.10.1987. Thereafter, according to the Petitioner, a compromise application was filed by George Bharath, Pritam Bharath and the Petitioner stating therein the name of the Petitioner may be recorded over plot No. 23, whereas name of George Bharath and Pritam Bharath over plot No. 120. The Tahsildar accepted the compromise application dated 28.7.2003 and passed an order 10.9.2003 for recording the names as averred above. Again the dispute arose between the parties as one Prem Nath Bharath filed an application for recall of the aforesaid order dated 10.9.2003. The Tahsildar after considering the entire record and statement of Prem Nath Bharath dismissed the restoration application on 26.3.2008 holding that no explanation of delay u/s 5 of Limitation Act has been given.

It may be noted that the aforesaid Prem Nath Bharath died on 28.3.2008 leaving behind his son Maiksual Bharath (Respondent No. 5), who filed a revision against the order dated 28.3.2008 passed by the Tahsildar. The Additional District Magistrate by the impugned order dated 22.8.2009 allowed the revision and set aside the order dated 26.3.2008 passed by the Tahsildar. Being aggrieved by the said order dated 22.8.2009, the Petitioner filed a revision before the Board of Revenue u/s 219 of Land Revenue Act. The Revision was also dismissed.

Counsel for the Petitioner has contended that the Board of Revenue committed an error in not considering the material fact and wrongly dismissed the revision. He further submitted that the impugned order dated 22.8.2009 passed by the Additional District Magistrate is illegal and without jurisdiction. It has been argued before this Court as also before the Revi-sional Court that the Additional District Magistrate cannot exercise the power of Collector under the Land Revenue Act. The Board of Revenue did not record any finding as to whether Additional District Magistrate is vested with the power to exercise the powers of the Collector, while exercising the jurisdiction u/s 219 of U. P. Land Revenue Act. Lastly, it has been argued that the Revisional Court exercising its power u/s 219 of the Land Revenue Act has no power to reverse the findings of fact recorded by the Tahsildar. The Additional District Magistrate erred in ignoring the fact that the application for recall was highly belated.

On behalf of Respondent Nos. 5 to 7, it has been submitted that the Petitioner was never looking after the affairs of her father and he never executed any unregistered Will dated 18.7.1977, but the Petitioner by playing fraud succeeded in procuring the ex parte order dated 31.10.1987. It is wrong to say that Prem Nath Bharath and Samual Bharath were the attesting witness to the Will Deed dated 18.7.1977. In fact, their signatures were forged and manipulated with an ulterior view to grab the land of the Respondents. It is also wrong to say that Prem Nath Bharath has accepted the claim of the Petitioner before the Tahsildar. It appears that by impersonation, his statement was recorded before the Tahsildar in her favour. He also pointed out that on the restoration application filed by George Bharat and Preetam Bharat, the Tehsildar recalled its ex-parte order dated 31.10,.1987 vide order dated 3.6.2003. It has also been pointed out that alongwith Bharath''s restoration application, a prayer was made for condonation of delay indicating the reasons for delay in presenting the application. It was also indicated therein that since the father of Respondent No. 5 was outside Gorakhpur and thus he could not join the Respondent Nos. 6 and 7. As regard order dated 10.9.2003, it has been stated that this order was not an ex parte order against the Respondent No. 5 but it was an order procured by the Petitioner by playing fraud upon the Court and the party.

Clarifying the position, it has further been submitted that by the order dated 14.10.2005, the restoration application filed by the father was held to be maintainable by the Tahsildar. This order remained unchallenged and has attained finality. Therefore, the same is not maintainable at this juncture. Lastly, it has been argued that the impugned orders are perfectly justified and there is no legal infirmity.

It is not disputed between the parties that late Bharath left for heavenly abode on 29.7.1977 leaving behind his two sons, S. Bharath and Prem Nath Bharath as his legal heirs and on the death of Bharath, the name of aforesaid two sons were mutated in the revenue records. It is also not disputed that the Petitioner is a married lady. Prem Nath Bharath, S. Bharath and Bharath were jointly recorded over the plot No. 23 and plot No. 120 was exclusively recorded in the name of Bharath. S. Bharath died on 1.10.2000 leaving behind his two sons, namely, George Bharath and Pritam Bharath. Though Bharath died on 29.7.1977, the Petitioner got her name recorded vide order dated 31.10.1987, after ten years on the basis of alleged Will, which the Respondents are claiming to be a forged document. When they applied for succession, the came to know the aforesaid facts and therefore, moved an application for recall of ex parte order dated 31.10.1977 alongwith an application for condonation of delay u/s 5 of Limitation Act. The Tahsildar, after considering the facts and circumstances of the case, allowed the recall application filed by the Respondent Nos. 6 and 7 vide order dated 3.6.2003. When the case was restored to its original number, the Petitioner filed a compromise and succeeded in obtaining the order dated 10.9.2003 by getting her name recorded over plot No. 23 and names of Respondent Nos. 6 and 7 over plot No. 120. The father of Respondent No. 5 moved an application on 23.12.2003 for recalling the aforesaid order, but the same was rejected vide order dated 26.3.2008. This order was assailed by the Respondent No. 5, after the death of his father, in revision. In due course, the revision was allowed and the matter was remitted to the Tahsildar to decide the matter afresh vide order dated 22.8.2009.

It is settled law that the orders passed under sections 33, 34, 35 and 39 of U. P. Land Revenue Act are summary in nature. As regard to the assertion of the Petitioner that the Additional District Magistrate has committed jurisdictional error in deciding the revision, it may be noted that the Additional District Magistrate is empowered u/s 14-A of the U. P. Land Revenue Act to function as Collector. It is also settled that the Additional Collector includes Collector therefore, the question of jurisdictional error, as alleged by the Petitioner is misconceived.

It is not in dispute that during pendency of proceeding, the Petitioner had alienated the land in question in favour of Smt. Kalawati Devi, who preferred a revision No. 441/469/G2009 before the Commissioner, Gorakhpur Division against the order dated 22.8.2009 and the same was dismissed by the Additional Commissioner vide order dated 16.11.2009. This material fact has been concealed by the Petitioner. It may be clarified that the Petitioner after the alienation of property had lost its interest over the land in question, but even then she preferred a" revision before the Board of Revenue u/s 219 of U. P. Land Revenue Act. This Revision was dismissed by the impugned order dated 8.12.2009. It may be noted that the Additional District Magistrate has recorded a categorical finding on the question of limitation by holding that when the fraud has been committed, then the question of limitation does not come as an impediment in the way to decide the dispute. Therefore, I find no infirmity in the impugned order passed by the Additional District Magistrate, much less it does not suffer from any apparent error.

It is well settled that fraud vitiates most solemn proceeding and as and when it is brought to the notice of any authority the benefit derived by any party can be always recalled. In U.P. Junior Doctors'' Action Committee Vs. Dr B. Sheetal Nandwani and Others, the Apex Court in the matter of obtaining orders/admission by fraud has further permitted the authority to withdraw the benefit even without giving any opportunity and it has been said that rules of principles of natural justice will not apply. Therefore, the revision was rightly allowed while setting aside the order dated 10.9.2003. As averred above, the Petitioner has already alienated the land in favour of Smt. Kalwati Devi and she has extinguished any right, title and interest over the land in question. This material fact has been suppressed by the Petitioner. Since the vendor has no right title and interest over the land in question and since she is fighting over the tile in question and the vendeee has no better title than the vendor.

From the facts narrative above, it is apparently clear that the Petitioner has not come to Court with clean mind and has suppressed the material facts. It is settled law that one should approach the Court with clean heart and clean mind to get a relief and one who does not come with clean heart and clean mind disentitles himself from getting any relief from the Court. The Additional District Magistrate while passing the order dated 22.8.2009, in revision, has given the detail facts showing the fraud played by the Petitioner upon the Court. The Petitioner has again suppressed the material facts from this Court just to mislead this Court, I am of the opinion that it is a fit case where the costs should be imposed so as to deter the Petitioner in future in indulging in such activities. Accordingly, a cost of Rs. 10,000/- [Rupees ten thousand] is imposed upon the Petitioner/Smt. Naumi Mathews which shall be deposited by the Petitioner within two months failing which it shall be recovered as arrears of land revenue. On receipt of cost, the same shall be remitted to the Mediation and Conciliation Centre within one week from the date of its receipt.

In view of aforesaid discussion, no good ground is made out to invoke the extraordinary jurisdiction under Article 226/227 of the Constitution of India and the writ petitions are devoid of merit.

Accordingly, the writ petitions are dismissed.