Allowed

Keshav Pd. v. D.D.C. and Others

Allahabad HC10 Jul 2023WRIB/1601/1976

Case brief

AI extract

What is this about?

The High Court quashed orders of the appellate and revisional consolidation authorities, upholding the Consolidation Officer's finding that a 1959 compromise decree was fraudulent. The court held that a decree obtained by fraud can be challenged in subsequent proceedings without a separate suit under Section 44 Evidence Act.

What did the court decide?

The orders of the Settlement Officer Consolidation, Basti dated 25.09.1972 and the Deputy Director of Consolidation, Basti dated 23.06.1976 were quashed. The order of the Consolidation Officer dated 1

Keshav Pd. Vs D.D.C. and Others — Landlord and Tenant | Allahabad HC (2023)

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A.F.R. Neutral Citation No. - 2023:AHC:136064 Reserved On:- 15.05.2023 Delivered On:- 10.07.2023

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Case :- WRIT - B No. - 1601 of 1976 Petitioner :- Keshav Pd. & Ors. Respondent :- D.D.C. And Others Counsel for Petitioner :- V.D. Ojha, ,Sanjeev Singh,Z.A.Siddiqui Counsel for Respondent :- G.C. Dwivedi,R.P. Misra,S.C.,S.K. Tiwari,S.P. Shukla,Siddhartha Shukla,Tripathi B G Bhai,U.C. Misra Hon'ble Siddharth,J.

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This writ petition has been filed under Article 226 of the Constitution of India praying for quashing the judgement and order dated 25.09.1972 of Assistant Settlement Officer Consolidation, Basti, in Appeal Nos. 71 to 74 and judgement and order dated 23.06.1976 passed by Deputy Director of Consolidation, Basti, in revision nos. 47 to 50.

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This writ petition arises out of the objections under Section 9-A(2) of the U.P. Consolidation Act, 1953 (for short, the Act). These objections are a total of six. The land in dispute comprises of Gata nos. 12, 14, 115, 70, 196, 11 and 111, all situate in Village Taraina, Pargana Bansi East, District Basti. Of these, three separate objections were filed by Ram Lagan, Ram Lal and Vijay Bahadur, all sons of Chulhai, respondents nos. 3, 4 and 5, respectively, to this petition. All the three objections last mentioned were filed on a common and identical cause of action and for the same relief, that is to say, that revenue entries relating to Gata nos. 12, 14 and 115 (supra) be corrected according to the compromise decree, dated

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23.11.1959 passed by the Judicial Officer, Bansi, District Basti in Suit No. 270 of 1959, under Section 229-B.

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Two objections were filed by the petitioners. The first of these objections related to Gata nos. 70 and 196, and claimed co-tendency rights with the recorded tenure holders. The other objection claimed a 1/6th share in Gata nos. 11 and 111.

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The last of the six objections, was filed by Kodai, respondent no. 6, laying claim to the entire Khata nos. 11 and 111 on the basis of a case that the petitioners have no right, title or interest therein, and that the aforesaid Khata numbers are self-acquired property of the sixth respondent.

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The Consolidation Officer vide order dated 18.01.1969 dismissed the objections filed by respondents nos. 3, 4 and 5, that is to say, Ram Lagan, Ram Lal and Vijay Bahadur, in that order, now represented by their legal representatives, respondents nos. 3/1, 4/1 and 5/1, in relation to Khata nos. 12, 14 and 15. The claim of respondent nos. 3, 4 and 5 to Khata nos. 70 and 196, was also rejected with a direction that entries in their favour in the Revenue Records be expunged. On the other hand, the objections of the petitioners relating to Khata nos. 70 and 196 were allowed, and they were ordered to be recorded as co-tenants alongwith the recorded tenure holders. Likewise, the other objections of the petitioners relating to Khata no. 111 and Khata no. 11 were allowed with a direction that their names along with Shiv Mangal, Shiv Murat and Shiv Baran, then minors through their guardian and mother, besides names of Manorath son of Lal Bihari, Ram Dularey and Harihar, sons of Nageshar, be recorded as co-sharers. The sixth objection filed by Kodai too was allowed, granting him a 1/3rd share in Khata nos. 12, 115, 70, 196, 111, besides Araji No. 725, admeasuring 0-14-8, part of Khata no.11.

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Aggrieved by the judgment and order of the Consolidation Officer determining the sixth objection, four Appeals were filed by the respondent nos. 3, 4 and 5, that is to say, Ram Lagan, Ram Lal and Vijay Bahadur. These Appeals nos. 71, 72, 73 and 74 on the file of the Assistant Settlement Officer of Consolidation, Basti. The appeals were heard and allowed by the Assistant Settlement Officer of Consolidation vide judgment and order dated 25.09.1972. The judgment and order of the Consolidation Officer, dated 18.01.1969 was set aside. The names of the petitioners were directed to be expunged from Khata nos. 12, 14, 115, 70, 196, 11 and 111, besides Araji no. 725, admeasuring 0-14-8, part of Khata no. 11(for short, the land in dispute) and in their place, the names of respondents nos. 3, 4 and 5, Ram Lagan, Ram Lal and Vijay Bahadur, were ordered to be recorded. It was ordered that the share allotted to the petitioners be allotted to respondents nos. 3, 4 and 5 in terms done by the Consolidation Officer.

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The petitioners put in issue the order of the Assistant Settlement Officer(Consolidation), dated 25.09.1972 before the Deputy Director of Consolidation, Basti, vide four revisions being Revisions nos. 47, 48, 49 and 50 by the petitioners. The order was also challenged by the respondent nos. 6, Kodai vide Revision no. 135. All the five Revisions preferred under Section 48 of the Act were heard and dismissed by the Deputy Director of Consolidation, Basti, vide judgment and order dated 23.06.1976.

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Aggrieved, the present writ petition has been filed.

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Heard Sri Sanjeev Singh, learned counsel for the petitioners and Sri Tripathi B.G. Bhai, learned counsel appearing on behalf of respondent No.s 3/1, Jai Prakash, who alone has contested this writ petition at the hearing.

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In order to set the record straight, it must be mentioned here that early into these proceedings, a counter-affidavit dated 25.09.1977 was filed before this Court on behalf of respondent no. 10, Shiv Baran, but no one appeared on his behalf at the time of hearing.

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The dispute between the parties centres around the validity of a compromise dated 23.11.1959 recorded in Suit No. 270/1959 under Section 229-B decided by the Judicial Officer, Bansi, District Basti. The petitioners on one hand and respondent nos. 3, 4 and 5 on the other are said to have entered into the said compromise on the basis of which the Judicial Officer entered judgment in Suit No. 270/1959. Before the Consolidation Officer the validity of the compromise dated 23.11.1959 urged by respondent nos. 3, 4 and 5 was impeached by the petitioners as fraudulent. The Consolidation Officer dealt with the said matter vide his findings on issue No. 2 and held in favour of the petitioners. He rejected the compromise as a product of fraud and, therefore, nonest. It is on this ground that the Consolidation Officer directed entries to be restored to what they were in the basic year inter-se the petitioner and respondent nos. 3, 4 and 5. It appears that the compromise entered in the suit was not recorded in the Khatauni relating to the basic year and on that account respondent nos. 3, 4 and 5 had claimed rights to be recorded on the basis of the compromise decree dated 23.11.1959 relating to the land in dispute to be recorded. That claim was, however, rejected by the Consolidation Officer holding the compromise to be fraudulent.

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The Consolidation Officer has broadly gone by the reasoning that if the compromise were genuine, then on the vakalatnama filed in Suit No. 270 of 1959 the signatures of the petitioners, Keshav Prasad, Ram Sumer, are there whereas it is thumb mark put by the second petitioner, Ayodhya Prasad but the day this Vakalatnama was signed, the memorandum of compromise was also verified. However, the memorandum of compromise

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does not bears the petitioners’ signatures. Instead it is signed by their Counsel, Sri Girja Shankar, Mukhtar. In the opinion of the Consolidation Officer, it was beyond his understanding as to why the petitioners Keshav Prasad and the two others who were available in Court that day, were not made to sign the memorandum of compromise whereas other party to the agreement signed it. The Consolidation Officer has concluded that on these facts it appears that the signatures of the two petitioners on the Vakalatnama and the thumb impression of Ayodhya Prasad on the Vakalatnama are not those of three men. It has also remarked that the summons of the suit under Section 229B were never served on the petitioners who resided at Pratapgarh, whereas the Court was located at Basti. The Consolidation Officer also opined that signatures of the first petitioner, Keshav Prasad, on the various applications made before him in proceedings under Section 9A(2) of the Act did not resemble with those on the Vakalatnama. The Consolidation Officer also held respondent No. 6 to be in collusion with respondent No. 3, 4 and 5 as the said respondent has been given certain rights in certain plot numbers detailed in the findings of the Consolidation Officer on issue no. 2 to the prejudice of the petitioners. The Consolidation Officer has concluded weighing the probabilities arising from the advantages flowing from the compromise to the parties that the compromise is not genuine, apart from other reasons to conclude so.

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The Appellate Court writing in reversal of the findings by the lower Appellate Court about the genuineness of the compromise dated 23.11.1959 filed in Suit No. 270 of 1959 held that he had looked into the applications dated 18.11.1967, 14.10.1968 and 24.10.1968 filed by Keshav Prasad, on all these applications his signatures do not tally with each other. According to the Settlement Officer of Consolidation Keshav Prasad has also signed the ordersheet before the Consolidation Officer and those

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signatures are altogether different from his signatures on the applications that mentioned. The Settlement Officer, therefore, opined that from the commencement of these proceedings, the petitioner Keshav Prasad had taken precaution to disguise his signatures made in the lower Court so that the same may not tally with his signatures on the compromise dated 23.11.1959 filed in Suit No. 270 of 1959. The Settlement Officer also held that the other two petitioners, Ram Sumer and Ayodhya Prasad, have not put their thumb impressions or signatures on any of the applications moved in the proceedings before the Consolidation Officer. The Settlement Officer of Consolidation has justified his judgment of reversal on another limb of reasoning. He has remarked that there is a copy of a restoration application dated 09.12.1968 filed by the petitioners Keshav Prasad, Ayodhya Prasad and Ram Sumer before the Judicial Officer, Basti, seeking to set aside the decree based on compromise passed by him in the Suit. It has been further remarked that Keshav Prasad and others have not filed any order allowing the aforesaid restoration application. From the said fact, he has drawn an inference that it appears that the above mentioned restoration application has been rejected.

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In addition, the Settlement Officer of Consolidation has recorded a finding that he has perused the compromise dated 23.11.1959 and the Vakalatnama of the same date filed in those proceedings. He has held that the compromise was filed by Sri Girja Shankar Mukhtar on behalf of Keshav Prasad, Ram Sumer, Ayodhya Prasad, Nokhe, Raj Dulare, Harihar. None of these men, according to the Settlement Officer of Consolidation, have dared to examine Sri Girja Shankar Mukhtar in order to prove that he was not their Counsel in the suit before the Judicial Officer. Buttressing his reasoning, the Settlement Officer has taken note of the fact that the compromise decree dated 23.11.1959 had been incorporated in Khata Nos. 70 and 96. This fact, in the opinion of the Appellate Court, shows that the

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decree based on compromise was given effect to in revenue papers but by mistake it was not incorporated in the other Khata except those two.

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The Appellate Court has also taken into consideration the discordent reports of two finger print experts filed before him. These reports and the statements to prove them by Sri Leela Ram Jagtyani, Finger Print Expert and Ashok Kashyap, another expert, have been looked into by the Settlement Officer of Consolidation. He has opined that the report of Leela Ram is more reliable than that of Sri Ashok Kashyap. It is also remarked that the comparison done by the experts was at a distance of ten years when the compromise of 1959 was scripted. During this period of time, there would be some changes in the signatures of Keshav Prasad and Ram Sumer Pandey, a fact that would not detract from the validity of the compromise filed in Suit No. 270 of 1959. On these findings, the Appellate Court has reversed order of the Consolidation Officer.

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The Revisional Court dismissed the revisions filed by the petitioner on the ground that the compromise filed in the Suit No. 270/1959 was genuine and on this there are signatures of Keshav Prasad, Ram Sumer and Ayodhya on the compromise which was duly verified by Girja Shankar, Advocate. The Deputy Director of Consolidation has further held that the compromise in dispute is voidable and only Civil Court has jurisdiction to cancel the same.

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Learned counsel for the petitioner Sri Sanjeev Singh, has submitted that the finding of the Consolidation Officer regarding validity of compromise was in accordance with law. The compromise arrived in the Suit No. 270/1959 was fraudulent and therefore the Consolidation Officer rightly in the Consolidation proceedings, which was subsequent to the suit proceedings aforesaid, held it to be not binding on the parties. He has submitted that there was no necessity of getting the same set aside by

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instituting any proceeding before the Court. Being compromise obtained by fraud, it will not have any effect of res-judicata between the parties. He has relied upon the judgment of the Apex Court in the Case of Asharfi Lal Vs. Smt. Koili(dead) By L.Rs, 1995 (4 SCC) 163 wherein Apex Court had held that the judgment of a competent Court is normally binding on the parties to the proceedings and it operates as res-judicata in a subsequent proceedings between the same parties. An exception is engrafted under Section 44 of the Evidence Act which provides that any party to a suit or other proceeding may show that any judgment and order which is relevant under Sections 40, 41 and 42 of the Evidence Act and which has been proved by the adverse party as delivered by a Court not competent to deliver it or it was obtained by fraud or collusion is not binding on it. He has submitted that a judgment obtained by fraud or collusion does not operates as res-judicata and is not binding on the parties to the proceedings. Such a judgment can be avoided in subsequent proceedings by a party which is able to show that it was obtained by fraud or collusion. Institution of separate proceedings for getting it set aside is not necessary. Further reliance has been placed on the judgment of Division Bench of High Court of Kerala wherein, in paragraph 32 the same proposition has been reiterated. Reliance on the judgement of this Court in the case of Ibne Hasan Vs. Hasina Bibi and Ors, and MANU/ 0198/1984 has also been made wherein the Division Bench of this Court had occasion to consider this question and answer the same in a reference from paragraph 6 to 11 as follows:

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“ 6. Finding an apparent inconsistency between the two sets of judicial pronouncement the learned single Judge referred the following question to a Division Bench for its opinion.

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"Whether a party to a decree or a person claiming through such party can, under Section 44 of the Evidence Act, be allowed to avoid the effect of the decree on grounds of fraud or collusion?"

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The matter has thus come up before us for giving our opinion on the aforesaid question. Having heard counsel for the parties we are of opinion that the answer to the question aforesaid has to be in the affirmative. Now we proceed to give our reasons for this opinion. Sections 40 to 44 of the Evidence Act have been placed under the heading "Judgments of Courts of Justice when relevant". In the instant case we are concerned with Sections 40 and 44 and not with Sections 41 and 42. Even Section 43 will have some relevance for answering the question referred to us. As such for the sake of convenience Sections 40, 43 and 44 of the Evidence Act are being quoted. The illustrations given below Section 43 have been omitted:

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"40. Previous judgments relevant to bar a second suit or trial.--The existence of any judgment, order or decree which by law prevents any Court from taking cognizance of a suit or holding a trial, is a relevant fact when the question is, whether such Court ought to take congnizance of such suit or to hold such trial.

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43. Judgments etc., other than those mentioned in Sections 40 to 42 when relevant.--Judgments, orders or decrees, other than those mentioned in Sections 40, 41 and 42, are irrelevant unless the existence of such judgment, order or decree is a fact in issue, or is relevant under some other provision of this Act.

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44. Fraud or collusion in obtaining judgment, or in competency of Court, may be proved.--Any party to a suit or other proceeding may show that any judgment, order or decree, which is relevant under Section 40, 41 or 42, and which has been proved by the adverse party, was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion."

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7. Previous judgments can be read in evidence in subsequent suits only if they are relevant under any of the Sections 40, 41 and 42. Judgments other than those mentioned therein would be irrelevant in view of Section 43 unless they fall in the category of judgments referred to in the latter part of Section 43.

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Further, in view of Section 44 judgments referred to in Sections 40, 41 and 42 would not be relevant if it is established that they were delivered by a Court not competent to deliver the same or were obtained by fraud or collusion.

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8. Section 40 of the Evidence Act even without using the term 'Res judicata' refers to the consequences of res judicata. It is because of Section 40 that a judgment, which is relied on by a party in a subsequent suit in support of its plea of res judicata, becomes relevant and can be read in evidence. A previous judgment operates as res judicata between the parties to the earlier suit as also to persons claiming title through any such party. When Section 44 of the

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Evidence Act permits a party to a subsequent suit to prove that any of the ingredients of the said section is made out even in respect of a judgment which is relevant under Section 40 there seems to be no escape from the conclusion that even such judgment, which would otherwise operate as res judicata and would not be possible to be avoided by the parties to the suit in which such judgment was delivered or by persons claiming through any such party, can be avoided by them if any of the ingredients of Section 44 is made out. In that event such judgment would not be relevant and cannot form the basis of the plea of res judicata. The view which we take finds support from the decision of a Division Bench of this Court of which Sulaiman, J. who decided the case of Sahib Rai (AIR 1927 All 494) (supra) was a member, in Mt. Parbati v Gajrai (AIR 1937 All 28). White dealing with the scope of S. 11, C. P. C. it was held "In the first place it is always open to a party to show that a judgment was obtained by fraud or collusion or that there was want of Jurisdiction and in such eases we are of opinion that Section 11 would not apply".

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9. There is another reason why this view should hold good. As seen above the decision of Ram Lall. J. in the case of Ch. Mohammad Afzal (AIR 1947 Lahore 117) (supra) was endorsed and approved by the Privy Council in the case of Beli Ram and Brothers (AIR 1948 PC 168) (supra). In Kishan Chand v. Ram Babu (1964 All LJ 389) : (AIR 1965 All 65) a Full Bench of this Court has held that even after the Constitution the law declared by the Judicial Committee continues to be the (sic) the High Court until the Supreme Court ruled otherwise. No decision of the Supreme Court taking a contrary view has been brought to our notice. In this view of the matter the decisions of learned single Judges of this Court in the cases of Sahib Rai (AIR 1927 All 494) (supra) and Smt. Chauhana (AIR 1971 All 439) (supra) taking a contrary view are overruled.

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10. We may, however, point out that since Section 43 is not mentioned in Section 44 of the Evidence Act a judgment would still be relevant under the exception contained in the later part of Section 43 namely "unless the existence of such judgment, order or decree is a fact in issue, or is relevant under some other provision of this Act." even if it may not be relevant under Sections 40, 41 and 42 of the Act because of the said Section 44. As such if the ingredients of estoppel are made out the defendant appellant will still not be in a position to avoid the effect of the judgment in suit No. 126 of 1952. This view finds support from the decision of a Division Bench of this Court in Darbari Lal v. Mahboob Ali Mian (AIR 1927 All 538 (2)).

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11. In view of the foregoing discussion our answer to the question referred to us is that a party to a decree or a person claiming through such party can, under Section 44 of the Evidence Act, be allowed to

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avoid the effect of the decree on grounds of fraud or collusion and assert that the said decree cannot be relied on for the purpose contemplated by Section 40 thereof which includes providing the basis for the plea of res judicata, in view of the inclusion of Section 40 in Section 44 of the said Act. However, since Section 43 is not included in Section 44 of the said Act, collusive decree will still be relevant to support the plea of estoppel if the ingredients of estoppel are made out.”

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Learned counsel for the petitioner has further argued that the finding that there was difference in signatures of the Keshav Prasad, on the memorandum of compromise and his actual signature is an absurd finding. After ten years hand writing expert cannot give correct opinion in the absence of a contemporaneous signature/handwriting of the witness concerned. He has relied upon the judgment of the High Court of Hyderabad in Bande Siva Shankara Srinivasa Prasad Vs. Ravi Surya Prakash Babu and Ors. MANU/AP/07/2015 , wherein the Full Bench of the aforesaid High Court dealt with this issue and held that

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“In cases involving forged signatures not only should comparison signatures be obtained from documents of similar importance, but if possible also from documents which are roughly contemporary with those in question.

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Writing of an adult will show an obvious steady change with passage of time. In these circumstances provision of a whole set of signatures written over a period of years will prove of inestimable value to the document examiner.

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When serious illness occurs, a signature often undergoes a remarkable change in a very short period and if a suspect will is dated near the day of death, standard (admittedly genuine) signatures covering this period are essential if reliable evidence of the authenticity or otherwise of the signature is to be established.

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Normally, in the case of a typical adult, basic writing habits change gradually. Therefore, material written two or three years before or after the disputed writing serve as satisfactory standards, but as the lapse of years between the date of standards and questioned material becomes greater, the standards have a tendency to be less representative. Consequently, an effort should always be made to procure some standards (admittedly genuine writings / signatures) written near in date to the disputed matter.

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The gist of the experts opinion, emerging from the above Report, is to the effect that it is not always necessary to have contemporaneous handwritings/signatures for comparison. However, as a general rule, it would be desirable to undertake comparison of admitted handwritings/signatures with disputed handwritings/signatures which

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fall within the range of 2 or 3 years from each other. Therefore, there can be no hard and fast norm as to when comparison can or cannot be undertaken owing to the time lag between the two sets of handwritings/signatures. Various other factors would have to be taken into consideration, as opined by the experts, quoted hereinbefore. Each case would turn upon its own facts and circumstances relating to the time lag, the change in the handwriting/signature, the capability of correlating the two sets and ultimately, the opinion of the expert himself as to whether the two sets can be compared. It is therefore not open to the Court to refuse to entertain an application seeking comparison of disputed handwritings/signatures with admitted handwritings/ signatures on the ground of a long lapse of time between the two sets of handwritings/signatures.

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It has finally been submitted that by the learned counsel for the petitioners that before the hand writing expert, no documents signed by Keshav Prasad about the same period was produced to ascertain veracity of his signature. After more than ten years, there was bound to be change in his signature and therefore the entire procedure adopted by appellate court was not in accordance with law and the findings on the basis of report of such hand writing expert ought not to have been construed against the petitioners by the Settlement Officer and Deputy Director of Consolidation, Basti. He has submitted that when Keshav Prasad, Ram Sumer and Ayodhya Prasad, were present in the Court and executed vakalatnama on the same date, why they were not made to appear before the Court and execute compromise themselves has not been considered by the Appellate and the Revisional Courts. The clear case of the petitioners is that they never entered into any such compromise and the memo of compromise was unauthorized and not in conformity with the provisions of Order XXIII read with Rule 3 CPC. Reliance upon the judgment of this Court in the case of Ram Kumar and others Vs. DDC, Gautam Buddh Nagar and Others, [2010 (2) ADJ 74] has been made wherein this Court has interpreted order XXIII, Rule 3 CPC and held that a compromise before the Court must be lawful and the Court has to record its satisfaction in respect of aforesaid compromise. He has submitted that in the present case, the Court although recored the compromise, but no satisfaction was recorded that the same was lawful and not under cloud. He has submitted that the judgements and orders passed by the Appellate and Revisional Courts of consolidation are not in accordance with law and deserve to be set aside and the judgment of the Consolidation Officer deserves to be upheld.

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Learned counsel for contesting Respondent No. 3/1, Sri Tripathi B.G. Bhai, has submitted that the parties belong to common ancestors some of them started living at District Pratapgarh and some remained and continued to live in village Bilauli, District- Basti. He has further

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submitted that the disputed property was recorded in the name of petitioners’ side Keshav Prasad and others therefore, the proceedings under Section 229-B of U.P. Zamindari Abolition and Land Reforms Act were initiated by the respondents for and expunging the name of the petitioners from the plots in dispute and some other plots and for recording their names over the disputed property. The parties had entered into legal compromise on 23.11.1959 before the Sub-Divisional Officer and order was passed on the same date on the basis of compromise. Subsequently, a restoration application was filed by the petitioners before the SubDivisional Officer which was dismissed and the compromise/ order dated 23.11.1959 attained the finality. Since in the basic year, the name of the petitioners remained recorded, the respondents filed objection before the Consolidation Officer for recording their names on the basis of compromise dated 23.11.1959. The Consolidation Officer illegally disbelieved the compromise, however, the Appellate and the Revisional Courts corrected the stand taken by the Consolidation Officer and set aside his order. He has submitted that the finding of the Appellate and Revisional Courts that the compromise dated 23.11.1959 was valid is in accordance with law. He has relied upon the judgment of the Apex Court in the Case of Y. Sleebachen Vs. Superintending Engineer WRO/PWD, 2015 (5) SCC 747 wherein the Apex Court had held that a pleader can enter into compromise on behalf of his clients once he gets Power of Attorney/Authorization by his clients to appear in a matter. The signature of Advocate/Counsel on the compromise is deemed to be valid even when Order XXIII, Rule 3 CPC which requires a compromise to be in writing and signed by the parties. Further reliance has been placed on paragraphs 38, 39 and 40 the judgment of the Apex Court in the Case of Byram Pestonji Gariwala Vs Union Bank of India of the Apex Court reported in 1991- LAWS (SC)-9-21.

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Further reliance has been placed on the judgment of the Apex Court in the case of Bakshi Dev Raj (2) and Another Vs Sudheer Kumar (2011) 8 SCC 679. Reliance has been placed upon the judgment of Delhi High Court in the Case of Archies Greetings and Gifts Ltd Vs. Garg Plastic, (Delhi) Law Finder Doc Id # 64115.

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Final reliance has been placed upon the judgment of Karnataka High Court in the case of Krishna Gajanana Vedeshwar Vs Narayan Gajanan Vedeshwar, Law Finder Doc Id # 165030.

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After hearing the rival contentions this Court finds that there can be no dispute with the legal proposition that a compromise signed by the counsel on behalf of his client before the Court is valid in law and for all purposes and the clients of such counsel cannot dispute the authority of their counsel to execute such a compromise. However, the position becomes different when the allegation of practice of fraud, misrepresentation, etc., is made in the execution of compromise signed by

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the counsel for parties of one side and the parties themselves on the other side, as in the present case. It is on the record that on the date of execution of the disputed compromise dated 23.11.1959, the petitioners were present in Court, they had executed vakalatnama in favour of their counsel on the same day and on the same date i.e., 23.11.1959, the compromise was signed by their counsel on one hand and the other side on the other hand and compromise decree was passed. The object of the Order XXIII, Rule 3 CPC is to curtail litigation between the parties by concluding litigation with consent. The Apex Court in the case of Byram Pastonji Gariwala Vs. Union Bank of India (supra) has held that the counsel duly authorized by his client by signing the agreement or compromise contributes to decreasing loss of time in litigation and avoiding inconvenience to the party by singing a compromise on his behalf. However, the act of the counsel is doing so should be beyond reproach as held in the judgment of Byram Pastonji Gariwala (supra) in paragraph 37, the Apex Court has held as follows:

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“ We may, however, hasten to add that it will be prudent for counsel not to act on implied authority except when warranted by the exigency of circumstances demanding immedi- ate adjustment of suit by agreement or compromise and the signature of the party cannot be obtained without undue delay. In these days of easier and quicker communication, such contingency may seldom arise. A wise and careful coun- sel will no doubt arm himself in advance with the necessary authority expressed in writing to meet all such contingencies in order that neither his authority nor integrity is ever doubted. This essential precaution will safeguard the personal reputation of counsel as well as uphold the pres- tige and dignity of the legal profession.”

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24 . This Court after going through the judgment of the Consolidation Officer finds that compromise dated 23.11.1959 passed in suit filed under Section 229B, being Suit No. 270/1959, is in dispute. The petitioners, who were defendents in suit, were not the residents of District- Basti, but of District-Pratapgarh. The Consolidation Officer has recorded the finding that on the single vakalatnama, Kodai, Shiv Mangal, Ram Dulare, Keshav Prasad, Ayodhya and Ram Sumer have made signatures together when their interests were not the same but were different. The Consolidation Officer has recorded finding that all the aforesaid persons had colluded and proceeded against the petitioners, Keshav Prasad and others, in getting the disputed compromise executed. Due to execution of compromise except, Keshav Prasad, Ayodhya and Ram Sumer, the petitioners, all the parties to the compromise got benefitted. The Consolidation Officer further recorded the finding that Ram Lagan, etc., have colluded with Kodai, etc. Before the Consolidation Officer, Kodai, Ram Dulare admitted the share of Ram Lagan and stated that the compromise was correct. The

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Consolidation Officer found that because after cancellation of the names of Keshav Prasad, Ayodhya and Ram Sumer, the petitioners from the plot nos. 725, 211, 765, 864, 83 and 136, name of Shiv Mangal and others were recorded and on Plot No. 54, etc., the name of Ram Lagan etc., was recorded, therefore, all of them colluded and by filing a joint vakalatnama they succeeded in grabbing the land of Keshav Prasad and others, the petitioner. He has submitted that Ram Lagan and others had no right or title to plots in dispute, their rights and titles evolved except on the basis of the disputed compromise hence, the compromise was held to be unlawful and not binding by the Consolidation Officer on the petitioners.

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This Court finds that the aforesaid findings of the Consolidation Officer have not been considered by the Settlement Officer nor they have been set aside. The Settlement Officer Consolidation has called for finger print experts report which were bound to differ since in year 1959, when the compromise took place in the year 1959 much time had passed and signatures of Keshav Prasad and Ram Sumer on the compromise differed. The Appellate Court also recorded the finding that the compromise was given effect regarding some Khatas , but by mistake it was not given effect in remaining Khatas . Both the Appellate and the Revisional Court have held that the petitioners had filed restoration application for recalling the compromise dated 23.11.1959, but since there is nothing on record regarding the order passed on the aforesaid application, both the Courts presumed that their restoration application was rejected and therefore the compromise between the parties attained finality.

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In case, the compromise was got fraudulently executed without knowledge and consent of the petitioners, a restoration application could also have been filed by the interested parties and got the same dismissed for want of prosecution or by not pressing the same without the knowledge of the petitioners. The counsel for petitioners got the vakalatnama of the petitioners’ on 23.11.1959 which he filed on the same date and he also filed a compromise on their behalf and on the same date and got an order of compromise passed on the same date. The conduct of the counsel clearly comes under the cloud as held by the Apex Court in the Case of Byram Pastonji Gariwala in paragraph 37 (supra) . There is no finding recorded by the Court that compromise was arrived at by the parties with free consent and without any undue influence and fraud.

¶73

The Revisional Court has relied upon a case law reported in Lucknow, Law Report, February, 1976, Page 32 to 58, Ram Nath Vs. Smt. Munni and has held that decree dated 23.11.1959 was voidable and therefore only the Civil Court had jurisdiction to set aside the same and till it is set aside by the competent Court, it will be binding on the parties. Revisional Court further held that after the disputed compromise decree dated 23.11.1959 was passed an application for cancelling the same was filed on 09.12.1968. Both the parties have not been able to inform about

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the fate of application and therefore inference was drawn that the aforesaid application got dismissed. Had it been pending evidence of the same would have been filed before the Consolidation Officer. Thirdly, the Revisional Court considered the two finger prints expert reports submitted before the Settlement Officer Consolidation and believed the report against the petitioners. The death certificate of the father of the petitioners, namely, Musai, was produced before the revisional court to prove that he was alive when the compromise decree dated 23.11.1959 was passed and therefore, the petitioners had no right to enter into compromise. The death certificate of Musai was filed, proving his death on 14.09.1964, but the Revisional Cout found that although the death certificate has been produced, but no such copy was found to be issued.

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This Court finds that the finding recorded by the Deputy Director of Consolidtion that a suit is required to be filed for seting aside the decree dated 23.11.1959 on the basis of some judgment of this Court is not in accordance with law. As discussed earlier, a document which is proved to have been obtained by way of fraud or misrepresentation can be ignored in subsequent proceedings as held by the Apex Court in the Case of Asharfi Lal (supra), and Division Bench of this Court in the case of Ibne Hasan (supra) .The second finding of the Revisional court that the restoration/recall application filed for recall of the compromise decree dated 23.11.1959 is deemed to be dismissed since both the parties have not produced any order is not correct since the case of the petitioners from the very beginning was that they were never aware of the filing of the Suit No. 70/1959, the filing of restoration was in the knowledge of the respondents. Instead of summoning record of the suit aforesaid, the Settlement Officer Consolidation as well as the Deputy Director Consolidation presumed that such restoration/recall application was dismissed. Even if it was dismissed the legal petition as per Section 44 of Evidence Act will not be affected.

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The third finding regarding the signature expert reports was also not in accordance with law as discussed earlier in this judgment. The last finding regarding the death of the father of the petitioners’ Musai, after the decree is not very relevant since the entirity of facts and circumstances of this case prove that the conduct of the alleged counsel for the petitioners was not fair. The engagement of the counsel, execution of compromise on behalf of petitioners by the counsel and passing of order or compromise on same date i.e., 23.11.1959, are clouded in suspicion.

¶78

Before parting with this case, this Court finds that it is a settled position of law that, an appeal is a continuation of the proceedings of the original court. Ordinarily, the appellate jurisdiction involves a re-hearing on law as well as on fact and is invoked by an aggrieved person. The first appeal is a valuable right of the Appellant and therein all questions of fact and law decided by the trial court are open for re-consideration. Therefore,

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the first appellate court is required to address itself to all the issues and decide the case by giving reasons.

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The Court of first appeal must record its findings only after dealing with all issues of law as well as fact and with the evidence, oral as well as documentary, led by the parties. The judgment of the first appellate court must display conscious application of mind and record findings supported by reasons on all issues and contentions. When the appellate court agrees with the views of the trial court on evidence, it need not restate effect of evidence or reiterate reasons given by trial court. Expression of a general agreement with the reasons given by the trial court would ordinarily suffice. However, where it disagrees with the same elobrate reasons are regained to be given which has not been done in this case as considered above. The appellate Court has summoned new evidence in the form of hand writing expert’s report and decided the Appeal without discussing and setting aside the findings of the Consolidation Officer.

¶82

The Revisional Court has also failed to exercise the jurisdiction vested in it by law. Wide scope of the revisional powers of the Deputy Director of Consolidation under Section 48 of the Act has been endorsed by this Court in Ram Jeet & others vs. Deputy Director of Consolidation, Jaunpur and others, Writ - B No.42465 of 1999, decided on 31.05.2013, where it has been held thus:

¶83

"Supreme Court in Ram Dular Vs. DDC and others, 1994 (Supplement) (2) SCC 198, Preetam Singh Vs. DDC and others, (1996) 2 SCC 270, Sheo Nand Vs. DDC and others, (2000) 3 SCC 103, Gulzar Singh Vs. DDC and others, (2009) 12 SCC 590 has consistently held that Deputy Director of Consolidation has very wide power to decide issue relating to fact and law both under Section 48 of the Act after reappreciating the evidence on record. Apart from it Explanation III has been added in Section 48 of the Act with retrospective effect from 10.11.1980 which provides that the power under this Section to examine the correctness, legality or propriety of any order includes the power to examine any finding, whether of fact or law, recorded by any subordinate authority and also includes the power to reappreciate any oral or documentary evidence.”

¶84

There is another aspect of the matter, which is far reaching import about the manner in which the Deputy Director of Consolidation has written his judgment.

¶85

The judgment of a Revisional Court has to open, go through and end like a judgment of reappraisal of what the two Courts or Authorities below have done. The approach of reappraisal has to be supervisory, and not open appellate. May be, in the case of a revision under Section 48 of the Act, the standard of reappraisal is wider than that traditionally associated with exercise of Revisional jurisdiction. But, all the same, a

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revisional court cannot decide and write its judgment as if it were a Court of first instance, without referring to and affirming or reversing the findings of the two Authorities below. In the present case, the impugned judgment has precisely done that. It reads like an original judgment written in the third instance. It does not give any reason to agree with what the Appellate Court and disagree with what the trial court has said. It has given in its own reasons and new ground that compromise decree in dispute was voidable and required to be set aside by competent court. It has not considered whether the appellate court has considered property the findings recorded by the trial court. It has also not itself exercised its jurisdiction of reappraisal of both the judgments of the courts below.

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In view of the above consideration, this court finds that the orders passed by the Settlement Officer Consolidation, Basti and the Deputy Director of Consolidation, Basti, impugned in the writ petition cannot be sustained and are hereby, quashed .

¶89

The order of the Consolidation Officer is upheld.

¶90

The writ petition is allowed.

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Order Date :-10.07.2023

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Abhishek

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Digitally signed by :- ABHISHEK YADAV High Court of Judicature at Allahabad

Keshav Pd. v. D.D.C. and Others

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