Mukesh Kumar Agrawal Vs Munni Devi

1 - Munni Devi, W/o Ramprakash Agnihotri, Aged About 60 Years R/o Near Chuna Bhatta, Kotra Road, Raigarh, Tahsil & District Raigarh (C.G.) (Plaintiff)

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2 - Ganga Devi, W/o Bhanaram Sharma, Aged About 65 Years R/o Vikash Nagar, Street No.3, Kotra Road, Raigarh, Tahsil & District Raigarh (C.G.) (Defendant No.1) 3 - State of Chhattisgarh, through Collector Raigarh, District Raigarh, (C.G.) (Defendant No. 3)

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4 - Jitendra Devangan, Shreeram Finance Limited, Kotra Road, Raigarh (C.G.) (Defendant No. 4)

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	... Respondents
For Appellant	: Mr. Manoj Paranjpe, Advocate with Mr. Sandeep Patel, Advocate.
For Resp. No. 1	: Mr. Vivek Tripathi, Advocate.
For State	: Mr. Kishan Lal Sahu, Dy. Govt. Advocate.
For Resp. No. 4	: Mr. Sourabh Agrawal, Advocate on behalf of Mr. Ratnesh Kumar Agrawal, Advocate.

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Hon'ble Shri Justice Narendra Kumar Vyas

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(CAV Judgement)

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This is defendant’s first appeal against the judgment and decree dated 31.03.2017 passed by the learned Second Additional District Judge, Raigarh, District- Raigarh (C.G.) in Civil Suit No. 16-A/2012 (Munni

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ARUN KUMAR DEWANGAN

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Digitally signed by ARUN KUMAR DEWANGAN Date: 2025.09.09 16:53:50 +0530

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Devi Vs. Ganga Devi & others) by which the suit filed by the plaintiff has been decreed by declaring the order passed by the revenue authorities as null and void.

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For the sake of convenience, the parties shall be referred to in terms of their status shown in Civil Suit No. 16-A/2012 before the trial Court.

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Brief facts as reflected from plaint averments are that:-

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(A) The plaintiff filed a suit for declaration of title, possession, canceling the agreement dated 05.05.2003 executed between sister of plaintiffMunni Devi namely Gangadevi and Mukesh Kumar S/o Om Prakash Agrawal and mutation order dated 06.05.2003 passed by Tahsildar in favour of Mukesh Agrawal as well as the appellate order dated 22.10.2007 passed by Sub-Divisional Officer, Raigarh, as null & void with regard to property i.e. dilapidated house constructed over Khasra No. 8/6 area 4 dismill situated at Baikunthpur, Ward No. 22 Old Raigarh (hereafter referred to as “the suit property”) mainly contending that one Surajbhan filed a suit on 07.04.1971 which is registered as Civil Suit No. 74-A/72 before learned Civil Judge Class-II, Raigarh for possession, arrears and damages which was decreed on 20.10.1973 and in pursuance of the same, Surajbhan has taken possession of the suit property in presence of witnesses and accordingly, the decree was executed and the execution proceeding was dismissed on 03.01.1975. This fact came to the knowledge of the plaintiff on 24.12.2007 when she obtained certified copy of the order on 24.12.2007.

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(B) It is also case of the plaintiff that Surajbhan in pursuance of decree dated 20.10.1973, filed an application for mutation and also for correction in revenue record for mutating his name in the registration

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register and accordingly, at serial No. 278, in records name of Surajbhan was recorded mentioning that it has been purchased for Rs. 2000/- and the same has been purchased from Tiknu. It is also case of the plaintiff that Surajbhan after obtaining of the suit property on 21.10.1974 has executed a sale-deed in favour of Ganga Devi w/o Bhana Ram Sharma & Munni Devi w/o Ram Prakash Agnihotri and half of the share of the suit property has been sold to them and possession has been given and they have also mutated their names in the revenue record. Munni Devi recorded her name in the suit property in the year 1985-86 and Ganga Devi has also recorded her name in the revenue record.

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(C) It is also case of the plaintiff that Surajbhan S/o Devi Sai Agrawal has also recorded one dilapidated house i.e. suit property in his name and as per boundary described in the records, in the East side, house of Phoolchand, in the West side, house of Milap Rawat, in the North side, street & in the South side, road, property of Gangadevi w/o Bhana Ram Sharma, R/o Gandhiganj, Raigarh was described which is said to have been purchased through registered sale-deed from Ganga Devi W/o Bhana Ram Sharma i.e. defendant No. 2 who is the sister of the plaintiff. Accordingly, the same was recorded in the office of Deputy Registrar, Stamps at Serial No. 1705/Additional/I/196 which is the suit property.

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(D) It is also case of the plaintiff that Ganga Devi/ defendant No. 2 through its registered sale-deed dated 03.12.0981 has got recorded the suit property bearing Khasra No. 8/5 area 0.032 Hectare situated at Baikunthpur, Raigarh, in her name. It is also case of the plaintiff that

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the suit property was earlier bearing Khasra No. 8/1D area 0.52 dismill which was recorded in the name of one Heeralal S/o Samund Yadav out of which 0.08 dismill i.e. 0.032 Hectare has been sold by Mukesh who was minor to Bali S/o Om Prakash for sale consideration of Rs. 95/- on 26.05.1984 through unregistered sale-deed. Thereafter, he moved an application for mutation wherein mutation order was passed on 02.08.1986 and in the kishtabandi khatauni, name of Mukesh Kumar S/o Om Prakash has been recorded deleting the name of Munni Devi W/o Ram Prakash Agnihotri. Against that, an appeal was preferred by Munni Devi/plaintiff before the appellate authority who has remitted back the matter to the Tahsildar to pass an order after hearing Munni Bai and Ganga Devi and all other interested parties. Mukesh/respondent has preferred an appeal before the Additional Commissioner (Revenue) who has set aside the order of SubDivisional Officer dated 24.11.1988. Against that, the plaintiff has preferred an appeal before the learned Board of Revenue on 28.04.1993 and the revision filed by the plaintiff Ganga Devi has been partly allowed vide order dated 02.09.1998 and the order of SubDivisional Officer order dated 24.11.1988 was restored and the matter was remitted back for deciding the same afresh.

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(E) It is also case of the plaintiff that after remand, proceeding was initiated before the Tahsildar wherein it has been alleged that defendant No. 4- Munni Devi who is resident of Korba has submitted before the Tahsildar that they are in process of compromising the dispute with defendant No. 1 and accordingly, the matter was fixed for hearing on 02.05.2003 for compromise and on 02.05.2003 again adjournment was sought for submission of compromise. As such, the

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matter was fixed on 05.05.2003 and on that day, 4 dismill land was given to Mukesh. It is also case of the plaintiff that Mukesh has constructed temporary godown dumping and earning from suit property, therefore, she has filed present suit for mens rea profits to the tune of Rs. 3,24,000/- from defendant No. 2/ Mukesh Kumar Agrawal as well as declaration and possession of the suit property.

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Defendant No. 2 has filed written statement denying the allegations made in the plaint regarding question of execution of sale-deed and agreement. It has been contended that no manipulation or fraud has been committed by them to proceed exparte against Munni Devi and Ganga Devi has not committed fraud in absence of the plaintiff. So far as proceeding initiated before the Civil Court as well as revenue authorities is concerned, there is no denial. It has also been contended that the agreement was executed by not committing any fraud and would pray for dismissal of the suit.

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Learned trial Court on the basis of the evidence and pleadings of the parties, has framed as many as six issues which are as under:-

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“1- D;k oknh cSdq.Biqj okMZ uacj 22 uxjikfydk ifj{ks= jk;x<+ esa fLFkr edku uacj 8@5 jdck 0-032 gs0 dh LoRof/kdkj gS \

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2- D;k mDr fookfnr edku ds laca/k esa xaxknsoh ¼izfroknh dzekad 1½ ds }kjk eqds’k dqekj ¼izfroknh dzekad 2½ ds i{k esa fu"ikfnr jkthukek i= fnukad 05@05@2013 voS/k gksus ls 'kwU; gS \

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3- D;k oknh okn Hkwfe dk fjDr vkf/kiR; izfroknh dzekad 2 ls izkIr djus dk vf/kdkjh gS \

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4- D;k oknh izfroknhx.k ls oknHkwfe dk e/;orhZ ykHk 3]24]000 :i;s ikus dk vf/kdjh gS \

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5- D;k oknh us nkos dk mfpr ewY;kadu dj mfpr U;k; 'kqYd vnk fd;k gS \

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6- lgk;rk ,oa okn O;; \”

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The plaintiff to substantiate his case has examined Munni Devi (PW-1), Ram Prakash Agnihotri (PW-2) and exhibited documents namely sale-

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deed dated 24.09.1968 (Ex. P/1), copy of plaint filed by Surajbhan in eviction suit (Ex. P/2), copy of judgment and decree dated 20.10.1973 (Ex. P/3), copy of order-sheet of execution proceeding (Ex. P/4), copy of application for initiation of execution proceedings (Ex. P/5), copy of attachment application (Ex. P/6), execution report of possession warrant (Ex. P/7), mutation order dated 30.04.1978 (Ex. P/8), saledeed dated 03.12.1981 (Surajbhan to Ganga Devi) (Ex. P/9), saledeed dated 03.12.1981 (Surajbhan to Munni Devi) (Ex. P/10), copy of P-II for year 1985-87 (Ganga Devi name recorded) (Ex. P/11), copy of P-II for year 1985-87 (Munni Devi name recorded) (Ex. P/12), notice sent to Tiknu in revenue proceedings (Ex. P/13), order passed in Revenue proceedings (Ex. P/14), report given by Revenue Inspector (Ex. P/15), copy of maintenance Khasra for year 1984-85 (Ex. P/16), map of suit property (Ex. P/17), copy of order passed by the Board of Revenue dated 02.09.1998 (Ex. P/18), copy of B-1 (Ex. P/19 & P/20), copy of mutation order in favour of defendant No. 2 (Ex. P/21), copy of title page of mutation proceedings (Ex. P/22), copy of mutation application filed by defendant No. 2 (Ex. P/23), copy of order-sheet of appeal proceedings filed against mutation order (Ex. P/24), copy of appeal memo (Ex. P/25), reply to appeal filed by defendant No. 2 (Ex. P/26), copy of compromise between defendant No. 1 & 2 (Ex. P/27), order dated 22.10.2007 passed by the Sub-Divisional Officer in appeal (Ex. P/28), notice under Section 80 of the CPC (Ex. P/29), receipt of notice filed under Section 80 of the CPC (Ex. P/30) & acknowledgment of receipt (Ex. P/31 & 32).

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The defendant to substantiate his case has examined Mukesh (DW-1) and exhibited documents namely copy of premium receipt of diversion

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(Ex. D/1), copy of order-sheet of revenue proceeding (Ex. D/2), copy of relevant documents required for diversion (Ex. D/3), order dated 22.10.2007 passed by Sub-Divisional Officer in appeal (Ex. D/4), copy of order dated 06.05.2003 passed by Tahsildar (Ex. D/5), copy of map (Ex. D/6), copy of Khasra Panchashala for year 1994-95 (Ex. D/7), B-1 for year 1993-94 (Ex. D/8), copy of record of rights (Ex. D/9), sale-deed dated 11.12.1985 executed between Surajbhan & Munni Devi (Ex. D/10) & sale-deed dated 26.05.1984 executed between Heeralal to Mukesh Agrawal (Ex. D/11).

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Munni Devi (PW-1) has examined by way of affidavit as provided under Order 18 Rule 4 C.P.C. wherein she has reiterated the stand taken by her in the plaint and she has been cross-examined by the defendant wherein she has admitted that Surajbhan has purchased the suit property from Heeralal and Heeralal was original landlord and the suit property has been sold by Surajbhan after purchasing the same.

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Ram Prakash Agnihotri (PW-2) has been examined by way of affidavit as provided under Order 18 Rule 4 of CPC wherein he has supported the case of the plaintiff stating that Heeralal was original owner of the suit property and he has sold the suit property to Mukesh. He has also stated that he is not aware that if any mistake is cropped up while correcting the previous owner, is required to be heard. He has also admitted that he has purchased 8 dismill of land. This witness has been cross-examined wherein he has admitted that khasra number of the suit property is 8/1D. He has denied that no other person than Heeralal has sold the suit property. He has also admitted that Surajbhan has not given boundaries of the disputed land. He has

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voluntarily stated that a dilapidated house admeasuring 3811 sq.ft. was existing.

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Mukesh (DW-1) has been examined by way of affidavit as provided under Order 18 Rule 4 of CPC wherein he has reiterated the stand taken by him in the written statement and in the cross-examination, he has stated that when the application for mutation was submitted before Tahsildar after order passed by the Revenue Board, he did not ask his father that why Munni Devi & Ganga Devi are to be made party and what is their role. He has denied that Tiknu has purchased the land of Heeralal and Tiknu & Heeralal lands are separate. He is not aware that on the basis of execution of Ex. P/7, mutation order Ex. P/8 has been made in the name of Surajbhan. He is also not aware that any agreement was executed with Ganga Devi in the Court of Tahsildar. He has also stated that he has submitted document Ex. D/11 which pertains to agreement and also stated that the entire proceedings were conducted between his father Om Prakash and Ganga Devi wherein he was not present before the Notary Janki Prasad Patel. He has also stated that in the proceeding before Tahsildar, he never participated and his father Om Prakash has participated. He has also stated that he has put his signature in the Vakalatnama (Ex. P/23). He has also stated that the document Ex. P/27 which is an agreement is wrong. He has also stated that the document (Ex. D/11) which is an agreement is wrong but he has not made any complaint before any court in this regard. He has also stated that as per Ex. D/11, he has purchased 8 dismill land and as per Ex. D/10, he has purchased 44 dismill land. He has admitted that seller of land as per Ex. D/10 & D/11 is resident of Heerapur. He has denied that Ganga Devi is in possession of 4 dismill

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of land out of 8 dismill which he has purchased. He has also denied that he has given possession of 4 dismill of land to Ganga Devi on the basis of agreement.

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Learned trial Court after appreciating the evidence and material on record has decreed the suit of the plaintiff. Learned trial Court while deciding Issue No. 2 has recorded its finding that in the agreement, it has been mentioned that after deliberation, agreement has been executed and in pursuance of the agreement, 4 dismill land of defendant No. 1 of Ganga Devi and 4 dismill land of Munni Devi have to be transferred in the name of defendant No. 2 and when defendant No. 1 Ganga Devi is only entitled to transfer 4 dismill of land which is recorded in her name then how she can execute the sale-deed for 4 dismill of land belongs to Munni Devi, therefore, Ex. P/27 being without jurisdiction is null and void. Accordingly, the mutation order dated 06.05.2003 (Ex. P/21) and order dated 22.10.2007 (Ex. P/28) are also null and void, therefore, it is proved that the plaintiff is entitled to get declaration of title of land bearing Khasra No. 8/5 area admeasuring 0.032 Hectare which is 4 dismill and defendant No. 2 has no title over the suit property. Being aggrieved with this judgment and decree passed by the trial Court, defendant No. 2 has preferred the instant appeal before this Court.

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Learned counsel for the appellant would submit that the impugned judgment and decree passed by the learned trial Court is illegal, erroneous and contrary to the law. He would further submit that the learned trial Court has grossly erred in declaring order dated 06.05.2003 passed by Tahsildar, Raigarh and order dated 22.10.2007

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passed by the Sub-Divisional Officer, is null and void and further holding that the compromise made between defendant No. 1 & 2 was illegal and it was made in collusion between defendant No. 1 & 2. He would further submit that the learned trial Court has failed to appreciate that the counsel for the plaintiff appeared on 06.05.2003 when compromise was taken place and he also put his signature in the application of compromise on behalf of the plaintiff, therefore, the said compromise would be deemed to compromise on behalf of the plaintiff. He wold further submit that learned trial Court has failed to appreciate that the plaintiff filed suit for possession, however, it is not disclosed by the plaintiff in the plaint that when defendant No. 2 dispossessed her from the suit land which proves that the plaintiff has never been in possession of the suit land and defendant No. 2 was in physical possession of the suit land, therefore, if any sale-deed was executed by Surajbhan Agrawal in favour of the plaintiff without delivering possession of suit land, no title can be acquired in favour of the plaintiff from such sale-deed.

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He would further submit that in the sale-deeds of plaintiff and defendant No. 1, Khasra No. of sold land is not mentioned, only four boundaries are mentioned which is differ from four boundaries of saledeed of defendant No. 2. He would further submit that according to the sale-deed executed between the plaintiff and defendant No. 1, Aabadi land was sold out of them whereas in evidence of the plaintiff, the plaintiff admitted that Khasra No. 8/1gh is not Aabadi land which proves that the plaintiff purchased some other land which is not part of Khasra No. 8/1gh and would pray for setting aside the judgment and decree passed by the trial Court. He would further submit that learned trial

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Court has also committed illegality in decreeing the suit without any evidence led by the plaintiff that the agreement executed on behalf of the plaintiff is forged one. He would further submit that when lawyer has been duly represented in the proceeding, therefore, it is incumbent upon the plaintiff to plead and prove that she was misleaded and fraud has been committed but no such strong evidence was placed on record by the plaintiff whereas it is well settled position of law that the burden lies on the persons who plead fraud and would pray for dismissal of the appeal.

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On the other hand, learned counsel for the plaintiff/respondent No. 1 supporting the judgment and decree passed by the trial Court would submit that the trial Court on the basis of evidence and material on record has recorded its finding which is not perverse and contrary to the law. He would further submit that from perusal of statement of Mukesh (DW-1), it is quite vivid that he has never appeared before Revenue Court for any proceeding and he is not aware of any agreement with defendant No. 2 Ganga Devi of dismissal of the case on 06.05.2003 and this fact is known to his father only. He has also stated that his father Om Prakash and Ganga Devi had gone to Notary Janak Prasad on 05.05.2003 and on that date, he was not present there. He would further submit that he has signed in the Vakalatnama as reflected in the Ex. P/23 and the signature mentioned in the compromise Ex. P/27 is wrong, as such the plaintiff has placed sufficient material to record such findings by the trial Court that the fraud has been committed. Thus, the finding recorded by the trial Court neither suffers from perversity or illegality which warrants any interference by this Court and would pray for dismissal of the appeal.

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I have heard learned counsel for the parties and perused the record with utmost satisfaction.

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From submissions made by the parties, the Point emerged for determination of this Court is:-

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“Whether the finding recorded by the trial Court with regard to execution of agreement by committing fraud is liable to be set aside by this Court ?”

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To appreciate this point, it is expedient for this Court to go through the documents produced before the trial Court, particularly Ex. P/9 i.e. sale-deed dated 03.12.1981 executed between Ganga Dei & Surajbhan, Ex. P/10 i.e. sale-deed dated 03.12.1981 executed between Munni Devi & Surajbhan, Ex. P/11 i.e. copy of Khasra Panchshala for the year 1985-86 wherein name of Ganga Devi has been recorded and Ex. P/12 i.e. copy of Khasra Panchshala for the year 1985-86 wherein name of Munni Devi has been recorded. From perusal of Ex. P/9 , it is quite vivid that the sale-deed dated 03.12.1981 executed between Ganga Devi & Surajbhan in which description of the suit property has been mentioned as Village- Baikunthpur, Ward No. 22, Old Raigarh, Khasra No. 212, Patwari Halka No. 41, BlockRaigarh, Municipal Corporation- Raigarh. The boundaries have been described as in the East, land purchased by Munni Devi, in the South, road, in the North, street and in the West, Milap Rawat house. In the Ex. P/10 , which is sale-deed dated 03.12.1981 executed between Munni Devi & Surajbhan in which description of the suit property has been mentioned as Village- Baikunthpur, Ward No. 22, Old Raigarh, Khasra No. 212, Patwari Halka No. 41, Block- Raigarh, Municipal

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Corporation- Raigarh. The boundaries have been described as in the East, Phoolchand house, in the South, road, in the North, street and in the West, the land purchased by Ganga Devi.

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In view of the above, it is quite vivid that both the properties have been purchased and recorded in the name of plaintiff and defendant No. 1 separately. From perusal of the order-sheet of the proceedings before the Tahsildar (Ex. P/22), it is also quite vivid that initially counsel was representing only on behalf of defendant No. 1, later on the counsel who is representing defendant No. 1 has also marked his presence on behalf of the plaintiff as reflected in the order-sheet on 18.02.2003 by filing Vakalatnama on behalf of Munni Devi. Thereafter the matter was taken up on 22.04.2003. On that date, both the parties have sought time to lead evidence and accordingly, the matter was fixed for 28.04.2003 on that date, it has been informed that the agreement has been arrived at between the parties and for that they sought time to produce original agreement. On 30.04.2003, plaintiff- Munni Devi was absent and the counsel for Ganga Devi was present thought he was representing both the parties, as such the Tahsildar proceeded exparte against the plaintiff and the matter was fixed on 02.05.2003. In the proceedings, on behalf of Mukesh Agrawal and Ganga Devi, it was informed that both the parties intent to submit an agreement, therefore, adjournment was sought for production of agreement. On 05.05.2003, counsel for defendant No. 1/ Ganga Devi & defendant No. 2/ Mukesh Agrawal have submitted the agreement and thereafter statement of Bhana Ram Sharma was recorded and on the basis of the agreement, the Tahsildar has passed the order mutating the name of Mukesh Kumar in the land bearing Khasra No. 8/1gh area admeasuring 0.178

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Hectare and in Khasra No. 8/6 area 0.016 Hectare after overwriting the Khasra No.

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Learned trial Court in paragraph 21 has recorded its finding that once the counsel for Munni Devi was making representation on 30.04.2003 then Tahsildar has committed illegality in treating Munni Devi ex-parte on 05.05.2003 on the basis of agreement signed between Ganga Devi and Mukesh Kumar. It has also been assigned reason by recording its finding which cannot be said to suffer from perversity or illegality. Even otherwise, defendant No. 2 was not authorized to execute the agreement on behalf of the plaintiff unless and until any authorization on behalf of the plaintiff is given in her favour. No. such material was placed on record and in absence of such material, it cannot be said that the finding recorded by the learned trial Court with regard to Issue No. 1 & 2 suffers from perversity or illegality which warrants any interference by this Court. It is the fraud which reflects from the records, order-sheet and conduct of the counsel, as such, there is sufficient material placed by the plaintiff to demonstrate that she is sufferer of fraud not only committed by her sister, her counsel, defendant No. 2 and the revenue officer who has conducted the proceedings. The fraud has been defined in Section 17 of the Indian Contract Act, 1872 which reads as under:-

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“ 17. 'Fraud' defined .—'Fraud' means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract:— (1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true;

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(2) the active concealment of a fact by one having knowledge or belief of the fact;

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(3) a promise made without any intention of performing it;

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(4) any other act fitted to deceive;

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(5) any such act or omission as the law specially declares to be fraudulent.”

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It is well settled position of law that fraud vitiates everything. The Hon’ble Supreme Court in case of Vishnu Vardhan @ Vishnu

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Pradhan Vs. The State of Uttar Pradesh & Ors. and other

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connected cases [2025 INSC 884] has held as under:-

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“a. In United India Insurance Co. Ltd. v. Rajendra Singh [(2000) 3 SCC 581] , this Court reiterated that fraud unravels everything:

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3. “Fraud and justice never dwell together” (fraus et jus nunquam cohabitant) is a pristine maxim which has never lost its temper over all these centuries. Lord Denning observed in a language without equivocation that “no judgment of a court, no order of a Minister can be allowed to stand if it has been obtained by fraud, for, fraud unravels everything” (Lazarus Estates Ltd. v. Beasley [(1956) 1 QB 702 : (1956) 1 All ER 341 : (1956) 2 WLR 502 (CA)] ).

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b. In Srisht Dhawan (Smt) v. Shaw Bros. [(1992) 1 SCC 534] , it was held:

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20. Fraud and collusion vitiate even the most solemn proceedings in any civilised system of jurisprudence. It is a concept descriptive of human conduct. Michael Levi likens a fraudster to Milton's sorcerer, Comus, who exulted in his ability to, ‘wing me into the easy-hearted man and trap him into snares’. It has been defined as an act of trickery or deceit. In Webster's Third New International Dictionary fraud in equity has been defined as an act or omission to act or concealment by which one person obtains an advantage against conscience over another or which equity or public policy forbids as being prejudicial to another. In Black's Legal Dictionary, fraud is defined as an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or surrender a legal right; a false representation of a matter of fact whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury……..

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c. In A.V. Papayya Sastry v. Govt. of A.P. [(2007) 4 SCC 221 , this Court held:

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21. Now, it is well-settled principle of law that if any judgment or order is obtained by fraud, it cannot be said to be a judgment or order in law. Before three centuries, Chief Justice Edward Coke proclaimed:

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“Fraud avoids all judicial acts, ecclesiastical or temporal.”

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22. It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the court, tribunal or authority is a nullity and non est in the eye of the law. Such a judgment, decree or order—by the first court or by the final court—has to be treated as nullity by every court, superior or inferior. It can be challenged in any

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court, at any time, in appeal, revision, writ or even in collateral proceedings.

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**23. *****

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24. In Duchess of Kingstone, Smith's Leading Cases, 13th Edn., p. 644, explaining the nature of fraud, de Grey, C.J. stated that though a judgment would be res judicata and not impeachable from within, it might be impeachable from without. In other words, though it is not permissible to show that the court was “mistaken”, it might be shown that it was “misled”. There is an essential distinction between mistake and trickery. The clear implication of the distinction is that an action to set aside a judgment cannot be brought on the ground that it has been decided wrongly, namely, that on the merits, the decision was one which should not have been rendered, but it can be set aside, if the court was imposed upon or tricked into giving the judgment.

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25. It has been said : fraud and justice never dwell together (fraus et jus nunquam cohabitant); or fraud and deceit ought to benefit none (fraus et dolus nemini patrocinari debent).

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d. The judgment by Denning, L.J. in Lazarus Estates Ltd. (supra), which has since been quoted with approval by this Court in a catena of decisions including Nidhi Kaim (supra), asserted intolerance for fraud in legal proceedings in the following words:

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No court … will allow a person to keep an advantage which he has obtained by fraud. […] Fraud unravels everything. The court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved, it vitiates judgments, contracts and all transactions whatsoever….

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85. In Inderjit Singh Grewal v. State of Punjab [(2011) 12 SCC 588] this Court held that:

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17. It is a settled legal proposition that where a person gets an order/office by making misrepresentation or playing fraud upon the competent authority, such order cannot be sustained in the eye of the law as fraud unravels everything.

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“Equity is always known to defend the law from crafty evasions and new subtleties invented to evade law.” It is trite that “fraud and justice never dwell together” (fraus et jus nunquam cohabitant). Fraud is an act of deliberate deception with a design to secure something, which is otherwise not due. Fraud and deception are synonymous. “Fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine.” An act of fraud on court is always viewed seriously. [Vide Meghmala v. G. Narasimha Reddy [(2010) 8 SCC 383, para 34.]

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18. However, the question does arise as to whether it is permissible for a party to treat the judgment and order as null and void without getting it set aside from the competent court. The issue is no more res integra and stands settled by a catena of decisions of this Court. For setting aside such an order, even if void, the party has to approach the appropriate forum. [Vide State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth [ (1996 1 SCC 435] and Tayabbhai M. Bagasarwalla v. Hind Rubber Industries (P) Ltd. [(1997) 3 SCC 443].

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Page 17 of 17

¶104

Accordingly, the Point determined by this Court is answered against the appellant/defendant and in favour of the plaintiff that the mutation order dated 06.05.2003 (Ex. P/22) and the order dated 22.10.2007 (Ex. P/28) passed by the Sub-Divisional Officer, Raigarh, have rightly been set aside by the learned trial Court. As such, the finding recorded by the trial Court does not suffer from perversity or illegality which warrants any interference by this Court.

¶105

In view of the above, the appeal is liable to be and is hereby dismissed .

¶106

A decree be drawn up accordingly.

¶107

The interim order passed by this Court on 30.06.2017 stands vacated.

¶108

Sd/(Narendra Kumar Vyas) Judge

¶109

Arun

Mukesh Kumar Agrawal v. Munni Devi

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Mukesh Kumar Agrawal v. Munni Devi

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