Allowed

S.a.M.Seyad Ali Akbar, v. the District Legal Services Authority

Madras HC19 Jan 2022WP(MD)/1512/2020

Case brief

AI extract

What is this about?

Third-party property claimants challenged a Lok Adalat award arising from a collusive specific-performance suit. The Court allowed all three writ petitions, struck the suit from the register, set aside the award and consequential processes, and imposed costs on the contesting respondents.

What did the court decide?

Suit struck off; Lok Adalat award and consequential processes set aside; costs imposed on respondents 7 to 10 in the principal petition.

S.a.M.Seyad Ali Akbar, Vs the District Legal Services… — Specific Performance | Madras HC (2022)

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W.P.(MD)No.1512 of 2020 BATCH

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT RESERVED ON : 17.12.2021

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PRONOUNCED ON : 19.01.2022

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CORAM

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THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN W.P.(MD)Nos.1512 of 2020, 888 and 1091 of 2021 and

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W.M.P.(MD)Nos.1218 and 1219 of 2020 and 8189 of 2021

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W.P.(MD)No.1512 of 2020:-

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S.A.M.Seyad Ali Akbar

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... Petitioner

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vs.

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1.The District Legal Services Authority, Tirunelveli District Court Campus,

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Palayamkottai, Tirunelveli District-627 002.

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2.The Inspector General of Registration, 100, Santhome High Road,

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Raja Annamalai Puram, Chennai – 600 028.

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3.The Deputy Inspector General of Registration, Office of Deputy Inspector General of Registration, St.Marks Street, Behind Johns Higher Secondary School, Near Sankar Colony,

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Palayamkottai, Tirunelveli District-627 002.

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4.The District Registrar (Registration), District Registrar Office, Collectorate Campus, Kokkirakulam, Tirunelveli – 627 009.

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5.The District Registrar (Administration) District Registrar Office, Collectorate Campus, Kokkirakulam, Tirunelveli – 627 009.

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6.The Sub Registrar, Sub Registrar Office, 35-B, Firthouse Complex, 1^st Floor, Ambai Road, Melapalayam, Tirunelveli District-627 005.

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7.Abuthahir 8.Abdul Kareem 9.Pathumuthu Sakara 10.I.Berkmans 11.V.O.A.Abdul Sukkoor 12.Sharmila

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https://hcservices.ecourts.gov.in/hcservices/

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W.P.(MD)No.1512 of 2020 BATCH

13.Hithayathulla

14.Kaleel Ahamed

... Respondents

(R10 impleaded vide order of this Court, dated 20.04.2021 in W.M.P. (MD)No.4527 of 2020.)

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(Petitioners 1, 2, 4 and 5 are transposed as Respondents 11 to 14 vide order of this Court in W.M.P.(MD)No.18312 of 2021, dated 19.01.2022)

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PRAYER: Writ Petition filed under Article 226 of the Constitution of India for issuance of Writ of Certiorarified Mandamus, to call for the records of the first respondent herein relating to the Lok Adalat award dated 08.01.2019 passed in O.S.No.275 of 2018 before the Principal Subordinate Court, Tirunelveli between 7 to 9 respondents herein as a collusive award and quash the same as illegal and consequently, to direct the 2 to 6 respondents herein to remove all consequential encumbrances in respect of land in Old Revenue Survey No.291/1, Old T.S.No.550/1, T.S.Ward 4, Block No.7, Now T.S.No.202/1, T.S.Ward-AV, Block No.54, Kulavanigarpuram Village, Palayamkottai Taluk, Tirunelveli District within a time stipulated by this Court.

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For Petitioner :Mr.M.Vallinayagam Senior Counsel for Mr.D.Nallathambi For R1 :No Appearance For R2 to R6 :Mr.J.John Rajadurai Government Advocate For R7 to R9 :Mr.Mahaboob Athiff for M/s.Ajmal Associates For R10 :Mr.G.Prabhu Rajadurai for Mr.C.Surikumar

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W.P.(MD)No.888 of 2021:-

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S.A.M.Seyad Ali Akbar ... Petitioner

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vs.

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1.The District Collector/Member Secretary, Tirunelveli Local Planning Authority, Tirunelveli.

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2.The Commissioner, Tirunelveli City Municipal Corporation, Tirunelveli District.

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https://hcservices.ecourts.gov.in/hcservices/

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W.P.(MD)No.1512 of 2020 BATCH

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3.I.Berkmans 4.B.Vivek

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... Respondents

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PRAYER: Writ Petition filed under Article 226 of the Constitution of India for issuance of Writ of Mandamus, to direct the 1 and 2 respondents herein to consider the petitioner's representation, dated 20.02.2020 and 26.12.2020 and pass appropriate order not to grant or process be plan approval/layout submitted by the 3^rd and 4^th respondents herein for doing commercial activities in respect of land in Old Revenue Survey No.291/1, Old T.S.No.550/1, T.S.Ward 4, Block No.7, Now T.S.No.202/1, T.S.Ward-AV, Block No.54, Kulavanigapuam Village, Palayamkottai Taluk, Tirunelveli District based upon the petitioner's objections.

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For Petitioner : Mr.M.Vallinayagam Senior Counsel for Mr.D.Nallathambi For R1 : Mr.J.John Rajadurai Government Advocate For R2 : No Appearance For R3 and R4 : Mr.G.Prabhu Rajadurai for Mr.C.Surikumar

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- W.P.(MD)No.1091 of 2021:

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S.A.M.Seyad Ali Akbar

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... Petitioner

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vs.

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1.The District Collector, Collectorate, Tirunelveli District.

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2.The District Revenue Officer, District Revenue Office, Tirunelveli District.

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3.The Tahsildar, Palayamkottai Taluk, Tirunelveli District.

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4.The Commissioner, Tirunelveli City Municipal Corporation, Tirunelveli District.

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5.Abuthahir

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6.Abdul Kareem

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7.Pathumuthu Sakara

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8.I.Berkmans

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9.B.Vivek ... Respondents

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PRAYER: Writ Petition filed under Article 226 of the Constitution of India for issuance of Writ of Mandamus, to direct the 1 to 4 https://hcservices.ecourts.gov.in/hcservices/

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W.P.(MD)No.1512 of 2020 BATCH

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Respondents herein to consider the petitioner's representation, dated 20.02.2020 and 26.12.2020 and pass appropriate order to remove the entry of 8 and 9 respondents herein in the Patta/Town Survey Register (TSR) in respect of land in Old Revenue Survey No.291/1, Old T.S.No.550/1, T.S.Ward 4m Block No.7, Now T.S.No.202/1, T.S.Ward-AV, Block No.54, Kulavanigarpuram Village, Palayamkottai Taluk, Tirunelveli District obtained under fraudulent Lok-Adalat award dated 08.01.2019 in O.S.no.275 of 2018 on the file of District Legal Services Authority, Tirunelveli District Court.

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For Petitioner :Mr.M.Vallinayagam Senior Counsel for Mr.D.Nallathambi For R1 to R3 :Mr.J.John Rajadurai Government Advocate For R4 :No Appearance For R5 to R9 :Mr.G.Prabhu Rajadurai for Mr.C.Surikumar

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COMMON ORDER

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W.P.(MD)No.1512 of 2020 had been filed by three petitioners, who are closely related. W.P.(MD)Nos.888 and 1091 of 2021 have been filed by the third petitioner in W.P.(MD)No.1512 of 2020.

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2.During the course of hearing, W.M.P.(MD)Nos.9188 and 18312 of 2021 had been filed by the third petitioner in W.P.(MD)No.1512 of 2020 seeking to transpose the other Writ Petitioners in W.P.(MD) No.1512 of 2020 as respondents. In effect, the three Writ Petitions are prosecuted only by the third Writ Petitioner in W.P.(MD)No.1512 of 2020, S.A.M.Seyad Ali Akbar.

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W.P. (MD) No. 1512 of 2020 :

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3.It would be judicious to take up the Writ Petition in W.P. (MD)No.1512 of 2020 for consideration first, as the determination of the same would have a direct bearing on the relief to be granted in the other two Writ Petitions.

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4.W.P.(MD)No.1512 of 2020 had been filed in the nature of Certiorarified Mandamus seeking interference with a Lok-Adalat award, dated 08.07.2019 in O.S.No.275 of 2018 which was pending before the Principal Subordinate Court at Tirunelveli. In that particular suit, none of the Writ Petitioners were parties. It was a suit for specific performance filed by the seventh and eighth respondents, Abuthahir and Abdul Kareem against the ninth respondent, Pathumuthu Sakara. It is claimed by the Writ Petitioners that the suit was collusive, instituted fraudulently and that the Lok-Adalat award should suffer being struck down, as being the produce of a fraud committed affecting judicial sanctity.

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https://hcservices.ecourts.gov.in/hcservices/

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W.P.(MD)No.1512 of 2020 BATCH

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5.The controversy involved was with respect to lands in Old Revenue Survey No.291/1, Old T.S.No.550/1, T.S.Ward 4m Block No.7, Now T.S.No.202/1, T.S.Ward-AV, Block No.54, Kulavanigarpuam Village, Palayamkottai Taluk, Tirunelveli District. It is stated that the said land originally measured 2.14 acres and was owned by Nagoor Meeran Ravuthar. It is stated that he had purchased the said property in 1889, 1891 and 1895. Out of the 2.14 acres, he sold 15 cents to one Kumarasamy Reddiyar. He therefore retained 1.99 acres. It is claimed that, on field, the available land was 1.95 acres. It is further claimed that Nagoor Meeran Ravuthar died intestate in the year 1928. When he died intestate, he left surviving him as his legal heirs, his widow, Mohideen Meerakal Beevi, one son Mohemmed Miya Khan and two daughters, Kuppameera Beevi and Chinna Meerakkal Beevi. His wife died in 1932.

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6.It is stated that there is a controversy with respect to the life and death of the son, Mohammed Miya Khan. The petitioners claim title through a sale deed executed by Mohammed Miya Khan in 1942 to one Mohideen Mohammed Abubakkhar Tharangara. It is the claim of the seventh to ninth respondents that such sale deed is improbable, since they claim that Mohammed Miya Khan had died in 1937. It is the claim of the said respondents that the other sister KuppaMeera Beevi died on 21.12.1961 leaving behind the ninth respondent Pathumuthu Sakara as the only surviving legal heir.

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7.It is stated in the affidavit filed in support of the Writ Petitions that the said ninth respondent, Pathumuthu Sakara was the defendant in a suit instituted by the seventh and eighth respondents, Abuthahir and Abdul Kareem in O.S.No.275 of 2018 seeking specific performance of an alleged oral agreement in June 2018. It was claimed in the plaint that the seventh and eighth respondents had also paid the entire sale consideration of Rs.10,00,000/- on 31.07.2018 and that, the ninth respondent had executed a receipt.

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8.The said receipt was the basis on which the suit for specific performance was filed. That suit was referred to the Lok Adalat on the first hearing date, when the defendant appeared. Within a week, the Lok-Adalat passed an award enforcing specific performance. A power of attorney was however executed by the ninth respondent in favour of the seventh and eighth respondents. As on date, the said property had been conveyed by them to the tenth respondent.

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9.It is claimed by the Writ Petitioners that the claim of an oral agreement of sale, and the filing of the suit on the said alleged oral agreement of sale, and the receipt produced to substantiate the oral agreement of sale were false pleadings and the reference to Lok Adalat and the subsequent compromise were collusive, fraudulent and that therefore, the Lok-Adalat award is non est in the eyes of law and should be interfered with.

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https://hcservices.ecourts.gov.in/hcservices/

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W.P.(MD)No.1512 of 2020 BATCH

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10.After purchase by the tenth respondent, the revenue records have been mutated and planning permission had also been granted for construction of building. Questioning such mutation of revenue records and grant of planning permission, the other two Writ Petitions, namely, W.P.(MD)Nos.888 and 1901 of 2021 had been filed.

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11.The contention of the seventh to tenth respondents in their counter affidavit was that the original owner, Nagoor Meeran Ravuthar owned 2.14 acres and later sold 15 cents, which meant that he retained 1.99 acres. He died in 1928. The property devolved to his wife, son and two daughters. The wife died in 1932. The son died in 1937. The entire property devolved to the two daughters, Kuppameera Beevi and Chinna Meerakkal Beevi. It is claimed that they were each entitled to 81.5 cents. The ninth respondent claimed to be the legal heir of Kuppa Meera Beevi, who died on 21.12.1961.

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12.She claimed that she wanted to convey a portion of the property and therefore, entered into an oral agreement of sale with the seventh and eighth respondents for a consideration of Rs.10,00,000/-. She received the consideration of Rs.10,00,000/-. The seventh and eighth respondents instituted a suit in O.S.No.275 of 2018 before the Subordinate Court, Tirunelveli. She claimed that she was a pardanashin lady. She subjected herself to the award of the Lok-Adalat.

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13.The said respondents claimed that the suit was instituted bona fide and as a matter of fact, they also claimed that the Writ petitioners had no title, since Mohammed Miya Khan had actually died in the year 1937 and therefore, could not have conveyed the property in the year 1942 to their father. They urged that the Writ Petitions should be dismissed.

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14.The facts outlined above clearly show that it is a lis between two groups of private individuals and the other respondents, namely, Inspector General of Registration, Deputy Inspector General of Registration, District Registrar (Registration), District Registrar (Administration) and Sub Registrar, Melapalayam, Tirunelveli, are parties who can never agitate the issue whether the award of the Lok Adalat, complained as fraudulent by the Writ Petitioners, is actually fraudulent. They are however necessary parties in W.P.(MD)Nos.888 and 1091 of 2021, where their orders have been called in question. Fate of such orders would depend on the finding in W.P. (MD)No.1512 of 2020.

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15.Heard arguments advanced by Mr.M.Vallinayagam, learned Senior Counsel appearing on behalf of the Writ Petitioners, Mr.Prabhu Rajadurai, learned Counsel for Mr.C.Surikumar for the tenth respondent in W.P.(MD)No.W.P.(MD)No.1512 of 2020, third and fourth respondents in W.P.(MD)No.888 of 2021 and fifth to ninth https://hcservices.ecourts.gov.in/hcservices/ respondents in W.P.(MD)No.1091 of 2021 and who mainly contested the

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W.P.(MD)No.1512 of 2020 BATCH

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claim of the Writ Petitioners, Mr.Mohaboob Athiff, learned Counsel for the seventh to ninth respondents in W.P.(MD)No.1512 of 2021 and Mr.J.John Rajadurai, learned Government Advocate for the official respondents.

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16.The primary issue which this Court should examine is whether the Writ Petition itself is maintainable, since it questions the legality of the award of the Lok-Adalat and the consequent decree passed in O.S. No.275 of 2018 on the file of the Principal Subordinate Court, Tirunelveli.

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17.Chapter-VI of the Legal Services Authorities Act, 1987, deals with Lok-Adalat. Section 19 relates to organising Lok-Adalats either in State level or at the Taluk level, as the case may be.

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18.Section 19(5)(i) of the Act provides that “ a Lok-Adalat shall have jurisdiction to determine and to arrive at a compromise or settlement between the parties to the dispute in respect of –

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i) any case pending

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(ii) any matter which is falling within the jurisdiction of and is not brought before, any court for which the Lok Adalat is organized”

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19.In the instant case, O.S.No.275 of 2018 was pending before the Principal Subordinate Court at Tirunelveli. It was referred to the Lok-Adalat conducted by the District Legal Services Authority.

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20.Section 20 of the Act provides that where the parties to a suit agree or any application is made to the Court and if the Court is satisfied that there are chances of settlement, then the Court shall refer the case to the Lok Adalat. Section 20(3) of the Act reads as follows:

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“20(1)....

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(2)......

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(3) Where any case is referred to a Lok Adalat under subsection (1) or where a reference has been made to it under sub-section (2), the Lok Adalat shall proceed to dispose of the case or matter and arrive at a compromise or settlement between the parties.”

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21.Section 20(4) of the Act reads as follows:

“ 20(1)....

(2)......

(3)......

(4)Every Lok Adalat shall, while determining any reference https://hcservices.ecourts.gov.in/hcservices/

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W.P.(MD)No.1512 of 2020 BATCH

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before it under this Act, act with utmost expedition to arrive at a compromise or settlement between the parties and shall be guided by the principles of justice, equity fair play and other legal principles.”

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22.Section 21 of the Act reads as follows:

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“ 21. (1) Every award of the Lok Adalat shall be deemed to be a decree of a civil court or, as the case may be, an order of any other court and where a compromise or settlement has been arrived at by a Lok Adalat in a case referred to it under sub-section (1) of section 20, the court-fee paid in such case shall be refunded in the manner provided under the Court-fees Act, 1870.

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(2) Every award made by a Lok Adalat shall be final and binding on all the parties to the dispute, and no appeal shall lie to any court against the award.”

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23.Section 22(iii) of the Act reads as follows:

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“ 22(1)....

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(2).....

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(3)(3) All proceedings before a Lok Adalat “or Permanent Lok Adalat” shall be deemed to be judicial proceedings within the meaning of sections 193, 219 and 228 of the Indian Penal Code and every Lok Adalat shall be deemed to be a civil court for the purpose of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973.”

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24.Examination of the above provisions reveals that if a reference is made with the consent of the parties to the Lok-Adalat to examine an issue in a pending suit, the Lok-Adalat must formulate its own procedure and try to bring about an amicable settlement between the parties. If a settlement is reached, an award may be passed. Such an award is signed by the parties to indicate their acceptance to abide with such award and thereafter, they cannot file an appeal against the said award. It is binding on them.

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25.It is also seen that the Lok-Adalat stipulates following the principles of natural justice. The parties have to be given an opportunity of being heard. They must be heard. Therefore, when a settlement or compromise is reached and when an award is passed in terms of the settlement or compromise, the parties cannot turn around and claim that the award was on the basis of fraud played by one on the other. In effect, the award of a Lok-Adalat is binding on the parties to the suit. They had accepted reference of the issues https://hcservices.ecourts.gov.in/hcservices/ before the Lok-Adalat. They had participated in the proceedings.

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They had entered into a settlement or a compromise. They had accepted to the terms of such settlement or compromise. They had held out a promise to the other party that they would abide by the terms of the settlement or the compromise. They had then consented for an award to be passed in terms of the settlement or compromise. They had also signed the award.

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26.The award and any consequent decree so passed is not a judgment of the Court. In an adversial litigation, the facts averred by one side and disputed by the other side are framed as issues and put up for trial, This is adversial process. Evidence is adduced and tested during cross examination. Documents produced are questioned and disputed. A judgment is finally passed by the Court giving a ruling favouring the interpretation of the facts projected by one side and/or rejecting the other version.

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27.However, an award by the Lok Adalat is passed based on a settlement or compromise entered into by the parties to the suit, voluntarily, and with the sanction of the Court. The signatories to the award are not only the plaintiff and defendant, but also the Presiding Officer and the Members of the Lok-Adalat. All of them agree that a settlement or compromise had been reached and that the terms of the settlement or compromise as written down are the terms of settlement or compromise agreed between the parties. Thus, the award is binding on all of them. This position is clear. There can be no doubt about it. No party can file an appeal against the terms, since they are themselves parties to the award.

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28.In the instant case, the Writ Petitioners however allege collusion and fraud in the award passed by the Lok Adalat. They claim that the suit in O.S.No.275 of 2018 was the result of collusion between the seventh and eighth respondents on the one hand and the ninth respondent on the other hand. The suit was for specific performance of an oral agreement of sale. The date of the agreement of sale was not given in the plaint. There is no mention of witnesses to the oral agreement of sale. But rather it was only mentioned that the oral agreement was in June 2018. To examine this, the plaint averments will have to be examined. The relevant portions are extracted. They are as follows:

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“2) ,e;jepiyapy; thjpfs; kw;Wk ; gpujpthjp ed;F gof;fKs;sth;fs ; vd;gjhy; jgrpy; nrhj;jpy; gpujpthjpapd; gq;if nghWj;J gpujpthjp tpw;gid nra;a tpUk;GtjhfTk;> thjpfis gpuhJ jgrpy; nrhj;jpd; gpujpthjpapd; gq;fpid fpiuak; Kbj;Jf ; nfhs;SkhWk;> tpUg;gk ; njhptpj;Js ;shh;. mjd; mbg;gilapy; thjpfSk; gpujpthjpAld; ,Ue;j gof;fj ;jpd; fhuzkhf jgrpy; nrhj;jpid fpiuak; thq;Ftjw;F rk;kjpj;J jgrpy; nrhj;jpw ;F nkhj;j fpiuanjhif &.10>00>000 / - (&gha; gj;J ,yl;rk; kl;Lk ;) vd Ngrp KbT nra;ag ;gl ;L thjpfs; gpujpthjpfSf;fpilNa fle;j 2018k; tUlk; [_d; khjk; tha;nkhopahf xg;ge ;jk ; Vw;gLj;Jg ;gl;Ls ;sJ. i\ xg;ge ;jj ;jpd; https://hcservices.ecourts.gov.in/hcservices/ Njjpad;W gpujpthjpf;F rhl;rpfs; Kd;dpiyapy; nfhLj;J i\ tha;nkhop

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xg;ge ;jk ; kw;Wk ; thjpfs; KO fpiua njhifia nfhLj;jij cWjp nra;Ak ; tiff;fhf gpujpthjp thjpfs; ngaUf;F Nkw;gb 31.07.2018 Njjpapy; gzg;gw ;W ,ur PJk ; vOjpf; nfhLj;Js ;shh;. ”

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29.When any enforcement is sought of an oral agreement of sale, one cardinal principle is that the date of the agreement and the witnesses to the agreement must be clearly mentioned. Pleadings on those aspects are conspicuously missing. It is however stated in the plaint that a receipt was given towards the sale consideration of Rs.10,00,000/-. The plaintiffs can only seek repayment of the amount on the receipt. This receipt was not in June 2018, but on 31.07.2018. The only relevant document filed along with the plaintiff was this receipt dated 31.07.2018.

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30.Section 54 of the Transfer of Property Act, 1882 defines “ Sale”. The provision also examines the effect of a Contract of Sale, and provides as follows :

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“- A contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property.”

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(Emphasis Supplied)

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31.Thus, a Contract of Sale does not, of itself create any interest in or charge on such property. It is inconceivable how a receipt can create an interest over the property, and be a cause of action to institute a suit for specific performance. Collusion states in the face of the parties to the suit.

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32.In Gram Panchayat of Village Naulakha v. Ujagar Singh, (2000) 7 SCC 543 : 2000 SCC OnLine SC 1381, it had been held as follows :

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“ 6.It appears from the commentary in Sarkar's Evidence Act (13th Edn., Reprint, at p. 509) on Section 44 that it is the view of the Allahabad, Calcutta, Patna and Bombay High Courts that before such a contention is raised in the latter suit or proceeding, it is not necessary to file an independent suit. The passage from Sarkar's Evidence which refers to various decisions reads as follows:

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“ Under Section 44 a party can, in a collateral proceeding in which fraud may be set up as a defence, show that a decree or order obtained by the opposite party against him was passed by a court without jurisdiction or was obtained by fraud or collusion and it is not necessary to bring an independent suit for setting it aside (Bansi Lal v. Dhapo [ILR (1902) 24 All 242] , Rajib Panda v. Lekhan Sendh Mahapatra [ILR (1900) 27 Cal 11 : 3 CWN 660] , Parbati v. Gajraj Singh [AIR 1937 All 28 : 1936 All LJ 1162] , Prayag https://hcservices.ecourts.gov.in/hcservices/

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Kumari Debi v. Siva Prosad Singh [AIR 1926 Cal 1 : 42 CLJ 280] , Hare Krishna Sen v. Umesh Chandra Dutt [AIR 1921 Pat 193 (FB)] , Aswini Kumar Samaddar v. Banamali Chakrabarty [(1916-17) 21 CWN 594] , Manchharam v. Kalidas [ILR 19 Bom 821] , Rangnath Sakharam v. Govind Narasinv [ILR 28 Bom 639 : 6 Bom LR 592] , Jamiraddin v. Khadejanessa Bibi [AIR 1929 Cal 685] , Bhagwandas Narandas v. D.D. Patel & Co. [AIR 1940 Bom 131 : 42 Bom LR 231] , Bishunath Tewari v. Mirchi [AIR 1955 Pat 66] and Gurajada Vijaya Lakshmamma v. Yarlagadda Padmanabham [AIR 1955 AP 112] ) .”

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Thus, in order to contend in a later suit or proceeding that an earlier judgment was obtained by collusion, it is not necessary to file an independent suit as stated in Jagar Ram case [AIR 1991 P&H 159 (FB)] for a declaration as to its collusive nature or for setting it aside, as a condition precedent. In our opinion, the above cases cited in Sarkar's Commentary are correctly decided. We do not agree with the decision of the Full Bench of the Punjab and Haryana High Court in Jagar Ram case [AIR 1991 P&H 159 (FB)] . The Full Bench has not referred to Section 44 of the Evidence Act or to any other precedents of other courts or to any basic legal principle.

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“ 7. The law in England also appears to be the same, that no independent suit is necessary. In Spencer-Bower and Turner on Res Judicata (2nd Edn., 1969) it is stated (para 359) that there are exceptions to the principle of res judicata. If the party setting up res judicata as an estoppel has alleged all the elements of an estoppel (i.e. ingredients of res judicata), it is still open to the latter (the opposite party) to defeat the estoppel by setting up and establishing certain affirmative answers. Of these there are four main classes — fraud, crossestoppel, contract and public policy. The authors clearly say that no active proceedings for “rescission” of the earlier judgment are necessary. They state (para 370) as follows:

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“ The avoidance of a judicial act on the ground of fraud or collusion is effected not only by active proceedings for rescission … but also by setting up the fraud as a defence to an action on the decision, or as an answer to any case which, whether by way of estoppel or otherwise, depends for its success on the decision being treated as incontrovertible.”

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Thus, the law is well settled that no independent suit as a condition precedent is necessary.

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“ 8. Collusion , say Spencer-Bower and Turner (para 378) , is essentially play-acting by two or more persons for one common purpose — a concerted performance of a fabula disguised as a judicium — an unreal and fictitious pretence of a contest by confederates whose game is the same. As stated by Lord Selborne, L.C. in Boswell v. Coaks [(1894) 6 Rep 167 : 86 LT 365n (HL)] :

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There is no Judge; but a person invested with the ensigns of a judicial office, is misemployed in listening to a fictitious cause proposed to him, there is no party litigating … no real interest brought into question and to use the words of a very sensible civilian on this point, fabula non judicium, hoc est; in scena, non in foro, res agitur .

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That, in our view, is the true meaning of the word “collusion” as applied to a judicial proceeding. ”

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(Emphasis Supplied)

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33.The suit was taken on file by the Principal Subordinate Court, Tirunelveli and summons was directed to the defendant/ninth respondent herein. On the first day of appearance, the suit was referred to the Lok-Adalat. The learned Principal Sub Judge ought to have examined whether the defendant therein had any subsisting right over the property to even enter into an agreement, much less an oral agreement and to receive consideration. The encumbrance certificate of the property was not produced. If it had been produced, the sale in the year 1942 would have been noticed by the learned Sub Judge. There was thus not only collusion, but also suppression of vital facts before the Court.

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34.The Lok-Adalat, however proceeded to pass an award. The same is reproduced below:

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“AWARD

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The Dispute between the parties having been referred for determination to the Lok Adalat and the parties having compromised / settled the case / matter, the following award is passed in terms of settlement.

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Terms of Settlement

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Plaintiffs and Defendant present. Both side counsel present. Joint Compromised memo filed and recorded. Award is passed in terms of joint compromised memo. Joint compromised forms part of award. Court fee is to be refunded as per rules.”

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35.Thereafter, the defendant/ninth respondent herein, who was to execute a sale deed in favour of the plaintiffs/seventh and eighth respondents herein, in terms of the alleged oral agreement of https://hcservices.ecourts.gov.in/hcservices/ sale and as averred in the plaint, however, executed a power of

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attorney on 06.03.2019 in favour of the plaintiffs/seventh and eighth respondents herein. On the basis of the said power of attorney, the seventh and eighth respondents herein sold the property to the tenth respondent.

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36.The suit in O.S. No. 275 of 2018 instituted on the file of the Principal Subordinate Court, Tirunelveli is, as pointed out by the Hon’ble Supreme Court, “ a fictitious cause proposed..there is no party litigating..no real interest brought into question.” The entire exercise was a fraud on Court, a fraud on the Lok Adalat, in view of the collusion between the plaintiffs and the defendant therein.

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37.There are disputed facts. If it is established that Mohammed Miya Khan died in the year 1937, he could not have executed a sale deed in 1942. However, it is a fact that there was a sale in the year 1942. A glance at the Encumbrance Certificate would establish that. If that sale was a fraud, still, that should have been pleaded. If there had been oral agreement of sale, then such oral agreement of sale will have to be necessarily established and proved in manner known to law. The date of the oral agreement had not been given. The receipt for consideration of Rs.10,00,000/- was given only 31.07.2018. A suit can be filed only to recover the money under the receipt. A receipt cannot create an interest or charge over the property. Even an agreement of sale does not do so.

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38.One thing clear is that there is a dark cloud of suspicion over the entire process. The fact was that the suit was instituted on the basis of an oral agreement of sale, which necessitates proof. But, on the very first hearing date, when the defendant appeared, it was referred to the Lok-Adalat. When the defendant in an affidavit filed before this Court claims that she is Pardanashin lady, the entire process creates further suspicion, whether she was made aware of the entire process. The Court should have re-examined the facts in the plaint and should have come to a subjective satisfaction whether the defendant had title to enter into an agreement of sale, oral or written, whether the said agreement is enforceable and whether the issues can be compromised through Lok-Adalat. Failure to do so, has unfortunately sullied the entire process. The plaintiffs and the defendant should realize that if they were to indulge in polluting the sanctity of the judicial process, law will catch up with them one day.

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39.The Principal Sub Court should have examined the plaint and should have come to a prima facie opinion that settlement is possible. If settlement is possible, the Court should have examined the defendant, questioned her about the date of actual agreement. Particularly since she claimed that she is a Pardanashin lady, the Court should have exercised much more caution and care before referring the parties for Lok-Adalat. The entire process is vitiated

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by collusion and fraud. This Court cannot keep its eyes close when a sham judicial process had been initiated and perpetrated and when fraud and collusion stares on the face of the litigating parties.

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40.It is asserted by the learned Counsel for the tenth respondent that the award of the Lok-Adalat is binding. I agree. However, I must place a small caveat. The award of the Lok-Adalat is binding only on the parties to the award. Here, the Writ Petitioners are the third parties and they claim that their property had been dealt with in a collusive manner by the seventh to ninth respondents. They also claim title to the said property. They claim that they are victims of a fraud. When that is pleaded, any Court and, and in fact, every Court should examine whether their claim has some bona fide or not.

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41.Neither of the parties have produced the death certificate of Mohammed Miya Khan. There is a statement of affidavit that he died in the year 1937. A copy of the sale deed of the year 1942 is produced, which is said to have been executed by Mohammed Miya Khan. Either one of the two facts asserted must be false. To establish that, the parties must go before a Civil Court, adduce evidence and subject such evidence to be tested during cross examination.

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42.The issue whether a Court under Article 226 of Constitution of India can examine the issue of fraud in a Lok-Adalat had been examined by the Hon’ble Supreme in State of Punjab vs Jalour Singh , reported in AIR 2008 SC 1209. It had been held as follows:

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“ 12. It is true that where an award is made by the Lok Adalat in terms of a settlement arrived at between the parties (which is duly signed by parties and annexed to the award of the Lok Adalat), it becomes final and binding on the parties to the settlement and becomes executable as if it is a decree of a civil court, and no appeal lies against it to any court. If any party wants to challenge such an award based on settlement, it can be done only by filing a petition under Article 226 and/or Article 227 of the Constitution, that too on very limited grounds.”

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43.A broad principle had been laid that an award can be questioned in a petition under Article 226 of the Constitution.

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44.The facts of the instant case cry out for such interference.

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45.In S.P.Chengalveraya Naidu vs V.Jagannath , reported in 1994 AIR 853: (1994) 1 SCC 1 , where it was found that fraud was evident on the face of the records, it had been held as follows:

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“ 5. The High Court, in our view, fell into patent error. The short question before the High Court was whether in the facts and circumstances of this case, Jagannath obtained the preliminary decree by playing fraud on the court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that “there is no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence”. The principle of “ finality of litigation” cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank-loandodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation.

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“ 6. The facts of the present case leave no manner of doubt that Jagannath obtained the preliminary decree by playing fraud on the court. A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. Jagannath was working as a clerk with Chunilal Sowcar. He purchased the property in the court auction on behalf of Chunilal Sowcar. He had, on his own volition, executed the registered release deed (Ex. B-15) in favour of Chunilal Sowcar regarding the property in dispute. He knew that the appellants had paid the total decretal amount to his master Chunilal Sowcar. Without disclosing all these facts, he filed the suit for the partition of the property on the ground that he had purchased the property on his own behalf and not on behalf of Chunilal Sowcar. Non-production and even non-mentioning of the release deed at the trial is tantamount to playing fraud on the court. We do not agree with the observations of the High Court that the appellants-defendants could have easily produced the certified registered copy of Ex. B-15 and non-suited the plaintiff. A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to https://hcservices.ecourts.gov.in/hcservices/ gain advantage on the other side then he would be guilty

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of playing fraud on the court as well as on the opposite party.”

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46.In T. Arivandandam v. T.V. Satyapal , reported in (1977) 4 SCC 467, it had been held as follows :

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“ 5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court…The learned Munsif must remember that if on a meaningful — not formal — reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue,…and, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing…”

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Emphasis Supplied

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47.The aforementioned judgments re-enforces the fact that when fraud had been played or collusion had been entered into between the parties, the suit will have to be struck down. A Lok-Adalat can facilitate a compromise in an adversial litigation and bring about a settlement or compromise among the parties who are contesting the claims of each other. But, when there is collusion, the Lok-Adalat cannot simply remain a mute spectator and be an active participant sanctifying collusion and fraud.

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48.The entire process in O.S.No.275 of 2018 has an underlying stench. This has to be cleaned and the only way possible is to strike down both the suit and the award of the Lok Adalat. The LokAdalat award will necessarily have to be interfered with. It is only a scrap of paper and unfortunately, the judiciary has been made use of by two collusive parties and still unfortunately, the Court and the Lok-Adalat have fallen prey to such a nefarious plan hatched by the parties. The clock has to be set back. The Lok Adalat award has to be set aside. It is declared a nullity. It is set aside.

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49.The Writ Petition in W.P.(MD)No.1512 of 2020 is allowed with costs of Rs.10,000/- (Rupees Ten Thousands only), payable by each of the seventh to tenth respondents to the State Legal Services Authority, Chennai. They had taken advantage of the services extended for their nefarious purpose. It is payback time now. Connected Miscellaneous petitions are closed.

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W.P. (MD) Nos. 888 and 1091 of 2021 :

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50.W.P.(MD)No.888 of 2021 had been filed in the nature of a Writ of Mandamus, to direct the 1 and 2 respondents herein to consider the petitioner's representations, dated 20.02.2020 and 26.12.2020 and pass appropriate order not to grant or process be https://hcservices.ecourts.gov.in/hcservices/

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plan approval/layout submitted by the 3^rd and 4^th respondents herein for doing commercial activities in respect of land in Old Revenue Survey No.291/1, Old T.S.No.550/1, T.S.Ward 4, Block No.7, Now T.S.No.202/1, T.S.Ward-AV, Block No.54, Kulavanigapuam Village, Palayamkottai Taluk, Tirunelveli District

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51.W.P. (MD) No. 1091 of 2021 had been filed in the nature of a Writ of Mandamus, to direct the 1 to 4 Respondents herein to consider the petitioner's representation, dated 20.02.2020 and 26.12.2020 and pass appropriate order to remove the entry of 8 and 9 respondents herein in the Patta/Town Survey Register (TSR) in respect of land in Old Revenue Survey No.291/1, Old T.S.No.550/1, T.S.Ward 4m Block No.7, Now T.S.No.202/1, T.S.Ward-AV, Block No.54, Kulavanigarpuam Village, Palayamkottai Taluk, Tirunelveli District obtained under fraudulent Lok-Adalat award dated 08.01.2019 in O.S.No.275 of 2018 on the file of District Legal Services Authority, Tirunelveli District Court.

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52.It had been held in W.P.(MD)No.1512 of 2020 that the suit in O.S.No.275 of 2018 had been instituted collusively before the Principal Sub Court, Tirunelveli. The award of the Lok Adalat had also been set aside. Naturally, any right claimed under the Lok Adalat award or any document executed pursuant to the said Award will stand nullified. The award is non est in the eyes of law. It is a fraud played on judicial process.

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53.It logically follows that the respondents cannot seek any right over the property in question, either to put up construction or seek mutation of names in the revenue records.

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54.In view of the fact that the respondents claim rights only pursuant to the award of the Lok Adalat and which Lok-Adalat award has been set aside by the aforementioned reasoning, without any further discussion, the Writ Petitions in W.P.(MD)Nos.888 and 1901 of 2021, are also allowed and the entire process as consequent to the award of the Lok-Adalat are set side and interfered with.

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55.In the result :

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i.W.P.(MD)No.1512 of 2020 is allowed with costs of Rs.10,000/(Rupees Ten Thousands only), payable by each of the seventh to tenth respondents to the State Legal Services Authority, Chennai. Total costs Rs. 40,000/- (Rupees forty thousands only). Connected Miscellaneous Petitions are closed.

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ii. W.P.(MD)No.888 of 2021 is allowed. No costs. Connected Miscellaneous Petition is closed.

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iii.W.P.(MD)No.1091 of 2021 is allowed. No costs. Connected Miscellaneous Petition is closed.

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iv. O.S. No. 275 of 2018 on the file of the Principal Subordinate Court, Tirunelveli is struck off the suit records. Consequently, the Lok Adalat Award dated 08.01.2019 is set aside. Registry is directed to forward a copy of this order to the Principal Subordinate Court, Tirunelveli with instructions to strike off O.S.No.275 of 2018 from the Suit Register and to record that the Lok Adalat Award dated 08.01.2019 has been set aside.

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Sd/-

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Assistant Registrar (CS-I)

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// True Copy //

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/ /2022 Sub Assistant Registrar(CS)

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cmr

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1.The District Legal Services Authority, Tirunelveli District Court Campus, Palayamkottai, Tirunelveli District-627 002.

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2.The Inspector General of Registration, 100, Santhome High Road,

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Raja Annamalai Puram, Chennai – 600 028.

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3.The Deputy Inspector General of Registration, Office of Deputy Inspector General of Registration, St.Marks Street, Behind Johns Higher Secondary School, Near Sankar Colony,

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Palayamkottai, Tirunelveli District-627 002.

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4.The District Registrar (Registration), District Registrar Office, Collectorate Campus, Kokkirakulam, Tirunelveli – 627 009.

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5.The District Registrar (Administration) District Registrar Office, Collectorate Campus, Kokkirakulam, Tirunelveli – 627 009.

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6.The Sub Registrar, Sub Registrar Office, 35-B, Firthouse Complex, 1^st Floor, Ambai Road, Melapalayam, Tirunelveli District-627 005.

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7.The Principal Subordinate Judge, Tirunelveli, Tirunelveli District-627 005.

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8.The District Collector/Member Secretary, Tirunelveli Local Planning Authority, Tirunelveli District. 9.The Commissioner, Tirunelveli City Municipal Corporation, Tirunelveli District. 10.The District Revenue Officer, Tirunelveli District. 11.The Tahsildar, Palayamkottai Taluk, Tirunelveli District.

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COPY TO:

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THE OFFICER INCHARGE, STATE LEGAL SERVICES AUTHORITY, CHENNAI.

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+3 CC to M/s.D.NALLATHAMBI, Advocate ( SR-1846 to 1848[F] dated 20/01/2022 )

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Common Order made in W.P.(MD)Nos.1512 of 2020, 888 and 1091 of 2021 19.01.2022

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AC(CO) GC(03.02.2022) 19P 16C

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