A land claimant challenged cancellation of a declaratory decree obtained through fraud and collusion. The court upheld the delayed revenue reference, rejected merger and applied statutory protection of Scheduled Caste and Scheduled Tribe land. It dismissed the appeal and a purchaser's cross-objection, finding his rights undisturbed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
D.B. Special Appeal Writ No. 501/2015
In
S.B. Civil Writ Petition No.362/2001
Vidhyadhar Sunda, aged 71 years, son of late Shri Prem Singh, by caste Jat, resident of Kudan, presently residing at Nawalgarh Road, Sikar (Rajasthan).
----Petitioner
Versus
All by caste Mali, resident of Samarathpura, Piprali Road, Sikar.
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All Nayak by caste, resident of Ward No.42, Sikar.
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24/2. Vijay son of Late Shri Murari Lal
All residents of Shivsinghpura, Tehsil Sikar (Rajasthan).
all by Caste Naik, resident of Village Piprali, Distt. Sikar.
all by caste Balai, resident of Village Piprali, Distt. Sikar.
All residents of Village Piprali, Distt. Sikar.
all by caste Balai, resident of Village Piprali, Distt. Sikar.
----Respondents
Connected With
D.B. Cross Objection Writ No. 1/2019 In D.B. Civil Appeal (Writ) No.501/2015 In
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S.B. Civil Writ Petition No.362/2001
Vidhyadhar Sunda, aged 75 years, son of late Shri Prem Singh, Jat by caste, resident of Kudan, presently residing at Nawalgarh Road, Sikar (Rajasthan).
----Petitioner/Appellant
Versus
All by caste Mali, resident of Samarathpura, Piprali Road, Sikar.
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all by Caste Naik, resident of Village Piprali, Distt. Sikar.
all by caste Balai, resident of Village Piprali, Distt. Sikar.
31/1. Rameshwari son of Goru
31/2. Birbal son of Goru
31/3. Banaram son of Goru
31/4. Sugni Devi daughter of Hanuman
31/5. Mst. Prabhati wife of Goru
All residents of Village Piprali, Distt. Sikar.
33/2. Bansi son of Late Shri Moola
33/3. Maina daughter of Late Moola
33/4. Parmeshwari daughter of Late Moola
33/6. Rama daughter of Late Shri Moola
33/7. Sharda daughter of Late Shri Moola
33/8. Manohar son of Late Shri Moola
all by caste Balai, resident of Village Piprali, Distt. Sikar.
----Respondents
| For Appellant(s) | : Mr. R.K. Agarwal, Sr. Adv. assisted by Mr. Adhiraj Modi |
|---|---|
| For Respondent(s) | : Mr. R.P. Singh, Sr. Adv. assisted by Mr. Nawal Singh Sikarwar |
| Mr. Bipin Gupta | |
| Mr. Raj Kamal Gaur |
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HON'BLE MR. JUSTICE SANGEET LODHA HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL
Judgment
Judgment reserved on :: 03/01/2020 Judgment pronounced on :: 16/01/2020
(Per Hon’ble Mr. Justice Mahendar Kumar Goyal):
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bighas land of khasra No.44/5, exists in two parts at two different places; but, in the common written statement filed by the appellant alongwith legal representatives of Nolaram and Goruram in the Suit No.316/1991, he has categorically averred that the land allotted to Noparam was not in two parts but was adjunct. Shri Singh contended that the appellant in his suit filed under Sections 88 and 188 of the Act of 1955 has averred that Noparam was in possession of one half of the 11 bighas land of khasra No.44/5 whereas rest half was under his possession with further averment that the defendant No.2, Nolaram has never been in possession of the land in question nor the defendant No.1 has ever sold the said land to the defendant No.2; whereas, before this Court, the appellant has developed an entirely new case stating that it is Nolaram who is in possession of the half of the land of khasra No.44/5 under the registered sale deed executed by Noparam and Noparam is in possession of 5 bighas 10 biswas of land not out of khasra No.44/5; but, of new khasra No.175 situated contiguous to the land under possession of the appellant. He denied attraction of the doctrine of merger as the first appeal preferred against the judgment dated 19.10.1981 was dismissed being barred by limitation and the second appeal preferred was dismissed as withdrawn. The learned Senior Counsel submitted that from the material on record it is established beyond any iota of doubt that it was the appellant who has managed filing of the first appeal with inordinate delay of 10 years and was also instrumental in withdrawal of the second appeal through legal heirs of the appellant therein.
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obtained by the appellant playing fraud and collusion, for which concurrent findings of facts have been recorded by the Revenue Authorities as well as by the learned Single Judge. He contended that it is settled principle of law that fraud vitiates every solemn act and since the judgment dated 19.10.1981 was based on fraud, it could not have been sustained on any count. Lastly, the learned Senior Counsel contended that even assuming for the sake of argument that the reference was made without jurisdiction, setting aside the order dated 05.01.2001 would amount to restoring the order dated 19.10.1981 which, per-se, is illegal and this Court would not like to restore an illegal order. He, therefore, prayed that the special appeal be dismissed.
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appellant and submitted that the respondent No.34 is in possession of half of the land sold by Noparam to Nolaram as he has purchased the same from legal heirs of Nolaram through registered sale deed.
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at two different places; whereas, in the common written statement filed in suit No.316/1991, he has averred that 11 bighas land comprising of khasra No.44/5 was not in two parts but was adjunct. In the aforesaid circumstances, it is apparent that the appellant has come with dishonest plea with regard to his possession over the disputed land and his contention with regard to possession over half of the land in question, does not merit acceptance. We have also noted that the facts and circumstances of the case smack of the judgment dated 19.10.1981 having been obtained fraudulently and in collusion. Defendants No.1 & 2, for no apparent reason, stated to have filed written statement admitting the averments made by the appellant in the plaint. The subsequent events fortify our belief. We need not delve more on this aspect as the learned counsel for the appellant could not point out any illegality or perversity in the concurrent findings recorded in this regard by the learned Single Judge as well as by the Board of Revenue and revenue authorities.
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also, it is trite that if setting aside an order, assuming it to having been passed without jurisdiction, would result into restoring an illegal order, this Court will be loathe to interfere. Setting aside the judgment of the Board of Revenue dated 05.01.2001, would restore the judgment dated 19.10.1981 which has been held to have been obtained by playing fraud and collusion; therefore, the judgment dated 05.01.2001 cannot be set aside. We find no illegality in order dated 05.01.2001 passed by the Board of Revenue whereby, the reference was allowed setting aside the judgment dated 19.10.1981 as well as the order passed by learned Single Judge. Since, we have held that the reference made under Section 82 of the Act of 1956 was maintainable, no finding is required as to validity of reference on application under Section 232 of the Act of 1955.
Orson versus Ram Chander Sahu & Ors., 1992 Supp. (2)
SCC 77 , Hon’ble Apex Court has held as under:-
“6. In Section 71A in the absence of a definition of transfer and considering the situation in which exercise of jurisdiction is contemplated, it would not be proper to confine the meaning of transfer to transfer under the Transfer of Property Act or a situation where transfer has a statutory definition. What exactly is contemplated in the provision is where possession has passed from one to another and as a physical fact the member of the Scheduled Tribe who is entitled to hold possession and a non-member has come into possession would be covered by transfer and a situation of that type would
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be amenable to exercise of jurisdiction within the ambit of Section 71A of the Act.
6A. The provision is beneficial and the legislative intention is to extend protection to a class of citizens who are not in a position to keep their property to themselves in the absence of protection. Therefore, when the legislature is extending special protection to the named category, the Court has to give a liberal construction to the protective mechanism which would work out the protection and enable the sphere of protection to be effective than limit by the scope.”
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does not sit in appeal as against an order of subordinate Court. A perusal of the order dated 13.05.2015 reveals that the learned Single Judge has scanned the entire material on record threadbare and we find no illegality and perversity in order impugned warranting interference by this Court in its intra Court appeal jurisdiction.
In D.B. Cross Objection Writ No. 1/2019:-
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confined to the decree dated 19.10.1981 pertaining to half of the land comprising of khasra No.44/5 remaining in the share of Noparam, the learned Single Judge erred in making observations, while dismissing the writ petition filed by the appellant, with regard to sale in his favour. It was further submitted that challenge in the writ petition was made to the order dated 05.01.2001 and the learned Single Judge erred in passing the order beyond the scope of the order dated 05.01.2001. He, therefore, prayed that the cross objection may be allowed and the order dated 13.05.2015 passed by the learned Single Judge, to the extent putting cloud on his title, be set aside and it may be held that half share purchased by the applicant Chiranji Lal was never under challenge in the proceedings before the Board of Revenue.
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(MAHENDAR KUMAR GOYAL),J
(SANGEET LODHA),J
Manish Sharma/s-51-52
3 issues framed by the court
Was a reference under Section 82 barred by a delay of about nineteen years where the challenged decree was obtained through fraud and collusion?
Did Section 42 cover possession of protected-category land despite the absence of a transfer under the Transfer of Property Act?
Could merger protect the decree where the first appeal was dismissed as time-barred and the second appeal was withdrawn?
Colour shows how this judgement treated each authority
Pandey Orson versus Ram Chander Sahu & Ors.Applied¶274
Pandey Orson versus Ram Chander Sahu & Ors., 1992 Supp. (2) SCC 77 · Who else cites this
2 provisions across 2 enactments
Vidhyadhar Sunda
The State of Rajasthan
Board of Revenue for Rajasthan, Ajmer
Collector, Sikar
Tehsildar, Sikar
Chiranji Lal
Sangeet Lodha
Mahendar Kumar Goyal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
