CHAUHANA Vs. GAYA PRASAD

JUDGEMENT

(1.) SECOND Appeal No. 234 of 1963 and Second Appeal No. 275 of 1963 both arise out of the same judgment and decree passed by the Munsif Bara banki in Suit No. 57 of 1961 which decree was also confirmed by the Civil Judge, Barabanki. The brief facts of the case were that one Badri was a Sirdar of cer tain plots under the provisions of the U. P. Zamindari Abolition and Land Re forms Act (hereinafter referred to as the Act). Gur Prasad defendant, who died during the pendency of these appeals and is now represented by his brother Gaya Prasad, filed a suit in the Revenue Court under Section 209 of the Act against Badri alleging that this holding was his own Sirdari holding on which Badri had entered in wrongful possession. He pray ed for possession over this holding after the ejectment of Badri. In the suit a compromise dated 31-1-1959 was filed by Badri and Gur Prasad in which it was ad mitted that the holding belonged to Gur Prasad In which Badri had no interest and it was further stated that Badri had also restored possession over it to Gur Prasad. The court on the same day re corded this compromise and passed a decree in terms of it. Thereafter Gur Prasad remained In possession of this holding and his name was also recorded In the revenue records as its Sirdar. Badri died in March, 1960 leaving his sister Smt. Chauhana as his heir. Smt. Chauhana then filed the suit out of which these appeals have arisen in the court of Munsif Barabanki on 3-4-1961 alleging that the holding actually belonged to Badri who was an old man of 80 years of age at the time of his death and that the compromise decree in that suit was the result of fraud and collusion which is not binding on the plaintiff. The plaintiff, therefore, prayed for the cancellation of that decree, for a declaration that she Was the Sirdar of this holding and for delivery of possession over it in case she was found to be out of possession. In this suit besides Gur Prasad, Gram Sabha Bairana Mau and the State Government of Uttar Pradesh were also impleaded as pro forma defendants,

(2.) THE suit was contested by Gur Prasad on a number of grounds. He denied that there was any collusion be tween him and Badri in obtaining that compromise decree. He contended that he himself was the Sirdar of this land and that this compromise decree was rightly passed which in any case was binding on Badri and his legal representative and it Is not liable to be set aside at the instance of the plaintiff. Some other pleas were also taken which it is not necessary to mention for the purposes of the decision of these appeals.

(3.) I heard the learned counsel for the parties in both these appeals. The first question that arises for consideration in these appeals is whether the compro mise decree passed by the Revenue Court on 31- 1-1959 could be set aside at the instance of Badri's legal representative on the ground that this compromise was a colorable device entered into between Badri and Gur Prasad to transfer Badri's interest in this holding to Gur Prasad which otherwise Badri was not competent to do under the provisions of the Act. It was neither pleaded nor proved that Gur Prasad had practised any fraud on Badri to bring about this compromise. All that was alleged by the plaintiff was that Badri being an old man could not fully understand the implications of the com promise on which he had subscribed his signature. On this point the learned Munsif. after discussing the evidence adduced by the parties, recorded a cate gorical finding that he was satisfied ftiat Badri had signed this compromise after fully understanding its implications. He further observed that it was not the plaintiff's case that any fraud was prac tised or any undue influence was exerted upon Badri. What was held by the learned Munsif was that from a perusal of the evidence produced by the parties it appeared that the holding in question belonged to Badri and not to Gur Prasad and as such it was a colorable device between Badri and Gur Prasad to file that suit and get it decided in terms of that compromise so that the holding may be transferred from Badri to Gur Prasad which otherwise could not be transferred in view of the provisions contained in Sections 155 and 156 of the Act. If that was so, it meant that both of these persons practised fraud on the Gram Sabha by giving this form of a decree to a transaction which in substance was a transfer and which could lead to the ejectment of both these persons if the true nature of the transaction was ex posed, under Section 167 of the Act. Since the fraud had been carried out, it was not open to Badri, who was one of the parties to the fraud, to avoid that decree on the ground that the compromise filed in that suit was the result of a col lusion between him and Gur Prasad. The distinction between a fraudulent decree and a collusive decree was clearly brought out in a decision of this Court in Sahib Rai v. Bahari Rai, AIR 1927 All 494. It was held in that case that a party who has been made the victim of a fraud can obviously avoid a decree on the ground that he has discovered the fraud subse quent to the decree which could not have been made a point of defence in the for mer litigation. On the other hand, the fact of collusion is a matter which must have been well known to both the par ties and is a point which could and might have been raised before the decree was passed on the last occasion. A third party can undoubtedly avoid a decree on the ground that it has been obtained collusively, but a party to a collusive decree cannot avoid it on that ground. Such a decree binds not only the party but also his legal representative under Section 11 of the Civil Procedure Code. In this view of the matter it was not open to Smt. Chauhana plaintiff to have that decree set aside. So long as that decree stands, it is not open to her to deny the title of Gur Prasad as Sirdar of the land in dispute. In face of this decree there was no occasion for the courts to go into the merits of the controversy whether the holding actually belonged to Badrai or Gur Prasad.