KALI CHARAN Vs. DEPUTY DIRECTOR OF CONSOLIDATION

JUDGEMENT

(1.) A. N. Verma, J. The plots in dispute are stated to have originally belonged to one Ratan Singh (vide the pedigree given in the order of the Consolidation Officer, (Varanasi which is Annexure '1' to the petitioner Bhag wati Singh son of Suraj pal Singh died. Thereupon Shrimati Babna respon dent No. 2 filed an application for mutation claiming to be the sister of Bhag wati Singh. The petitioner contested that application. The objection was overruled and by an order dated 21-12- 1945, the name of Shrimati Babna was ordered to be mutated over the share of Bhagwati Singh. The petitioner tried to challenge that order by way of an appeal but without any success. Thereafter the petitioner brought a suit for a declaration and alternatively for possession on 20-10-1948 on the allegation that Shrimati Babna was not the sister of Bhagwati Singh and that the plaintiff was the sole heir of Bhagwati Singh as the letter's brother's son. This suit was contested by Shrimati Babna. The suit was decreed. Shri mati Babna thereafter filed an appeal but the same was dismissed with, the finding that Shrimati Babna had no concern with the property in suit. There after, Shrimati Babna filed a second appeal in this Court being Second Appeal No. 1697 of 1961. During the pendency of the second appeal, the petitioner transferred the plr ts, indispute in favour of respondents, Nos. 3 to 13. After the petitioner had so transferred the plots, he entered into a compromise with Shri mati Babna. whereunder the petitioner admitted the claim of Shrimati Babna to the extent of half-share, giving to her those very plots which he had already transferred in favour of respondent. This compromise was verified and in terms thereof, the second appeal was disposed of. When the consolidation operations commenced, the vendees filed an objection claiming the right to be recorded over the plots which they had pur-chased from the petitioner. The said objection was contested by the petitioner. Shrimati Baban also filed an objection in which she claimed half-share in some of the Khatas in dispute. The Consolidation Officer by his order dated 31-7-1967 held that Shri mati Babna was rot the sister of Bhagwati Singh and that only Davleshwar Singh and Kali Charan petitioners were entitled to half-share each in the ancestral holding in accordarce with the pedigree mentioned above and in repsrd to fixed rate tenancy plots (which was governed by personal law) it was held that Kali Charan had or third share whereas Kavleshwar Singh two-third share. The Consolidation Officer directed that the name of Sbrimati Babna be expugned. Against the order of the Consolidation Officer, appeals were filed by the vendees as well as Shrimati Babna. The Settlement Officer (Consolidation) over ruled the claim of the vendee on the ground that the transfers in their favour were hit by the doctrine of Us pendence. He however, upheld the claim of Shrimati Babna over the land in dispute. Against the aforesaid orders six revisions were filed, five by the vendees and one by the petitioner. The revisional Court has allowed the revisions of the transfers and dismissed that of the petitioner. He upheld the claim of the transfers and held that the transfers were not hit by doctrine of lis pendence inasmuch as the compromise decree was obtained as a result of collusion and fraud between the petitioner ard Sbrimati Bsbna with a view to defrauding the transfers. The Deputy Director of Consolidation however, directed that in as much as the petitioner had fraudulently purported to give those very plots which he had already transferred to Shrimati Babna in the aforesaid compro mise, equity demanded that the transferees he given land out cf the share of the petitioner in the remaining plots. While, therefore, declaring the shares of the various members of the family of Fatan Fingb the Deputy Director of Con solidation directed that the land equivalent to the areas of plots sold by the petitioners to the aforesaid transferees betaken out cf the share of the peti tioners. Aggrieved by the aforesaid order, Kali Charan has come to this Court. Learned Counsel for the petitioner made three sutmissions. His first contention wss that the finding of the Deputy Is irector of Consolidation that the petitioner bad defrauded the transferes by entering into a collusive compromise which Shrimsti Batna is manifestly erroneous in law. there being no evidence In support thereof. I find no substsrce. The finding of the Deputy Director of Consolidation on tte question of fraud is based on facts and circumstances which are perfectly relevant and pertinent. In order to substantiate a plea of fraud or collusion, the party concerned may bring on record facts and circums tances which may point to the conclusion that the transaction in question was tainted by fraud or collusion. It is not always possible to lead direct evidence. But what is necessary is that the facts and circumstances must be relevant and must be so something more than conjuctures and surmises. In the present case, the facts established on the record were all relevant. The Deputy Director of consolidation has adverted to these facts. The peti tioner had won from the first two Courts on issues which were purely of facts. It had been found by the first two Courts below that Shrimati Babna was not the sister of Bhagwati Singh and that she had no concern with the properties in dispute. It was obvious that this finding could not be set aside in second appeal. On the said finding, the second appeal of Babna was found to fail. Notwithstanding this, the petitioner pretended to enter into a compromise, under which, strangely, he purported to agree to the the allotment to Smt. Babna of those very plots which he already transferred to the present respon dents. It is on such self speaking facts that the Deputy Director of Consolida tion held the compromise to be plainly collusive in nature. The above mentioned facts being perfectly relevant the finding of the Deputy Director of Consolidation that the compromise decree was collusive could not be disturbed in these proceedings. On the said finding, Section 52 of the, Transfers of Property Act was rightly held not to be applicable. Furthermore the transfer having been made by the petitioner himself, he could not take advan-age of Section 52 of the Transfer of Property Act. Section 52 protects the right only of the party to the suit or proceeding who had not made the transfer. The transfer itself cannot fall back on Section 52 of the Act. As the finding of the Deputy Director of Consolidation on the question of fraud and collusion is based on relevant facts and circumstances, I find no substance in the first argument. The second submission of the learned counsel for the petitioner was that the Deputy Director of Consolidation had no jurisdiction to adjust equities and direct that the areas of plots transferred by the petitioner be taken out of his share in other holding. I find no substance in this argu ment either. In the case of Ram Narain Rai v. Assistant Settlement Officer Consolidation (1974 Unreported Revenue Cases 293), a Division Bench of this Court observed thus: "for the appellant it was urged that the land sold by parties or their ancestors in the past should be treated as deducted from entire holding. We see no justification for this. There is no evidence of any agreement between the parties that the land sold away by them while the family was joint, would be treated as a sale on behalf of the family. When an indi vidual co-sharer sells undivided land, he gets the benefit of itand the area sold away is liable to be adjusted against his share at the partition. The Settlement Officer was justified in holding that the sales affected by the co-sharers will be adjusted against their share. There was thus no merits in the writ petition. " The aforesaid observation provide a complete answer to the argument of the Learned Counsel for the petition. There is, however, a more serious objection to this submission of the petitioners. It is well settled that this Court exercising its discretionary power under Article 226 of the Constitution ought not to assist a litigant whose hands are tainted. On the finding recorded by the Deputy Director of Consolidation that the petitioner bad committed a fraud by entering in the aforesaid compro mise with Shrimati Babna, agreeing to the allotment of those very plots to her which he had already transferred to the contesting respondents, the petitioner has certainly disentitled himself to any discretionary reliefer indulgence from a Court. This is another reason why the petitioners second submission ought not to be accepted. It may be added that the petitioner had transferred the plots for valuable consideration and thereafter entered into the type of compro mise mentioned above. This petition is, therefore, liable to fail in any view. The third argument of the learned counsel for the petitioner was that it was not open to the consolidation authorities to adjudicate upon the validity of the - compromise decree. It was submitted that it is only a Civil Court, which could declare a compromise decree void and the ground of fraud or collusion in support counsel placed reliance on the following deci sions: 1. 1976 Allahabad Weekly Cases 412.

(2.) 1979 Allahabad Weekly Cases 524.