RAM SANEHI Vs. ASSTT DIRECTOR OF CONSOLIDATION

JUDGEMENT

(1.) Rutai's unbecoming conduct of entering into compro mise with petitioners with whom he had fought tooth and nail for fifteen years and admitting their claim in second appeal, arising out of a suit for declaration filed under Section 229b of U. P. Zamindari Abolition and Land Reforms Act, 1951 after he had already sold the land to opposite parties during pendency of appeal before Additional Commissioner plunged them in series of litigations namely proceedings for mutation, then another suit for declaration which ultimately was abated due to consolidation, and finally objection under Section 9- A (2) of U P. Consolidation of Holdings Act. And despite the finding of al 1 the authorities that compromise was collusive and fraudulent. Therefore, principle of lispendens lite contained in Section 54 of the Transfer of Property Act was not attracted the petitioners have approached this court and that also inequity jurisdiction under Article 226 of Constitution of India. Unfortunately Rutai is not a party in these proceedings otherwise he could have been saddled with heavy cost to compensate the aggrieved party. It has been found that originally land belonged to one Layak who died prior to 1346 Fasli (1938-39), After his death his interest devolved on his son Komil who also appears to have died soon thereafter and the interest was inherited by his mother Smt. Dhanuka who filed a suit for partition against Rutai first cousin of Komil which was decreed but before the decree could be executed she too died. On her death petitioners, daughter and sons of Dhanuka applied for execution which was allowed in May, 1951. Immediately thereafter Rutai appears to have applied for redelivery of possession which was allowed in September, 1951. This led to filing of suit for declaration under Section 229-B of U. P. Zamindari Abolition and Land Reforms Act, by petitioners, which was dismissed both by trial court and Additional Commis sioner. During pendency of appeal Rutai sold the land to opposite-parties. After having thus realized full value he had no hesitation in accepting claim of petitioners in Second Appeal by way of an application admitting right and possession of petitioners and withdrawing his written statement. In view of this application which although described as compromise, was infect an application filed on behalf of Rutai admitting the claim of the petitioners in its entirety. The Board of Revenue decided second appeal stating that as the parties have filed a compromise appeal is decided in terms of compromise which shall form part of the decree. After this order was passed petitioners appro ached the revenue authorities for incorporation of their names which was resisted be opposite-parties who were not aware of this trick played by Rutai, faced wit h this petitioner once again filed suit for declaration but the village was notified under Section 4 of the U. P. Consolidation of Holdings Act and the litigation shifted before consolidation authorities. Before Consolidation Officer the petitioners did not raise any claim in respect of possession or inheritance except that the order passed by the Board of Revenue was final and binding. When this plea was not accepted they, in appeal, agitated a further submission that Komil had died in life time of his father which was negative and was found that Komil succeeded to the interest of his father. In respect of possession the appellate authority found that'they were not in possession as dakhal was obtained by Rutai in partition proceedings and the case of the petitioners that it was paper proceeding, could not be believed. In revision again before the Deputy Director of Consolidation the challenge appears to have been confined only to the effect of the compromise decree passed by the Board of Revenue but the petitioners have not left any stone unturned in attacking all these orders in this Court on all possible pleas of the error committed by the Board of Revenue in misconstruing Section 52 of the Transfer of Property Act, in not Applying the provisions of Section 210 U. P. Zamindari Abolition and Land Reforms Act properly and in not appreciating the evidence on the record properly. Having heard learned counsel for the petitioners at great length, it appears the petition is devoid of any merit. His argument that the finding that Komil had died during the life time of his father is not supported by any evidence or material on the record. The submission that even if there was no material the Deputy Director of Consolidation being final authority of fact was required to record a finding irrespective of its consideration by Settlement Officer Consolidation is a submission which has to be stated only to be rejected. It is true that Deputy Director of Consolidation being final authority of fact is required to adjudicate on question of fact but once it was found by the Settlement Officer Consolidation that Komil was alive when his father died it was the duty of the petitioners not only to challenge this finding before the Deputy Director of Consolidation but have brought evidence on record to substantive plea that finding suffered from error of law. In absence of this the mere argument that the being a court of fact should have recorded a finding on this aspect is wholly misconceived. Equally untenable is the argument that petitioners having been in posses sion since long they acquired rights by adverse possession under Section 210 of Zamindari Abolition and Land Reforms Act. No foundation was laid for it before consolidation authorities. When the appellate authority found that petitioners were in possession the finding was not challenged before the Deputy Director of Consolidation. There is no whisper in the writ petition that the question of adverse possession was argued before the Deputy Director of Conso lidation but it was not examined by him. Raising a question of law based on a question of fact in the writ petition for the first time without any material or any basis in the orders passed by the consolidation authorities, cannot be per mitted. Even assuming for a moment that petitioners were in possession, it was found by the trial Court and the Additional Commissioner in the suit filed under Section 229 that their possession was permissive. By admission of Rutai in the Board the possession did not become adverse. Relying on Kedarnath v. Sheonarain and others (A. I. R. 1970, 1717.) and Bhagirath Dubey v. Raj Kishore Dubey, (1930 A. LJ. 766.) learned counsel for petitioners vehemently argued that principle of Us pendense is attracted to all transfers pending litigation. In fact this is the only argument which merits consideration. According to him a transferee purchasing land during pendency of litigation does it on his own hazard. He cannot subsequently challenge the compromise entered by his vendor. The learned counsel maintained that decree passed by Board of Revenue operated as res-judicata and consolidation authorities were precluded from examining merits of the decree. He submitted the interest of transferee was safeguarded as they could recover the sale consideration. The learned counsel argued the genuineness of compromise was established as apart from land in dispute there was other land on which petitioners' name was mutated after compromise. It was further urged that Rutal's conduct could not affect petitioners. So long petitioners acted bona fide the decree was unassailable. All the consolidation authorities have found that although transfers made by Rutai were subject to principle of Us pendense lite but admission of Rutai being fraudulent and collusive, the principle was not attracted. For this they relied on transfer of entire property by Rutai, knowledge of transfers to petitioners as Smt, Tulsa their mother and Kamta brother of Musai who appeared as a witness for petitioners were also transferees yet petitioners did not take any steps to impaled opposite parties in Second appeal where Rutai admitted their claim, execution of sale deed in 1964 mutation on it in 1965 but no suit was filed for its cancellation within three years and redelivery of possession to Rutai in execution proceedings. If on these facts which either cannot be disputed or have not been disputed an inference of collusive of fraud can arise then the argument of learned counsel has to be rejected. It was argued that collusion of fraud are not the same as held in Nagabai v. B. Shama Rao (A. I. R. 1956 S. C. 593.) yet the consolidation authorities have found both established without finding that ingredients of either were established. Assuming it to be so it cannot be disputed that if either if these can be held to be established then petitioner shall be out of Court. With the finding that Smt. Dhanuka had inherited the tenancy of her son, Komil, it is obvious that sister's son that is petitioners could not be heirs in preference to Rutai who was first cousin. Could the admission of Rutai bring about any change in law No. It was an exercise in futility. By his statement that petitioners had right and possession that he was withdrawing his written statement he could not alter legal position. Petitioners could have succeeded in suit even without written statement only if they could establish that after Dhanuka the land would have devolved on them. As this admission was made by Rutai after he had sold the land and was left with no interest an inference could be drawn it was preceded by secret arrangement between petitioner and Rutai in order to obtain a decree with sinister purpose of depriving opposite parties of land which they had purchased. In Kedranath case the Hon'ble Court while observing the doctrine of Us pendense applies irrespective of strength or weakness of the case on one side or the other made subject to condition that the "proceeding must be bona fide". It has already been seen above that compromise arrived at between petitioner and Rutai was not only against law but with a definite purpose to harm opposite parties. In other words it was not bona fide. In this only only Rutai was not to blame. Petitioners were aware that land has been sold. Further the argument that on some land mutation was affected after compro mise therefore it was genuine appears to misconceived. It has been found by appellate authority that Rutai sold entire land. This finding has not been challenged. It may be the land on which no contest was made by opposite parties was of which suit Tulsa was transferee. Bhagiratks case on the first flush appeared to be in flavor of petitioners. But a reading of the decision leaves hardly any room for doubt that it has absolutely no application. In this case in suit for pre- emption filed against transferor there was dispute whether transfer was sale or usufructuary mort gage. During pendency of suit transferor in fact sold it to certain other persons who were imp leaded in suit. Soon thereafter transferee and plaintiff entered into compromise. It was admitted that transfer was sale and not usufructuary mortgage. It is obvious that compromise was against transferees own interest as it was bound to result in decree in favor of plaintiff. It was not a compromise by transferor to defeat the sale made by him in favor of defendant 2 to 7 who were imp leaded subsequently. Moreover it was held that no fraud was alleged or proved. In the present case it has been found by all the authorities that compromise was fraudulent. It has already been seen above that compromise entered between petitioner and Rutai was nothing but an attempt to deprive opposite parties of land which they had purchased. Whatever the technicality the intention is so apparent that the petitioner is not entitled to any equitable relief. In the result this petition fails and is dismissed with costs. .