A judgment obtained by fraud is a nullity and can be challenged at any time. Fraud and justice cannot coexist, and those approaching the court must do so with clean hands.

JUDGMENT :

SUNITA AGARWAL, J.

1. We have heard Mr.Dipen Desai, learned counsel appearing for the appellants, Mr.K.M.Antani, learned Assistant Government Pleader for the State respondent and Mr.S.P.Majmudar, learned counsel assisted by Mr.Meet Kakadia, learned counsel appearing for the private respondents.

2. This intra-court appeal is directed against the judgment and order dated 03.08.2021 passed by the learned Single Judge in allowing the writ petition, setting aside the order dated 12.06.2006 passed by the Gujarat Revenue Tribunal in Revision Application No.TEN.B.S. 88 of 1991, consequently restoring the order dated 30.11.1990 passed by the Deputy Collector (Land Reforms), Surat. The appellant No.2 herein claims to be the tenant of the land in question namely land bearing Revenue Survey No.591/7 admeasuring 1-Acre 7-Gunthas, situated in village Kosad, Taluka Choryasi, District Surat, which was initially recorded in the name of Bai Fatima widow of Yusuf Ibrahim Ghanchia, on the basis of a declaration dated 18.11.1974 under Section 32(G) and 32(O) of the Bombay Tenancy and Agricultural Lands Act, 1948 (in short referred to as “the Act 1948”).

3. The brief facts of the case relevant to note at this juncture are that in the Tenancy Case No.1580 of 1974, the application preferred by the appellants herein – respondent Nos.4 and 5 in the writ petition, the original petitioners were not impleaded as parties. The declaration dated 18.11.1974 by Mamlatdar and ALT was against Bai Fatima, declaring respondent No.4 – appellant No.2 herein as a tenant in respect of the land in question. The writ petitioners claiming themselves to be owners of 1/3rd share in Survey No.591/7 preferred an appeal before the Deputy Collector (Land Reforms), Surat in Tenancy Appeal No.144 of 1990.

4. Prior to initiation of the proceedings in appeal challenging the declaration dated 18.11.1974, Special Civil Suit No.51 of 1975 between the petitioners and Bai Fatima was pending. The said suit was instituted by Ibrahim Suleman Narot (petitioner) whose heirs and legal representatives are arrayed as respondent Nos.1.1 to 1.7.2 herein. The said suit was for declaration of share of the plaintiff in Survey No.591/7, which was decreed declaring 3/8th share of plaintiff and defendant Nos.2, 3, 4 and 5, collectively. It may be noted that the decree dated 16.05.1988 has attained finality in the year 1988, as there has been no further challenge.

5. In the Tenancy Appeal No.144 of 1990, which was initiated after the decree of the Civil Court, the Deputy Collector while allowing the appeal vide order dated 30.11.1990 had set aside the order dated 18.11.1974 passed by the Mamlatdar and ALT, Choryasi, in Tenancy Case No.1580 of 1974. It was recorded by the Collector that on perusal of the case documents, it transpired that the Tenancy/32-O/32-G Case No.1580 of 1974 decided on 18.11.1974, on calling for the tenancy case original documents from the Mamlatdar, Choryasi, in the report dated 22.06.1990, it was stated that the said record was not found and the documents are squandered away. The certified copy of the original case documents was produced on behalf of the appellants. The land under dispute was in fragment and under Section 32(O) of the Tenancy Act, the right to purchase could not be granted. On the contrary, in the inquiry the party had admitted having made the Satakhat/Agreement to Sell, therefore, the defendant No.1 therein (appellant herein) cannot have any tenancy rights arising. It was further noted that on the same date, the application under the Tenancy Act was filed, hearing had taken place and on the same day, the judgment was delivered. The impugned judgment by the Mamlatdar and Agriculture Land Tribunal was, thus, held to be abinitio nullity. It was, thus, concluded by the Collector that the appeal cannot be said to be barred by limitation and the plea of the respondent to reject the appeal being barred by limitation was not proper and legal. In the facts and circ