1984 Supreme(All) 616

IN THE HIGH COURT OF ALLAHABAD
B.L. Yadav, J.
Smt. Sharda Devi – Appellant
Versus
Board of Revenue and Others - Respondents
Civil Miscellaneous Writ Petition No. 4582 of 1976
Decided On : 14-11-1984

The Board of Revenue exceeded its jurisdiction in setting aside the findings of fact recorded by the Additional Commissioner and the trial court about the fraudulent nature of the transaction.

Headnote:

TRANSFER OF PROPERTY - ASSIGNATUS UTITUR JURE AUCTORIS - VENDOR'S RIGHT TO TRANSFER - COMPROMISE DECREE - BINDING EFFECT - FRAUDULENT OR COLLUSIVE DECREE - JURISDICTION OF SECOND APPELLATE COURT - U.P. ZAMINDARI ABOLITION AND LAND REFORMS ACT, 1950 - SECTIONS 176, 229-B, 229-C - TRANSFER OF PROPERTY ACT, 1882 - SECTIONS 5, 8 - CIVIL PROCEDURE CODE, 1908 - SECTION 100 - LIMITATION ACT, 1963 - ARTICLE 59.

Fact of the Case:

A suit u/s 176 of the UP ZA & LR Act was filed by Sri Bhrigunath Singh and Pbuleshar Singh, the Respondent Nos. 9 and 10. The Petitioner, however, was not a party to that suit. The suit was decided by a compromise dated 20th August 1963, these 6 plots in dispute (plots No. 20, 38, 13, 20, 14, 15 etc) were given in the share of Ramakant Singh and Shivkant Singh, Respondent Nos. 7 and 8. The Petitioner who was not a party to this suit, filed another suit in respect of these plots u/s 229-B of the Act for declaration of Bhumidhari and Sirdari rights and Respondent Nos. 7 to 12 were also made parties along with State of U.P. and Gaon Sabha concerned. The contesting parties of the suit, however, entered into a compromise, and in consequence a compromise decree was passed on 25th April 1964 and (he Petitioner was declared sirdar and bhumidhar of these 6 plots. The other Respondents who were parties to the suit, were however given other land (other than these six plots) and they felt satisfied. Rama Kant Singh and Shivkant Singh, Respondent Nos. 7 and 8, executed a sale-deed on 11th July, 1966 in favour of Respondent Nos. 2 to 6 in respect of 6 plots in dispute, even though the aforesaid compromise decree in favour of the Petitioner became final. Respondent Nos. 2 to 6 on the strength of aforesaid sale-deed filed a miscellaneous application purporting to be u/s 151 CPC for setting aside the compromise decree dated 25-4-64. This application was dismissed by Assistant Collector I Class on 28-10-69. They preferred revision before the Additional Commissioner which was referred by order dated 7th May 1972 to the Board of Revenue with the recommendation that the same may be dismissed. Respondent Nos. 2 to 6, however, also haves filed another suit u/s 22V-B of the Act, during pendency of the aforesaid application, alleging that they have become bhumidhars on the basis of the aforesaid sale-deed dated 11th July, 1966, and that the Petitioner has incorrectly got his name entered in revenue papers on the basis of the said compromise decree dated 25-4-64 and the said compromise decree was fraudulent and collusive and was not a legal decree, nor it was binding on the Respondents No. 7 and 8, the vendors, hence it was prayed that they may be declared bhumidhars of the plots in dispute. This suit was contested by the Petitioner alleging that after genuine, valid and legal compromise decree dated 25th April, 1964, Respondent Nos. 7 and 8 have no right left in them to execute any sale-deed and in case they intended to themselves exonerate from the binding effect of the compromise decree on the ground that the said decree was fraudulent or illegal they could have challenged it before proper court either by filing a suit for cancellation of the decree, or by preferring an appeal or revision, but they utterly failed to do so, hence Respondent Nos. 7 and 8, the vendors being bound by the compromise decree had no right left in themselves for the execution of any sale-deed dated 11-7-66 in favour of Respondent Nos. 2 to 6, hence the letter could not get any rights or title. It was further pleaded that the compromise decree was genuine, valid and legal and it was neither collusive nor fraudulent and vendors were bound by it and the same shall operate as res-judicata or in any case as an estoppel. The name of the Petitioner was correctly recorded as sirdar on the basis of the aforesaid compromise and the suit of Respondent Nos. 2 to 6 was liable to be dismissed. The trial court dismissed the suit of Respondent Nos. 2 to 6 by his judgment and order dated 11th August, 1971 and their appeal was also dismissed by Additional Commissioner on 2-5-72. Their second appeal, however, was allowed by Board of Revenue by its judgment and order dated 30-7-76 and by this order the earlier reference made by Additional Commissioner has also been decided and the reference has also been allowed along with second appeal.

Finding of the Court:

The Board of Revenue exceeded its jurisdiction u/s 100 CPC read with Section 331(4) of the Act. There was no scope of the second appellate court to set aside the findings of fact recorded by the Additional Commissioner about the fraudulent or collusive nature of the decree. The findings of fact were also based on evidence and howsoever grossly erroneous they may appear to be, when in fact they were not erroneous, much less grossly erroneous, the second appellate court has no jurisdiction to interfere with the same. The vendors, Respondent Nos. 7 & 8 had no right, title or Interest left in the plots in dispute after admitting the claim of the Petitioner in the compromise decree, so as to be able to transfer any interest by the sale deed dated 11-7-66 lo favour of vendees. Hence the vendees did not derive any title out of the tale deed.

Issues: Whether the Board of Revenue exceeded its jurisdiction in setting aside the findings of fact recorded by the Additional Commissioner and the trial court about the fraudulent nature of the transaction.

Ratio Decidendi: The Board of Revenue exceeded its jurisdiction u/s 100 CPC to set aside the findings of fact recorded by the first appellate court and the trial court about fraudulent nature of transaction. Further just en suspicion it cannot be assumed nor findings of fact can be set aside but the Hoard of Revenue has held that "there appears to be some suspicion that after the decree in suit u/s 176 of the Act why should successful patty enter into compromise, surrender the lights in suit u/s 229-K of the Act. But the trial could not judge the evidence of the patties. But if the convenience of parties lay in entering into compromise subsequently, Board of Revenue should not stand in the way". It is well known that bad compromise is better than a good law suit. In case the vendees have entered into compromise admitting claim of Petitioner hence they had no rights in the plots to execute the sale deed in favour of Respondent Nos. 2 to 6.

Final Decision: The writ petition succeeds and is allowed and the judgment and the order of the Board of Revenue dated 30-7-76 is hereby quashed, the Petitioner would also be entitled to her cost.