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2020 Supreme(All) 568
IN THE HIGH COURT OF ALLAHABAD
Sangeeta Chandra, J.
Smt Manju Devi – Petitioner
Versus
Board of Revenue Allahabad & Ors. – Respondents
Misc. Single No. 3392 of 2018
Decided On : 28-05-2020
Advocate Appeared:
For the Petitioner: Mohammad Aslam Khan, Indrajeet Shukla, Nitin Srivastava
For the Respondent: C.S.C, Amrendra Nath Tripathi, Jai Kumar, Santosh Kumar Tripathi
Headnote:
Code of Civil Procedure – Rule 23A of Order XLI, Order XXIII Rule 3, Section 96 – U.P.Z.A. and L.R. Act – Sections 229B, 209, 331– Transfer of Property Act – Section 52 – Property in dispute – Inheritance of – Quashing of Order – Writ petition has been filed by petitioner praying for quashing of order passed by the opposite party no.1 upholding the order passed by opposite party no.2, and for consequential reliefs – Held, If transferee pendente lite can prove that Decree had been obtained on collusion by plaintiffs and original defendant, transferor pendente lite, such transferee is entitled to file Recall application or an Appeal against such a Decree on showing Court that its interest had been prejudicially affected by failure of transferor pendente lite to properly defend action – Court holds that Smt. Manju Devi was entitled to file First Appeal before Court of Additional Commissioner against compromise Decree – Private respondents have been unable to produce any interim order of trial court prohibiting alienation without permission of Court – Compromise Decree was rightly set aside by First Appellate Court – Second Appeal though maintainable before Board of Revenue was improperly allowed by it only on ground that transferee lis pendens is void – Judgment and order passed by respondent no.1 is hence, liable to be set aside and is set aside – Writ Petition Allowed (Paras 66, 67, 68, 70)
Facts of The case:
Initially the four plots of land were recorded in the name of Smt. Ram Raji, widow of Sheetla Prasad. On the death of Smt. Ram Raji, the name of Smt. Sampata, wife of Shiv Prasad being the only daughter, was recorded by the Supervisor, Kanoongo through PA-11 entry. On 6.7.1974, Bhikhu, Ram Sumran and Ram Kumar filed a suit under Section 229B/209 of the U.P.Z.A. and L.R. Act against Sampata by impleading the State of U.P. and the Gaon Sabha as parties and claiming Bhumidhari rights on the basis of an unregistered Will dated 5.9.1972, alleged to have been executed by Smt. Ram Raji and in the alternative, claimed to be heirs of Smt. Ram Raji being the nephews of her Late husband Shiv Prasad, and denying the existence of Sampata as a daughter of Ram Raji and Sheetla Prasad. The suit was contested by Sampata, who pleaded that she is the only daughter of Smt. Ram Raji and had inherited the property in dispute. The suit was also contested by the State of U.P. by filing written statement.
Findings of the court:
If transferee pendente lite can prove that Decree had been obtained on collusion by plaintiffs and original defendant, transferor pendente lite, such transferee is entitled to file Recall application or an Appeal against such a Decree on showing Court that its interest had been prejudicially affected by failure of transferor pendente lite to properly defend action – Court holds that Smt. Manju Devi was entitled to file First Appeal before Court of Additional Commissioner against compromise Decree – Private respondents have been unable to produce any interim order of trial court prohibiting alienation without permission of Court – Compromise Decree was rightly set aside by First Appellate Court – Second Appeal though maintainable before Board of Revenue was improperly allowed by it only on ground that transferee lis pendens is void – Judgment and order passed by respondent no.1 is hence, liable to be set aside and is set aside.
Result: Writ Petition Allowed
JUDGMENT :
1. This writ petition has been filed by the petitioner praying for quashing of the order passed by the opposite party no.1 dated 11.1.2018, upholding the order dated 30.7.2014 passed by the opposite party no.2, and for consequential reliefs.
2. The dispute relates to four plots of land situated in village Laxmanpur, Pargana, Tehsil and District Gonda.
3. It has been stated in the writ petition that initially the four plots of land were recorded in the name of Smt. Ram Raji, widow of Sheetla Prasad. On the death of Smt. Ram Raji, the name of Smt. Sampata, wife of Shiv Prasad being the only daughter, was recorded by the Supervisor, Kanoongo through PA-11 entry. On 6.7.1974, Bhikhu, Ram Sumran and Ram Kumar filed a suit under Section 229B/209 of the U.P.Z.A. and L.R. Act against Sampata by impleading the State of U.P. and the Gaon Sabha as parties and claiming Bhumidhari rights on the basis of an unregistered Will dated 5.9.1972, alleged to have been executed by Smt. Ram Raji and in the alternative, claimed to be heirs of Smt. Ram Raji being the nephews of her Late husband Shiv Prasad, and denying the existence of Sampata as a daughter of Ram Raji and Sheetla Prasad. The suit was contested by Sampata, who pleaded that she is the only daughter of Smt. Ram Raji and had inherited the property in dispute. The suit was also contested by the State of U.P. by filing written statement.
4. Initially, the trial court decreed the suit by judgment and order dated 20.1.1977 against which order, Sampata filed an Appeal, which was allowed on 6.12.1979 and the suit was dismissed. Against the order dated 6.12.1979, the plaintiffs filed a Second Appeal, which was allowed by judgment and order dated 18.10.1995. The Board of Revenue set aside the order passed by the Additional Commissioner in Appeal and remanded the matter to the Sub Divisional Officer, Tarabganj, Gonda (hereinafter referred to as ‘the opposite party no.2’). After remand of the suit to the opposite party no.2, the plaintiffs died and were substituted by their legal heirs. Similarly, the defendant Sampata also died and was substituted by her legal heir Kallu Ram, whose name had been recorded in PA-11 by the Supervisor, Kanoongo. Kallu Ram, whose name was recorded in the revenue records as Bhumidhar, executed two Sale Deeds on 31.7.2010 and 6.7.2012 in favour of the petitioner and one Sushila Devi. Kallu Ram also executed a Power of Attorney in favour of the Suraj Lal, husband of Smt. Manju Devi, authorizing him to prosecute the declaratory Suit, which was pending before the opposite party no.2 on behalf of the defendant Kallu Ram. In the meantime, the other purchaser, Smt. Sushila Devi transferred her share of purchased land through a registered Sale Deed on 17.1.2014 in favour of Smt. Manju Devi.
Kallu Ram after executing a Power of Attorney in favour of the husband of the petitioner on 31.7.2010 also executed another Power of Attorney on 21.2.2014 in favour of one Ayodhya Prasad. In the suit that was pending before the opposite party no.2, the plaintiffs made an application before the Collector, Gonda for transfer of the case to another Court and the said application was allowed on 7.7.2014 and the case was transferred from the Court of Sub Divisional Officer, Sadar, Gonda to the Court of Sub Divisional Officer, Tarabganj, Gonda. The record was received on 18.7.2014 and the Court fixed the date of 7.8.2014. The new Power of Attorney holder Ayodhya Prasad filed an application before the opposite party no.2 for preponing the date, which had earlier been fixed as 7.8.2014. The application was allowed and new date was fixed as 23.7.2014. It has been submitted that all this was done behind the back of the petitioner/her husband. After getting the date preponed, Ayodhya Prasad filed a collusive compromise between the plaintiffs and Kallu Ram, who had already sold off all his property and had no right or title or interest left in the same. On the basis of this compromise dated 23.7.
