- (1.) R. B. Misra, J. Heard Sri Anil Bhushan, learned Counsel for the petitioner, Sri Vikram Nath, learned Counsel for the respondent Nos. 7 to 9, and learned Standing Counsel for the respondent Nos. 1 to 4. With the consent of learned Counsels for the parties this writ petition is decided finally at this stage in view of the Second Proviso to Rule 2 of Chapter XXII of the Allahabad High Court Rules, 1952.
(2.) IN the present writ petition, prayer has been made for issuance of writ of certiorari for quashing the order dated 27th November, 1998 (Annexure 5 to the writ petition) passed by the Collector, Varanasi and order dated 17th December, 1998 (Annexure 6 to the writ petition) passed by the Sub- Divisional Officer (Uttari), Varanasi. According to the petitioner, he had filed Suit No. 250 in the year 1981 under Section 229 (B) read with Section 176 of the Uttar Pradesh Zamindari Abolition & Land Reforms Act, 1950 (hereinafter in short called as the Z. A. & L. R. Act) against the respondent Nos. 3 to 9 with regard to the agricultural plots situated in village Kaniyar, District Varanasi, the suit was decreed on 23-8-1989 by the Additional Sub- Divisional Officer in favour of the petitioner, but the respondent Nos. 7, 8 and 9 filed an application under Order IX, Rule 13 of Code of Civil Procedure for setting aside such ex parte decree dated 23- 8- 1989 with prayer that the appeal be not proceeded with till the application is decided, however, the Additional Commissioner passed an order dated 21-4-1993, against which revision was admitted by the Board of Revenue on 19-5-1993. Subsequently, the Board of Revenue dismissed the revision on 13-7- 1995 with an observation that the petitioner had not 'amal daramad' in the revenue records. Against the above order a writ petition No. 3287 of 1997 was preferred by Sri Sindhuja Pratap Singh, wherein interim order was granted on 29-1-1997. Subsequently, the District Magistrate/collector, Varanasi passed orders on 27-11- 1998 and 17-12-1998. According to the petitioner the decree passed in favour of the petitioner cannot be set aside by the administrative order under the dictates of the higher authorities, more so, in violation of the principle of natural justice, without affording opportunity of hearing to the petitioner. According to the petitioner, the decree/judgment could not be set aside by the same authority but by the higher authority in the judicial proceedings and in the present case the order passed by the Additional Sub-Divisional Officer on 23-8-1989 could not be reviewed or rectified without affording opportunity of hearing to the petitioner.
(3.) THE strengthen the cause for and the following submissions have been made for and on behalf of the petitioner: (a) THE issue of jurisdiction raised at the first instance before the lower authorities and decree passed in favour of the petitioner could not be legally set aside administratively by the Sub-Divisional Magistrate at the instance of the District Magistrate, in view of 1981 ACJ 138, Sabha Chand and others v. Narain Singh and others, where the question of jurisdiction in the suit for partition not raised earlier before the trial Court could not be raised before the Civil Court after the dismissal of the suit on merits, the findings arrived at by trial Court could not be challenged on the ground of lack of jurisdiction at subsequent stage. For raising the contentions and questions of jurisdiction too before the appellate or revisional Court two aspects are necessary, firstly, the objection must have been taken at earliest stage, and secondly, the failure of justice might have be the cause before the Civil Court. Similar view was also taken in 1981 ACJ 148, Baldeo v. Beni Lal Kedia and others. (b) THE decree could be set aside on an application under Order IX, Rule 13 of CPC provided it was not decided on merits. Since in the present case the decree was passed after hearing the parties, as such, the application under Order IX, Rule 13 CPC was not maintainable, therefore, the appropriate remedy for respondent Nos. 7 to 9 was to file an appeal against the decree but instead of filing appeal such respondents got the earlier decree set aside by way of administrative order, which are in derogation to the judgment in 1999 (2) JCLR 587 (All) : 1999 (1) ACJ 532, Parmarth Prakash v. THE Union of India and others. (c) THE impugned orders could be judged on a reason given in the impugned order itself, not on the basis of supplementation put by way of an affidavit, hence, the counter-affidavit filed by the respondents raising certain questions for strengthening the impugned order is not permissible in view of the judgment of AIR 1978 SC 851, Mohinder Singh Gill and another v. THE Chief Election Commissioner, New Delhi and others. On the other hand the following submissions were made for and on behalf of the respondents: (i) The dispute relates to plot Nos. (i) 1304 area 0. 30, (ii) 294-A area 0. 60, (iii) 465 Kha area 0. 38, (iv) 528 Kha area 0. 46, (v) 885 Ga area 0. 90, (vi) 887 Kha area 0. 14 total 6 plots measuring area 3. 78 acres situates in village Kaniyar, Pargana Pandrah, Tehsil & District Varanasi. (ii) Sri Ram Lakhan Singh, grand-father of respondents, was the bhumidhar in possession of the property in dispute. He had executed a will in favour of his grand-sons Sri Ram Lakhan Singh died in the year 1985. After his death the name of respondent Nos. 7 to 9 was substituted in the revenue records on the basis of will executed by Sri Ram Lakhan Singh. In the meantime consolidation operation intervened and chaks were carved out in favour of respondent Nos. 7 to 9. Thereafter, in the khatauni of 1395 to 1400 Fasali the name of respondent Nos. 7 to 9 was recorded over the land in dispute. (Annexures CA-1 and CA-2 to the counter-affidavit ). (iii) The petitioner and his brother-in-law Sakumbari Prasad Singh and land grabbers/land Mafia operating in Varanasi district adopted modus operandi by filing false and frivolous suit for declaration, and by setting up imposters they got suits decreed. After obtaining the ex parte decree against the real owner they remain silent for some time and thereafter, in collusion with local police they took forcible possession of the property through police help. (iv) The petitioner and Sakumbari Prasad Singh had got manipulation by forging and interpolation in the original record of 1365 Fasli in the revenue records room at Varanasi, wherein they got the name of ancestors of the respondents deleted. (v) Thereafter, on the basis of the interpolated records of 1365 Fasli the petitioner filed a suit for declaration under Section 229-B of the U. P. Zamindari Abolition and Land Reforms Act, 1950 (U. P. Act No. 1 of 1951), in the Court of the Additional Sub- Divisional Officer, Varanasi, whereas in fact the Additional Sub- Divisional Officer had no jurisdiction or authority to receive and register suits directly. The Court of Additional Sub- Divisional Officer was only authorized to hear and decide suits transferred to its Court from the parent Court of the Sub- Divisional Officer by the orders of the Collector. (vi) In the said suit the petitioner falsely and mala fidely impleaded his own relatives in order to get the ex parte judgment confirmed by superior Courts by filing frivolous appeals. (vii) The suit was alleged to be registered as suit No. 250 of 1989, Ajay Sharma v. State of U. P. and others. The Court of the Sub-Divisional Officer, Varanasi registered on said number another case in the name of Chanik v. State of Village Gurwat, Pargana Katehar, Tehsil and district Varanasi (Annexure CA-6 to the counter-affidavit ). (viii) In the said farzi suit the petitioner got written statement filed through imposters, however, neither any written statement was filed by respondent Nos. 7 to 9 nor they had any knowledge of the proceedings. (ix) The said suit was decreed ex parte on 23-8-1989 by the Additional Sub-Divisional Officer Annexure-1 to the writ petition ). The petitioner did not get the judgment incorporated in the revenue records for about 2 years as per his usual modus. Thereafter, in April, 1992 he got the judgment incorporated in the revenue records as apparent from the extract of khatauni of 1395-1400 Fasli. (Annexure CA-3 to the counter-affidavit ). (x) On coming to know of the fraud committed by the petitioner and Sakumbari Prasad Singh the respondent Nos. 7 to 9 filed two applications before the District Magistrate/collector, Varanasi. One application was filed highlighting the interpolation made in the original revenue record of 1365 Fasli in the record room and the second application was filed regarding the decree obtained by fraud on 23-8- 1989 from the Court of Additional Sub-Divisional Officer. (xi) The Collector, Varanasi entrusted the inquiry regarding the fraud in the khatauni of 1365 Fasli to the Sub-Divisional Officer (Northern Varanasi) and in so far as the other inquiry relating to fraudulent judgment under Section 229-B of the Act No. 1 of 1951 is concerned, was entrusted to Chief Revenue Officer, Varanasi. (xii) The Sub-Divisional Officer after inquiry found that the petitioner and Sakumbari Prasad Singh had made interpolation in the original records of 1365 Fasli. He, therefore, directed vide order dated 19-5- 1993 that the name of Baijnath Singh wrongly entered in 1365 Khatauni be deleted. (Annexure CA-4 to the counter-affidavit ). (xiii) On the basis of the said order the Collector, Varanasi directed the Officer-in-charge of the Revenue Record Room, Varanasi to lodge First Information Report against Sakumbari Prasad Singh and the petitioner. The First Information Report was registered as Case Crime No. 32 of 1994 under Sections 218, 467, 468, 471 IPC, Police Station Cantonment, Varanasi. In the said case after investigation the Police has submitted the charge sheet and the case was pending trial before the Court. (Annexure CA-5 to the counter-affidavit ). (xiv) In so far as the inquiry regarding the frivolous decree under Section 229-B of the Act was concerned the Chief Revenue Officer found that the suit had been deliberately and illegally filed in a Court, which had no jurisdiction to entertain. The Additional Sub-Divisional Officer having acted without jurisdiction in entertaining the suit, any decree passed therein was without jurisdiction, null and void. (xv) On the basis of the report of the Chief Revenue Officer, the Collector, Varanasi vide order dated 27- 11-1998 directed the Sub-Divisional Officer to pass suitable order in the case in view of the apparent fraud committed by the petitioner. (Annexure 5 to the petition ). Accordingly the Sub-Divisional Officer passed an order dated 17-12-1998 giving reasons of the fraud committed by the petitioner and Sakumbari Prasad Singh. (Annexure 6 to the petition ). (xvi) Further the respondent No. 8 Amitabh also lodged a First Information Report with the Police Station Cantonment, Varanasi regarding the frivolous decree, which was registered as Case Crime No. 373-A of 1992 under Sections 467, 468, 471 and 420 IPC, Police Station Cantonment, Varanasi against the petitioner. (Annexure CA-7 to the counter-affidavit ). (xvii) Sakumbari Prasad Singh and the petitioner have not only made efforts to grab the land of respondent Nos. 7 to 9, but have also tried to grab the land of several other persons in respect of which different criminal cases are pending against them. (Annexure CA-8 to the counter-affidavit ). (xviii) The petitioner and Sakumbari Prasad Singh being land grabbers/land mafia and also being involved is so may fraudulent transactions and having played fraud upon the Court are not entitled to any kind of relief from this Court in its extra ordinary jurisdiction. (xix) In the present writ petition, there is no averment by the petitioner disputing the finding regarding the inquiry by Sub- Divisional Officer and the Chief Revenue Officer regarding the fraud committed by them. Petitioner's want to take undue advantage of the fraud committed by them by raising frivolous and technical pleas. In effect, by the order of the Collector dated 27-11-1998 and that of the Sub- Divisional Officer dated 17-12-1998 substantial justice has been done and fraud has been set aside.;