Sudhir Narain, J. - (1.) THIS writ petition is directed against the order of Deputy Director of Consolidation dated 30-12-1993 whereby he recalled the order dated 28-11-1991 and restore the revision for deciding it on merits.
(2.) BRIEFLY stated the facts are that consolidation proceedings started in village Pagapar, Pargana Haveli, district Gorakhpur (now Maharajganj). In the basic year Khatauni, Khata Nos. 8 and 822 situate in that village were recorded in the names of Smt. Anarkali, Shyam Narain and Aditya. The relevant pedigree is given below : JUDGEMENT_1280_AWC3_1994Image1.jpg Aditya, father of petitioners 2 and 3, and Shyam Narain filed objections under section 5 of U. P. Consolidation of Holdings Act before the Assistant Consolidation Officer with the allegations that Awadhesh died Issueless and on his death his share devolved on Aditya alone. Smt. Anarkali was not daughter of Awadesh and her name was wrongly recorded over the land in dispute. Anarkali denied the allegations. She asserted that she is daughter of Awadhesh. She relied! upon a will dated 2-7-1967, whereby the property in dispute was bequeathed in her favour by Awadhesh. The Consolidation Officer,, after considering the evidence on record, came to the conclusion that Anarkali was daughter of Awadhesh and a will was executed in her favour on 2-7-1967 which was valid with regard to bhumidhari Khata, Khata No. 8 was bhumidhari Khata and Khata No. 822 was a sirdari Khata. Anarkali had, therefore, one-third share in the plots mentioned in Khata No. 8. thus passed the order dated 9-2-1984 and partly allowed the objection of Anarkali in respect of Khata No. 8. Against the order of Consolidation Officer, two appeals were filed-one by Qhanshyam and other sons of Smt. Anarkali and the order by Aditya. The Assistant Settlement Officer (Consolidation) dismissed both the appeals on 26-9-1984. Two revisions were filed against the aforesaid order of the Asstt, Settlement Officer (Consolidation) dated 26-9-S1984-one by Aditya and Shyam Narain and the other by Ghanshyam and his brothers. During consolidation proceedings, after ascertaining valuation of the plots of Khata Nos. 8 and 822, new plot Nos, 1879 and 2653 were given, on which the names of Ghanshyam and others were recorded. On 22-1-1990, Ghanshyam, Radhey Shyam and Vinod Kumar sons of recorded tenure-holder Anarkali sold plot No. 1879 by a registered sale-deed in favour of Ram Kishore. After purchasing the property, he moved an application for mutation. of his name which was numbered as 739/1085. His name was directed to be mutated by the authorities concerned on 19-9-1990 and thereafter his name was recorded in the revenue records. Baijnath and Vishwanath, sons of Aditya, petitioners 2 and 3 in this; writ petition, filed an application for restoration of the mutation case and they also filed an appeal before the sub Divisional Officer on 25-2-1991 under section 210 of the Land Revenue Act. On 15-10-1991, a compromise application was filed before the Deputy Director of Consolidation in both the revisions by Ghanshyam, Radhey Shyam and Vinod Kumar sons of Anarkali on the one hand and Shyam Narain, son of Uma, Baijnath and Vishwanath sons of Aditya on the other, and under the said compromise, it was agreed by Ghanshyam, Radhey Shyam and Vinod that the names of Ghanshyam, Radhey Shyam and Vinod sons of Anarkali be deleted from the revenue records. This compromise application was allowed on 28-11-1991 and both the revision were disposed on in accordance with the terms of compromise. The effect was that the original objections, which had been filed by Anarkali, were practically withdrawn and without any decision on merits, the orders of Consolidation Officer and the Assistant Settlement Officer (Consolidation), which had been passed in favour of the sons of Anarkali, stood set aside
(3.) ON 26-12-1991, Ram Kishore filed an application to set aside the order dated 28-11-1991, whereby the revisions were disposed of in terms of the compromise. He came with the allegation that the compromise was collusive and fraudulent to defeat hiis rights by the vendors. The petitioners filed objections to the said application. The Deputy Director of Consolidation allowed the application by his order dated 36-12-1993 holding that the order dated 28-11-1991 was obtained collusive and fraudulently with the sole purpose to defeat the rights of the transferee. The petitioners have challenged this order in this writ petition. Learned counsel for the petitioners submitted that Ram Kishore, respondent No. 2 had purchased the disputed property during the pendency of the revision. He was bound by any order passed in the revision. The revision was continuation of the proceedings of the case and if the parties entered into a compromise and an order in passed in that proceeding, it is binding upon him in view of section 52 of the Transfer of Property Act. A compromise decree is as much binding as a decree passed in a contested suit as against a. transferee. He placed reliance upon Gauri Dutt Maharaj v. Sukur Mohammad AIR 1948 PC 147, wherein it was held that the words any decree or order which may be made therein" used under section 52 of the Transfer of Property Act (1882) applies to a compromise decree as well and further observed "the broad purpose of section 52 is to maintain the status quo unaffected by the act of any party to the litigation pending its determination. The applicability of section cannot depend on matters of proof or strength or weakness of the case on the one side on the other in bona fide proceedings." The compromise thus should be in bona fide proceeding. This view was emphasised by the Supreme Court in Kedar Nath v. Sheo Narain, AIR 1970 SO 1717. Section 52 of the Transfer of Property Act contemplates "any suit or proceeding which is not collusive". If any proceeding is collusive and any order is passed by the Court, such order many not be binding upon a transferee. A person, who is a party in the suit and has alienated his rights and title In the property in dispute, cannot collusively defeat the rights of the person to whom he has transferred the property. He has left no interest in the property after he had executed the sale-deed in favour of his transferee except to defend his rights in the suit and in doing so in some circumstance he may enter into a compromise but! a person to whom he has sold the property is also entitled to be impleaded in the suit or proceedings which may be pending affecting his rights. The moment he is impleaded, he has a right to a fair trial. Seshagirl Aiyarr J. in Policherala Veerarghava Reddi v. Cherla Subba Reddi, AIR 1920 Mad. 391 considered the origin of doctrine of lis pendens enunciated under section 52 of the Transfer of Property Act. There are twin principles-one that the party should not suffer by any private action of a party to the suit affecting his rights but the other principle is that the right of a person to whom the property has been sold should not be affected by a collusive decree who is not before th* Court, and his right should not be affected by any adjustment or compromise to which he is not a party. He can intervene in the proceedings and in his absence his rights should not be ' affected by any adjustment or agreement between the parties to the suit. ;