# Keshav Prasad & Ors v. Dy. Director of Consolidation & Ors

- **Citation:** (2023) 7 ILRA 334
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-10
- **Case number:** Writ-B No. 1601 of 1976
- **Bench:** Siddharth
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/keshav-prasad-ors-v-dy-director-of-consolidation-ors-50433
- **Pages:** 15

## Headnote

A. Consolidation Law - UP Consolidation
Act, 1953
- Section 9-A(2)
- Civil
Procedure Code,1908 - O. XXIII R. 3 -
Correction of the revenue record sought
on
the
basis
compromise
decree
-
Compromise decree was passed in a suit
u/s 229-B of UP ZA & LR Act, 1950 -
Petitioners had executed vakalatnama in
favour of their counsel and on the same
date the compromise was signed by their
counsel and compromise decree was too
passed - Permissibility - Object of O.
XXIII R. 3 of CPC explained - Held, a
compromise signed by the counsel on
7 All. Keshav Prasad & Ors. Vs. Dy. Director of Consolidation & Ors.
335
behalf of his client before the Court is
valid in law and for all purposes and the
clients of such counsel cannot dispute the
authority of their counsel to execute such
a compromise - Object of the O. XXIII, R.
3 CPC is to curtail litigation between the
parties
by
concluding
litigation
with
consent. (Para 23)

B. Consolidation Law - UP Consolidation
Act, 1953 - Section 48 - Revisional
power - Scope - Deputy Director of
Consolidation has very wide power to
decide issue relating to fact and law
both u/s 48 of the Act after reappreciating the evidence on record -
Ram Jeet's case relied upon - Held, the
judgment of a Revisional Court has to
open,
go
through
and
end
like
a
judgment of reappraisal of what the two
Courts or Authorities below have done -
Impugned order reads like an original
judgment written in the third instance.
It does not give any reason to agree
with what the Appellate Court and
disagree with what the trial court has
said - High Court while upholding the
order of Consolidation Officer, quashed
the
order
of
appellate
court
and
revisional court. (Para 32, 34 and 35)

Writ petition allowed. (E-1)

List of Cases cited:

## Text

_Characters 0–39,690 of 50,964. This is a partial read: ask again with offset=39690 for what follows._

334 INDIAN LAW REPORTS ALLAHABAD SERIES
It is a basic requirement of rules of natural
justice that an employee should be given a
reasonable opportunity of being heard in
any proceeding which may culminate in a
major punishment being imposed on the
employee. Thus the disciplinary proceeding
stood vitiated.

28. Considering in totalities of facts
and circumstances as well as law-report
cited by learned counsel for the petitioner,
this Court is of the considered opinion that
it is mandatory to provide enquiry report to
the delinquent in order to provide an
opportunity to submit reply to the same. In
case the punishment order imposing major
penalty has been passed without providing
enquiry report to the delinquent employee
the said punishment order is not sustainable
in the eyes of law. Therefore, from any
angle the matter is to be looked into, the
impugned order passed by the respondents
are null and void, apart from the fact that
they are in violation of the principles of
natural justice.

29. Accordingly, the writ petition is
allowed. The orders dated 11.2.1992 and
8.9.1992 are hereby quashed.

30. It is however made clear that since
this order is being passed for the reason
that the departmental enquiry has not been
conducted and concluded against the
petitioner strictly in accordance with law,
therefore, the
authority concerned is
directed to pass appropriate order in favour
of the petitioner reinstating him in service
forthwith and is at liberty to conduct the
departmental enquiry, if it is so desired, but
strictly in accordance with law from the
stage of issuance of the enquiry report. The
petitioner would be provided a copy of the
enquiry report and he would be afforded an
opportunity to submit his explanation to the
show cause notice which may be given to
the petitioner along with copy of the
enquiry report, if any, within fifteen days
and the petitioner shall file his explanation
to the show cause notice within the
maximum period of one month thereafter.
The authority concerned, shall thereafter,
pass final order and shall intimate the
petitioner forthwith.
----------
(2023) 7 ILRA 334
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.07.2023

BEFORE

THE HON'BLE SIDDHARTH, J.

Writ-B No. 1601 of 1976

Keshav Prasad & Ors. ...Petitioners
Versus
Dy. Director of Consolidation & Ors.
 ...Respondents

Counsel for the Petitioners:
Sri V.D. Ojha, Sri Sanjeev Singh, Sri Z.A.
Siddiqui

Counsel for the Respondents:
Sri G.C. Dwivedi, Sri R.P. Misra, S.C., Sri
S.K. Tiwari, Sri S.P. Shukla, Sri Siddhartha
Shukla, Sri Tripathi B G Bhai, Sri U.C. Misra

A. Consolidation Law - UP Consolidation
Act, 1953
- Section 9-A(2)
- Civil
Procedure Code,1908 - O. XXIII R. 3 -
Correction of the revenue record sought
on
the
basis
compromise
decree
-
Compromise decree was passed in a suit
u/s 229-B of UP ZA & LR Act, 1950 -
Petitioners had executed vakalatnama in
favour of their counsel and on the same
date the compromise was signed by their
counsel and compromise decree was too
passed - Permissibility - Object of O.
XXIII R. 3 of CPC explained - Held, a
compromise signed by the counsel on
7 All. Keshav Prasad & Ors. Vs. Dy. Director of Consolidation & Ors.
335
behalf of his client before the Court is
valid in law and for all purposes and the
clients of such counsel cannot dispute the
authority of their counsel to execute such
a compromise - Object of the O. XXIII, R.
3 CPC is to curtail litigation between the
parties
by
concluding
litigation
with
consent. (Para 23)

B. Consolidation Law - UP Consolidation
Act, 1953 - Section 48 - Revisional
power - Scope - Deputy Director of
Consolidation has very wide power to
decide issue relating to fact and law
both u/s 48 of the Act after reappreciating the evidence on record -
Ram Jeet's case relied upon - Held, the
judgment of a Revisional Court has to
open,
go
through
and
end
like
a
judgment of reappraisal of what the two
Courts or Authorities below have done -
Impugned order reads like an original
judgment written in the third instance.
It does not give any reason to agree
with what the Appellate Court and
disagree with what the trial court has
said - High Court while upholding the
order of Consolidation Officer, quashed
the
order
of
appellate
court
and
revisional court. (Para 32, 34 and 35)

Writ petition allowed. (E-1)

List of Cases cited:

1. Asharfi Lal Vs Smt. Koili(dead) By L.Rs; 1995
(4 SCC) 163

2.
Ibne
Hasan
Vs
Hasina Bibi
&
ors;
MANU/0198/1984

3. Bande Siva Shankara Srinivasa Prasad Vs Ravi
SuryaPrakash Babu & ors.; MANU/AP/07/2015

4. Ram Kumar & ors. Vs DDC, Gautam Buddh
Nagar & ors.; 2010 (2) ADJ 74

5. Y. Sleebachen Vs Superintending Engineer;
2015 (5) SCC 747

6. Byram Pestonji Gariwala Vs U.O.I.; 1991
LAWS (SC)-9-21

7. Bakshi Dev Raj (2) & anr. Vs Sudheer Kumar;
(2011) 8 SCC 679

8. Archies Greetings and Gifts Ltd Vs Garg
Plastic, (Delhi) Law Finder Doc Id # 64115

9. Krishna Gajanana Vedeshwar Vs Narayan
Gajanan Vedeshwar, Law Finder Doc Id #
165030

10. Ram Nath Vs Smt. Munni; Lucknow Law
Report, February, 1976, Page 32 to 58

11. Writ B No. 42465 of 1999; Ram Jeet &
others Vs Deputy Director of Consolidation,
Jaunpur & ors. decided on 31.05.2013

(Delivered by Hon'ble Siddharth, J.)

1. This writ petition has been filed
under Article 226 of the Constitution of
India praying for quashing the judgement
and order dated 25.09.1972 of Assistant
Settlement Officer Consolidation, Basti, in
Appeal Nos. 71 to 74 and judgement and
order dated 23.06.1976 passed by Deputy
Director of Consolidation, Basti, in revision
nos. 47 to 50.

2. This writ petition arises out of the
objections under Section 9-A(2) of the U.P.
Consolidation Act, 1953 (for short, the
Act). These objections are a total of six.
The land in dispute comprises of Gata nos.
12, 14, 115, 70, 196, 11 and 111, all situate
in Village Taraina, Pargana Bansi East,
District Basti. Of these, three separate
objections were filed by Ram Lagan, Ram
Lal and Vijay Bahadur, all sons of Chulhai,
respondents nos. 3, 4 and 5, respectively, to
this petition. All the three objections last
mentioned were filed on a common and
identical cause of action and for the same
relief, that is to say, that revenue entries
relating to Gata nos. 12, 14 and 115 (supra)
be corrected according to the compromise
decree, dated 23.11.1959 passed by the
336 INDIAN LAW REPORTS ALLAHABAD SERIES
Judicial Officer, Bansi, District Basti in
Suit No. 270 of 1959, under Section 229-B.

3. Two objections were filed by the
petitioners. The first of these objections
related to Gata nos. 70 and 196, and
claimed
co-tendency
rights
with
the
recorded
tenure
holders.
The
other
objection claimed a 1/6th share in Gata
nos. 11 and 111.

4. The last of the six objections, was
filed by Kodai, respondent no. 6, laying
claim to the entire Khata nos. 11 and 111
on the basis of a case that the petitioners
have no right, title or interest therein, and
that the aforesaid Khata numbers are selfacquired property of the sixth respondent.

5. The Consolidation Officer vide
order dated 18.01.1969 dismissed the
objections filed by respondents nos. 3, 4
and 5, that is to say, Ram Lagan, Ram Lal
and Vijay Bahadur, in that order, now
represented by their legal representatives,
respondents nos. 3/1, 4/1 and 5/1, in
relation to Khata nos. 12, 14 and 15. The
claim of respondent nos. 3, 4 and 5 to
Khata nos. 70 and 196, was also rejected
with a direction that entries in their favour
in the Revenue Records be expunged. On
the other hand, the objections of the
petitioners relating to Khata nos. 70 and
196 were allowed, and they were ordered to
be recorded as co-tenants alongwith the
recorded tenure holders. Likewise, the
other objections of the petitioners relating
to Khata no. 111 and Khata no. 11 were
allowed with a direction that their names
along with Shiv Mangal, Shiv Murat and
Shiv Baran, then minors through their
guardian and mother, besides names of
Manorath son of Lal Bihari, Ram Dularey
and Harihar, sons of Nageshar, be recorded
as co-sharers. The sixth objection filed by
Kodai too was allowed, granting him a
1/3rd share in Khata nos. 12, 115, 70, 196,
111, besides Araji No. 725, admeasuring 014-8, part of Khata no.11.

6. Aggrieved by the judgment and
order
of
the
Consolidation
Officer
determining the sixth objection, four
Appeals were filed by the respondent nos.
3, 4 and 5, that is to say, Ram Lagan, Ram
Lal and Vijay Bahadur. These Appeals nos.
71, 72, 73 and 74 on the file of the
Assistant
Settlement
Officer
of
Consolidation, Basti. The appeals were
heard and allowed by the Assistant
Settlement Officer of Consolidation vide
judgment and order dated 25.09.1972. The
judgment and order of the Consolidation
Officer, dated 18.01.1969 was set aside.
The names of the petitioners were directed
to be expunged from Khata nos. 12, 14,
115, 70, 196, 11 and 111, besides Araji no.
725, admeasuring 0-14-8, part of Khata no.
11(for short, the land in dispute) and in
their place, the names of respondents nos.
3, 4 and 5, Ram Lagan, Ram Lal and Vijay
Bahadur, were ordered to be recorded. It
was ordered that the share allotted to the
petitioners be allotted to respondents nos.
3, 4 and 5 in terms done by the
Consolidation Officer.

7. The petitioners put in issue the
order
of
the
Assistant
Settlement
Officer(Consolidation), dated 25.09.1972
before
the
Deputy
Director
of
Consolidation, Basti, vide four revisions
being Revisions nos. 47, 48, 49 and 50 by
the petitioners. The order was also
challenged by the respondent nos. 6, Kodai
vide Revision no. 135. All the five
Revisions preferred under Section 48 of the
Act were heard and dismissed by the
Deputy Director of Consolidation, Basti,
vide judgment and order dated 23.06.1976.
7 All. Keshav Prasad & Ors. Vs. Dy. Director of Consolidation & Ors.
337

8. Aggrieved, the present writ petition
has been filed.

9. Heard Sri Sanjeev Singh, learned
counsel for the petitioners and Sri Tripathi
B.G. Bhai, learned counsel appearing on
behalf of respondent No.s 3/1, Jai Prakash,
who alone has contested this writ petition at
the hearing.

10. In order to set the record straight,
it must be mentioned here that early into
these proceedings, a counter-affidavit dated
25.09.1977 was filed before this Court on
behalf of respondent no. 10, Shiv Baran,
but no one appeared on his behalf at the
time of hearing.

11. The dispute between the parties
centres
around
the
validity
of
a
compromise dated 23.11.1959 recorded in
Suit No. 270/1959 under Section 229-B
decided by the Judicial Officer, Bansi,
District Basti. The petitioners on one hand
and respondent nos. 3, 4 and 5 on the other
are said to have entered into the said
compromise on the basis of which the
Judicial Officer entered judgment in Suit
No. 270/1959. Before the Consolidation
Officer the validity of the compromise
dated 23.11.1959 urged by respondent nos.
3, 4 and 5 was impeached by the petitioners
as fraudulent. The Consolidation Officer
dealt with the said matter vide his findings
on issue No. 2 and held in favour of the
petitioners. He rejected the compromise as
a product of fraud and, therefore, nonest. It
is on this ground that the Consolidation
Officer directed entries to be restored to
what they were in the basic year inter-se
the petitioner and respondent nos. 3, 4 and
5. It appears that the compromise entered in
the suit was not recorded in the Khatauni
relating to the basic year and on that
account respondent nos. 3, 4 and 5 had
claimed rights to be recorded on the basis
of the compromise decree dated 23.11.1959
relating to the land in dispute to be
recorded.
That
claim
was,
however,
rejected by the Consolidation Officer
holding the compromise to be fraudulent.

12. The Consolidation Officer has
broadly gone by the reasoning that if the
compromise were genuine, then on the
vakalatnama filed in Suit No. 270 of 1959
the signatures of the petitioners, Keshav
Prasad, Ram Sumer, are there whereas it is
thumb mark put by the second petitioner,
Ayodhya
Prasad
but
the
day
this
Vakalatnama was signed, the memorandum
of compromise was also verified. However,
the memorandum of compromise does not
bears the petitioners' signatures. Instead it
is signed by their Counsel, Sri Girja
Shankar, Mukhtar. In the opinion of the
Consolidation Officer, it was beyond his
understanding as to why the petitioners
Keshav Prasad and the two others who
were available in Court that day, were not
made
to
sign
the
memorandum
of
compromise whereas other party to the
agreement signed it. The Consolidation
Officer has concluded that on these facts it
appears that the signatures of the two
petitioners on the Vakalatnama and the
thumb impression of Ayodhya Prasad on
the Vakalatnama are not those of three
men. It has also remarked that the
summons of the suit under Section 229B
were never served on the petitioners who
resided at Pratapgarh, whereas the Court
was located at Basti. The Consolidation
Officer also opined that signatures of the
first petitioner, Keshav Prasad, on the
various applications made before him in
proceedings under Section 9A(2) of the Act
did not resemble with those on the
Vakalatnama. The Consolidation Officer
also held respondent No. 6 to be in
338 INDIAN LAW REPORTS ALLAHABAD SERIES
collusion with respondent No. 3, 4 and 5 as
the said respondent has been given certain
rights in certain plot numbers detailed in
the findings of the Consolidation Officer on
issue no. 2 to the prejudice of the
petitioners. The Consolidation Officer has
concluded
weighing
the
probabilities
arising from the advantages flowing from
the compromise to the parties that the
compromise is not genuine, apart from
other reasons to conclude so.

13. The Appellate Court writing in
reversal of the findings by the lower
Appellate Court about the genuineness of
the compromise dated 23.11.1959 filed in
Suit No. 270 of 1959 held that he had
looked
into
the
applications
dated
18.11.1967, 14.10.1968 and 24.10.1968
filed by Keshav Prasad, on all these
applications his signatures do not tally with
each other. According to the Settlement
Officer of Consolidation Keshav Prasad has
also signed the ordersheet before the
Consolidation Officer and those signatures
are altogether different from his signatures
on the applications that mentioned. The
Settlement Officer, therefore, opined that
from
the
commencement
of
these
proceedings, the petitioner Keshav Prasad
had taken precaution to disguise his
signatures made in the lower Court so that
the same may not tally with his signatures
on the compromise dated 23.11.1959 filed
in Suit No. 270 of 1959. The Settlement
Officer also held that the other two
petitioners, Ram Sumer and Ayodhya
Prasad,
have
not
put
their
thumb
impressions or signatures on any of the
applications moved in the proceedings
before the Consolidation Officer. The
Settlement Officer of Consolidation has
justified his judgment of reversal on
another limb of reasoning. He has remarked
that there is a copy of a restoration
application dated 09.12.1968 filed by the
petitioners Keshav Prasad, Ayodhya Prasad
and Ram Sumer before the Judicial Officer,
Basti, seeking to set aside the decree based
on compromise passed by him in the Suit.
It has been further remarked that Keshav
Prasad and others have not filed any order
allowing
the
aforesaid
restoration
application. From the said fact, he has
drawn an inference that it appears that the
above mentioned restoration application
has been rejected.

14. In addition, the Settlement Officer
of Consolidation has recorded a finding
that he has perused the compromise dated
23.11.1959 and the Vakalatnama of the
same date filed in those proceedings. He
has held that the compromise was filed by
Sri Girja Shankar Mukhtar on behalf of
Keshav Prasad, Ram Sumer, Ayodhya
Prasad, Nokhe, Raj Dulare, Harihar. None
of these men, according to the Settlement
Officer of Consolidation, have dared to
examine Sri Girja Shankar Mukhtar in
order to prove that he was not their Counsel
in the suit before the Judicial Officer.
Buttressing his reasoning, the Settlement
Officer has taken note of the fact that the
compromise decree dated 23.11.1959 had
been incorporated in Khata Nos. 70 and 96.
This fact, in the opinion of the Appellate
Court, shows that the decree based on
compromise was given effect to in revenue
papers but by mistake it was not
incorporated in the other Khata except
those two.

15. The Appellate Court has also
taken into consideration the discordent
reports of two finger print experts filed
before
him.
These
reports
and
the
statements to prove them by Sri Leela Ram
Jagtyani, Finger Print Expert and Ashok
Kashyap, another expert, have been looked
7 All. Keshav Prasad & Ors. Vs. Dy. Director of Consolidation & Ors.
339
into
by
the
Settlement
Officer
of
Consolidation. He has opined that the
report of Leela Ram is more reliable than
that of Sri Ashok Kashyap. It is also
remarked that the comparison done by the
experts was at a distance of ten years when
the compromise of 1959 was scripted.
During this period of time, there would be
some changes in the signatures of Keshav
Prasad and Ram Sumer Pandey, a fact that
would not detract from the validity of the
compromise filed in Suit No. 270 of 1959.
On these findings, the Appellate Court has
reversed order of the Consolidation Officer.

16. The Revisional Court dismissed
the revisions filed by the petitioner on the
ground that the compromise filed in the
Suit No. 270/1959 was genuine and on this
there are signatures of Keshav Prasad, Ram
Sumer and Ayodhya on the compromise
which was duly verified by Girja Shankar,
Advocate.
The
Deputy
Director
of
Consolidation has further held that the
compromise in dispute is voidable and only
Civil Court has jurisdiction to cancel the
same.

17. Learned counsel for the petitioner
Sri Sanjeev Singh, has submitted that the
finding of the Consolidation Officer
regarding validity of compromise was in
accordance with law. The compromise
arrived in the Suit No. 270/1959 was
fraudulent and therefore the Consolidation
Officer
rightly
in
the Consolidation
proceedings, which was subsequent to the
suit proceedings aforesaid, held it to be
not binding on the parties. He has
submitted that there was no necessity of
getting the same set aside by instituting
any proceeding before the Court. Being
compromise obtained by fraud, it will not
have any effect of res-judicata between the
parties. He has relied upon the judgment
of the Apex Court in the Case of Asharfi
Lal Vs. Smt. Koili(dead) By L.Rs, 1995
(4 SCC) 163 wherein Apex Court had
held that the judgment of a competent
Court is normally binding on the parties to
the proceedings and it operates as resjudicata in a subsequent proceedings
between the same parties. An exception is
engrafted under Section 44 of
the
Evidence Act which provides that any
party to a suit or other proceeding may
show that any judgment and order which
is relevant under Sections 40, 41 and 42 of
the Evidence Act and which has been
proved by the adverse party as delivered
by a Court not competent to deliver it or it
was obtained by fraud or collusion is not
binding on it. He has submitted that a
judgment obtained by fraud or collusion
does not operates as res-judicata and is not
binding on the parties to the proceedings.
Such a judgment can be avoided in
subsequent proceedings by a party which
is able to show that it was obtained by
fraud or collusion. Institution of separate
proceedings for getting it set aside is not
necessary. Further reliance has been
placed on the judgment of Division Bench
of High Court of Kerala wherein, in
paragraph 32 the same proposition has
been reiterated. Reliance on the judgement
of this Court in the case of Ibne Hasan
Vs. Hasina Bibi and Ors, and MANU/
0198/1984 has also been made wherein the
Division Bench of this Court had occasion
to consider this question and answer the
same in a reference from paragraph 6 to 11
as follows:

" 6. Finding an apparent
inconsistency between the two sets of
judicial pronouncement the learned
single Judge referred the following
question to a Division Bench for its
opinion.
340 INDIAN LAW REPORTS ALLAHABAD SERIES

"Whether a party to a decree
or a person claiming through such party
can, under Section 44 of the Evidence
Act, be allowed to avoid the effect of the
decree
on
grounds
of
fraud
or
collusion?"

The matter has thus come up
before us for giving our opinion on the
aforesaid question. Having heard counsel
for the parties we are of opinion that the
answer to the question aforesaid has to
be in the affirmative. Now we proceed to
give our reasons for this opinion.
Sections 40 to 44 of the Evidence Act
have been placed under the heading
"Judgments of Courts of Justice when
relevant". In the instant case we are
concerned with Sections 40 and 44 and
not with Sections 41 and 42. Even
Section 43 will have some relevance for
answering the question referred to us. As
such for the sake of convenience Sections
40, 43 and 44 of the Evidence Act are
being quoted. The illustrations given
below Section 43 have been omitted:

"40.
Previous
judgments
relevant to bar a second suit or trial.--
The existence of any judgment, order or
decree which by law prevents any Court
from taking cognizance of a suit or
holding a trial, is a relevant fact when
the question is, whether such Court
ought to take congnizance of such suit or
to hold such trial.

43. Judgments etc., other than
those mentioned in Sections 40 to 42
when relevant.--Judgments, orders or
decrees, other than those mentioned in
Sections 40, 41 and 42, are irrelevant
unless the existence of such judgment,
order or decree is a fact in issue, or is
relevant under some other provision of
this Act.

44.
Fraud or
collusion
in
obtaining judgment, or in competency of
Court, may be proved.--Any party to a
suit or other proceeding may show that
any judgment, order or decree, which is
relevant under Section 40, 41 or 42, and
which has been proved by the adverse
party, was delivered by a Court not
competent to deliver it, or was obtained
by fraud or collusion."

7. Previous judgments can be
read in evidence in subsequent suits only
if they are relevant under any of the
Sections 40, 41 and 42. Judgments other
than those mentioned therein would be
irrelevant in view of Section 43 unless
they fall in the category of judgments
referred to in the latter part of Section
43.

Further, in view of Section 44
judgments referred to in Sections 40, 41
and 42 would not be relevant if it is
established that they were delivered by a
Court not competent to deliver the same
or were obtained by fraud or collusion.

8. Section 40 of the Evidence
Act even without using the term 'Res
judicata' refers to the consequences of
res judicata. It is because of Section 40
that a judgment, which is relied on by a
party in a subsequent suit in support of
its plea of res judicata, becomes relevant
and can be read in evidence. A previous
judgment
operates
as
res
judicata
between the parties to the earlier suit as
also to persons claiming title through
any such party. When Section 44 of the
Evidence Act permits a party to a
subsequent suit to prove that any of the
ingredients of the said section is made
out even in respect of a judgment which
is relevant under Section 40 there seems
to be no escape from the conclusion that
even
such
judgment,
which
would
otherwise operate as res judicata and
would not be possible to be avoided by
the parties to the suit in which such
7 All. Keshav Prasad & Ors. Vs. Dy. Director of Consolidation & Ors.
341
judgment was delivered or by persons
claiming through any such party, can be
avoided by them if any of the ingredients
of Section 44 is made out. In that event
such judgment would not be relevant
and cannot form the basis of the plea of
res judicata. The view which we take
finds support from the decision of a
Division Bench of this Court of which
Sulaiman, J. who decided the case of
Sahib Rai (AIR 1927 All 494) (supra)
was a member, in Mt. Parbati v Gajrai
(AIR 1937 All 28). White dealing with
the scope of S. 11, C. P. C. it was held
"In the first place it is always open to a
party to show that a judgment was
obtained by fraud or collusion or that
there was want of Jurisdiction and in
such eases we are of opinion that Section
11 would not apply".

9. There is another reason why
this view should hold good. As seen
above the decision of Ram Lall. J. in the
case of Ch. Mohammad Afzal (AIR 1947
Lahore 117) (supra) was endorsed and
approved by the Privy Council in the
case of Beli Ram and Brothers (AIR
1948 PC 168) (supra). In Kishan Chand
v. Ram Babu (1964 All LJ 389) : (AIR
1965 All 65) a Full Bench of this Court
has held that even after the Constitution
the
law
declared
by
the
Judicial
Committee continues to be the (sic) the
High Court until the Supreme Court
ruled otherwise. No decision of the
Supreme Court taking a contrary view
has been brought to our notice. In this
view of the matter the decisions of
learned single Judges of this Court in the
cases of Sahib Rai (AIR 1927 All 494)
(supra) and Smt. Chauhana (AIR 1971
All 439) (supra) taking a contrary view
are overruled.

10. We may, however, point out
that since Section 43 is not mentioned in
Section 44 of the Evidence Act a
judgment would still be relevant under
the exception contained in the later part
of Section 43 namely "unless the
existence of such judgment, order or
decree is a fact in issue, or is relevant
under some other provision of this Act."
even if it may not be relevant under
Sections 40, 41 and 42 of the Act because
of the said Section 44. As such if the
ingredients of estoppel are made out the
defendant appellant will still not be in a
position to avoid the effect of the
judgment in suit No. 126 of 1952. This
view finds support from the decision of a
Division Bench of this Court in Darbari
Lal v. Mahboob Ali Mian (AIR 1927 All
538 (2)).

11. In view of the foregoing
discussion our answer to the question
referred to us is that a party to a decree
or a person claiming through such party
can, under Section 44 of the Evidence
Act, be allowed to avoid the effect of the
decree on grounds of fraud or collusion
and assert that the said decree cannot be
relied on for the purpose contemplated
by Section 40 thereof which includes
providing the basis for the plea of res
judicata, in view of the inclusion of
Section 40 in Section 44 of the said Act.
However, since Section 43 is not included
in Section 44 of the said Act, collusive
decree will still be relevant to support
the plea of estoppel if the ingredients of
estoppel are made out."

18. Learned counsel for the petitioner
has further argued that the finding that
there was difference in signatures of the
Keshav Prasad, on the memorandum of
compromise and his actual signature is an
absurd finding. After ten years hand writing
expert cannot give correct opinion in the
absence
of
a
contemporaneous
342 INDIAN LAW REPORTS ALLAHABAD SERIES
signature/handwriting
of
the
witness
concerned.
He
has
relied
upon
the
judgment
of
the
High
Court
of
Hyderabad in Bande Siva Shankara
Srinivasa
Prasad
Vs.
Ravi
Surya
Prakash
Babu
and
Ors.
MANU/AP/07/2015, wherein the Full
Bench of the aforesaid High Court dealt
with this issue and held that

"In
cases
involving
forged
signatures not only should comparison
signatures be obtained from documents
of similar importance, but if possible also
from documents which are roughly
contemporary with those in question.
Writing of an adult will show an obvious
steady change with passage of time. In
these circumstances provision of a whole
set of signatures written over a period of
years will prove of inestimable value to
the document examiner.

When serious illness occurs, a
signature often undergoes a remarkable
change in a very short period and if a
suspect will is dated near the day of
death, standard (admittedly genuine)
signatures covering this period are
essential if reliable evidence of the
authenticity or otherwise of the signature
is to be established.

Normally, in the case of a
typical adult, basic writing habits change
gradually. Therefore, material written
two or three years before or after the
disputed writing serve as satisfactory
standards, but as the lapse of years
between the date of standards and
questioned material becomes greater, the
standards have a tendency to be less
representative. Consequently, an effort
should always be made to procure some
standards (admittedly genuine writings /
signatures) written near in date to the
disputed matter.

The gist of the experts opinion,
emerging from the above Report, is to
the effect that it is not always necessary
to
have
contemporaneous
handwritings/signatures for comparison.
However, as a general rule, it would be
desirable to undertake comparison of
admitted handwritings/signatures with
disputed handwritings/signatures which
fall within the range of 2 or 3 years from
each other. Therefore, there can be no
hard and fast norm as to when
comparison can or cannot be undertaken
owing to the time lag between the two
sets of handwritings/signatures. Various
other factors would have to be taken into
consideration, as opined by the experts,
quoted hereinbefore. Each case would
turn
upon
its
own
facts
and
circumstances relating to the time lag,
the change in the handwriting/signature,
the capability of correlating the two sets
and ultimately, the opinion of the expert
himself as to whether the two sets can be
compared. It is therefore not open to the
Court
to
refuse
to
entertain
an
application
seeking
comparison
of
disputed handwritings/signatures with
admitted handwritings/ signatures on the
ground of a long lapse of time between
the two sets of handwritings/signatures.

19. It has finally been submitted that
by the learned counsel for the petitioners
that before the hand writing expert, no
documents signed by Keshav Prasad about
the same period was produced to ascertain
veracity of his signature. After more than
ten years, there was bound to be change in
his signature and therefore the entire
procedure adopted by appellate court was
not in accordance with law and the findings
on the basis of report of such hand writing
expert ought not to have been construed
against the petitioners by the Settlement
7 All. Keshav Prasad & Ors. Vs. Dy. Director of Consolidation & Ors.
343
Officer
and
Deputy
Director
of
Consolidation, Basti. He has submitted that
when Keshav Prasad, Ram Sumer and
Ayodhya Prasad, were present in the Court
and executed vakalatnama on the same
date, why they were not made to appear
before the Court and execute compromise
themselves has not been considered by the
Appellate and the Revisional Courts. The
clear case of the petitioners is that they
never entered into any such compromise
and the memo of compromise was
unauthorized and not in conformity with
the provisions of Order XXIII read with
Rule 3 CPC. Reliance upon the judgment
of this Court in the case of Ram Kumar
and others Vs. DDC, Gautam Buddh
Nagar and Others, [2010 (2) ADJ 74] has
been
made
wherein
this
Court
has
interpreted order XXIII, Rule 3 CPC and
held that a compromise before the Court
must be lawful and the Court has to record
its satisfaction in respect of aforesaid
compromise. He has submitted that in the
present case, the Court although recored the
compromise, but no satisfaction was
recorded that the same was lawful and not
under cloud. He has submitted that the
judgements and orders passed by the
Appellate
and
Revisional
Courts
of
consolidation are not in accordance with
law and deserve to be set aside and the
judgment of the Consolidation Officer
deserves to be upheld.

20. Learned counsel for contesting
Respondent No. 3/1, Sri Tripathi B.G.
Bhai, has submitted that the parties belong
to common ancestors some of them started
living at District Pratapgarh and some
remained and continued to live in village
Bilauli, District- Basti. He has further
submitted that the disputed property was
recorded in the name of petitioners' side
Keshav Prasad and others therefore, the
proceedings under Section 229-B of U.P.
Zamindari Abolition and Land Reforms
Act were initiated by the respondents for
and expunging the name of the petitioners
from the plots in dispute and some other
plots and for recording their names over the
disputed property. The parties had entered
into legal compromise on 23.11.1959
before the Sub-Divisional Officer and order
was passed on the same date on the basis of
compromise. Subsequently, a restoration
application was filed by the petitioners
before the Sub-Divisional Officer which
was dismissed and the compromise/ order
dated 23.11.1959 attained the finality.
Since in the basic year, the name of the
petitioners
remained
recorded,
the
respondents filed objection before the
Consolidation Officer for recording their
names on the basis of compromise dated
23.11.1959. The Consolidation Officer
illegally
disbelieved
the
compromise,
however, the Appellate and the Revisional
Courts corrected the stand taken by the
Consolidation Officer and set aside his
order. He has submitted that the finding of
the Appellate and Revisional Courts that
the compromise dated 23.11.1959 was
valid is in accordance with law. He has
relied upon the judgment of the Apex
Court in the Case of Y. Sleebachen Vs.
Superintending Engineer WRO/PWD,
2015 (5) SCC 747 wherein the Apex Court
had held that a pleader can enter into
compromise on behalf of his clients once
he gets Power of Attorney/Authorization by
his clients to appear in a matter. The
signature of Advocate/Counsel on the
compromise is deemed to be valid even
when Order XXIII, Rule 3 CPC which
requires a compromise to be in writing and
signed by the parties. Further reliance has
been placed on paragraphs 38, 39 and 40
the judgment of the Apex Court in the Case
of Byram Pestonji Gariwala Vs Union
344 INDIAN LAW REPORTS ALLAHABAD SERIES
Bank of India of the Apex Court
reported in 1991- LAWS (SC)-9-21.

21. Further reliance has been placed
on the judgment of the Apex Court in the
case of Bakshi Dev Raj (2) and Another
Vs Sudheer Kumar (2011) 8 SCC 679.
Reliance has been placed upon the
judgment of Delhi High Court in the Case
of Archies Greetings and Gifts Ltd Vs.
Garg Plastic, (Delhi) Law Finder Doc Id
# 64115.

22. Final reliance has been placed
upon the judgment of Karnataka High
Court in the case of Krishna Gajanana
Vedeshwar
Vs
Narayan
Gajanan
Vedeshwar, Law Finder Doc Id #
165030.

23. After hearing the rival contentions
this Court finds that there can be no dispute
with
the
legal
proposition
that
a
compromise signed by the counsel on
behalf of his client before the Court is valid
in law and for all purposes and the clients
of such counsel cannot dispute the
authority of their counsel to execute such a
compromise.
However,
the
position
becomes different when the allegation of
practice of fraud, misrepresentation, etc., is
made in the execution of compromise
signed by the counsel for parties of one
side and the parties themselves on the other
side, as in the present case. It is on the
record that on the date of execution of the
disputed compromise dated 23.11.1959, the
petitioners were present in Court, they had
executed vakalatnama in favour of their
counsel on the same day and on the same
date i.e., 23.11.1959, the compromise was
signed by their counsel on one hand and the
other
side
on
the other
hand
and
compromise decree was passed. The object
of the Order XXIII, Rule 3 CPC is to
curtail litigation between the parties by
concluding litigation with consent. The
Apex Court in the case of Byram Pastonji
Gariwala Vs. Union Bank of India
(supra) has held that the counsel duly
authorized by his client by signing the
agreement or compromise contributes to
decreasing loss of time in litigation and
avoiding inconvenience to the party by
singing a compromise on his behalf.
However, the act of the counsel is doing so
should be beyond reproach as held in the
judgment of Byram Pastonji Gariwala
(supra) in paragraph 37, the Apex Court
has held as follows:

"We may, however, hasten to
add that it will be prudent for counsel
not to act on implied authority except
when warranted by the exigency of
circumstances demanding immedi- ate
adjustment of suit by agreement or
compromise and the signature of the
party cannot be obtained without undue
delay. In these days of easier and quicker
communication, such contingency may
seldom arise. A wise and careful coun-
sel will no doubt arm himself in advance
with the necessary authority expressed in
writing to meet all such contingen- cies
in order that neither his authority nor
integrity is ever doubted. This essential
precaution will safeguard the personal
reputation of counsel as well as uphold
the pres- tige and dignity of the legal
profession."

24. This Court after going through the
judgment of the Consolidation Officer finds
that compromise dated 23.11.1959 passed
in suit filed under Section 229B, being Suit
No.
270/1959,
is
in
dispute.
The
petitioners, who were defendents in suit,
were not the residents of District- Basti, but
of District-Pratapgarh. The Consolidation
7 All. Keshav Prasad & Ors. Vs. Dy. Director of Consolidation & Ors.
345
Officer has recorded the finding that on the
single vakalatnama, Kodai, Shiv Mangal,
Ram Dulare, Keshav Prasad, Ayodhya and
Ram Sumer have made signatures together
when their interests were not the same but
were different. The Consolidation Officer
has recorded finding that all the aforesaid
persons had colluded and proceeded against
the petitioners, Keshav Prasad and others,
in
getting
the
disputed
compromise
executed. Due to execution of compromise
except, Keshav Prasad, Ayodhya and Ram
Sumer, the petitioners, all the parties to the
compromise
got
benefitted.
The
Consolidation Officer further recorded the
finding that Ram Lagan, etc., have colluded
with Kodai, etc. Before the Consolidation
Officer, Kodai, Ram Dulare admitted the
share of Ram Lagan and stated that the
compromise
was
correct.
The
Consolidation Officer found that because
after cancellation of the names of Keshav
Prasad, Ayodhya and Ram Sumer, the
petitioners from the plot nos. 725, 211, 765,
864, 83 and 136, name of Shiv Mangal and
others were recorded and on Plot No. 54,
etc., the name of Ram Lagan etc., was
recorded, therefore, all of them colluded
and by filing a joint vakalatnama they
succeeded in grabbing the land of Keshav
Prasad and others, the petitioner. He has
submitted that Ram Lagan and others had
no right or title to plots in dispute, their
rights and titles evolved except on the basis
of the disputed compromise hence, the
compromise was held to be unlawful and
not binding by the Consolidation Officer on
the petitioners.

25. This Court finds that the aforesaid
findings of the Consolidation Officer have
not been considered by the Settlement
Officer nor they have been set aside. The
Settlement Officer Consolidation has called
for finger print experts report which were
bound to differ since in year 1959, when
the compromise took place in the year 1959
much time had passed and signatures of
Keshav Prasad and Ram Sumer on the
compromise differed. The Appellate Court
also
recorded
the
finding
that
the
compromise was given effect regarding
some Khatas, but by mistake it was not
given effect in remaining Khatas .