# Shashi Prabha v. The Deputy Director of Consolidation, District Badaun & Ors

- **Citation:** (2020) 11 ILRA 169
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-05-13
- **Case number:** Writ-B No. 42060 of 2015
- **Bench:** Prakash Padia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shashi-prabha-v-the-deputy-director-of-consolidation-district-badaun-ors-45380
- **Pages:** 10

## Headnote

Law
-U.P.
Consolidation
of
Holdings Act, 1953 - Section 12, 48, 52 -
Indian Limitation Act, 1963- Section 5 -
Consolidation Proceedings - Fraud - Fraud
vitiates every solemn proceedings and no
right can be claimed by a fraudster on the
ground of technicalities. (Para 15)
170 INDIAN LAW REPORTS ALLAHABAD SERIES
The petitioner set up the claim before the
Consolidation Officer on the basis of forged
unregistered Will deed dated 04.03.2003. It
further appears that the executor of the Will
died on the next day of the execution of the
Will. No proceedings were initiated by the
petitioner for mutation of her name in the
revenue records for more than ten years. For
the first time two applications were submitted
by the petitioner before the Consolidation
Officer in the year 2013. The manipulation was
done only in order to get the advantage of
limitation mentioning the year 2003 in place of

## Text

11 All. Shashi Prabha Vs. The Deputy Director of Consolidation, District Budaun & Ors.
169
compromise is raised before the court that
passed the decree on the basis of any such
agreement or compromise, it is that court
and that court alone who can examine and
determine that question. The court cannot
direct the parties to file a separate suit on
the subject for no such suit will lie in view
of the provisions of Order 23 Rule 3-A
CPC. That is precisely what has happened
in the case at hand. When the appellant
filed OS No. 5326 of 2005 to challenge the
validity of the compromise decree, the court
before whom the suit came up rejected the
plaint under Order 7 Rule 11 CPC on the
application made by the respondents
holding that such a suit was barred by the
provisions of Order 23 Rule 3-A CPC.
Having thus got the plaint rejected, the
defendants (respondents herein) could
hardly be heard to argue that the plaintiff
(appellant herein) ought to pursue his
remedy against the compromise decree in
pursuance of OS No. 5326 of 2005 and if
the plaint in the suit has been rejected to
pursue his remedy against such rejection
before a higher court."

11. Counsel for the respondents relied
upon a very recent decision given by the
Supreme Court on May 6, 2020 in Civil
Appeal No.3961 of 2010 (Triloki Nath Singh
Vs. Anirudh Singh (D) thr. LRS & Ors
(2020) Law Suit (SC) 391. It was held in the
aforesaid case that in case on the basis of
compromise any order was passed, the same
could only be examined by the same court
and not by the other court under the
provisions to Rule 3 and 3-A of Order XXIII
of the Code of Civil Procedure. The Court
should never be a party to imposition of a
compromise upon an unwilling party. It is
always open for an unwilling party to
question on the same by moving an
appropriate application under the proviso of
Rule 3 of order XXIII before the same Court.

12. Heard learned counsel for the
parties and perused the record.

13. From perusal of the record, the
Court is of the opinion that in view of the
provisions contained in Rule 3 of Order
XXIII of the Code of Civil Procedure as well
as in view of the law laid down by the
Supreme Court as narrated above, the present
writ petition filed by the petitioners is not at
all maintainable. The only remedy lies with
the petitioners to file the appropriate
application, if so advised, before the
respondent no.1.

14. Accordingly, present writ petition is
dismissed.
----------
(2020)11ILR A169
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.05.2020

BEFORE

THE HON'BLE PRAKASH PADIA, J.

Writ-B No. 42060 of 2015

Shashi Prabha ...Petitioner
Versus
The Deputy Director of Consolidation,
District Badaun & Ors. ...Respondents

Counsel for the Petitioner:
Sri Rama Shankar Mishra

Counsel for the Respondents:
C.S.C., Sri K.K. Chaurasia, Sri S.M. Pandey,
Sri Yogesh Kumar

A.
Civil
Law
-U.P.
Consolidation
of
Holdings Act, 1953 - Section 12, 48, 52 -
Indian Limitation Act, 1963- Section 5 -
Consolidation Proceedings - Fraud - Fraud
vitiates every solemn proceedings and no
right can be claimed by a fraudster on the
ground of technicalities. (Para 15)
170 INDIAN LAW REPORTS ALLAHABAD SERIES
The petitioner set up the claim before the
Consolidation Officer on the basis of forged
unregistered Will deed dated 04.03.2003. It
further appears that the executor of the Will
died on the next day of the execution of the
Will. No proceedings were initiated by the
petitioner for mutation of her name in the
revenue records for more than ten years. For
the first time two applications were submitted
by the petitioner before the Consolidation
Officer in the year 2013. The manipulation was
done only in order to get the advantage of
limitation mentioning the year 2003 in place of
2013. (Para 13)

Writ Petition Rejected. (E-10)

List of Cases cited:-

1. S.P. Chengalvaray Naidu Vs Jagannath (1994)
1 SCC 1

2. Ram Chandra Singh Vs Savitri Devi (2003) 8
SCC 319

3. St. of A.P. Vs T.Suryachandra Rao (2005) 6
SCC 149

4. Jai Narain Parasrampuria Vs Pushpa Devi
Saraf (2006) 7 SCC 756

5. A.V. Papyya Sastry Vs Govt. of A.P. (2007) 4
SCC 221

6. Madhukar Sadbha Shivarkar Vs St. of Mah.
(2015) 6 SCC 557

(Delivered by Hon'ble Prakash Padia, J.)

1. The petitioner has preferred the
present writ petition with the prayer to
quash the order dated 19.5.2015 passed by
the respondent no.1/Deputy Director of
Consolidation, District Budaun, copy of
which is appended as annexure 1 to the writ
petition.

2. Since counter and rejoinder
affidavits have been exchanged between
the parties hence with the consent of
learned counsel for the parties, present writ
petition is being disposed of finally at the
admission stage itself.

3. The facts in brief as contained in
the writ petition are that the petitioner is
daughter of late Rameshwar Dayal Mishra
resident of Village-Khurampur Bhamauri,
Pargana Satasi, Tehsil Visauli, District
Budaun. The respondents no.3 and 4 are the
real brothers of the petitioner and Smt.
Satto Devi is the mother of the petitioner.
The respondent no.2 namely Omwati is not
the mother of the petitioner as well as
respondent nos.3 and 4. It is further stated
in the writ petition that the respondent no.2
is not the widow of Rameshwar Dayal
Mishra and she is a widow of one Tota
Ram resident of Village Khandua Pargana
Kot Tehsil Sahaswan, District Budaun.

4. In paragraph 5 of the writ petition it
is stated that the Rameshwar Dayal Mishra
has executed a Will on 4.3.2003 in favour
of the petitioner. He died on the next day of
the execution of Will, i.e., 05.03.2003. It
appears from perusal of the record that the
respondent no.3 namely Yogesh Kumar
filed a case under Section 12 of the U.P.
Consolidation of Holdings Act, 1953 being
Case No.79 of 2013-14 against Omwati
before the Consolidation Officer, Budaun.
In the said case an application/objection
was filed by the petitioner for mutation of
her name. Further prayer was made in the
aforesaid application that the petitioner
should be arrayed as one of the necessary
party in the aforesaid case. It is stated in
paragraph 7 of the writ petition that the
petitioner has given another application in
this
regard
before
the
Consolidation
Officer,
Budaun
on
3.1.2013.
The
Consolidation Officer, Budaun, rejected the
aforesaid application of the petitioner vide
order dated 3.5.2014, copy of the order
11 All. Shashi Prabha Vs. The Deputy Director of Consolidation, District Budaun & Ors.
171
dated 3.5.2014 is appended as annexure 1
to the supplementary counter affidavit filed
by the respondent no.2.

5. Against the aforesaid order an
appeal was preferred by the petitioner
before the Settlement Officer of the
Consolidation,
Budaun. The
aforesaid
appeal was allowed by him vide its
judgement and order dated 18.9.2014. By
the aforesaid order Settlement Officer of
Consolidation,
Budaun,
remanded
the
matter before the Consolidation Officer
with the directions to implead the petitioner
as one of the necessary party and to provide
the opportunity of hearing to the petitioner
and thereafter decide the matter on merits.
The aforesaid order dated 18.9.2014 passed
by the Settlement Officer of Consolidation,
District Budaun, was challenged before the
respondent no.1 namely Deputy Director of
Consolidation, District Budaun by filing a
revision as provided under Section 48 of
the Act, 1953. The aforesaid revision filed
by the respondent no.2 was allowed by the
respondent no.1 vide its order dated
19.5.2015. The petitioner has preferred the
present writ petition challenging the
aforesaid order passed by the respondent
no.1.

6. It is argued by learned counsel for
the petitioner that the respondent no.1 has
not applied its judicial mind while passing
the order impugned. The findings recorded
by the respondent no.1 is absolutely
perverse and against the record. It is further
argued that the petitioner is a necessary
party in the aforesaid case since her interest
is involved in the matter but respondent
no.1 has not considered the grievance of
the petitioner.

7. A counter affidavit has been filed in
the matter on behalf of the respondent no.2.
It is stated in the counter affidavit that the
so called Will is a forged document and the
respondent no.2 is getting family pension
and all other retiral benefits since 5.3.2004.
It is further stated in the counter affidavit
that no Will deed whatsoever has been
executed by the husband of the respondent
no.2. A fake and false story has been
developed by the petitioner while filing her
objection
on
30.1.2013
before
the
Consolidation Officer, Budaun, in Case
No.10/77/2014-15 under Section 12 of the
Act, 1953. It is further stated in the counter
affidavit that in fact the impleadment
application was filed by the petitioner after
the expiry of more than 10 years.

8. Rejoinder affidavit was filed in
response to the counter affidavit filed by
the respondent no.2. In the rejoinder
affidavit contents made in the counter
affidavit were denied. It is reiterated in the
rejoinder affidavit that the petitioner has
filed objections in the aforesaid case before
the Assistant Consolidation Officer, Sadar,
District Budaun on 30.9.2003 on the basis
of the Will deed dated 4.3.2003, certified
copy of the application dated 30.9.2003 is
appended
along-with
the
rejoinder
affidavit.
The
Consolidation
Officer,
Budaun, rejected the application filed by
the petitioner for mutation of her name in
the revenue record vide order dated
3.5.2014.

9. Heard learned counsel for the
parties and perused the record.

10. I have perused the order dated
3.5.2014 passed by the Consolidation
Officer. A specific finding has been
recorded in the aforesaid order that the
counsel appearing on behalf of petitioner
submitted his vakalatnama before the
Assistant
Consolidation
Officer
on
172 INDIAN LAW REPORTS ALLAHABAD SERIES
30.9.2003. Subsequently a vakalatnama
was also filed by the same counsel before
the Consolidation Officer on behalf of the
petitioner on 3.10.2013. The welfare stamp
was appended along-with the vakalatnama
dated 30.9.2003. The welfare stamp which
was appended was issued from book
No.147 Serial No.26 Welfare Stamp Serial
No.C-0888655 and the Welfare Stamp
appended
along-with
the
vakalatnama
dated 3.10.2013 was issued from Book
No.147 Serial No.27 Welfare Stamp Serial
No.C-0888695.
Further
findings
were
recorded that from perusal of the aforesaid
it is clear that both the vakalatnamas were
obtained by the petitioner on the same day
namely in the month of October, 2013. The
aforesaid manipulation was made by her in
order to prove that the objections were filed
by her before publication of Section 52 of
the Act, 1953. Further findings were
recorded that though the application was
filed after more than ten years along-with
application under Section 5 of the Indian
Limitation Act no affidavit was submitted.
It is further clear from perusal of the
application that no reasons were given in
the same for condonation of delay.

11. In the circumstances, the claim set
up by the petitioner for mutation of her name
in the revenue records was rejected by the
Consolidation Officer vide its order dated
3.5.2014. Against the aforesaid order an
appeal was preferred by the petitioner before
the Settlement Officer of Consolidation.
Without considering the relevant aspect of the
matter, the same was allowed by him vide its
order dated 18.09.2014 and without giving
any cogent reasons the order passed by the
Consolidation Officer dated 3.5.2014 was set
aside and the matter was remanded before the
Consolidation Officer, Budaun, to provide the
opportunity of hearing to the petitioner.

12. Against the aforesaid order dated
18.9.2014 passed by the Settlement Officer of
Consolidation, a revision was preferred by
the respondent no.2. Respondent no.1
allowed the revision preferred by the
respondent no.2 vide its order dated
19.5.2015. Findings have been duly recorded
by him in the order that the alleged
unregistered Will deed dated 4.3.2003 was
placed
by
the
petitioner
before
the
Consolidation Officer for the first time in the
year 2013 and the aforesaid Will deed is
absolutely forged. It is further stated that
writer of the Will deed has refused the
execution of the aforesaid Will. The findings
were further recorded that the Consolidation
Officer, Budaun, rejected the claim set up by
the petitioner by giving cogent reasons but
thereafter
wholly
illegally
the
appeal
preferred by the petitioner was allowed
without recording any reasons.

13. From perusal of the facts as narrated
above, it is clear that the claim was set up by
the petitioner before the Consolidation
Officer, Budaun, on the basis of forged
unregistered Will deed dated 4.3.2003. It
further appears that the executor of the Will
died on the next day of the execution of the
Will namely dated 5.3.2003. Further no
proceedings were initiated by the petitioner
for mutation of her name in the revenue
records for more than ten years. For the first
time two applications were submitted by the
petitioner before the Consolidation Officer in
the year 2013. The manipulation was done
only in order to get the advantage of
limitation mentioning the year 2003 in place
of 2013. The application submitted by the
petitioner before the Assistant Consolidation
Officer in the year 2003 in fact was submitted
for first time in the year 2013. It is further
clear from perusal of the counter affidavit
filed by the respondent no.2 that she is getting
11 All. Shashi Prabha Vs. The Deputy Director of Consolidation, District Budaun & Ors.
173
the pension of her husband namely Sri
Rameshwar Dayal Mishra after his death.

14. Nothing has been stated in the
entire writ petition nor any arguments have
been made by the counsel for the petitioner
that how and in what manner the reasons
given by the Consolidation Officer as well
as by the Deputy Director of Consolidation,
Budaun are perverse, illegal or wrong.

15. From perusal of the facts as
narrated above it is clear that deliberately a
fraud has been committed by the petitioner
in order to get the advantage of limitation.
Fraud vitiated every solemn proceedings
and no right can be claimed by a fraudster
on the ground of technicalities. The
definition of the word "fraud" has been
defined in Black's Law Dictionary, which is
as under :-

"Fraud means: (1) A knowing
misrepresentation
of
the
truth
or
concealment of a material fact to induce
another to act to his or her detriment.
Fraud is usually a tort, but in some cases
(esp. when the conduct is willful) it may be
a crime. (2) A misrepresentation made
recklessly without belief in its truth to
induce another person to act. (3) A tort
arising from a knowing misrepresentation,
concealment of material fact, or reckless
misrepresentation made to induce another
to act to his or her detriment. (4)
Unconscionable dealing; esp., in contract
law, the unconscientious use of the power
arising out of the parties' relative positions
and
resulting
in
an
unconscionable
bargain."

16. Halsbury's Law of England has
defined fraud as follows:

"Whenever a person makes a
false statement which he does not actually
and honestly believe to be true, for purpose
of civil liability, the statement is as
fraudulent as if he had stated that which he
did know to be true, or know or believed to
be false. Proof of absence of actual and
honest belief is all that is necessary to
satisfy the requirement of the law, whether
the representation has been made recklessly
or deliberately, indifference or reckless on
the part of the representor as to the truth or
falsity of the representation affords merely
an instance of absence of such a belief."

17. In KERR on the Law of Fraud and
Mistake, fraud has been defined thus:

"It is not easy to give a definition
of what constitutes fraud in the extensive
significance
in
which
that
term
is
understood by Civil Courts of Justice. The
Courts have always avoided hampering
themselves by defining or laying down as a
general proposition what shall be held to
constitute fraud. Fraud is infinite in
variety...Courts have always declined to
define it, ...reserving to themselves the
liberty to deal with it under whatever form
it may present itself. Fraud...may be said to
include property all acts, omissions, and
concealments which involve a breach of
legal or equitable duty, trust or confidence,
justly reposed, and are injurious to another,
or by which an undue or unconscientious
advantage is taken of another. All surprise,
trick, cunning, dissembling and other
unfair way that is used to cheat anyone is
considered as fraud. Fraud in all cases
implies a willful act on the part of anyone,
whereby another is sought to be deprived,
by illegal or inequitable means, of what he
is entitled too."
174 INDIAN LAW REPORTS ALLAHABAD SERIES

18. In S.P. Chengalvaray Naidu v.
Jagannath, reported in (1994) 1 SCC 1, the
Supreme Court noted that the issue of fraud
goes to the root of the matter and it
exercised powers under Article 136 to cure
the defect. The Supreme Court observed:

"5. The High Court, in our view,
fell into patent error. The short question
before the High Court was whether, in the
facts and circumstances of this case,
Jagannath obtained the preliminary decree
by playing fraud on the court. The High
Court, however, went haywire and made
observations which are wholly perverse.
We do not agree with the High Court that
"there is no legal duty cast upon the
plaintiff to come to court with a true case
and prove it by true evidence". The
principle of "finality of litigation" cannot
be pressed to the extent of such an
absurdity that it becomes an engine of fraud
in the hands of dishonest litigant. The
courts of law are meant for imparting
justice between the parties. One who comes
to the court must come with clean hands.
We are constrained to say that more often
than not, the process of the court is being
abused. Property- grabbers, tax-evaders,
bank-loandodgers and other unscrupulous
persons from all walks of life find the court
process a convenient lever to retain the
illegal-gains indefinitely. We have no
hesitation to say that a person, who's case is
based on falsehood, has no right to
approach the court. He can be summarily
thrown out at any stage of the litigation.

6. The facts of the present case
leave no manner of doubt that Jagannath
obtained the preliminary decree by playing
fraud on the court. A fraud is an act of
deliberate deception with the design of
securing something by taking unfair
advantage of another. It is a deception in
order to gain by another's loss. It is a
cheating intended to get an advantage.
Jagannath was working as a clerk with
Chunilal
Sowcar.
He
purchased
the
property in the court auction on behalf of
Chunilal Sowcar. He had, on his own
volition, executed the registered release
deed (Exhibit B-1 S) in favour of Chunilal
Sowcar regarding the property in dispute.
He knew that the appellants had paid the
total decretal amount to his master
Chunilal Sowcar. Without disclosing all
these facts, he filed the suit for the partition
of the property on the ground that he had
purchased the property on his own behalf
and not on behalf of Chunilal Sowcar. Non
production and even non mentioning of the
release deed at the trial tantamounts to
playing fraud on the court. We do not agree
with the observations of the High Court
that the appellants defendants could have
easily produced the certified registered
copy of Exhibit B-15 and non suited the
plaintiff. A litigant, who approaches the
court, is bound to produce all the
documents executed by him which are
relevant to the litigation. If he withholds a
vital document in order to gain advantage
on the other side then he would be guilty of
playing fraud on the court as well as on the
opposite party."

19. In the case of Ram Chandra
Singh v. Savitri Devi, reported in (2003) 8
SCC 319, it was held by the Supreme Court
that fraud vitiates every solemn act. Fraud
and justice never dwell together and it
cannot be perpetuated or saved by the
petitioner
on
any
equitable
doctrine
including
resjudicata.
The
relevant
paragraphs of the aforesaid judgement are
as follows :-

"15. Commission of fraud on
court and suppression of material facts are
the core issues involved in these matters.
11 All. Shashi Prabha Vs. The Deputy Director of Consolidation, District Budaun & Ors.
175
Fraud, as is well known, vitiates every
solemn act. Fraud and justice never dwell
together.

16. Fraud is a conduct either by
letter or words, which induces the other
person, or authority to take a definite
determinative stand as a response to the
conduct of former either by word or letter.

17. It is also well settled that
misrepresentation itself amounts to fraud.
Indeed, innocent misrepresentation may
also give reason to claim relief against
fraud.

18.
A
fraudulent
misrepresentation is called deceit and
consists in leading a man into damage by
willfully or recklessly causing him to
believe and act on falsehood. It is a fraud in
law if a party makes representations which
he knows to be false, and injury ensues
therefrom although the motive from which
the representations proceeded may not have
been bad.

*** *** ***

23. An act of fraud on court is always
viewed seriously. A collusion or conspiracy
with a view to deprive the rights of the
others in relation to a property would
render the transaction void ab initio. Fraud
and deception are synonymous.

*** *** ***

25. Although in a given case a
deception may not amount to fraud,
fraud is anathema to all equitable
principles and any affair tainted with
fraud cannot be perpetuated or saved by
the application of any equitable doctrine
including res-judicata."

(emphasis supplied)

20. In the case of State of A.P. v. T.
Suryachandra Rao, reported in (2005) 6
SCC 149, it was observed by the Supreme
Court that where land which was offered
for surrender had already been acquired by
the State and the same had vested in it. It
was held that merely because an enquiry
was made, the Tribunal was not divested of
the power to correct the error when the
respondent had clearly committed a fraud.
Following observations were made:

"7. The order of the High Court is
clearly erroneous. There is no dispute that
the land which was offered for surrender by
the respondent had already been acquired
by the State and the same had vested in it.
This was clearly a case of fraud. Merely
because an enquiry was made, Tribunal was
not divested of the power to correct the
error when the respondent had clearly
committed a fraud.

8. By "fraud" is meant an
intention to deceive; whether it is from any
expectation of advantage to the party
himself or from the ill will towards the
other is immaterial. The expression "fraud"
involves two elements, deceit, and injury to
the person deceived. Injury is something
other
than
economic
loss,
that
is,
deprivation of property, whether movable
or immovable or of any person in body,
mind, reputation or such others. In short, it
is a non-economic or non-pecuniary loss. A
benefit or advantage to the deceiver, will
almost always call loss or detriment to the
deceived. Even in those rare cases where
there is a benefit or advantage to the
deceiver, but no corresponding loss to the
deceived, the second condition is satisfied.
[See Dr. Vimla v. Delhi Administration,
1963 Supp (2) SCR 585 and Indian Bank v.
Satyam Febres (India) Pvt. Ltd., (1996) 5
SCC 550]

9. A "fraud" is an act of deliberate
deception with the design of securing
something by taking unfair advantage of
another. It is a deception in order to gain by
176 INDIAN LAW REPORTS ALLAHABAD SERIES
another's loss. It is a cheating intended to
get an advantage. (See S.P. Changalvaraya
Naidu v. Jagannath, (1994)1 SCC 1.

10. "Fraud" as is well known
vitiates every solemn act. Fraud and justice
never dwell together. Fraud is a conduct
either by letter or words, which includes the
other person or authority to take a definite
determinative stand as a response to the
conduct of the former either by words or
letter.
It
is
also
well
settled
that
misrepresentation itself amounts to fraud.
Indeed, innocent misrepresentation may also
give reason to claim relief against fraud. A
fraudulent misrepresentation is called deceit
and consists in leading a man into damage by
willfully or recklessly causing him to believe
and act on falsehood. It is a fraud in law if a
party makes representations, which he knows
to be false, and injury enures therefrom
although the motive from which the
representations proceeded may not have been
bad. An act of fraud on court is always
viewed seriously. A collusion or conspiracy
with a view to deprive the rights of the others
in relation to a property would render the
transaction void ab initio. Fraud and
deception are synonymous. Although in a
given case a deception may not amount to
fraud, fraud is anathema to all equitable
principles and any affair tainted with fraud
cannot be perpetuated or saved by the
application
of
any
equitable
doctrine
including resjudicata. (See Ram Chandra
Singh v. Savitri Devi and Ors., (2003) 8 SCC
319.) *** *** ***

13. This aspect of the matter has
been considered recently by this Court in
Roshan Deen v. Preeti Lal, (2002)1 SCC 100,
Ram Preeti Yadav v. U.P. Board of High
School and Intermediate Education, (2003) 8
SCC 311, Ram Chandra Singh v. Savitri
Devi, (2003) 8 SCC 319 and Ashok Leyland
Ltd. v. State of T.N. And Anr., (2004) 3 SCC
1.

14. Suppression of a material
document would also amount to a fraud on
the court, (see Gowrishankar v. Joshi Amba
Shankar Family Trust,(1996) 3 SCC 310 and
S.P. Chengalvaraya Naidu v. Jagannath,
(1994)1 SCC1).

15. "Fraud" is a conduct either by
letter or words, which induces the other
person or authority to take a definite
determinative stand as a response to the
conduct of the former either by words or
letter. Although negligence is not fraud it
can be evidence of fraud; as observed in
Ram Preeti Yadav, (2003) 8 SCC 311.

16. In Lazarus Estate Ltd. v.
Beasley (1956) 1 QB 702, Lord Denning
observed at pages 712 & 713: (AllER p.
345C) "No judgment of a Court no order of
a Minister can be allowed to stand if it has
been obtained by fraud. Fraud unravels
everything."

In the same judgment, Lord
Parker LJ observed that fraud "vitiates
all transactions known to the law of
however high a degree of solemnity".

(emphasis supplied)

21. In the case of Jai Narain
Parasrampuria v. Pushpa Devi Saraf
reported (2006)7 SCC 756, the Supreme
Court observed that fraud vitiates every
solemn act. Any order or decree obtained
by practicing fraud is a nullity. This Court
held as under:

"55. It is now well settled that
fraud vitiated all solemn act. Any order or
decree obtained by practicing fraud is a
nullity. [See.1)Ram Chandra Singh v.
Savitri Devi and Ors., (2003) 8 SCC 319
followed in (2) Vice Chairman, Kendriya
Vidyalaya Sangathan, and Anr. v. Girdhari
Lal Yadav, (2004) 6 SCC 325; (3) State of
A.P. and Anr. v. T. Suryachandra Rao,
(2005) 6 SCC 149; (4)Ishwar Dutt v. Land
11 All. Shashi Prabha Vs. The Deputy Director of Consolidation, District Budaun & Ors.
177
Acquisition Collector and Anr., (2005) 7
SCC 190; (5) Lillykutty v. Scrutiny
Committee, SC & ST Ors., (2005) 8 SCC
283; (6) Chief Engineer, M.S.E.B. and Anr.
v. Suresh Raghunath Bhokare, (2005) 10
SCC 465; (7) Smt. Satya v. Shri Teja Singh,
(1975) 1 SCC 120; (8) Mahboob Sahab v.
Sayed Ismail, (1995) 3 SCC 693; and (9)
Asharfi Lal v. Koili, (1995)4 SCC 163.]"

(emphasis supplied)

22. In A.V. Papayya Sastry v. Govt.
of A.P., reported in (2007) 4 SCC 221, the
Supreme Court was pleased to held that if
any judgement or order is obtained by
fraud it cannot be said to be a judgement
or order. The relevant portion of the
aforesaid judgement is quoted below :-

"19. Now, it is well-settled
principle of law that if any judgment or
order is obtained by fraud, it cannot be
said to be a judgment or order in law.
Before three centuries, Chief Justice
Edward Coke proclaimed;

Fraud avoids all judicial acts,
ecclesiastical or temporal.

*** *** ***

22. It is thus settled proposition of
law that a judgment, decree or order
obtained by playing fraud on the Court,
Tribunal or Authority is a nullity and
non-est in the eye of law. Such a
judgment, decree or order by the first
Court or by the final Court has to be
treated as nullity by every Court, superior
or inferior. It can be challenged in any
Court, at any time, in appeal, revision,
writ or even in collateral proceedings.

*********

38. The matter can be looked at
from a different angle as well. Suppose, a
case is decided by a competent Court of
Law after hearing the parties and an order
is
passed
in
favour
of
the
applicant/plaintiff which is upheld by all
the courts including the final Court. Let
us also think of a case where this Court
does not dismiss Special Leave Petition
but after granting leave decides the
appeal finally by recording reasons. Such
order can truly be said to be a judgment
to which Article 141 of the Constitution
applies. Likewise, the doctrine of merger
also gets attracted. All orders passed by
the courts/authorities below, therefore,
merge in the judgment of this Court and
after such judgment, it is not open to any
party to the judgment to approach any
court or authority to review, recall or
reconsider the order.

39. The above principle, however,
is subject to exception of fraud. Once it is
established that the order was obtained by a
successful party by practising or playing
fraud, it is vitiated. Such order cannot be
held legal, valid or in consonance with law.
It is non-existent and nonest and cannot be
allowed to stand. This is the fundamental
principle of law and needs no further
elaboration. Therefore, it has been said that
a judgment, decree or order obtained by
fraud has to be treated as nullity, whether
by the court of first instance or by the final
court. And it has to be treated as nonest by
every Court, superior or inferior."

23. The Supreme Court again in the
case of Madhukar Sadbha Shivarkar v.
State of Maharashtra, reported in (2015) 6
SCC 557, held that fraud had been played
by showing the records and the orders
obtained unlawfully by the declarant,
would be a nullity in the eye of law though
such
orders
have
attained
finality.
Following observations were made in
paragrah 27 of the aforesaid judgement,
which reads as follows :-
178 INDIAN LAW REPORTS ALLAHABAD SERIES

"27. The said order is passed by
the State Government only to enquire into
the landholding records with a view to find
out asto whether original land revenue
records have been destroyed and fabricated
to substantiate their unjustifiable claim by
playing fraud upon the Tehsildar and
appellate authorities to obtain the orders
unlawfully in their favour by showing that
there is no surplus land with the Company
and its shareholders as the valid subleases
are made and they are accepted by them in
the proceedings Under Section 21 of the
Act, on the basis of the alleged false
declarations filed by the shareholders and
sub- lessees Under Section 6 of the Act.
The plea urged on behalf of the State
Government and the defacto complainants
owners, at whose instance the orders are
passed by the State Government on the
alleged ground of fraud played by the
declarants upon the Tehsildar and appellate
authorities to get the illegal orders obtained
by them to come out from the clutches of
the land ceiling provisions of the Act by
creating the revenue records, which is the
fraudulent act on their part which unravels
everything and therefore, the question of
limitation under the provisions to exercise
power by the State Government does not
arise at all. For this purpose, the Deputy
Commissioner of Pune Division was
appointed as the Enquiry Officer to hold
such an enquiry to enquire into the matter
and submit his report for consideration of
the Government to take further action in the
matter. The legal contentions urged by Mr.
Naphade, in justification at this stage, we
are satisfied that the allegation of fraud in
relation to getting the land holdings of the
villages referred to supra by the declarants
on the alleged ground of destroying
original revenue records and fabricating
revenue records to show that there are 384
sub-leases of the land involved in the
proceedings to retain the surplus land
illegally as alleged, to the extent of more
than 3000 acres of land and the orders are
obtained unlawfully by the declarants in the
land ceiling limits will be nullity in the eye
of law though such orders have attained
finality, they are tainted with fraud, the
same can be interfered with by the State
Government and its officers to pass
appropriate orders. The landowners are also
aggrieved parties to agitate their rights to
get the orders which are obtained by the
declarants as they are vitiated in law on
account of nullity is the tenable submission
and the same is well founded and therefore,
we accept the submission to justify the
impugned judgment and order of the
Division Bench of the High Court."

24. In the facts and circumstances, the
Court is of the opinion that the order passed
by the Deputy Director of Consolidation
dated 19.5.2015 is absolutely perfect and
valid order and does not call for any
interference by this Court specially under
Article 226 of the Constitution of India.

25. The writ petition being devoid of
merit is hereby dismissed.
----------

(2020)11ILR A178
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.10.2020

BEFORE

THE HON'BLE J.J. MUNIR, J.

Habeas Corpus Writ Petition (Civil) No. 430 of
2020

Master Atharva (Minor) & Anr.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents