# Smt. Manju Devi v. Board of Revenue & Ors

- **Citation:** J. Misc. Single No. 3392 of 2018
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-05-28
- **Case number:** J. Misc. Single No. 3392 of 2018
- **Bench:** Mrs. Sangeeta Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-manju-devi-v-board-of-revenue-ors-46300
- **Pages:** 21

## Headnote

Civil Law-Transfer of Property Act-section
52-Transferee
pendente
lite-not
void
abinitio-transfer subject to-rights of the
parties finally determined-if transferee
pendente lite an prove-decree obtained on
collusion
-by
plaintiff
and
original
defendant-transferee entitled to file Recall
1102 INDIAN LAW REPORTS ALLAHABAD SERIES
Application or Appeal-Petitioner entitled
to file First Appeal.
Gaon sabha and State Government-not
parties to compromise-trial court could
not have decreed suit in their abssencecompromise
decree
-bad-impugned
judgment
and
order
quashed-W.P.
allowed.

Held, the Explanation under Order XXIII Rule 3
of C.P.C. provides that an agreement or a
compromise which is void or voidable under the
Indian Contract Act shall not be deemed to be
lawful within the meaning of this Rule. This
Explanation
gives
a
requirement
that
a
compromise should be lawful to become
binding. In a Suit under Section 229-B of the
U.P.Z.A. and L.R. Act, the State Government
and the Gaon Sabha are necessary parties. If
they do not join in the compromise, then it is
not a lawful compromise. (Para 52)

This Court has perused Section 341 and the
Schedule attached to the Act and finds that
there 29 is a specific provision of Second Appeal
given in Column-6 against an order passed by
the Divisional Commissioner in First Appeal.
Because of the specific provision given in the
Schedule to the Act and also for the reason that
under Section 341(3), both substantive and
procedural provisions have been given in the Act
itself, which is a special Act, the provisions of
the CPC, a general Act would not apply. (para
54 ) (E-9)

Cases cited:

1.Raja Ram & anr. Vs. Deputy Director of
Consolidation, Siddharth Nagar & ors., 2006 (101) RD
121;

2.Shiv Prasad Vs. Deputy Director of Consolidation,
Ghazipur & ors., 2006 (101) RD 624;

## Text

_Characters 0–39,957 of 72,776. This is a partial read: ask again with offset=39957 for what follows._

3-5 All. Smt. Manju Devi Vs. Board of Revenue & Ors.
1101
creed of litigants has cropped up. Those
who belong to this creed do not have any
respect for truth. They shamelessly resort to
falsehood
and
unethical
means
for
achieving their goals. In order to meet the
challenge posed by this new creed of
litigants, the courts have, from time to time,
evolved new rules and it is now well
established that a litigant, who attempts to
pollute the stream of justice or who touches
the pure fountain of justice with tainted
hands, is not entitled to any relief, interim
or final."

26. It referred to several judgments of the
Supreme Court like Hari Narain Vs. Badri
Das AIR 1963 SC 1558, Welcome Hotel Vs.
State of A.P. (1983) 4 SCC 575, G.
Narayanaswamy
Reddy
Vs.
Govt.
of
Karnataka (1991) 3 SCC 261, Prestige Lights
Ltd. Vs. S.B.I. (2007) 8 SCC 449, Sunil
Poddar Vs. Union Bank of India (2008) 2
SCC 326 and K.D. Sharma Vs. Steel Authority
of India Limited (2008) 12 SCC 481, to
observe that "........the jurisdiction of the
Supreme Court under Article 32 and of the
High Court under Article 226 of the
Constitution is extraordinary, equitable and
discretionary and it is imperative that the
petitioner approaching the writ court must
come with clean hands and put forward all the
facts before the Court without concealing or
suppressing anything and seek an appropriate
relief. If there is no candid disclosure of
relevant and material facts or the petitioner is
guilty of misleading the Court, his petition may
be dismissed at the threshold without
considering the merits of the claim..........."

27. This Court has considered the case of
the petitioner on the basis of the pleadings made in
the writ petition, the arguments raised before this
Court both by the learned counsel for the petitioner
and the respondents and it finds that the petitioner
resorted to deliberate mis representation to invoke
the jurisdiction of this Court.

28. This writ petition is therefore
dismissed with a cost of Rs.50,000/-. The cost shall
be deposited by the petitioner in the Registry of this
Court within one month from today, which shall be
forwarded by the Registry to the Child Welfare
Committee, Lucknow, to be utilized for the welfare
of children in need of care and protection. In case of
failure to deposit the aforesaid cost by the petitioner,
the Senior Registrar shall request the District
Magistrate, Faizabad, to recover the amount from
the movable and immovable properties of the
petitioner as arrears of land revenue.
----------

(2020)03-05ILR A1101
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 28.05.2020

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA,
J.

Misc. Single No. 3392 of 2018

Smt. Manju Devi ...Petitioner
Versus
Board of Revenue & Ors. ...Respondents

Counsel for the Petitioner:
Mohammad Aslam Khan, Indrajeet Shukla,
Nitin Srivastava

Counsel for the Respondents:
C.S.C., Amrendra Nath Tripathi, Jai Kumar,
Santosh Kumar Tripathi

Civil Law-Transfer of Property Act-section
52-Transferee
pendente
lite-not
void
abinitio-transfer subject to-rights of the
parties finally determined-if transferee
pendente lite an prove-decree obtained on
collusion
-by
plaintiff
and
original
defendant-transferee entitled to file Recall
1102 INDIAN LAW REPORTS ALLAHABAD SERIES
Application or Appeal-Petitioner entitled
to file First Appeal.
Gaon sabha and State Government-not
parties to compromise-trial court could
not have decreed suit in their abssencecompromise
decree
-bad-impugned
judgment
and
order
quashed-W.P.
allowed.

Held, the Explanation under Order XXIII Rule 3
of C.P.C. provides that an agreement or a
compromise which is void or voidable under the
Indian Contract Act shall not be deemed to be
lawful within the meaning of this Rule. This
Explanation
gives
a
requirement
that
a
compromise should be lawful to become
binding. In a Suit under Section 229-B of the
U.P.Z.A. and L.R. Act, the State Government
and the Gaon Sabha are necessary parties. If
they do not join in the compromise, then it is
not a lawful compromise. (Para 52)

This Court has perused Section 341 and the
Schedule attached to the Act and finds that
there 29 is a specific provision of Second Appeal
given in Column-6 against an order passed by
the Divisional Commissioner in First Appeal.
Because of the specific provision given in the
Schedule to the Act and also for the reason that
under Section 341(3), both substantive and
procedural provisions have been given in the Act
itself, which is a special Act, the provisions of
the CPC, a general Act would not apply. (para
54 ) (E-9)

Cases cited:

1.Raja Ram & anr. Vs. Deputy Director of
Consolidation, Siddharth Nagar & ors., 2006 (101) RD
121;

2.Shiv Prasad Vs. Deputy Director of Consolidation,
Ghazipur & ors., 2006 (101) RD 624;

3. Surendra Nara Vs.in Dubey Vs. Deputy Director of
Consolidation, 1973 RD 328

4.Smt. Phenki Vs.Board of Revenue, Allahabad & ors.,
2011 Allahabad Civil Journal 2057;

5. Saral Tiwari alias Jagdish Tiwari Vs. Board of
Revenue, U.P. at Allahabad & ors., 2007(103) RD 54

6.Sita Ram Vs. Sia Ram, an order of the Board of
Revenue, reported in 1995 RD 161

7. Hardevinder Singh Vs. Paramjit Singh, 2013 AIR
SCW 447

8.
Deposit
Insurance
and
Credit
Guarantee
Corporation Vs. Raghupathi Ragavan & ors., 2015
Allahabad Civil Journal 2084

9. Smt. Lal Dei through LRs & ors.Vs. Deputy Director
of Consolidation, Varanasi & ors., 2005 Allahabad Civil
Journal 1908

10. M/s. Jethanand and Sons Vs. the St. of U.P. AIR
1961 SC 794

11. Mani Ram & ors.Vs. Viresh Kumar & ors., 1985
RD 375

12. Jagdish & ors. Vs. Shaukeen & ors., (2006) 100
RD 175

13. Saral Tiwari @ Jagadish Tiwari Vs. Board of
Revenue, U.P. at Allahabad & ors., (2007) 103 RD 54

14. Raja Ram & anr. Vs. Joint Director of
Consolidation, 13 Allahabad & ors., AIR 1993
Allahabad 72

15. Guruswamy Nadar Vs. P. Lakshmi Ammal, (2008)
5 SCC 796 and Smt. Ram Peary and others Vs. Gauri
& ors., 14 AIR 1978 Allahabad 318

16. Y. Sleebachen & ors.Vs. St. of TN & anr., (2015)
5 SCC 747 (distinguished)

17. Jag Ram & anr. Vs. Deputy Director of
Consolidation, Gonda & ors.: Writ Petition No.459
(Consolidation)
of
2002,
decided
today
i.e.
28.05.2020

18. Parsottam Vs. Narottam; 1970 ALJ 505

19.State of Maharashtra Vs. Ramdas Shrinivas Nayak,
(1982) 2 SCC 463

20. Raj Kumar Vs. Sardari Lal & ors., 2004 AIR
SCW 470

21.
A
Nawab
John
&
ors.Vs.
V.N.
Subramaniyam, 2012 AIR SCW 4248
3-5 All. Smt. Manju Devi Vs. Board of Revenue & Ors.
1103
22. Thomson Press (India) Ltd. Vs. Nanak
Builders and Investors Pvt. Ltd. & ors. 2013 (5)
SCC 397

(Delivered by Hon'ble Mrs. Sangeeta
Chandra, J.)

1. This writ petition has been filed by
the petitioner praying for quashing of the
order passed by the opposite party no.1
dated 11.1.2018, upholding the order dated
30.7.2014 passed by the opposite party
no.2, and for consequential reliefs.

2. The dispute relates to four plots of
land
situated
in
village
Laxmanpur,
Pargana, Tehsil and District Gonda.

3. It has been stated in the writ
petition that initially the four plots of land
were recorded in the name of Smt. Ram
Raji, widow of Sheetla Prasad. On the
death of Smt. Ram Raji, the name of Smt.
Sampata, wife of Shiv Prasad being the
only daughter, was recorded by the
Supervisor,
Kanoongo
through
PA-11
entry. On 6.7.1974, Bhikhu, Ram Sumran
and Ram Kumar filed a suit under Section
229B/209 of the U.P.Z.A. and L.R. Act
against Sampata by impleading the State of
U.P. and the Gaon Sabha as parties and
claiming Bhumidhari rights on the basis of
an unregistered Will dated 5.9.1972,
alleged to have been executed by Smt. Ram
Raji and in the alternative, claimed to be
heirs of Smt. Ram Raji being the nephews
of her Late husband Shiv Prasad, and
denying the existence of Sampata as a
daughter of Ram Raji and Sheetla Prasad.
The suit was contested by Sampata, who
pleaded that she is the only daughter of
Smt. Ram Raji and had inherited the
property in dispute. The suit was also
contested by the State of U.P. by filing
written statement.

4. Initially, the trial court decreed the
suit by judgment and order dated 20.1.1977
against which order, Sampata filed an
Appeal, which was allowed on 6.12.1979
and the suit was dismissed. Against the
order dated 6.12.1979, the plaintiffs filed a
Second Appeal, which was allowed by
judgment and order dated 18.10.1995. The
Board of Revenue set aside the order
passed by the Additional Commissioner in
Appeal and remanded the matter to the Sub
Divisional
Officer,
Tarabganj,
Gonda
(hereinafter referred to as ''the opposite
party no.2'). After remand of the suit to the
opposite party no.2, the plaintiffs died and
were substituted by their legal heirs.
Similarly, the defendant Sampata also died
and was substituted by her legal heir Kallu
Ram, whose name had been recorded in
PA-11 by the Supervisor, Kanoongo. Kallu
Ram, whose name was recorded in the
revenue records as Bhumidhar, executed
two Sale Deeds on 31.7.2010 and 6.7.2012
in favour of the petitioner and one Sushila
Devi. Kallu Ram also executed a Power of
Attorney in favour of the Suraj Lal,
husband of Smt. Manju Devi, authorizing
him to prosecute the declaratory Suit,
which was pending before the opposite
party no.2 on behalf of the defendant Kallu
Ram. In the meantime, the other purchaser,
Smt. Sushila Devi transferred her share of
purchased land through a registered Sale
Deed on 17.1.2014 in favour of Smt. Manju
Devi.

Kallu Ram after executing a
Power of Attorney in favour of the husband
of the petitioner on 31.7.2010 also executed
another Power of Attorney on 21.2.2014 in
favour of one Ayodhya Prasad. In the suit
that was pending before the opposite party
no.2, the plaintiffs made an application
before the Collector, Gonda for transfer of
the case to another Court and the said
1104 INDIAN LAW REPORTS ALLAHABAD SERIES
application was allowed on 7.7.2014 and
the case was transferred from the Court of
Sub Divisional Officer, Sadar, Gonda to the
Court of Sub Divisional Officer, Tarabganj,
Gonda. The record was received on
18.7.2014 and the Court fixed the date of
7.8.2014. The new Power of Attorney
holder Ayodhya Prasad filed an application
before
the
opposite
party
no.2
for
preponing the date, which had earlier been
fixed as 7.8.2014. The application was
allowed and new date was fixed as
23.7.2014. It has been submitted that all
this was done behind the back of the
petitioner/her husband. After getting the
date preponed, Ayodhya Prasad filed a
collusive
compromise
between
the
plaintiffs and Kallu Ram, who had already
sold off all his property and had no right or
title or interest left in the same. On the
basis of this compromise dated 23.7.2014
entered into by the new Power of Attorney
on behalf of Kallu Ram, and the plaintiffs,
Kallu Ram abandoned the entire claim in
favour of the plaintiffs Bhikhu, Ram
Kumar and Ram Sumran and others, and
stated that they may be declared as
Bhumidhar of the land in dispute. The
declaratory Suit was decreed by opposite
party no.2 on 30.7.2014, in terms of the
compromise.

5. On coming to know of this
compromise Decree, the petitioner filed an
appeal before the Commissioner, which
was allowed on 14.10.2015 and the matter
was remanded to the opposite party no.2 to
decide afresh after framing issues and after
affording opportunity of hearing to all
concerned.

6. Being aggrieved by the order
passed by the Appellate Court, the opposite
party no.3 filed a Second Appeal, which
was allowed at the admission stage by the
opposite party no.1 without serving the
opposite parties therein, on the ground that
the transfer was made by Kallu Ram during
the pendency of the suit, where there was
already a stay order in favour of the
plaintiffs, hence, the Sale Deed was void.
Further, the transferer Kallu Ram had not
filed any Appeal against the judgment
dated
30.7.2014
and
the
transferee
pendente lite had no right to file such an
appeal.

7. In Para-21 of the writ petition, it
has been specifically stated that during the
pendency of the suit, there was no restraint
order passed by the trial court. It has also
been submitted that a Suit for Declaration
under Section 229-B of the Act could not
have been decreed in terms of the
compromise when the State of U.P. and the
Gaon Sabha, who were parties to the suit,
did not join in the compromise.

8. Learned counsel for the petitioner
has
placed
reliance
upon
judgments
rendered by this Court in Raja Ram and
another
versus
Deputy
Director
of
Consolidation,
Siddharth
Nagar
and
others, 2006 (101) RD 121; Shiv Prasad
versus Deputy Director of Consolidation,
Ghazipur and others, 2006 (101) RD 624;
Surendra Narain Dubey versus Deputy
Director of Consolidation, 1973 RD 328;
Smt. Phenki versus Board of Revenue,
Allahabad and others, 2011 Allahabad
Civil Journal 2057; Saral Tiwari alias
Jagdish Tiwari versus Board of Revenue,
U.P. at Allahabad and others, 2007(103)
RD 54; and Sita Ram versus Sia Ram, an
order of the Board of Revenue, reported in
1995 RD 161, to buttress his arguments.

9. It has been submitted that any
person who is aggrieved by the judgment
could have filed an appeal and, therefore,
3-5 All. Smt. Manju Devi Vs. Board of Revenue & Ors.
1105
the ground taken by the Board of Revenue
in its order impugned, is misconceived.

10. Learned counsel for the petitioner
has submitted that in Hardevinder Singh
versus Paramjit Singh, 2013 AIR SCW
447, and in Deposit Insurance and Credit
Guarantee
Corporation
versus
Raghupathi Ragavan and others, 2015
Allahabad
Civil
Journal
2084,
the
Supreme Court has held that even if the
appellant was not a party in the learned
Court below, but he was adversely affected
by the judgment and he could file an
application for grant of leave and prefer an
appeal
before
the
Appellate
Court.
Additionally, reliance has also been placed
upon judgment rendered by this Court in
Smt. Lal Dei through LRs and others
versus Deputy Director of Consolidation,
Varanasi and others, 2005 Allahabad
Civil Journal 1908.

11. It has further been submitted by
Sri Mohd. Arif Khan, learned Senior
Advocate appearing for the petitioner, that
a Second Appeal before the Board of
Revenue against an order of remand passed
in First Appeal was not maintainable.

12. Learned counsel for the petitioner
has placed reliance upon the judgment
rendered by the Supreme Court in M/s.
Jethanand and Sons versus the State of
U.P. AIR 1961 SC 794, where the Supreme
Court has held that an order is final if it
amounts to a final decision relating to the
rights of the parties in a dispute in civil
proceedings. If after the order of remand,
the civil proceedings still remain to be tried
and the rights in dispute between the parties
have still to be determined by the trial
court, the order is not a final order within
the meaning of Article 133 of the
Constitution of India and the order
remanding the case is not a judgment,
Decree or final order against which, a
regular Second Appeal would lie.

13. It has been submitted by the
petitioner's counsel that the order of
remand,
which
was
passed
by
the
Additional Commissioner was an order
passed under Rule 23A of Order XLI of the
Code of Civil Procedure (hereinafter
referred to as ''CPC') and against such an
order of remand, only FAFO would lie
before the Board of Revenue and for the
said proposition of law, learned counsel for
the petitioner has placed reliance upon a
judgment rendered by this Court in Mani
Ram and others versus Viresh Kumar and
others, 1985 RD 375.

14. It has been further argued that
under Section 341 of the U.P. Zamindari
Abolition
and
Land
Reforms
Act
(hereinafter referred to as ''U.P.Z.A. and
L.R. Act'), the provisions of the CPC are
applicable on the proceedings under the
Act, unless expressly provided otherwise.
Elaborating his argument, learned counsel
for the petitioner submitted that a perusal of
Schedule-II attached to the U.P.Z.A. and
L.R. Act and Item no.34 would show that
in such a case, a regular Second Appeal
would not lie.

15. In the counter affidavit filed by
the private respondents, the writ petition
has been opposed as not being maintainable
on behalf of Manju Devi, as she purchased
the land in dispute pendente lite. It has been
submitted that the Sale Deeds executed by
Kallu Ram were void, as the matter was
subjudice before the Revenue Courts for
declaration of his rights over the property
in question and there was already a stay on
the sale of the property. The petitioner had
knowledge of the pending litigation, as her
1106 INDIAN LAW REPORTS ALLAHABAD SERIES
husband was given Power of Attorney by
Kallu Ram on 31.7.2010 to prosecute the
suit pending in the Court of Sub Divisional
Officer, Gonda. The petitioner made no
attempt to get impleaded as a party to the
said suit. Kallu Ram revoked the Power of
Attorney given to the husband of the
petitioner and executed a fresh Power of
Attorney
on
21.2.2014,
appointing
Ayodhya Prasad and the subsequent Power
of Attorney being valid, Ayodhya Prasad
rightly moved an application on behalf of
Kallu Ram for settling the dispute on the
basis of a compromise entered into between
the legal heirs of the erstwhile plaintiffs
and the legal heir of the erstwhile
defendant.

16. It has been submitted that the
petitioner had no right to challenge the
compromise Decree dated 30.7.2014 as
Kallu
Ram
did
not
challenge
such
compromise Decree. The appeal was
wrongly entertained by the Additional
Commissioner
and
the
order
dated
14.10.2015
was
without
jurisdiction,
therefore, the respondents filed a Second
Appeal, which was rightly entertained and
allowed by the Board of Revenue. The
petitioner was neither a person aggrieved
nor had filed any application seeking leave
to file appeal. The respondents had
continued possession of their share of the
property in question.

17. In the course of arguments, Sri
Amarendra Nath Tripathi, appearing for the
private respondents has refuted the argument
raised by the learned counsel for the petitioner
that no Second Appeal against an order of
remand simpliciter was maintainable under
Order XLI Rule 23A of the CPC.

18. Learned counsel for the respondents
has read out Section 341 of the U.P.Z.A. and
L.R. Act to say that the provisions of the CPC
shall be applicable to the proceedings under the
Act, unless otherwise provided for.

19. Learned counsel for the respondents
has read out Section 331 also of the U.P.Z.A.
and L.R. Act and has pointed out that the
competent Courts are mentioned in Column-4
of Schedule-II, which have been designated to
deal with certain types of Suits as mentioned in
the Schedule. Reference has also been made to
Column-5, which deals with first Appellate
Court and thereafter, Section 331(4) of the Act
has been read out to show how and where a
Second Appeal can be filed against an order of
the first Appellate Court i.e. before a Court
mentioned in Column-6 of Schedule-II. It has
been submitted that since the U.P.Z.A. and L.R.
Act has substantive as well as procedural
provisions, no forum of appeal could be created
by the CPC, which is not provided in the
U.P.Z.A. and L.R. Act itself.

20.

Learned
counsel
for
the
respondents has placed reliance upon
judgment rendered in Jagdish and others
versus Shaukeen and others, (2006) 100
RD 175, to argue that the provisions of
CPC would not be applicable when there is
a specific provision contained in U.P.Z.A.
and L.R. Act with regard to filing of Suit
under Section 229-B for declaration of
Bhumidhari or Sirdari rights or for
ejectment under Section 209.

21. It has further been submitted that
if the counsel for the petitioner is relying
upon the CPC instead of U.P.Z.A. and L.R.
Act, then under Section 96(3) of the CPC,
no appeal against a compromise Decree
could have been filed. Therefore, the First
Appeal filed by the petitioner before the
Court of Additional Commissioner was
also not maintainable. In the alternative, if
the learned counsel for the petitioner says
3-5 All. Smt. Manju Devi Vs. Board of Revenue & Ors.
1107
that Section 96(3) is not applicable, then
Order XLI Rule 23A would also not be
applicable.

22.

Learned
counsel
for
the
respondents has also pointed out that the
argument with regard to the State of U.P.
and the Gaon Sabha being essential
signatories to the compromise under
Section
229-B
of
the
Act
is
also
misconceived. A suit under section 229-B
of the Act is only for those rights as are
conferred under the Act itself. No new right
was being asked for, by the plaintiffs. Ram
Raji, the widow of Sheetla Prasad was
already a Bhumidhar and the dispute
related only to succession of a recorded
tenure holder as it was claimed by the
plaintiffs that Sampata was not the
daughter of Ram Raji and Sheetla Prasad. It
was nobody''s case that the Gaon Sabha and
the State Government were not the owners
of the land in question.

23.

Learned
counsel
for
the
respondents has placed reliance upon Saral
Tiwari alias Jagadish Tiwari versus Board
of Revenue, U.P. at Allahabad and others,
(2007) 103 RD 54 and Raja Ram and
another
versus
Joint
Director
of
Consolidation, Allahabad and others, AIR
1993 Allahabad 72, to buttress his
argument that the requirement of the State
or Gaon Sabha being a party in a
Compromise is only when fresh rights are
claimed from the State or the Gaon Sabha.

24. Additionally, it has been argued
that the Sale Deeds were executed on
31.7.2010 and 6.7.2012 by Kallu Ram and
a Power of Attorney in favour of husband
of the petitioner was also executed on
31.7.2010, giving him the authority to
prosecute the pending Suit for Declaration
in the Court of the Sub Divisional Officer,
as is evident from the language of the
Power of Attorney itself. It is evident that
the Sale Deeds were subsequent to the
filing of the Suit and, therefore, subservient
to the rights of the defendant therein. The
property was purchased by the petitioner
during pendency of the Suit and during
currency of an interim stay on alienation of
property by the Court concerned, therefore,
the doctrine of lis pendens under Section 52
of the Transfer of Property Act would
apply.

25.

Learned
counsel
for
the
respondents has also placed reliance upon
Guruswamy Nadar versus P. Lakshmi
Ammal, (2008) 5 SCC 796 and Smt. Ram
Peary and others versus Gauri and others,
AIR 1978 Allahabad 318, to buttress his
argument.

26.

Learned
counsel
for
the
respondents
has
submitted
that
the
subsequent Power of Attorney executed in
favour of Ayodhya Prasad was validly
executed by Kallu Ram and in the said
Power of Attorney, the earlier one was
specifically revoked. It is not the case of
the petitioner that the Power of Attorney
issued in favour of the husband of the
petitioner was irrevocable. Moreover, the
subsequent Power of Attorney was a
registered one, whereas the earlier Power of
Attorney made out in favour of Suraj Lal
was an unregistered document. Moreover,
the Power of Attorney was made out in
favour of Suraj Lal in 2010 and in favour of
Ayodhya Prasad in 2014, and that for four
long years, no application for impleadment
was
filed
by
Manju
Devi
despite
knowledge of the pending Suit at the time
when the Sale Deed had been executed.
The recorded tenure holder was already
dead and Kallu Ram had been impleaded as
the defendant, but his right had not yet been
1108 INDIAN LAW REPORTS ALLAHABAD SERIES
confirmed. Also, the suit was pending since
1974 and the compromise was filed in
2014. In between, forty years had elapsed,
but no attempt was made by the defendant
to produce any evidence that Sampata was
the daughter of the recorded tenure holder
Ram Raji.

27. It has also been submitted by the
respondents' counsel that Kallu Ram could
have sold only that over which, he had
ownership. The ownership of the plot in
question was not declared by the competent
Court. Kallu Ram only had a PA-11 entry
in his name, which conferred no right. The
mutation proceedings had indeed been
decided in favour of Sampata in 1974, but
mutation itself does not confer any right,
title or interest in the property in question
when a regular Declaratory Suit has been
filed, which is pending.

28. It has further been submitted that
when the Appeal was filed by Manju Devi
before
the
Additional
Commissioner
against the compromise Decree, saying that
no compromise Decree could have been
validly made without the Gaon Sabha and
the State Government being signatories to
the compromise, neither the Gaon Sabha
nor the State Government filed any Appeal
against the compromise Decree. If they
were aggrieved, they did not challenge the
order and it became final against them also.
It has been argued that the Gaon Sabha and
the State Government were only proforma
parties and had no stake in the pending
Declaratory Suit, as is evident from their
subsequent conduct.

29. It has also been submitted by the
learned counsel for the respondents that the
compromise was filed on 23.7.2014 and the
Suit was decreed on 30.7.2014. No
objections were filed, either by Manju Devi
or the Gaon Sabha or the State Government
to the said compromise. If the compromise
Decree had been passed without their
knowledge, the proper remedy would have
been to file an application for recall of the
order and the First Appeal was not
maintainable by Manju Devi alone.

30.

Learned
counsel
for
the
respondents has also argued that if the
compromise was collusive in nature, it
could have been challenged in a separate
Suit by the petitioner and the First Appeal
was not maintainable.

31.

Learned
counsel
for
the
respondents has placed reliance upon a
judgement rendered in Y. Sleebachen and
others versus State of Tamil Nadu and
another, (2015) 5 SCC 747, to say that
against a compromise Decree, the party
aggrieved should have approached the
Court of first instance and it was not open
to it to file an appeal.

32. Learned Senior Counsel appearing
for the petitioner, in rejoinder, has
submitted that Section 229-B of the
U.P.Z.A.
and
L.R.
Act
relates
to
declaration of right against the recorded
tenure holder. Sub-section (3) by its
language itself makes it clear that the State
Government and the Gaon Sabha are
necessary parties. Notice under Section 80
of CPC/Section 106 of the U.P. Panchayat
Raj Act is necessary. The Declaratory Suit
filed against the recorded tenure holder i.e.
Sampata did not deny the title of Ram Raji,
but denied that Sampata was the daughter.

33. Learned counsel for the petitioner
has read out the plaint of the Suit filed as
Annexure to the writ petition along with its
relief clause and has argued that the
plaintiffs were claiming Bhumidhari rights
3-5 All. Smt. Manju Devi Vs. Board of Revenue & Ors.
1109
over a certain plot of land and Sirdari rights
on the other plots of land. The ground for
such claims was that Ram Raji, the
erstwhile recorded tenure holder, had made
out a Will in their favour and also that
Sampata was not the daughter of Ram Raji
and Sheetla Prasad, and on the death of the
couple, plaintiffs being the nephews of
Sheetla Prasad, were entitled to succession.
In such a suit, if the parties agreed to a
compromise and the defendant abandoned
his claim, then it would only mean that the
plaintiffs became Bhumidhar/Sirdar. It
would result in a fresh declaration of a right
of Bhumidhar or Sirdar, not only against
the defending private persons, but also
against the world at large, including the
State and the Gaon Sabha. Sampata was
already a recorded tenure holder in PA-11
and had also won the mutation proceedings
upto the stage of Revision. If the suit failed,
then Sampata would have remained the
Bhumidhar and if the suit was allowed,
then Ram Sumran and others would have
become Bhumidhar.

34. It has also been argued that fraud
and justice cannot go hand-in-hand. Once
Kallu Ram had sold off the property in
question, he had no right to enter into a
compromise with the plaintiffs, as he had
no interest left in the property. Moreover, if
the property was being conveyed through a
compromise, then it was compulsorily to be
registered
under
Section
17
of
the
Registration Act.

35. It has also been argued by the
petitioner's counsel that the Suit was
transferred
from
the
Court
of
Sub
Divisional Officer, Sadar to the Court of
Sub Divisional Officer, Tarabganj and a
date of 7.8.2014 was fixed, which was
preponed for extraneous consideration and
a compromise was filed on 23.7.2014 and
the Suit itself was decreed in terms of the
compromise on 30.7.2014. In such a short
period of time, neither the Gaon Sabha nor
the State could file any objections thereto.

36. Learned counsel for the petitioner
has pointed out the part of the order passed
by the first Appellate Court, on Page 64
and 65 of the paper book and has argued
that no finding has been returned by the
Board of Revenue with regard to the
specific statements made in the order of
First Appeal against the conduct of the
respondents.

37. It has also been submitted that
Ayodhya Prasad, the subsequent Power of
Attorney, bought the land in question from
the private respondents in favour of his
own father on 7.8.2014 soon after the Suit
was decreed in favour of the respondents.
A copy of the Sale Deed has been
produced, which shows that Lalta Prasad,
father of Ayodhya Prasad had bought two
plots of land in dispute.

38. It has been submitted that since
the Suit had been filed by the plaintiffs, the
burden of proof was also on them. It has
again been reiterated that under Section
341 of the Act, an order of remand is an
order under Rule 23A of Order XLI of CPC
and no Second Appeal would lie against
such an order, but only an FAFO could
have been entertained by the Board of
Revenue.

39. It has further been submitted that
under Order XXIII Rule 3 of the CPC,
"parties to the compromise decree" cannot
file an appeal against the same. However,
the petitioner was not a party to the
compromise and it was entered behind her
back and to the prejudice of her interest.
The vendor had deprived the Vendee of the
1110 INDIAN LAW REPORTS ALLAHABAD SERIES
right to property bought in exchange of
valuable consideration. It has also been
submitted that the doctrine of lis pendens
does not mean that a Sale Deed executed
during the pendency of litigation would
automatically become void. It only means
that the transferee shall step into the shoes
of the transferer and his rights shall be
subservient to the rights of the parties as
determined in the suit.

40. Having heard the parties at length,
this Court has also perused the pleadings on
record. It appears that Bhikhu, Ram
Sumran and Ram Kumar, sons of Ram
Prasad had filed a Suit for Declaration
under Section 229-B of the Act and for
ejectment under Section 209 of the Act
against Sampata, wife of Shiv Prasad, who
was substituted by her son Kallu Ram.
During the pendency of the said Suit, the
Gaon Sabha, Laxmanpur through its
Pradhan was the defendant no.2, and the
State
of
U.P.
through
the
Deputy
Commissioner, Gonda was the defendant
no.3. In the said Suit, it was alleged that
one Dhondey was the original tenure
holder, who had two sons; Sheetla Prasad
and Ram Prasad. Sheetla Prasad was
married to Smt. Ram Raji and they were
issue-less. Ram Prasad had three sons, i.e.
the plaintiffs. On certain plot of land in
village
Laxmanpur,
the
mother
of
defendant no.1 Ram Raji was recorded as
Bhumidhar and on other plots of land, she
was recorded as Sirdar and on still other
plots of land, she was recorded as co-Sirdar
along with the plaintiffs. On the death of
Smt. Ram Raji, the plaintiffs claimed that
being the nephews, they succeeded on one
plot in question as Bhumidhar, and on all
the remaining land as Sirdar. Also, that
Ram Raji had made out a Will dated
5.9.1972 in favour of the plaintiffs also. It
was also alleged that the defendant no.1
Sampata was not the daughter/legal heir of
Ram Raji and Sheetla Prasad, but without
any basis, she claimed to be their legal heir
and successor. The plaintiffs had filed an
application for mutation and correction of
papers in the Court of Tehsildar, which
application was rejected on 10.9.1972
against which, the plaintiffs had filed a
Revision, which was also rejected on
23.3.1974. Hence, the need arose to file a
Suit for Declaration and the same was
actually filed on 6.7.1974. In Paragraph 8
of the Suit, it had been mentioned that
defendant nos.2 and 3, as per statutory
provisions, were necessary parties and had
been given notice under Section 106 of the
U.P. Panchayat Raj Act read with Section
80 of CPC and despite service of notice on
26.4.1974, the defendant nos.2 and 3 had
neither replied to the notice nor had
recognized the rights of the plaintiffs as
Bhumidhar/Sirdar of the property in
question.
In
the
prayer
clause,
a
decree/declaration of Bhumidhari/Sirdari
rights over the property in question was
sought against all the defendants. Also, a
decree of ejectment of the defendant no.1
was sought under Section 209 of the
U.P.Z.A. and L.R. Act.

41. Initially the said Suit was decreed
in favour of the plaintiffs against which,
Sampata filed a First Appeal before the
Court
of
Commissioner
of
Faizabad
Division, Faizabad. The First Appeal was
allowed on 6.12.1979. Aggrieved by the
order passed in First Appeal, dismissing the
Suit of the plaintiffs, the plaintiffs had filed
a Second Appeal, which was allowed by
the Board of Revenue on 18.10.1995,
remanding the matter back to the Court of
the Sub Divisional Officer, Sadar, Gonda
with the direction that issues be framed and
evidence be taken afresh of all parties
concerned. After remand of the Suit, the
3-5 All. Smt. Manju Devi Vs. Board of Revenue & Ors.
1111
plaintiffs died and were substituted by their
legal heirs. The defendant no.1 also died
and was substituted by her son Kallu Ram.
Kallu Ram after selling off the property in
dispute initially made out a Power of
Attorney in favour of the husband of the
petitioner so that he may pursue the
pending litigation on 31.7.2010. Later on, a
fresh Power of Attorney was executed by
him in favour of one Ayodhya Prasad, who
moved an application on 23.7.2014 before
the trial court that the parties had willingly
entered into a compromise to settle the Suit
out of court.

42. In the compromise, mention was made
of a fresh Power of Attorney executed in favour of
Ayodhya Prasad in 2014, but neither the petitioner
nor the respondents herein have filed a copy of the
Power of Attorney so executed in favour of
Ayodhya Prasad in this Court.

43. The Sub Divisional Officer by his order
dated 30.7.2014, first mentioned the brief facts
relating to the litigation and thereafter referred to
the compromise filed before him on 23.7.2014
and thereafter, decreed the Suit in terms of the
compromise, which was directed to become part
of the order.

44. Learned counsel for the private
respondents has pointed out from the contents of
the compromise dated 23.7.2014 that Kallu Ram
not only gave up his right to the property in
question, but also admitted that his mother
Sampata was not the daughter of Ram Raji and
Sheetla Prasad. In the said compromise, mention
has also been made of the fact that on the property
in dispute, the plaintiffs alone had possession and
that Kallu Ram was in no way interested in the
property in question nor had possession over it.

45. The contents of the compromise filed in
the Court of Sub Divisional Officer show that
Kallu Ram gave up the claim of Sampata to be the
daughter of Ram Raji and Sheetla Prasad. He also
gave up all of his claim therefore, to the property
in question. He undermined the very basis of his
ownership of the property in dispute, which he
had already sold off by two Sale deeds in the year
2010 and 2012. He in effect rendered himself
open to be prosecuted for knowingly committing
fraud with the transferee pendente lite and
apparently for no good reason, as in the
compromise, he gave up all his rights without
getting anything in return. Such a compromise
was highly unlikely to have been entered into with
the knowledge of Kallu Ram. The application for
taking the compromise on record was signed by
Ayodhya Prasad, the new Power of Attorney
holder and for disposing of the case also. The
order sheet was signed only by Ayodhya Prasad,
alleging that Kallu Ram was not available at the
time.

46. It has come to the notice of the Court
that Kallu Ram also sold off the very same
property, which he had already disposed off in
2010 and 2012 through registered Sale Deeds,
in favour of the father of Ayodhya Prasad, one
Lalta Prasad on 7.8.2014 soon after the
Declaratory Suit was disposed of on the basis of
the compromise Decree.

47. The basic question that arises for
decision of this dispute is whether such a
compromise, which was not signed either
by the Gaon Sabha or the Collector on
behalf of State Government, could have
been relied upon by the trial court to decide
the matter.

48. Apparently, the date fixed by the
trial court for hearing of the case in the
presence of the parties was 7.8.2014. Later
on, on an application moved by Ayodhya
Prasad behind the back of the petitioner, it
was preponed to 23.7.2014. On 23.7.2014,
the compromise was filed in Court and on
30.7.2014, the Suit was decreed in favour
1112 INDIAN LAW REPORTS ALLAHABAD SERIES
of the plaintiffs on the basis of the
compromise.
The
State
Government
impleaded through the Deputy Collector
and the Gaon Sabha impleaded through the
Gram Pradhan, were contesting defendants,
as the relief claimed in the Prayer clause of
the Suit was also for a declaration of
Bhumidhari rights and Sirdari rights against
all the defendants. This Court has noticed
Para-8 of the plaint, where a specific
averment in this regard was made.

49. This Court has already held in Jag
Ram and another vs. Deputy Director of
Consolidation, Gonda and others: Writ
Petition No.459 (Consolidation) of 2002,
decided today i.e. 28.05.2020, that no such
compromise could have been made the basis of
decreeing the suit by the trial court.

50. In the case of Parsottam vs.
Narottam; 1970 ALJ 505, it was held by the
Division Bench that a suit for declaration of
Bhumidhari or Sirdari rights is to be filed
against the State Government and the Gaon
Sabha and any other person who claims
Bhumidhari or Sirdari rights, in such land has to
be impleaded as a party. It was held that the
State Government and the Gaon Sabha are
necessary parties to such a suit and, therefore,
any Decree on the basis of compromise without
their consent could be validly ignored by the
Consolidation Authorities. The appellants
therein claimed themselves to be Bhumidhars.
The dispute whether the defendant-respondents
were still Sirdars had to be adjudicated only in a
suit under Section 229-B where the State
Government and the Gaon Sabha were also
necessary parties. The Revenue Court was not
competent to look into the agreement between
the parties and to give effect to it in view of the
clear provisions of sub-section (3) of Section
229-B. It is well settled that there is no estoppel
against the statute. If the statute requires that
declaration of rights of a Sirdar can take place
only in the presence of the State Government
and the Gaon Sabha, then an agreement in the
absence of these parties would be violative of
such a statutory provision.

51. In Saral Tiwari alias Jagdish Tiwari
(supra), a co-ordinate Bench of this Court was
considering whether a compromise between the
parties in a Suit for Declaration of Bhumidhari
rights under Section 229-B of the U.P.Z.A. and
L.R. Act, which was not signed by the Gaon
Sabha or the State, could result in a valid
Decree.