REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICITION

CIVIL APPEAL NO.  1795 OF 2000

Behari Kunj Sahkari Avas Samiti …Appellants

Versus

State of U.P. & Ors. …Respondent

J U D G M E N T

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Dr. ARIJIT PASAYAT, J.  

1.  Challenge in this appeal is to the order passed by Division

Bench  of  the  Allahabad  High  Court  dismissing  several  writ

petitions.  Three writ petitions were filed by the State of Uttar

Pradesh through Secretary, Revenue Department, Smt. Lalita

Chaturvedi and Ors. and by G.C. Mittal.  These writ petitions

were numbered as Civil Misc. Writ Petition Nos.16775 of 1985,

9162 of 1987 and 9386 of 1987 respectively.   

2. In  these  three  civil  writ  petitions,  the  disputed  subject

matter is Khasra No. 519, village Surjepur, Agra whose total

area is four bighas one biswa which is recorded as property of

Abdul Wahid in revenue record. At the time of division of the

country,  Abdul  Wahid  had migrated  to  Pakistan in  1947-48

and his aforesaid property, (Khasra No. 519, village Surjepur,

total  area  four  bighas  one  biswa)  was  declared  as  evacuee

property  and  under  Administration  of  Evacuee  Property

Ordinance,  1949  (Ordinance  No.  1  1949)  it  vested  in  the

Custodian of Evacuee Properties. Later on the said ordinance

was  substituted  by  Administration  of  Evacuee  Property  Act, 2

1950 (in short the ‘Act’) and then this property was deemed to

have vested in the Custodian as an Evacuee  Property under

the said Act. The entire property was given in the tenancy of

Harnath Chaturvedi and Gurudatt Chaturvedi by order of Addl.

Asstt. Custodian in 1949 for which rent was payable at the rate

of Rs.50/- per month by Harnath Chaturvedi with effect from

1.7.1949 and from the same date at the rate of Rs.25/- per

month was payable by Gurudatt Chaturvedi. The portion which

was given in the tenancy of Gurudatt Chaturvedi was later on

given  to  Addl.  Asstt.  Custodian  Shri  Mehrotra  by  Asstt.

Custodian,  Evacuee  Property,  Agra  on  22.9.1953.  Shri

Mehrotra died. On 18.8.55, this entire property of four bighas

one  biswa,  on  which  there  was  a  kothi,  garden  and

appurtenant land, was auctioned under the provisions of Dis-

placed Persons (Compensation & Rehabilitation) Act 1955 (in

short  the  ‘Displaced  Persons  Act’)   and  it  was  given  to  the

displaced person Tuljaram on the highest bid of Rs.61,000/-.

Tuljaram  made  payment  of  that  money  by  adjustment  of

compensation. Accordingly, sale certificate of this property was

made  in  favour  of  Tuljaram.  Against  this  auction,  Harnath

Chaturvedi  made  an  application  under  Rule  92  of  the

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Displaced  Persons  (Compensation  &  Rehabilitation)  Rules,

1955 (in short ‘Displaced Persons Rules’) before the Managing

Officer, Agra in which he made a claim claiming himself to be a

tenant in respect of a part of land of the entire area of four

bighas  one  biswa  which,  apart  from  kothi,  was  land.  The

contention  of  Harnath  Chaturvedi  was  that  it  was  an

agricultural  land  upon  which  he  has  acquired  rights  of

hereditary tenancy and used to pay rent to the Zamindar and

after this property was vested in the Custodian, the rent was

being  paid  to  the  Custodian.  Further  Harnath  Chaturvedi

contended  that  Abdul  Wahid  was  only  a  Zamindar  of  this

property  and  only  Zamindari  rights  had  vested  in  the

Custodian  and  only  the  kothi  was  auctioned  and  not  the

agricultural  land  because  he  continues  to  be  in  peaceful

possession  over  the  agriculture  land.   Managing  Officer

rejected  this  application  by  his  order  dated  27.5.1955.  By

Government letter dated 4.6.1955 of Government of India, all

urban immovable  properties  within  corporation,  municipality

and notified  committee  areas,  within the State  of  U.P.,  were

acquired  on  15.8.1947  and  it  was  declared  that  whatever

urban  immovable  property  has  been  declared  as  “Evacuee

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Property”, it all shall vest in the Central Government. As the

disputed  subject  matter  came  within  the  area  of  Agra

municipality, that is why it all vested in the Central Govern-

ment.  Harnath  Chaturvedi  filed  an  appeal  before  Asstt.

Settlement Commissioner,  U.P. against the order rejecting of

his application dt. 27.5.1955 by Managing Officer, Agra. This

appeal  was  rejected  by  Asstt.  Settlement  Commissioner  by

order  dated  17.10.1960.  Against  this  rejection  order  dated

17.10.1960,  Harnath  Chaturvedi  filed  a  revision  application

under  Section  24  of  the  Act  before  Chief  Settlement

Commissioner.  The  Deputy  Chief  Settlement  Commissioner,

New Delhi, exercising the delegated power of Chief Settlement

Commissioner  rejected  the  revision  application  by  his  order

dated 18.11.1961. Harnath Chaturvedi under Section 33 of the

said  Act,  made  a  representation  to  the  Central  Government

against  the  said  rejection  order  of  Deputy  Chief  Settlement

Commissioner,  which  too  was  rejected  by  the  Central

Government.  Harnath  Chaturvedi  filed  a  Writ  Petition  No.

251/62  before  the  High  Court  against  the  rejection  of  his

representation by Managing Officer and against the rejection of

his appeal and revision application.  The High Court dismissed

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this Civil Writ Petition on 6.9.62.  Against the rejection of Civil

Writ  Petition by the  High Court,  Harnath Chaturvedi  filed  a

Special  Appeal  No.1002 year  1962 in  the High Court.   This

Special Appeal was dismissed by the High Court  by order dt.

24.11.1974.  During  the  period  of  pendency  of  application

under Section 27 of the Act  before the Asstt. Custodian Gener-

al and in the revision application he made a claim on the basis

of  being a tenant and prayed for the review of the order of

vesting  as  Evacuee  Property.  In  the  revision  application,

Harnath Chaturvedi claimed himself as a tenant only over land

measuring  two  bighas  ten  biswas  out  of  total  land  of  four

bighas one biswa and alleged Abdul Wahid to be his Zamindar.

Asstt. Custodian, General Uttar Pradesh and Bihar. Lucknow

disposed  off  the  said  revision  application  by  his  order  dt.

30.10.1969/ 5.11.1969 and remanded the matter to the Asstt.

Custodian for disposal of the claim of Harnath Chaturvedi after

hearing him.  The  Asstt.  Custodian,  by his  order  dt.  25.2.72

accepted the claim of the tenancy of Harnath Chaturvedi over

two bighas ten biswas and the tenancy of Harnath Chaturvedi

was accepted over land two bighas ten biswas deeming it to be

a separate part out of the total land of four bighas one biswa.

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After  this  order,  Harnath  Chaturvedi  prayed  for  transfer  of

Zamindari rights in his favour over this two bighas ten biswas

area to the Asstt. Custodian and, which prayer was accepted

and  after  accepting  rupees  eight  hundred,  Zamindari  rights

were also transferred to Harnath Chaturvedi on 27.4.1972.  

3. Harnath  Chaturvedi  preferred  an  appeal  on  22.1.1973

before Chief Custodian General under Section 22 of the Act in

which he prayed that the auction dt. 18.8.1955 in favour of

Tuljaram  and  the  sale  certificate  issued  on  14.7.1961  in

respect  of  the  disputed  subject  matter,  be  cancelled.  This

appeal was accepted by Authorised  Settlement Commissioner,

Lucknow  and  the  auction  and  sale  certificate  in  favour  of

Tuljaram were cancelled. Tuljaram made an application before

the Settlement Commissioner, Government of India, New Delhi

on 30.6.76 against this order dt. 11.1.1973 which was rejected

on  20.1.1977.  Against  this  rejection  order  dt.  20.1.1977,

Tuljaram filed a revision application under Section 24 of the

Act  before  the  Deputy  Chief  Settlement  Commissioner,  New

Delhi on 8.2.1977.  This revision application was rejected by

Deputy Custodian General Evacuee Property by his order dt.

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17.5.1976.  Against this rejection order dt. 17.5.1976 Tuljaram

filed a Civil  Writ Petition No. 920 of 1977 in the Delhi  High

Court  which  on  the  prayer  of  Tuljaram,  was  rejected  on

4.1.1983.   Tuljaram prayed for recalling  this rejection  order,

which prayer  too was rejected by the Delhi High Court by  its

order dt. 22.2.1984.

4. The  State  of Uttar Pradesh made a representation before

the Central Government under Section 54 of the  Act against

the  order  of  the  Custodian  dt.  27.4.72  by  which  Zamindari

rights  over  two  bighas  ten  biswas  were  sold  to  Harnath

Chaturvedi for rupees eight hundred and against the order dt.

17.5.1976  of  the  Deputy  Custodian  General  by  which  the

revision  application  of  Tuljaram  was  rejected.  Upon  this

representation, notices were issued to Harnath Chaturvedi and

the other persons who were brought on the land by him. Being

aggrieved with the said notice, heirs of Harnath Chaturvedi and

the persons who were brought by him, filed Writ Petition No.

9162/1987  (Lalita Chaturvedi  and others  V/s The  Union Of

India and another) and Writ Petition No.9386 of 1987 (Gulab

Chand Mittal V/s Union Of India and others).

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5. On 10.11.1982, Harnath Chaturvedi made an application

before  the  Custodian  Evacuee  Property,  Uttar  Pradesh  in

respect of property No. 183/195, which is the part comprising

of kothi and garden of the total disputed subject matter and

which is situated over one bigha eleven biswas and is known

as  Bagh  Farzana,  praying  therein  that  the  said  land  be

transferred to him and also prayed that the sale deed of this

land be executed in favour of Gulab Chand Mittal with whom

Harnath  Chaturvedi  had  made  an  agreement  to  sell  for  an

amount  of  rupees  twenty  lacs.  On  11.11.82,  Authorised

Custodian  accepted  the  prayer  of  Harnath  Chaturvedi  and

proposed the transfer to Harnath Chaturvedi for rupees sixty

one  thousand  i.e.  the  amount  for  auction  was  accepted  in

favour of Tuljaram on 18.8.1955.   Asstt.  Custodian General,

duly authorized by Chief Custodian General, approved the said

proposal on the same day on 11.11.1982 and for an amount of

rupees  sixty one thousand,  land measuring one bigha eleven

biswas  alongwith  kothi and  garden, was  transferred to Gulab

Chand Mittal. Thereafter, Tuljaram made  a prayer before the

Custodian General under Section 27 of the Act.  On 31.1.1985

State  of  Uttar  Pradesh  filed  a  revision  application  under

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Section  27  of  the  Act.  On  11.10.1985  the  said  revision

application  was  rejected.  During  this  period  on  8.3.1984,

Gulab  Chand Mittal  transferred  kothi  and appurtenant  land

i.e.  one  bigha  eleven  biswas  to  Bihari  Kunj  Sahkari  Awas

Samiti, the present appellant  for an amount of rupees twenty

lacs.  

6. The High Court noted inter alia as follows :

“Since  in  these  writ  petitions,  order  dt. 5.11.1969, dated 25.2.1972 and dated 3.1.1973 have  not  been  challenged  and  the  Hon’ble Supreme Court in its order has not desired that the  legality  and  propriety  of  these  orders  be considered, therefore this court does not think it proper to consider the questions that have been raised by the learned advocate Shri Saraswat and express its opinion thereon.  Thus for this reason, no  analysis  is  being  made  on  the  judgments produced in the support by Shri Saraswat.”

7. The High Court  held that orders dated 11.11.1982 and

18.11.1982 appear to be mala fide, against law, arbitrary and

invalid  and  were  liable  to  be  cancelled.  Therefore,  the  writ

petitions (Civil  Misc. Writ Petition No.16775 of 1985) filed by

the State of  Uttar Pradesh was allowed and the order dated

11.11.1982  and  the  sale  certificate  dated  18.11.1982  in

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compliance thereof were directed to be cancelled.  In the Writ

Petition Nos. 9162 of 1987 and 9386 of 1987, the order passed

in the year 1969 by the Central Government in regard to two

bighas and ten biswas out of the disputed subject matter of

four  bighas  and  one  biswa  and  thereafter  order  passed  in

appeal and revision of Harnath Chaturvedi in the years 1972

and 1973 and subsequent  orders that have been passed on

their basis were the subject matter of dispute.  

8. State of Uttar Pradesh had questioned its bonafides and

had requested Central Government to conduct an enquiry in

terms  of  Section  54  of  the  Act  upon  which  the  Deputy

Secretary, Department of Evacuee Properties of Home Ministry

of  the  Central  Government  had on  21.2.1986  expressed  his

views for making an enquiry. According to High Court, against

the expression of view for an inquiry, there was no justifiable

reason for issuing any direction, order or writ. Therefore, the

writ  petitions  nos.  9162  and 9386  of  1987  were  held  to  be

without merit and were dismissed.

9. Learned counsel  for  the  appellant  submitted  that  there

could be no vesting unless interest is separated because of the 11

provisions of the Separation Act.  The applications were made

under  Section 27 of  the Act  and Section 54 of  the  Disabled

Persons Act. Section 27 applications were in respect of sale of

Harnath’s property. It is to be noted it was contended that the

sale was approved by the Assistant Custodian.  In the earlier

Special Leave Petition this Court had directed to consider the

validity of order dated 11.11.1982 and the consequential order

dated  16.11.1982.   The  High  Court  stated  that  there  is  no

indication as to under  what provisions of  law the order was

passed. There was no challenge to the order under Section 22

dated 31.1.1993 and the order in the writ petition noted this

position.  Therefore it is submitted that the High Court was not

justified in saying that there was no jurisdiction to deal with

the matter.  

10. At  this  juncture,  it  is  to  be  noted  that  there  was  no

dispute  that  the  Custodian  had  no  authority  under  the

Disabled Persons Act.  High Court’s view related to the effect of

cancellation of the auction and the fact that the property vests

in the State of Uttar Pradesh. Reference is also made to the

letter by the Central Government to the State of Uttar Pradesh.

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11. Learned  counsel  for  the  State  of  Uttar  Pradesh  on  the

other hand submitted that the entire case of the appellant is

based on the order dated 31.1.1973. This Court had held that

the order dated 11.11.1982 was not the consequential  order

but  was  the  original  order.   Although  the  case  is  that  the

claimant is in possession of portion of the kothi No. 183/195,

Civil  Lines,  Agra,  the  auction  certificate  was  in  favour  of

Tuljaram.  The revision was filed by Harnath Chaturvedi under

Section  22.   Another  revision  under  Section  22  was  filed

subsequently.   The  claim  was  regarding  Zamindariland

Bhumidari rights in respect of property in the heart of the city.

There was no challenge to the auction of 1955 and the Sale

Certificate  till  18.11.1961.  In  the writ petition, there  was no

challenge to the aforesaid auction and sale certificate and the

relief  claimed  related  to  eviction.  The  writ  petition  filed  was

dismissed on 6.9.1962.  In the Letters Patent Appeal also there

was no challenge to the auction and the sale certificate and the

Letters  Patent  Appeal  was  dismissed  on  27.11.1971.   The

directions for remand was given because the concerned parties

were not heard.  On remand, fresh proceedings were initiated

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and the claim as tenant was accepted in respect of 2.11 bighas

of land.  As a matter of fact there was no claim to the Kothi.

The stand is that only the Kothi and not the entire land was

auctioned. This does not appear to be factually correct.  

12. There  was  some  suppression  of  factual  position  and

fraud  appears  to  have  been  practiced.  After  nine  years,  the

application was moved in 1982.  It is not in dispute that no

opportunity was granted to Tuljaram on 10.11.1982 and before

passing  of  the  order  on  11.11.1982.   The  certificate  of  sale

shows that  G.C.  Mittal  purchased  the  property  at  a  sale  by

negotiation.   Under  Section  8,  the  property  vests  in  the

Custodian of the particular State.  The ‘Custodian’ is defined in

Section  2(c)  and  Section  10(1)  provides  that  the  job  of  the

Custodian  is  to  preserve  and  maintain  the  property.   The

primary object is not to transfer. In case property cannot be

preserved then only it can be transferred.  Under sub-section

(2) only for the purpose enumerated in sub section (1)  there

can  be  transfer  or  sale,  and  no  such  action  can  be  taken

without prior or previous approval of the Custodian General.

The  approval  of  the  Custodian  General  is  to  be  taken  first.

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This is clear from the expression “Previous Approval”,  before

the order is passed. Post facto approval is not sufficient.  This

procedure was not followed.  Tender process was not adopted

which would have ensured that the best price was available.  If

the order dated 30.1.1985 is a nullity further action is of no

consequence.  

13. In State of A.P. and Anr. v. T. Suryachandra Rao [2005(6)

SCC 149] it was observed as follows:

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 money and it will include and any harm whatever caused to 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).   

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

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gain by another’s loss. It  is a cheating intended to get an advantage.  (See S.P. Chengalvaraya Naidu v. Jagannath (1994 (1) SCC 1).

“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 res judicata.  (See  Ram Chandra Singh v. Savitri Devi and Ors. (2003 (8) SCC 319).

“Fraud”  and  collusion  vitiate  even  the  most solemn  proceedings  in  any  civilized  system  of jurisprudence.  It is a concept descriptive of human conduct.  Michael Levi likens a fraudster to Milton’s sorcerer, Comus, who exulted in his ability to, ‘wing me  into  the  easy  hearted  man and  trap  him into snares’. It has been defined as an act of trickery or deceit.  In  Webster’s  Third  New  International Dictionary “fraud” in equity has been defined as an

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act or omission to act or concealment by which one person obtains an advantage against conscience over another or which equity or public policy forbids as being  prejudicial  to  another.   In  Black’s  Legal Dictionary,  “fraud”  is  defined  as  an  intentional perversion  of  truth  for  the  purpose  of  inducing another  in  reliance  upon  it  to  part  with  some valuable thing belonging to him or surrender a legal right;  a  false  representation  of  a  matter  of  fact whether  by  words  or  by  conduct,  by  false  or misleading  allegations,  or  by  concealment  of  that which should  have  been disclosed,  which deceives and is intended to deceive another so that he shall act upon it  to his legal  injury.  In  Concise  Oxford Dictionary,  it  has  been  defined  as  criminal deception, use of false representation to gain unjust advantage;  dishonest  artifice  or trick. According to Halsbury’s  Laws  of  England,  a  representation  is deemed  to  have  been  false,  and  therefore  a misrepresentation, if it was at the material date false in substance and in fact.  Section 17 of the Indian Contract Act, 1872 defines “fraud” as act committed by  a  party  to  a  contract  with  intent  to  deceive another.  From dictionary meaning or even otherwise fraud  arises  out  of  deliberate  active  role  of representator  about  a  fact,  which he  knows to  be untrue  yet  he  succeeds  in  misleading  the representee by making him believe it to be true.  The representation to become fraudulent must be of fact with knowledge that it was false. In a leading English case i.e.  Derry and Ors. v.  Peek (1886-90) All ER 1 what constitutes “fraud” was described thus: (All ER p. 22 B-C) “fraud” is proved when it is shown that a false representation has been made (i) knowingly, or (ii)  without  belief  in  its  truth,  or  (iii)  recklessly, careless whether it be true or false”.  But “fraud” in public law is not the same as “fraud” in private law. Nor can the ingredients, which establish “fraud” in commercial  transaction,  be  of  assistance  in determining  fraud  in  Administrative  Law.   It  has been  aptly  observed  by Lord Bridge  in  Khawaja v. Secretary of State for Home Deptt. (1983) 1 All ER

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765,  that  it  is  dangerous  to  introduce  maxims  of common law as to effect of fraud while determining fraud in relation of statutory law.  “Fraud” in relation to statute must be a colourable transaction to evade the provisions of a statute.   “If  a statute has been passed for some one particular purpose, a court of law will not countenance any attempt which may be made to extend the operation of the Act to something else which is quite foreign to its object and beyond its scope.  Present day concept of fraud on statute has  veered  round  abuse  of  power  or  mala  fide exercise of power. It may arise due to overstepping the  limits  of  power  or  defeating  the  provision  of statute by adopting subterfuge or the power may be exercised for extraneous or irrelevant considerations. The colour of fraud in public law or administration law, as it is developing, is assuming different shades. It arises from a deception committed by disclosure of incorrect facts knowingly and deliberately to invoke exercise  of  power  and  procure  an  order  from  an authority or tribunal.  It must result in exercise of jurisdiction  which  otherwise  would  not  have  been exercised. The misrepresentation must be in relation to the conditions provided in a section on existence or  non-existence  of  which  the  power  can  be exercised.  But non-disclosure of a fact not required by  a  statute  to  be  disclosed  may  not  amount  to fraud.   Even  in  commercial  transactions  non- disclosure  of  every  fact  does  not  vitiate  the agreement.  “In a contract every person must look for  himself  and  ensures  that  he  acquires  the information  necessary  to  avoid  bad  bargain.  In public law the duty is not to deceive.  (See  Shrisht Dhawan  (Smt.) v.  M/s.  Shaw  Brothers,  (1992  (1) SCC 534).

This aspect of the matter has been considered 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’s case  (supra),  Ashok Leyland Ltd. v.  State of T.N. and Another (2004 (3)

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SCC 1) and State of A.P. & Anr. v. T. Suryachandra Rao [ (2005) 6 SCC 149].

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’s case (supra).

“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  but  it  can  be evidence  on  fraud;  as  observed  in    Ram  Preeti Yadav’s case (supra).

In  Lazarus Estate Ltd. v.  Beasley (1956) 1 QB 702,  Lord  Denning  observed  at  pages  712  & 713, “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”.  

14. Stand in essence is that after dismissal of the writ petition

and  three  earlier  orders,  revision  under  Section  27  was

maintainable.  Stand  of  the  State  is  that  there  was  no

jurisdiction to move any particular authority. A new case was

tried to be made, which was not the case earlier. An appeal was

already filed without indicating as to under which provision it

was filed. Second appeal against eviction was not maintainable.

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There was constructive res judicata, and there is no provision

to move after 9 years for transfer of the kothi. It is significant

that all previous orders which have relevance were suppressed.

There is substance in what is submitted.  

15. It  is  to  be  noted  that  suit  was  filed  against  Tuljaram.

Subsequently there was a compromise between Tuljaram and

Bhagwan Das.  It is relevant to note that Bhagwan’s claim was

that  there  was  an  agreement  of  sale  between  Tuljaram and

Bhagwan Das.  It  is to be further  noted that in the counter

affidavit filed by Tuljraram there is no reference to the alleged

agreement with Bhagwan Das.  He is a local person and not a

displaced  person.  Therefore,  he  has  no  right  to  get  the

property.  There is no distinction between original order and

the revisional order.  Law is fairly well settled that even if an

order  is  a  nullity  same  has  to  be  challenged.  [See:  State  of

Punjab and Ors. v. Gurdev Singh (1991(4) SCC 1)].

16. Above being the position, the High Court was justified in

its view and no interference is called for.

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17. Appeal  is  dismissed  accordingly.  But  there  shall  be  no

order as to costs.  

         ……………………………………J. (Dr. ARIJIT PASAYAT)  

……………………………………J. (LOKESHWAR SINGH PANTA)  

New Delhi: July 25, 2008

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