CIVIL WRIT JURISDICTION CASE No.17627 OF 2008 ***** 1. RAMA SAHNI, SON OF LATE SUNAR SAHNI 2. DHORHA SAHNI, SON OF LATE SUNAR SAHNI BOTH RESIDENTS OF VILLAGE MAHESRA MALAHI TOLA, POST OFFICE SUNARGAMA, POLICE STATION GOPALPUR, DISTRICT WEST CHAMPARAN, BETTIAH ……………………………………………………………………….PETITIONERS VERSUS 1. THE STATE OF BIHAR 2. THE COMMISSIONER, TIRHUT DIVISION, MUZAFFARPUR 3. THE COLLECTOR, WEST CHAMPARAN, BETTIAH 4. THE ADDITIONAL COLLECTOR, WEST CHAMPARAN, BETTIAH 5. THE LAND REFORMS DEPUTY COLLECTOR, WEST CHAMPARAN, BETTIAH 6. JUGESHWAR PRASAD, SON OF LATE BHUNESHWAR PRASAD 7. AKHILESH PRASAD, SON OF LTE RAJENDRA PRASAD 8. CHUMAN PRASAD, SON OF LATE RAJENDRA PRASAD 6 TO 8 RESIDENTS OF VILLAGE KURHANI, POLICE STATION KURHANI, DISTRICT MUZAFFARPUR …………………………………………………………………………….RESPONDENTS **************** FOR THE PETITIONERS :- MS. M.CHATTERJEE, ADVOCATE P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN Sheema Ali Khan, J. The petitioners are aggrieved by the order dated 01.03.2006 passed by the Commissioner, Tirhut Division, Muzaffarpur in Revision Case No. 236-Misc./92-93 whereby the Court below has set aside the order of the Additional Collector dated 01.12.1992. 2 The subject matter of dispute in this case is the land appertaining to C.S. Khata No. 1031, Plot nos. 2871 and 2897 measuring area 12 kathas 13 dhurs and 06 kathas 13 dhurs respectively situated in village Puraina Tola Maheshara Malahi, Police Station Gopalpur, District West Champaran. The case of the petitioners is that Julum Mallah is the ancestor of the petitioners and the petitioners are in continuous possession over the lands described above for the past 100 years. It is alleged by the petitioners that respondents 6 to 8 by committing fraud got jamabandi no. 940 and 679 created in their favour although they do not have title or possession over the lands in question. On learning this fact, the petitioners filed Jamabandi Case No. 114 of 1990-91 for cancellation of the jamabandi and to create jamabandi in their favour. The Land Reforms Deputy Collector directed the Halka Karamchari through the Circle Officer to submit a report regarding the status of the lands in question which was submitted on 26.12.1990. The Land Reforms Deputy Collector issued notice to the parties and thereafter cancelled the jamabandi no. 940 and 679 in favour of respondents 6 to 8. The fathers of respondents 7 and 8 filed Revision Case No. 255 of 1991 for setting aside 3 the order of the Land Reforms Deputy Collector in Rent Fixation Case No. 114 of 1990-91. The Additional Collector confirmed the order dated 01.12.1992. Respondents 6 to 8 challenged the order of the Additional Collector before the Commissioner, Tirhut Division who set aside the order passed by the Additional Collector and the Land Reforms Deputy Collector by the impugned order contained in Annexure-5. The only question raised on behalf of the petitioners is that respondents do not have right to file a second revision application under the provisions of Section 17 of the Bihar Tenants Holdings (Maintenance of Records) Act, 1973 which has been deleted by Bihar Act 28 of 1975 with effect from March, 1983. As far as this question is concerned, it is settled by a Division Bench decision in the case of Arun Kumar Sinha and Others Vs. Suresh Prasad and Others, reported in 1997 (2) PLJR 996. I will deal with this aspect in the later part of this judgment. An intervention petition has been filed in this writ application by the purchasers from the recorded Khewatdars. The intervention petition is being allowed for reasons which will be mentioned in this order. 4 This Court however is faced with a controversy of a different type. The case of the respondents and the intervenors is that Ambika Mishir, son of Kamleshwar Mishir and late Most. Surya Kuer, widow of Dubri Mishir was the Khewatdars of village Puraina. They had mortgaged Khewat No. 11 to one Ram Prasad Pandey and others and Khewat No. 12 was prepared in the name of the mortgagee. The mortgagees Ram Prasad Pandey and others inducted one Julum Mallah as bataidar over the lands appertaining to plot nos. 2871 and 2897. After some times, the mortgagor Ambika Mishir and others redeemed the mortgage and with the redemption the bataidar Julum Mallah who were inducted over the lands gave up possession since the mortgagers did not allow him to continue after the redemption of the mortgage. Late Ambika Mishir and others who were in cultivating possession again mortgaged the land to one Shiv Nandan Sah who came in possession over the aforesaid lands. In the year 1935, Ambika Mishir sold the lands appertaining to plot no. 2871 and 2897 to Bhuneshwari Prasad, the father of Jugeshwar and Rajendra who took the deed in favour of his wife Most. Surya Kuer, mother of respondent no. 6. As per the condition in the sale 5 deed, Surya Kuer redeemed the mortgage by a document executed on 23.12.1935. After the purchase of the said lands, Surya Kuer, mother of respondent no. 6 and the father of respondents 7 and 8 got the lands mutated in their name and are paying rents to the State of Bihar. The intervenors have claimed to be in possession of the original rent receipts of 1960 onwards which stand in the name of respondent no. 6 and the father of respondents 7 and 8 (vendors of the intervenors). The petitioners filed a case under Section 48(E) of the Bihar Tenancy Act against respondents 6, 7 and 8 and in the year 1982 claiming bataidari rights and possession over the said lands. After due enquiry, the application under Section 48E of the Act was rejected by the Land Reforms Deputy Collector on 28.01.1983 in Case No. 47 of 1982-83. This order became final and was not challenged before any Court by the petitioners. In view of the facts stated aforesaid, this Court finds that the intervenors are necessary parties to this application as they have prima facie shown that they have title and possession by virtue of the sale deed in their favour executed by the respondents 6 to 8. 6 Turning to the main question in this writ application i.e. the orders which are under challenge, this Court will now discuss the orders of the Land Reforms Deputy Collector, the Additional Collector and the impugned order as contained in Annexure-5. It is apparent from the order of the Land Reforms Deputy Collector that the petitioners have not brought on record the fact that their application under Section 48(E) of the Act was rejected and have filed a petition for cancellation of the jamabandi. An enquiry was held in which it has been stated that the petitioners are the bataidars and they share usufructs of the land with the recorded tenant. It may be mentioned here that it has been recorded in the order of the Land Reforms Deputy Collector that the respondents appeared through their Manager but did not file any documents in support of their case and as such the Land Reforms Deputy Collector has cancelled the jamabandi of the respondents 6 and 7. Against the order passed by the Land Reforms Deputy Collector on 19.02.1991, a revision application was preferred by respondents 6 to 8 and the Additional Collector by a cryptic order has confirmed the order of the Land Reforms Deputy Collector. Finally, another 7 revision application has been preferred in which all the documents have been brought on record including the mortgage deed, sale deed and the order passed by the Land Reforms Deputy Collector under Section 48(E) of the Act. The facts aforesaid indicate that the petitioners have got an order in their favour by suppressing certain relevant facts with respect to this case. The claim of the petitioners that their ancestors and thereafter the petitioners have been in possession over the lands since 1922 is apparently falsified by the facts that the lands have passed through several hands and it was as far back as in the year 1922 that the petitioners’ forefathers were inducted as bataidars. It is also apparent that after the mortgage was redeemed, the forefathers of the petitioners were not retained as bataidars and as such it is difficult to believe that after a gap of several decades, they have filed an application claiming that they are the bataidars of the lands more so when their application under Section 48(E) of the Act has been rejected. It is true that a second revision application will not lie in view of the amendment in the Act, however, the Court cannot ignore and shut its eyes to the facts that have been brought on record. It is well settled principle of 8 law that fraud vitiates all actions and once it is noticed by the Court that there is suppression of facts and orders have been obtained by one or the other party by such suppression of a relevant document, as in this case, this Court cannot justify or uphold the orders so obtained. The very basis of the claim for possession and title in this case is that the petitioners claim to be bataidars and as such they have had prayed that the jamabandi of the respondents be cancelled and their names be entered in the Register- II. If it was brought to the notice of the Land Reforms Deputy Collector that the petitioners have lost their claim of being bataidars, and their application was rejected by a competent authority under Section 48E of the Bihar Tenancy Act, the Land Reforms Deputy Collector could not have entertained their application for cancellation of the jamabandi. In this context, this Court may refer to certain judgments on the issue. In the case of S.P. Chengalvaraya Naidu vs. Jagannath, reported in AIR 1994 SC 853, the Supreme Court has held that withholding of vital document relevant to the litigation in order to get advantage on the other side than the party concerned would be guilty of playing fraud on the Court as well as on the Opposite Party and can be 9 thrown out at any stage of the proceeding. It has been emphasized time and again and is now a well settled principle as has been held in the case of Indian Bank vs. Satyam Fibers (India) Pvt. Ltd., reported in AIR 1996 SC 2592 that a constitutional, statutory or administrative Authority who have to decide a lis have the power to recall their orders and judgments, if they are obtained by fraud as Fraud and justice never dwell together (Fraus et jus nunquam cohabitant). Therefore, even though a second revision is barred, this Court in the facts of this case finds that the Commissioner, Tirhut Division could have reviewed the orders obtained by fraud, although there may not be any statutory provision for review, considering that the orders were obtained by misrepresentation and suppression which amounts to fraud on the statutory body/Court under the Act. This is not a case where the petitioners did not get an opportunity to present their documents and case before the Commissioner, infact they got full opportunity to be heard and such this Court finds the order and reasoning of the Commissioner, Tirhut Division is justified and no case has been made out by the petitioners for cancellation of the jamabandi. I may refer to the argument advanced on behalf of the 10 petitioners that the enquiry report indicates that the petitioners are in possession of the lands. The enquiry was conducted behind the back of the respondents 7 and 8 and the intervenors, and it is very easy for a party to appear on the spot which is a field and claim that they had cultivated the field, in the absence of the other side. Besides which once it has been held that the petitioners have failed to show that they are in possession as Bataidars, it cannot be held and believed that they were in possession of the lands. In the result, the writ application is dismissed, but with no order as to costs. ( Sheema Ali Khan, J. ) PATNA HIGH COURT DATED, THE 02nd SEPTEMBER, 2009 A.F.R./ANAND