HAMZA HAJI versus STATE OF KERALA AND ANR.

Citation: [2006] SUPP. 4 S.C.R. 604 · Decided: 18-08-2006 · Supreme Court of India · Bench: AR. LAKSHMANAN · Disposal: Dismissed

Judgment (excerpt)

A 
HAMZA HAJI 
v. 
STATE OF KERALA AND ANR. 
AUGUST 18, 2006 
B 
[DR. AR. LAKSHMANAN AND P.K. BALASUBRAMANY AN, JJ.] 
Kera/a Private Forests (Vesting and Assignment) Act, 1971: 
Sections 3 and 8-Private forest- Vesting of-Exemption from-Owner, 
C having purchased certain extent of land, disposed of almost the entire property 
by way of assignmttnts and was, therefore, left with no property-The said 
owner filed an application before the Forest Tribunal seeking a declaration 
that the application scheduled property was not a private forest liable to be 
vested in the Government-Tribunal upheld the claim under S. 3(2)-lt 
D upheld the title and possession of the appellant as per the deed of purchase-
High Court dismissed the appeal preferred by thL· State and directed the 
State to restore the land to the owner-Subsequently, a hody of citizens filed 
a writ petition praying for a direction to the' State not to assign, release or 
surrender the forest land-The High Court set aside the order of the Forest 
Tribunal which was found to be vitiated by fraud-Correctness of-Held: It 
E is obvious that when he made the claim, the owner neither had title nor 
possession over the land-There could not have been any intention on his 
part to cultivate the land which he had already parted with and of which 
he had no right to possession-Therefore, the owner played a fraud on the 
Court by holding out that he was the title holder of the application scheduled 
F property-The High Court under Article 215 has the power to undo a 
decision that has been obtained by playing fraud on the court-High Court 
judgment upheld-Constitution of India, 1950, Art. 215. 
Evidence Act. 1872: 
G 
Section 44-Judgment obtained by fraud-A litigant obtained judgment 
in his favour by suppressing vital information and putting forward a false 
claim- Effect of-Held: The litigant had deliberately misled the Court and, 
therefore, the judgment of the Court was procured by the litigant by playing 
a fraud and the said order is vitiated by fraud-Hence, High Court righlly 
H 
6~ 
HAMZA HAJJ v. STATE OF KERALA 
605 
set aside the said judgment obtained by fraud. 
Words & Phrases: 
"Fraud"-Meaning of-In the context of Section 44 of the Evidence 
Act, 1872. 
The appellant, claiming to have purchased an extent of 22.5 hectares of 
land, disposed of almost the entire property by way of assignments mostly in 
the years 1971 and 1972 by way of a gift of 5 acres to his brother. Thus, the 
appellant was left with no property allegedly acquired under the sale deed. 
A 
B 
In the year 1979, the appellant filed an application before the Forest C 
Tribunal under Section 8 of the Kerala Private Forests (Vesting and 
Assignment) Act, 1971 seeking a declaration that the application scheduled 
property was not a private forest liable to be vested in the Government. The 
appellant claimed exemption under Section 3(2) of the Act. The Tribunal 
upheld the claim of the appellant under Section 3(3) of the Act. It upheld the D 
title and possession of the appellant as per the deed ilf purchase. 
The High Court dismissed the appeal filed by the State at the stage of 
admission on the ground that a specific ground of challenge to the finding 
based on Section 3(3) of the Act had not been raised in the memorandum of 
appeal. The appellant filed a writ petition for a direction to the State and the E 
Forest Officials to restore to him the 20 acres of land in implementation of 
the order of the Forest Tribunal. The High Court allowed the writ petition. 
The custodian realized that the appellant had no vestige of right in the 
application schedule property and, therefore, the State filed a review-petition 
before the High Court. A body of citizens also filed a writ petition praying for F 
a direction to the State not to assign, release or surrender 20 acres of 
evergreen forest land to the appellant. The High Court set aside the order of 
the Forest Tribunal which was found to be vitiated by fraud. Hence the appeal. 
Dismissing the appeal, the Court 
HELD: I. Section 44 of the Evidence Act, 1872 enables a party otherwise 
bound by a previous adjudication to show that it was not final or binding 
because it is vitiated by fraud. The provision, therefore, gives jurisdiction and 
authority to a Court to consider and decide the question whether a prior 
adjudication is vitiated by fraud.1614-B-CI 
G 
H 
606 
SUPREME COURT REPORTS [2006) SUPP. 4 S.C.R. 
A 
S.P. Chengalvaraya Naidu v. Jagannath, 

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