In what can be dubbed as a stupendous verdict, the District Court, Rupandehi gave its verdict in favor of a person who did not even exist. The Butwal Appellate Court endorsed the decision, and the Supreme Court did not bother to revisit the case. A ‘case study’ of how Nepal’s judiciary truly works!
Ekal Silwal: Centre for Investigative Journalism-Nepal
Awadesh Kumar Mallah
RUPANDEHI: Shailesh filed a case of assault against his cousin Awadesh Kumar Mallah (his uncle’s son) at the Rupandehi District Court in March 2018. Both Awadesh and Shailesh are the residents of erstwhile Asuraina village development committee-3 of Marchwar near the Indian border. This village is now in the jurisdiction of Sammarimai Village Municipality – 6. The dispute that surfaced between the two cousins about property partition subsequently reached the court after Shailesh alleged his cousin Awadesh of assaulting him.
Three brothers — Shree Ram, Rajaram and Jayram – (uncles of Avadesh and Shailesh) had a total of two bigha and four kattha of parental land. Among the three brothers, Jayram, the youngest brother, died in 2057 BS while his wife passed away a year later in 2058 BS.
All three families of Shree Ram, Rajaram and Jayram’s only son Awadesh, were staying together as a joint family. Ten years after his father’s death, Awadesh made up his mind to stay separately. He then took this idea before his uncles (Shree Ram and Rajaram), and in the meantime, sought his father’s property.
His eldest uncle Shree Ram instantly agreed to transfer one-third of the parental property to Awadesh’s name. Rajaram, however, flatly rejected the idea leading to a conflict. The situation aggravated further when Shailesh and Awadesh got involved in trouncing one another. Shailesh then filed a case of assault at the Rupandehi District Court against Awadesh.
Shree Ram has five sons while Rajaram has three, including Shailesh. Shree Ram was residing in India with his family. Rajaram and his wife, too, were in India while their three sons and Awadesh’s family were residing in Nibihawa where they had their parental house.
Shailesh was very much apperceive that the share of the property that would come in his name would be negligible since the land was to be prorated among his three brothers. Avadesh, meanwhile, would get the largest share since he was the only son to inherit his father’s property.
Shailesh thought Awadesh, too, should get an equal share. He then lodged a complaint at the district court with the logic that Awadesh would sick and tired of frequenting the court and would accede to Shailesh’s intention to grab more land.
Shailesh’s motive could not succeed since instead of bowing down to his intention, Awadesh on April 2012 filed a case against his uncles Shree Ram and Rajaram at the Rupandehi District Court seeking an equal share of his parental property. As the only son of his deceased father, Avadesh filed the case laying the claim of his father’s property share.
New claim of share for property in court
Meanwhile on 7th June 2012, Shreeram, who was made the defendant, filed a case in favor of Avadesh’s claim in the court. Shailesh’s father Rajaram, too, registered a file challenging that since Jayaram had passed away before having a child, the case of property does not arise in his favor. Rajaram’s claims were, in fact, astonishing. The entire episode got a U-turn when he produced a person named Hari Mallah claiming to be the son of their father’s (Madhuban) elder brother Ramlagan. Ramlagan, had passed away in 1987 without having any children. As per Rajaram’s claims, the property now had to be partitioned among their fathers. This issue brought a new twist to Awadesh’s case filed at the court.
The story, in fact, goes like this. Ramlagan had passed away some 25 years ago. Being childless, he had handed over his property right to three sons of his younger brother Madhuban when he was alive. That’s why Rajaram’s rejoinder to the court was shrewd. In a contrasting issue regarding property partition from older to younger generation, Rajaram had filed a case challenging the old-age practice in favor of partitioning the property first to the older generation.
All of them were in the race to decide the case to their respective favor. On 12th July 2012, Rajaram’s son Shailesh readied a document with the help of the then VDC secretary, Pradhumna Prasad Kurmi of Asuraina VDC (who also worked as a chief of the village) claiming that Hari Mullah and Ramlagan were father and son.
Gradually, on 10th September, 2012, a property case was filed against the couple of Shree Ram and Rajaram at the Rupandehi District Court. The contents of the document in the case that was filed resembled the previous ones filed by Firad and Rajaram challenging Avadesh’s case. It was mentioned in the petition filed by Hari Mallah, seeking half of the property in the name, that Shreeram and Avadesh’s father Jayram were childless.
Hari Mallah in his lawsuit has mentioned two different addresses – Asuraina-3, Rupandehi and Gorakhpur District, Kampiyargunj Tahashil, Manjhariya Gram. The lawsuit registered seeking Nepali citizenship contains his thumbprint.
Rajaram family mentioned as the defendant in the lawsuit did not appear in the court which hints us that it was done intentionally to support Hari’s claim. On November 29, 2012, recording their statement before the court, other defendants, Shreeram couple, argued that Hari Mallah is not entitled to property share as Mallah does not belong to the lineage of Ramlagan couple who died without having any children.
Refuting the lawsuit’s claim that Shreeram had no children, he mentioned the names of his five sons before the court. Meanwhile, Shreeram also demanded with the court to investigate the lawsuit in connection with the property case filed by his son Awadesh whom Rajaram claimed that he was not his nephew.
Liladhar Dube of Basantapur-4, Betauliya addressed the bench of the then Judge of Balendra Rupakheti on behalf of plaintiff Hari Mallah. Shreeman himself turned up at the court to rebut Dube’s statement. On May 2, 2013, the court recorded the statements of Awadesh as per the demand of Shreeram.
Awadesh had reiterated at the court that he was entitled to get one-third share of the property belonging to Ramlagan, the elder brother of his grandfather, who, according to him, died without any offspring.
On May 21, 2013, the witnesses of both the plaintiff and the defendant swore an affidavit before Judge Rupakheti. Witnesses of Shreeram and Awadhesh – Janardan Yadav and Ramdin Yadav — stated that the document of relationship certificate issued in the name of Hari Mullah by the then secretary of the Village Development Committee does not exist in the record of the office, therefore, it cannot be valid.
Since Ramlagan had no children, his property was transferred to the three sons of Madhuwan, his younger brother, after his death, they said.
Bishwanath Chai of then Asuraina-8 turned up before the bench as a witness of Hari Mallah. He spoke in favor of Hari’s entitlement to get property share but failed to present any evidence about it.
On June 10, 2013, District Court, Rupandehi issued an order in the name of Hari Mallah to produce an authentic document that showed a relation between him, his father and grandfather.
On July 9, 2013, a single bench of Judge of Balendra Rupakheti to conduct an on-the-spot investigation about Hari Mullah and verify his name in the voters’ list of the 1995 maintained by the District Election Office.
In response to the court’s order, Hari’s representative Dube submitted a document that showed that Hari’s family comes from India’s Gorakhpur District, Kampiyargunj Tahashil, Manjhariya Gram.
Meanwhile, Dube also produced at the court a photocopy of the voters’ list that included Hari’s name with the serial number 315 of Asuraina Village Development Committee-3.
On September 28, 2013, a team deployed from the court carried out an on-the-spot investigation in Nibihawa village. A total of 12 locals stated that they did not know Hari Mullah and he was not the son of Ramlagan.
On August 29, 2013, the court dispatched a letter to the district election office to inform the court about Hari Mullah’s name in the voters’ list after verification.
On September 1, 2013, the district election office responded that the office had no voters’ lists of 1995, 1997, and 1999 and that Hari’s name was not included in the list of 2006 as well.
Balchandra Sharma, Judge
“My judgment has been endorsed by the Appellate Court to the Supreme Court. The case has been already settled. It’s all over now. It is not necessary to summon a person for a case being judged through a representative. Judges do not go from house to house looking for evidence. The judgment was passed on the basis of evidence. The appellate court would have rectified if I had made a mistake in passing the judgment. If I had done something wrong, the appellate court would not have endorsed it. Supreme Court did not deem it necessary to review the case.”
(Telephonic conversation with retired judge Sharma on 1 August 2019)
Meanwhile, Judge Balendra Rupakheti was transferred to some other court to be replaced by Balchandra Sharma as the new judge of the District Court, Rupandehi.
On January 24, 2014, hearing Awadesh Mallah’s case related to property claim, Rupandehi district judge ordered the defendants to compile both the cases – the one related to beating by Shailesh Mullah in 2011 and the other filed by Hari Mullah against Shreeram and Rajaram – and submit simultaneously.
Meanwhile, evidence was created in favor of Hari Mullah. According to the evidence, on February 23, 2014, the then Village Development Committee had written a recommendation letter to the Nepal Electricity Authority, Rupandehi mentioning four directions of Hari Mullah’s house for the installation of electricity.
This recommendation letter had been created asking for the installation of electricity in the house where electricity was being supplied to for several years. Awadhesh and Rajaram’s family were jointly staying in that house. It was presented at the court as evidence that it was the residence of Hari Mullah.
On June 28, 2014, Hari Mullah submitted his birth registration certificate at the court according to which he was born on August 22, 1956. This birth registration certificate had been issued by then Asuraina Village Panchayat on December 30, 1979.
On July 8, 2014, the court had sent a letter to the Village Development Committee asking for verification of the letter.
But on the same day, the concerned VDC responded to the court in writing stating that the official record did not have Mullah’s birth registration as such in the year 1979.
The documents seem to have been forged somewhere near the district court since the VDC lying beyond the distance of 25 kilometers responded to the court’s order on the same day.
On July 9, 2014, hearing the case, District Judge Balchandra Sharma ruled that plaintiff Hari Mallah was entitled to enjoy the property share of late Ramlagan since he was the latter’s son given the available evidence.
The voters’ lists of 1995 and 1999 submitted by the plaintiff also described Hari Mall as the son of Ramlagan.
On July 14, 2014, Awadesh filed a forgery case at District Court, Rupandehi claiming that the evidence which Judge Sharma’s judgment was based on were fabricated. He, in the case, demanded due punishment against then VDC chairman Pradhyumna Prasad Karki and Hari Mallah for their involvement in fraudulent activities.
On July 15, 2014, District Judge Balchandra Sharma issued the judgment stating that Hari Mallah is entitled to get half of the 2 bigha 3 kattha and 14 dhur of land belonging to late Ramlagan. Sharma also invalidated the site report in which 12 locals had denied a relationship between the plaintiff and the defendant.
Sharma, in his judgment, writes, “Given the evidence, Hari Mullah is the son of late Ramlagan and Murati by relation and that he should not be deprived of his right to get property share.”
Hearing Awadesh’s case, Sharma ruled that he is entitled to get one-third portion of the half of the property owned by Ramlagan, as Hari Mullah is already entitled to get half of the property.
Awadesh registered an appeal at the appellate court in Butwal against both the rulings. But Sharma did not enter the main agenda of the forgery case filed by Awadesh against Hari Mullah and then VDC secretary Pradhyumna Kurmi citing the cause of limitation. Awadesh also filed an appeal against it.
On August 11, 2015, Judges of Appellate Court, Butwal Tika Bahadur Hamal and Prakash Chandra Gajurel issued ruling against all of his three cases. Then in December 2015, he moved the Supreme Court against the decision of the appellate court, seeking review into his three cases.
On March 11, 2016, Justices Sushila Karki and Jagadish Sharma also did not issue a verdict in favor of Awadesh. The verdict says, “It is not deemed suitable to review the cases already decided by appellate court citing a change in the provision of 12 (1) (a) and (b) of the Administration Justice Act, 2048 BS.” “Seek justice in accordance with the law.”
In March 2016, a dozer deployed by the court partitioned the land. The ownership of the land, which his family had been tilling since generations, was transferred to Hari Mullah who does not belong to his lineage.
On June 19, 2916, Hari Mallah filed an application at the Inland Revenue Office, Rupandehi asking for plotting his land in line with the partition done by the court. The survey office plotted the land immediately.
On June 23, 2016, the inland revenue office ruled that the land ownership belonging to Hari Mullah could not be transferred to anybody since he is a non-Nepali. The revenue office issued a note describing as an Indian citizen as he had a base card issued by the Indian government and he is identified as Manjhariya Gram Panchayat of Gorakhpur, India.
On July 28, 2016, Hari Mallah sold the land to Shailesh Kumar Sahani Mallah. Awadesh’s house also falls in the territory of the land.
On December 13, 2017, Rajaram, father of Shailesh, filed a case at the District Court, Rupandehi, seeking to use the house which currently Awadhesh’s family was occupying. The court ordered Awadesh’s family to leave the house immediately.
“The judge who created a person out of nowhere led me to this situation.” Awadhesh who knocked the court demanding for property share lost house, too.”
Example of injustice
‘After having heard that ‘a non-existent person won the case’, we reached Asuraina VDC-3, Marchawar of Rupandehi district bordering with India. We decided to research the case. We first went to Ramlagan’s house based in Gorakhpur, India in July 2018. We asked for the family records of Ramlagan maintained by Manjhariya Gram Panchayat in Gorakhpur.
On 7th July 2018, the Grampanchayat provided us with an attested copy of the family record of Ramlagan. According to the record, Ramlagan had no children but Hari Mullah was not found in the records of the Gram Panchayat.
“Nobody by the name Hari Mullah is in Grampanchayat,” said Ananda Kumar Singh and Pradhan Rajkunar Nishad, officials at the Grampanchayat.
(Concerned body and authorities have corroborated that both the base card and the address presented by Hari Mullah are false)
Then we went to verify the voters’ lists of the year 1995 and 1996. It was necessary because the District Court, Rupandehi had issued a verdict in favor of Hari Mullah stating the Mullah’s name featured in the voters’ list.
Centre for Investigative Journalism Nepal (CIJ) has also confirmed that Hari Mullah is a fake name. Mullah’s name does not exist in the voters’ list of then Asuraina VDC-3 held in 1999, confirmed Election Commission, Nepal on February 17, 2019.
We conclude from this official document that voters’ list submitted at the court in the name of Hari Mullah was also fake. In the voters’ list of document of 1999, with serial number 1756210 Ramdas Kewat and 17562811 Prabhawati Kewat had been replaced by Hari Mallah and Kalawati Mallah through computer design.
(Look at the genuine and fake documents)
It shows that Hari Mallah is a fake name created out of forging documents. Hari Mallah was not a member of Awadhesh’s family. District Court to Appellate Court to Supreme Court was hoodwinked into believing Hari Mallah as a real person.
The VDC prepared a document of birth registration certificate in the name of Hari Mallah without conducting a site report. Interestingly, it does not exist in the official record. A photo of an aged-looking man has been pasted in the relationship certificate whom no family members and villagers recognize him.
The case lasted for several years in the court on behalf of this unidentified person. Neither parties to lawsuit met with Mullah, nor villagers and relatives saw him, but he won the case finally.
Pradhyumna Kurmi, then secretary at Asuraina VDC who helped create this document does not want to speak of the document. “The court had already validated my recommendation,” Kurmi said, adding, “Don’t ask me about the rest.”
Addressing the bench court, Satyanarayan Kewat, then chairman of ward no 3 of Asuraina VDC, who is incumbent chairman of ward no 6 of Sammarimai Rural Municipality, had stated that Hari Mullah is a non-existent person. He also informed rural municipality and the Commission for the Investigation of Abuse of Authority (CIAA) in writing claiming that Mullah is a fake person.
Ward Chairman Kewat said, “The court created a person out of nowhere. What can be more absurd than this.”
Shree Prasad Singh, a close neighbor of Awadesh, says, “I am now 65 years old but I have never seen Hari Mullah in this village.
In June 2018, we visited Manjhariya of India and met with Rajaram Mallah in his house. When we raised the issue, he immediately stood up left for somewhere without response. According to villagers, he is the kingpin behind creating the fake person Hari Mullah.
No one could dare claim that Hari Mullah is a member of the family. But he had won the case.
Helpless Awadesh Mallah had to approach the rural municipality for assistance. Unfortunately, the rural municipality did not have a copy of the relationship certificate in its record. The record does not have the recommendation letter submitted for the installation of electricity either. The rural municipality says that they could not do anything to help Awadesh due to the court’s decision.
Jitendranath Shukla, chief of the rural municipality, says, “The whole village is stunned to know how the court created such a fake person out of nowhere. There is no room left for a correction after the court reversed the truth.”
District Judge Sharma subsequently got promotion to the judge of High Court, Pokhara and retired on January 4, 2019.
We asked Sharma, who is living a retired life, how a non-existent person won the case based on forged documents. Sharma said, “Judges don’t go from a house to another for evidence. We pass judgment based on available evidence.”
Hari Mullah’s victory over the case has not harmed anybody. I issued the verdict in favor of him. It is the duty of the land revenue office to transfer the land ownership certificate to him only after verifying his identification. This case can still be reversed if there is enough evidence claiming that he did not exist at the time of passing judgment.
