Allahabad High Court
Ganga Prasad And Others vs Dy. Director Of Consolidation, U.P., ... on 24 April, 2000
Equivalent citations: 2000(3)AWC1793, 2000 ALL. L. J. 2003, 2000 A I H C 4147, 2001 ALL CJ 2 947, (2000) 3 ALL WC 1793, (2000) REVDEC 375
Author: Shitla Pd. Srivastava
Bench: Shitla Pd. Srivastava
JUDGMENT Shitla Pd. Srivastava, J.
1. This writ petition, under Article 226 of the Constitution of India, has been filed by the petitioners for quashing the order dated 24.2.1973 passed by the Settlement Officer Consolidation, Jaunpur and order dated 28.2.1978 passed by the Deputy Director of Consolidation, Jaunpur.
2. It appears from the pleading of the parties that the property in dispute is of village Kurthuwa, Pargana Gardwara, Tehsil Machchli-shahar, district Jaunpur.
3. From the pleading of the petitioners, it is apparent that Gajadhar was a fixed rate tenant of certain properties situate in different villages, namely, Kurthuwa, Meerapur Stroman. Manapur and Ghuskhuri. The fixed rate tenancy of these villages were mortgaged by Gajadhar in favour of certain outsiders who are neither interested nor are necessary parties in the suit. Gajadhar died leaving behind him his widow Smt. Sirtaji, who through registered sale deed sold her entire right of redemption to Mala Badal, who has been shown in the pedigree. Mata Badal also died and his right that he purchased from Smt. Sirtaji (right of redemption) devolved on his other co-sharers, namely. Muncshwar. Bindeshwari and Bat Karan. The co-sharers above named sold their right of redemption in favour of Bhagwan Din Singh through registered sale deed dated 19.6.1997 with a condition that the vendee, namely, Bhagwan Din Singh will be entitled to redemption on paying back their debt. It appears that after the purchase of equity of redemption, the said Bhagwan Din Singh made the Bharpai of the said mortgage and became owner of the fixed rate tenant, which was once possessed by Smt. Sirtaji. Bhagwan Din Singh died leaving behind him his son Bhagwati Din Singh, who has been arrayed as respondent No. 3 in the present writ petition. It is stated that Smt. Sirtaji died in the year 1940. She was Hindu widow and had only a life interest in the property of all the four villages, which she inherited from the husband Gajadhar. Therefore, after her death, the property devolved on the heirs of Gajadhar again. It is further stated that Bhagwan Din Singh actually purchased the right of redemption in respect of the village Kurthuwa (property in dispute) and did not make any purchase in respect of other villages, namely, Meerapur Siroman. Ghuskhuri and Manapur, which was purchased by other persons. It is further stated that the petitioners filed four suits for partition in respect of the properly situated in four villages. Suit No. 98 was filed in respect of village in question and Suit Nos. 97. 99 and 100 were filed in respect of other three villages. All the suits were consolidated and were decreed by Sri Ishwar Sahai. Judicial Officer on 20.3.1944, final decree was prepared on 30.4.1945 in respect of Suit No. 98 of the village in question. Respondent No, 3. Bhagwati Din Singh son of Bhagwan Din Singh, who was purchaser of right of redemption was party in Suit No. 98 only.
4. It is stated that three appeals were filed by different defendants separately against the judgment dated 20.3.1944 arising out of different suits. Appeal No. 4/327 was in respect of Suit No. 98 of village Kurthuwa. These appeals were not consolidated. The first appellate court (Additional Commissioner) passed the judgment in Appeal No. 4/327 filed by the respondent No. 3 on 2.1.1945 and dismissed the same. It is stated that no further appeal was filed in the Board of Revenue against the aforesaid judgment and as such the judgment became final. After dismissal of the appeal on 2.1.1945, the petitioners applied for preparation of final decree which was prepared on 3.4.1945 and possession was taken by the petitioners of the plots in question according to law. It is stated that subsequently two appeals arising out of Suit Nos. 99 and 100 came for hearing before the first appellate court (Additional Commissioner) and they were decided against the petitioners.
5. The dispute arose in consolidation proceeding where the respondent No. 3 filed objection under Section 9 of the Consolidation of Holdings Act and has stated that the finding recorded by Sri Ishwar Sahai, Judicial Officer. Jaunpur in Suit Nos. 97 to 100 under Section 49 of the Act on 20.3.1944 that the sale deed was without consideration and it was for not legal necessity was not final as this judgment was subject-matter of appeals before the Commissioner and Sri Raghunath Sahai, Additional Commissioner. Varanasi, on 5.9.1966 in Appeal No. 232/23 and Appeal No. 231/23 has held that the sale deed dated 8.6.1985 executed by Smt. Sirtaji in favour of Mata Badal was for payment of debts incurred by Gajadhar, which was a legal necessity, therefore, the judgment dated 20.3.1944 that it was for no legal necessity shall be deemed to have been set aside by the subsequent judgment dated 5.9.1966 which shall operate as res judicata.
6. The Consolidation Officer framed two issues whether the respondent No. 3 is the owner in possession of the property in dispute and what is the share of the parties. The Consolidation Officer held that as the order dated 5.9.1966 is in respect of village Ghuskhuri, which has no concern with the property in question (of Village Khurtuwa) and on 30.4.1945 plaintiffs suit was decreed against the respondent No. 3 and the petitioners came in possession since 20.6.1945, right of the respondents, if any, have come to an end. He ordered for expunging the name of Bhagwati Din Singh, (respondent No. 3) from basic year entry.
7. Bhagwati Din Singh filed an appeal against the judgment of the Consolidation Officer before the Settlement Officer, Consolidation. The Settlement Officer Consolidation allowed the appeal on 24.2.1973 held that though the petitioners took possession on the basis of the decree dated 21.6.1945 arising out of Suit No. 98 but the appeal which was filed arising out of Suit Nos. 99 and 100 against the judgment dated 20.3.1944 was numbered as Appeal No. 228/220, 229/211 and the Additional Commissioner decided against the petitioners on 5.9.1966 the judgment passed by the trial court on 20.3.1944 against Bhagwati Din Singh shall be deemed to have been set aside and judgment dated 5.9.1966 passed by the Commissioner shall be deemed to be final. He has further held that as the order dated 20.3.1944 was common judgment, therefore it shall be deemed to have been set aside in all the suits. On the basis of the possession, he held that though possession was delivered on the basis of the order dated 21.6,1945 to the petitioners but after the decision dated 5.9.1966 Bhagwatt Din Singh (respondent No. 3) has right to get possession under Section 144 of the Civil Procedure Code.. But since the possession is joint possession, therefore, their possession shall not be deemed to have come to an end.
8. A revision against this judgment was filed by the petitioners before the Deputy Director of Consolidation, who also dismissed the revision affirming the aforesaid finding of the Settlement Officer Consolidation by order dated 28.2.1978. The petitioners have challenged the aforesaid two Judgments in this Court by way of present writ petition.
9. Counter-affidavit has been filed in this case.
10. Learned counsel for the petitioners. 'Sri G. N. Verma, has urged the main legal point, which is to be determined is the effect of the judgment dated 5.9.1966. His submission is that when four suits were decided by a common judgment on 20.3.1944 and they were decreed, four separate appeals were maintainable according to law and unless the appeals though filed separately were consolidated and decided by common Judgment, it shall not be deemed in the eyes of law that the judgment passed in one appeal decided earlier shall be deemed to have been set aside in other appeal though filed against the same judgment but decided separately and subsequently.
11. Sri G. N. Verma, learned counsel urged that the petitioners' suit in respect of village Khurtuwa was numbered as Suit No. 98 in which respondent No. 3 was party and the suit was decreed against the respondent No. 3. The appeal filed by him was dismissed, final decree was prepared, possession was delivered to the petitioners in the year 1945 and petitioners continued in possession, therefore, they acquired right by adverse possession also in the alternative and subsequent decision of the appellate court dated 5.9.1966 though arising out of the same judgment dated 20.3.1944 were in respect of different Suit Nos. 97 and 100 in which respondent No. 3 was not a party, shall not give any benefit to the respondent No. 3 and that Judgment will not have the effect and will not amount to setting aside the judgment dated 20.3.1944 in respect of village Khurtuwa. His submission is that the findings recorded by the Settlement Officer Consolidation and Deputy Director of Consolidation arc based on illegal interpretation of law.
12. Learned counsel for the respondent, Sri Satya Prakash, has urged that when the trial courl decreed all the suits filed by the petitioners by common judgment dated 20.3.1944 and it was held by the trial court that the sale deed executed by Smt. Sirtaji of the year 1985 was not for legal necessity and when the respondents preferred appeal against this finding before the Additional Commissioner and the appeal was dismissed as time barred the judgment dated 20.3.1944 or the Judgment dated 21.6.1945 dismissing the appeal as time barred was not final when two other appeals against the same Judgment were pending before the first appellate court though by different defendants and when those appeals were decided with a finding that the sale deed was for legal necessity and the judgment dated 20.3.1944 was set aside that judgment will have a binding effect between the parties (petitioners and respondent No. 3). His further submission is that even if the possession was delivered to the petitioners in the year 1945 that was on the basis of the judgment dated 20.3.1944 but since it was set aside and the parties remained in joint possession the possession of the petitioners on the basis of the aforesaid fact cannot give them any right after lapse of some time on the basis of the adverse possession.
13. After hearing learned counsel for the parties and going through the record, I am of the view that the sole controversy in the present case is that as to which judgment (whether judgment dated 20.3.1944 affirmed by the appellate court in the year 1945 in an appeal) will operate as res judicata between the petitioners and Bhagwati Din Stngh or the Judgment which was delivered on 5.9.1966 will have the effect of res Judicata and by this judgment dated 20.3.1944 which was delivered in 1998 shall be deemed to have been set aside.
14. Before discussing the argument of the learned counsel for the parties, it is necessary to see Section 11 of the Civil Procedufe Code, which is quoted below :
"Res judicata.--No Court shall try any suit or issue in which the matter directly and substantially in Issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
Explanation I.--The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto."
15. A perusal of the aforesaid Section 11 of the Civil Procedure Code,, referred to above, shows that the first ingredient to said section is that there must be a suit or issue to be tried, which was directly or substantially in issue in a former suit. Secondly, the issue should have been directly or substantially in issue in the past suit and thirdly, it should be between the same parties under whom they or any of them, claiming or litigating under the same title and fourthly, the Court must be competent to try the subsequent suit, and lastly, such issue has been substantially raised and has been heard and decided by such Court.
16. The Explanation (I) has clarified the meaning of word former suit. It denotes the suit prior to the suit in question, whether or not it was instituted prior thereto. So the basic thing is that Section 11 deals with a bar to try the subsequent suit between the same parties on the same issue.
17. It is admitted to the parties that the plaintiffs in four suits were common but the defendants in all the suits were not common as the property belong to four different villages. It is also admitted that there was a common issue regarding the right of Smt. Sirtaji and the legal position of the sale deed. It is also admitted that the suits were decided by a common judgment on 20.3.44 and it is also admitted that three different appeals were filed before the competent court. It is further admitted that the appeal filed by Bhagwati Din Singh (respondent No. 3) was dismissed as time-barred and other appeals survived.
18. Sri G. N. Verma, learned counsel for the petitioner has submitted that the judgment delivered on 20.3.1944 in Suit No. 98 was not a judgment in rem rather it was a judgment in personam between the same parties to that suit only and same was the position in respect of other three suits, separate decrees were prepared and every judgment debtor in every suit has separate right of appeal, therefore, the judgment which was delivered at subsequent stage in other two appeal will not be judgment in rem. He has placed reliance on a case in Slate of Bihar and others v. Sri Radha Krishna Singh and others, AIR 1983 SC 684. The head-note (G) is relevant, which is quoted herein below :
"A judgment in rem. e.g., judgments or orders passed in admiralty, probate proceedings, etc. would always be admissible irrespective of whether they are inter partes or not. A judgment which is not inter partes is inadmissible in evidence except for the limited purpose of proving as to who the parties were and what was the decree passed and the properties which were the subject-matter of the suit. The recitals in a judgment like findings given in appreciation of evidence made or arguments of genealogies referred to in the judgment would be wholly inadmissible in a case where neither the plaintiff nor the defendants were parties."
19. His submission is that when the lots were prepared and the respondent No. 3 also got his plot in compliance of the decree passed on 20.3.1944, then he cannot have any right on the basis of the judgment dated 5.9.1966. His submission is that the judgment dated 5.9.1966 will not operate as res judicata rather dated 20.3.1944 will operate as res judicata.
20. Sri Satya Prakash learned counsel for the respondent has further submitted that as all four suits were decided by a common judgment and the appeals were filed against the same judgment, only one appeal was dismissed on the ground of limitation then it shall not be deemed that the Judgment has become final rather the Judgment shall be deemed to be sub-Judice in the two appeals and if the two appeals were subsequently decided. In favour of other persons, though they were not parties to the case, in which Bhagwati Din Singh was party the subsequent judgment will operate as res judicata and for that purpose he placed reliance on a Full Bench case in M/s. Jai Narain Har Narain and others v. L. Bulaqi Das, 1968 AWR 704. The facts in this case are that the Suit No. 6 of 1956 was filed in the Court of Civil Judge. Gorakhpur by Lala Bulaqi Das against M/s. Jai Narain and others for refund of Rs. 22,000 which was given as advance money by the plaintiff to the defendants along with interest, damages on the basis of the agreement dated 1.4.1953. The second Suit No. 599 of 1956 was filed in the Court of Munsif, Gorakhpur by the firm M/s. Jai Narain Har Narain who were defendants in the earlier suit against the firm Bulaqi Das and another, claiming a sum of Rs. 5,000 from the defendants on the breach of agreement. Two suits were consolidated by a common judgment on 30.4.57 by the civil Judge. The Suit No. 6 of 1956 was decreed and Suit No. 599 of 1956 was dismissed and separate decrees were prepared. The First Appeal No. 307 of 1958 was filed by the M/s. Jai Narain Har Narain, arising out of the judgment in Suit No. 6 of 1956 but no appeal was filed against the judgment arising in Suit No. 599 of 1956. The question arose as to whether the Judgment delivered in the Suit No. 599 of 1956 was final therefore, the appeal No. 307 of 1958 was barred by the principle of res judicata. The Full Bench answered that the judgment dated 30.4.1957 has nof become final and the First Appeal No. 307 of 1958 does not barred by the res judicata.
21. Full court held that bar of res judicata is not created by a decree or judgment. In the same judgment, Hon'ble A. K. Kirty (as he then was) while agreeing with the judgment of Hon'ble J. Sahai (as he then was) has discussed a case in R. Vishwanathan and others v. Abdul Wajid and others. AIR 1963 SC 1, wherein the expression former suit was considered for the purpose of applicability of the Seclion 11 of the Civil Procedure Code, as mentioned in Explanation 1. In paragraph 51 of the aforesaid judgment, it has been observed by Hon'ble Judge, as he then was, that literally, Section 11, Civil Procedure Code applies only to suits and not to appeals. Almost all the Courts in India, including the Supreme Court have, however, held that it applies to appeals as well. Now, when two or more suits are consolidated and decided by a common judgment and appeals are filed against the decrees passed in all the suits and in the same Court, no question of res judtcata can really arise if the appeals are also heard and decided simultaneously. Difficulties, however, arise when one of such appeals is either heard and decided separately or for want of prosecution or for some other reason is dismissed and the decision of the Court below stands confirmed as a result thereof. The bar of res judicata will under those circumstances be applicable to the other surviving appeal, or appeals. This, as I understand, is the legal position which emerges out of the decision of the Supreme Court in Sheodan Singh v. Daryao Kunwar, AIR 1966 SC 1332. In such cases, applying the principles that an appeal is continuation of the suit and that the decision in the "former suit" is the decision which is prior in point of time, little difficulty is to be confronted with, the "subsequent suit" being within the competence of the same Court. In paragraph 52 of the same judgment, the Court has held that the position, however, cannot be the same when appeals arising from the different consolidated suits do not lie in the same Court or Courts having equal or co-ordinate jurisdiction. As in the instant case, although two consolidated suits are decided by a Civil Judge because of pecuniary jurisdiction, an appeal against the decree in one may He in the Court of the District Judge whereas the appeal against the decree in the other may lie only in the High Court. Now, if, under such circumstances, the appeal in the Court of the District Judge is decided first, the decision of the District Judge cannot. In my opinion, operate as res judtcata in the appeal in the High Court. The decision of the District Judge may be treated as the decision in the 'former suit' but the appeal in the High Court, even if it is treated as the 'subsequent suit' certainly is not one which the District Judge is competent to decide. Therefore. Section 11 of the C.P.C. can neither be Involved nor applied. The legal position which lay in the Court of the District Judge was filed and decided after hearing or dismissed for want of prosecution or such similar reason or it was not filed al all.
22. From a perusal of the judgment aforesaid, it is clear that the Court was considering Independently the competency of the Court to decide the former suit. In the instant case, as stated above, three appeals were filed before the competent court, as one was decided earlier as it was not between the same parties, and the judgment had become final, I am of the view that judgment dated 5.9.1966 will not operate as res judicata against the petitioner and against Bhagwati Din Singh, respondent No. 3 as that judgment was not between the same parties. I, therefore, hold that the Judgment delivered by the Consolidation Officer is correct and Judgment delivered by the Settlement Officer Consolidation and Deputy Director of Consolidation are not based on sound principles of law. I, therefore, allow the writ petition and set aside the judgment and order dated 28.2.1978 and 24.2.1973 passed by the respondent Nos. 1 and 2 and affirm the judgment delivered by the Consolidation Officer dated 30.12.1971. There will be no orders as to costs.