Patna High Court
Sabitri Devi vs Rangnath Tiwary And Anr. on 10 March, 2005
Equivalent citations: AIR2005PAT121, AIR 2005 PATNA 121, (2005) 2 BLJ 664 (2005) 2 PAT LJR 476, (2005) 2 PAT LJR 476
Author: Mridula Mishra
Bench: Mridula Mishra
ORDER Mridula Mishra, J.
1. This application has been filed by the petitioner for quashing the order dated 29-6-2000/30-6-2000 passed by the Director, Consolidation, Patna in Revision case Nos. 368/95, 369/95 and 370/ 95 as three revision applications were allowed by the Director, Consolidation, by a common order (Annexure-7).
2. The order has been challenged by the petitioner on the ground that
(i) the revision application preferred by respondent Nos. 1 and 2 should not have been entertained by the Director, Consolidation, as the revision applications were preferred by them against the order passed by the Consolidation Officer without preferring any appeal. As such, the order is without jurisdiction.
(ii) the revisional order is without jurisdiction as it has been passed with respect to the property which is the subject-matter of First Appeal No. 504 of 1985 which is pending but on a wrong presumption that First Appeal No. 504 of 1985 is dismissed the revisional order has been passed.
(iii) the revisional authority failed to consider that the revisional applications were hopelessly time barred and without condoning the delay the revision applications were entertained.
3. The facts of the case have not been much pressed by the learned counsel for the petitioners as well as learned counsel for the respondents. Submissions have been advanced by the parties only on the point of law as well as on the point of jurisdiction even then relevant facts of the case are being mentioned. The petitioner is the substituted legal heir of Chandra Jyoti Devi and the subject-matter of the present application are the properties which were the properties described under Schedule-I, II & III in title suit No, 23 of 1972. The Title Partition suit No. 23/72 was filed in the Court of Sub-Judge-II, Chapra, by respondent No. 1 claiming for partition of his 1/4th share out of the properties detailed under Schedule-I, II, III of the plaint. Chandrajyoti Devi inherited these properties after the death of her husband Jagannath and his first wife Shyama Devi. Chandrajyoti Devi sold 1/4th share out of the properties Scheduled as I, II, III to the plaintiff for Rs. 4000/- and both came in joint possession of the property according to their respective shares. During the pendency of the suit chandrajyoti Devi died and the petitioner was substituted in her place as defendant. The defendant in her written statement stated that the plaintiff did not acquire any right, title and possession over the disputed land on the basis of the sale deed as it was forged. Chandrajyoti Devi had never executed any sale deed or received any consideration money. She was a Pardanashin lady and her advocate Sheo Kumar Dwivedi took her signature by fraud and converted it into a sale deed in the name of his relative Raghunath Tiwary. Plaintiff did not acquire right, title and possession over the disputed land on the basis of this sale deed, as such, he is not entitled to get any relief. Some of the properties described under the Schedule of the plaint are situated in Deoria in Uttar Pradesh and some are situated in Bihar. Consolidation proceedings were initiated in the area where some of the suit properties are situated, as such, with respect to those properties the suit abated under Section 4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as the 'Act'). For rest of the properties the suit proceeded and it was decreed in favour of the plaintiff holding that he is entitled to get 1/4th share in Schedule-II property. The plaintiff (respondent No. 1) filed an application under Section 10(4) of the 'Act' before the Consolidation Officer. Bijayapur, which were registered as Consolidation Case No. 735/1988, 108/1988 and 110/1988. The Consolidation Officer by a common order dated 15-4-1992 rejected the prayer of the applicant (respondent) holding that on the basis of sale deed no title has passed to the applicants and their claim of being in possession is without any basis. Against the order passed by the Consolidation Officer in Consolidation Case No. 735/ 1988, 108/1988 and 110/1988, respondent filed three revision cases, they are, 368/ 1995, 369/1995 and 379/1995 before the Director, Consolidation, Patna under Section 35 of the Act, All three revision cases were disposed of by the common order dated 29-6-2000/ 30-6-2000 which is under challenge in the present writ application.
4. Submissions made by the petitioner's counsel is that respondent No. 3 passed the impugned order on this assumption that First Appeal No. 504 of 1985 filed against the judgment dated 6-6-1985 passed in Title Suit No. 23 of 1972 has been dismissed and the judgment passed by the trial Court is affirmed, when the fact is that restoration application filed by the appellant (petitioner) in M. J. C. No. 2521 of 1996 was allowed by order dated 10-9-1997 and First Appeal No. 504 of 1985 has been restored to its original file. Since the First Appeal is still pending before the High Court, the Director, Consolidation, should not have passed any order during the pendency of the First Appeal. Further it has been stated that against an order passed by Consolidation Officer directly filed revision applications were not maintainable as against the order passed by the Consolidation Officer, the respondent should have filed an appeal as provided under the Act. Thirdly, it has been stated that the revision applications were hopelessly time barred. Even then they were entertained by the revisional authority and the impugned order was illegally passed.
5. A counter-affidavit has been filed by respondent No. 2 wherein it has been stated that in the Title Suit No. 23 of 1972 as well as before the Consolidation Authority only point of dispute was, whether the sale deeds executed by Chandrajyoti Devi were legal, valid and operative and whether there was unity of title and unity of possession between the plaintiff and defendant. In the Title Suit respondent No. 1 has been held to be entitled for his 1/4th share after determining that the sale deeds are genuine and valid. Since the dispute has been settled by the competent Civil Court respondent No. 1 filed an application before the Consolidation Officer and prayed for certain of a separate khata in his name in accordance with Section 8 of the Consolidation Act. During this period First appeal No. 504 of 1985 preferred by the petitioner (appellant) against the judgment and decree passed in the Title Suit, was dismissed in default. For three years no steps were taken for its restoration, during this period Respondent. No. 1 executed a registered deed of gift dated 20-7-1991 in favour of respondent No. 2 regarding his entire purchased property. Respondents produced the gift deed before the Consolidation Officer but it was ignored. The Consolidation Court has no jurisdiction to consider the validity of the gift deed even then the Consolidation Officer in absence of respondent Nos. 1 and 2 passed the order dated 15-4-1992 i.e. one year after the hearing of the final argument. The Consolidation Officer delivered judgment without fixing a date for passing the judgment/order, as such, the respondents had no knowledge about the order dated 15-4-1992 passed by the Consolidation Officer in Consolidation Case Nos. 735/88, 108/88 and 110/88. Subsequently, they came to know about this order when in a pending revision application before the High Court, the petitioners as opposite parties filed their counter-affidavit and mentioned therein about this order. At that time office of the Consolidation Officer at Bjayapur as well as Dy. Director, consolidation, at Siwan, had stopped functioning on account of the Government notification dated 2-11-1993 under Section 4A of the 'Act' whereby the notification under Section 3 of the Act' in the entire circle of Siwan district was notified to be cancelled. Respondents had no option than to prefer revision cases 368/ 1995, 369/1995 and 370/1995 directly before the revisional authority under Section 35 of the 'Act'.
6. In order to examine the objection raised by the petitioners regarding filing of revision applications by the respondents directly before the Director, Consolidation, scope of Section 35 of the 'Act' needs discussion. Jurisdiction under Section 35 of the Consolidation Act is a supervisory power, vested in the Director, Consolidation, who may of his own motion or on the application of any party, call for and examine the records of any case for the purpose of satisfying himself as to the regularity, correctness and legality of any order and can pass an order as he thinks fit. The power under Section 35 of the 'Act' is very wide, there is no implicit or implied embargo to exercise revisional jurisdiction only against the order passed by the appellate authority. On comparison of revisional jurisdiction under Section 32 of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, revisional jurisdiction under Section 35 of the 'Act' and 397 of the Code of Criminal Procedure, wide scope of Section 35 can be understood well.
7. Section 397 of the Code of Criminal Procedure reads as follows :-
"397. Calling for records to exercise of powers of revision (1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record."
Explanation - All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of Section 398.
(2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them."
8. Section 32 of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act reads as follows :-
"Section 32. Revision to the Board of Revenue - (1) A revision shall lie to the board of Revenue from any appellate order passed by a collector or a Commissioner within thirty days of such order.
(2) When a reference is made to the board of Revenue under Section 38 or a revision is filed under sub-section (1) of this section, the Board may, after hearing the parties, confirm, modify or set aside the order.
(3) The Board of Revenue may of its own motion or on an application made to it, call for from the Collector any document or record in connection with any enquiry conducted by the Collector or may direct the Collector to institute, for the purposes of this section, an enquiry and to submit his findings to the Board.
9. Section 35 of the Bihar Consolidation of Holdings and prevention of Fragmentation Act reads as follows :-
"35. Revision and reference- The director of Consolidation may of his own motion, or on the application of any party or on reference being made by any subordinate authority, call for and examine the record of any case decided or proceedings taken by such authority for the purpose of satisfying himself as to the regularity of the proceeding; or as to the correctness, legality or propriety of any order passed by such authority in the case or proceedings, and may after allowing the parties concerned an opportunity of being heard, make, such order in the case or proceedings as he thinks fit."
10. Section 35 of the Consolidation Act does not employ the other well known limitation in the revisional jurisdiction which are with regard to only the legality or propriety of the order passed by the Court below as in the case of the provisions under Section 397 of the Code of Criminal Procedure. The Consolidation Act is welfare legislation and directly an application can be filed before the Director, Consolidation, under Section 35 of the Act if any injustice has been done. In such cases an appropriate order can be passed by the Director Consolidation, to further the cause of social and economic justice. Mr. Kamal Nayan Choubey, learned counsel for the respondents, has submitted that inferior authorities under the Consolidation Act being creatures of Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 are provisions of limited jurisdiction. Their power is hedged in with a condition precedent. At best jurisdiction is coextensive and with the scope of the power envisaged under Section 8A of the Act. These authorities being inferior Courts cannot exceed that limit but so far the jurisdiction of the Director, Consolidation, under Section 35 of the 'Act' is concerned, prima facie no matter is deemed to be beyond the jurisdiction of a superior Court unless it is expressly shown to be so, while nothing is within the jurisdiction of the inferior Court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular Court.
11. I find much substance and force in the submissions advanced by the learned counsel appearing for the respondents. Considering the wide jurisdiction under Section 35 of the 'Act', there is no jurisdictional illegality with which the impugned can suffer.
12. Other ground on which the petitioners have challenged the impugned order is that the Director, consolidation, had passed the order under the wrong presumption that First Appeal No. 504 of 1985 has been dismissed. The director, consolidation, should not have passed order during the pendency of the First Appeal.
13. In reply learned counsel for the respondents has stated that mere filing or pendency of an appeal is not sufficient to restrain any Court from proceeding with the matter if no stay has been granted in favour of the appellant, staying the judgment and decree passed by the trial Court. Further it has been stated that in the present case, First Appeal preferred by the petitioners against the judgment and decree passed by the trial Court was dismissed for default. For three years no steps were taken by the appellants /petitioners for restoration of the appeal. Subsequently, appeal was restored in the year 1997 but no stay was granted in favour of the appellant. There was no direction that during the pendency of the First Appeal, judgment and decree passed by the trial Court will remain suspended or inoperational. Since no such order was passed, there was no reason for the director, consolidation, for refusing to exercise his jurisdiction under Section 35 of the 'Act'. Reliance has been placed by the respondents' counsel on a decision (Sulleh Singh v. Sohan Lal) wherein it has been held that "mere filing of an appeal does not suspend the decree of the trial Court and unless that decree is altered in any manner by the Court of appeal, the pre-emptor is bound to comply with that direction". In view of the cited decision, I find that no error has been committed by the Director, Consolidation, if he passed the impugned order deciding the revision application.
14. Petitioners have also submitted that revisional authority failed to consider that the revisional applications were hopelessly time barred and without condoning the delay the revision applications were entertained which was illegal and without jurisdiction.
15. In reply to this objection respondents have submitted that the Consolidation Officer after hearing the consolidation cases kept the judgment and order reserved for complete one year and without issuing any notice, antidated judgment and order was passed. Respondents came to know about this order when the petitioners filed their counter-affidavit in a civil revision application pending before the High Court. By that time office of the Consolidation Officer as well as the Deputy Director, Consolidation, Siwan, had stopped functioning on account of Government notification dated 2-11-1993 under Section 4A of the 'Act' whereby the notification under Section 3 of the Consolidation Act in entire circle of the Siwan district was notified to be cancelled. This was the reason for filing delayed revision applications without preferring an appeal. Further it has been submitted that for filing revision application under Section 35 of the Act, no limitation has been provided as the revisional jurisdiction under Section 35 of the 'Act' is a original jurisdiction. Directly revision application can be filed before the Director, consolidation, under Section 35 of the Act. So far condonation of delay was concerned, everything was stated by the respondents in the revision applications and considering this, revision applications were entertained by the revisional authority.
16. Respondents have challenged the maintainability of the writ application itself on the ground that it is barred by the principles of res judicata. This writ application has been filed only against one revision application. So far other two revision applications which were also decided by common order dated 29-6-2000/ 30-6-2000, no writ application has been filed. By not challenging the order passed in other two writ applications, it has reached finality and they will operate as res judicata because for the same subject-matter in between the same parties two orders have reached finality. Reliance has been placed on a decision reported in (Ram Prakash v. Smt. Charan Kaur) wherein it has been decided that "where two connected suits have been tried together and the findings recorded in one of the suits have become final in absence of an appeal, the appeal preferred against the findings recorded in the other suit would definitely be barred by the principles of res judicata." There is substance in the submissions advanced by the petitioners and on this count also the petitioners cannot succeed.
17. On consideration of the facts and circumstances, decisions referred as well as argument advanced, I come to the conclusion that the impugned order do not suffer from any illegality but so far the maintain-ability of the writ application is concerned, this application is barred by res judicata and as such, it is not maintainable.
18. This application is accordingly dismissed.