Raj Singh v. Board of Revenue — 1967 DIGILAW 257 (ALL)

JUDGMENT Satish Chandra, J. - In this petition under Article 226 of the Constitution the judgment of the Board of Revenue dated 22nd July, 1966 dismissing the petitioners' second appeal which arose out of a suit for ejectment of the petitioners under Section 209 of the U. P. Zamindari Abolition and Land Reforms Act, is sought to be quashed. 2. The plaintiff respondents and the defendant petitioners were the joint sir-holders of the sir khata appurtenant to khewat khata No. 16. The proprietary share of the plaintiffs in the khewat was auctioned and purchased by one Hegulal. Consequently, proceedings for constituting a separate ex-proprietary holding under Section 36 of the U. P. Land Revenue Act were commenced. Bakhtawar, the father of the present petitioners, opposed the claim of the plaintiff-respondents. He asserted that the plaintiffs had no share in the sir khata, which exclusively belonged to him and was in his sole possession. These pleas were rejected by the Sub-Divisional Officer on November 30, 1951. He constituted a separate ex-proprietary tenancy for the plaintiff-respondents and allotted plot Nos. -559, 560, 513, 401, 425, 483, 512 and 503 (10 biswas) to them at an annual rental of Rs. 46.11.6 per year. He directed that Amaldaramad be made accordingly. Bakhtawar went up in appeal, but failed. He filed a Second Appeal which was dismissed on February 18, 1954. The finding that the plaintiff-respondents were joint sir-holders and had a one-fourth share in the sir khata and that Bakhtawar was not in exclusive possession of plot Nos. 559, 560 and 513 as claimed by him, were confirmed. Bakhtawar filed a third appeal before the Board of Revenue which was dismissed on 27-3-1957. 3. On 2-12-1962 the filed the present suit under Section 209 for the ejectment of the present petitioners who are the sons of Bakhtawar, from four-only of the plots namely, 503, 513, 559 and 560, on the allegation that the defendants had forcibly dispossessed the plaintiffs during 1366 Fasli. In defence the present petitioners claimed that they had become bhumidhars or in the alternative the sirdars of these plots on account of their continuous possession since 1949. It was claimed that the decree dismissing suit No. 53 of 1955 filed by the plaintiff-respondent No. 3 Fateh Singh against the petitioners for a permanent injunction operated as res judicata. It was also urged that the suit was barred by time. 4. It was claimed that the decree dismissing suit No. 53 of 1955 filed by the plaintiff-respondent No. 3 Fateh Singh against the petitioners for a permanent injunction operated as res judicata. It was also urged that the suit was barred by time. 4. The trial court upheld the pleas in bar and dismissed the suit. On appeal the Additional Commissioner reversed the decree. He held that the civil court's decree did not operate as res judicata. The cause. of action for the suit arose when the proceedings under Section 36 of the Land Revenue Act finally terminated on March 27, 1957 before the Board of Revenue. The suit was hence within time. 5. In the present petition it has been urged for the petitioners that the suit was barred by time and that the civil court's decree operated as res judicata. On the question of limitation the main controversy between the parties is as to when the cause of action for the present suit arose. For the petitioners it was urged that the cause of action for a claim to possession arose when the ex-proprietary tenancy was constituted by the Sub-Divisional Officer in 1951. For the respondents the finding of the courts below that the cause of action arose when the matter was finally decided by the Board of Revenue in 1957 was restated. In my opinion, the cause of action did arise when the Sub-Divisional Officer passed the order in 1951. The plaintiffs could have on the basis of that order sued for possession but that decree was put in jeopardy by way of an appeal. The appeals were ultimately decided in 1957: It is well settled that the decree of the trial court merges in that of the appellate court. It is the decree of the appellate court which alone is executable. The effect of merge of the trial court's decree is that, in ate eye of law, it dies a civil death. The trial court's decree loses its identity. It has only one reckoning in the eye of law; it is not enforcible or executable. The decree of the court of final jurisdiction alone ope-rates between the parties. 6. The effect of merge of the trial court's decree is that, in ate eye of law, it dies a civil death. The trial court's decree loses its identity. It has only one reckoning in the eye of law; it is not enforcible or executable. The decree of the court of final jurisdiction alone ope-rates between the parties. 6. In Saiyid Jawad Hussain v. Gendan Singh, A.I.R. 1926 P.C. 93 the question was whether the time for applying for a final decree in a mortgage suit runs from the date of the expiry of the time for payment fixed by the original preliminary decree, or from the date of the appellate decree given in an appeal against the preliminary decree. The Privy Council ruled that the time shall run from the date of the appellate decree. Article 181 of the Limitation Act was applicable. Under it time begins to run when the right to apply accrues, in other words, when the cause of action for the application for -making a final decree arises. The Privy Council confirmed the view taken by a Full Bench of this Court in Gajadhar Singh v. Kishan Jiwan La1, A.I.R. 1917 Alld. 163. Referring to the Full Bench decision the Privy Council observed that the point was put with admirable previty with Tudball, J.: "When the Munsif passed the decree it was open to the plaintiff or the defendant to accept that decree or to appeal. If an appeal is preferred, the final decree is the decree of the appellate court of final jurisdiction. When that decree is passed, it is that decree and only that which can be made final in the cause between the parties." 7. It was held in the Full Bench case that order 34, Rule 5 , C.P.C. contemplates passing of only one final decree and that pre-supposes a preliminary decree which has become conclusive between the parties. Similarly proceedings under Section 36 of the U. P. Land Revenue Act contemplate one order which is conclusive between the parties. That final order will create a cause of action for a suit for possession. If it were to be held that the trial court's order furnishes a cause of action, then similarly the appellate court's decree also furnishes a cause of action. That final order will create a cause of action for a suit for possession. If it were to be held that the trial court's order furnishes a cause of action, then similarly the appellate court's decree also furnishes a cause of action. The cause of action commencing with the passing of a decree can, in the eye of law, remain operative only so long as the decree is. in existence. If after merger the decree vanishes, so will the cause of action accruing on it. The only subsisting cause of action which can be enforced by a suit will be the one arising from the subsisting decree. In the instant case the operating decree was passed in 1957. The plaintiffs cause of action for the present suit arose in 1957. The present suit was hence within time. 8. The defendants' claim that they had become sirdars as they were in possession since 1949 was accepted by the trial court. But the appellate court reversed that finding. It held that on the evidence, they have not perfected title as sirdar on any of the plots. This finding was riot challenged before the Board of Revenue. The only question urged there was whether the cause of action for the present snit arose when the trial court passed the order in 1951 or when the appeal was decided in 1957. 9. The point about res judicata has also been correctly decided by the courts below. In the injunction suit the learned Munsif did not decide the title of the plaintiffs in respect.of the three plots Nos. 513, 559 and 560. He held that the plaintiffs had brought this suit on the basis of the bhumidhari Sanad. The Bhumidhari Sanad did not contain these three plots. The case of the plaintiffs was that the Bhumidhari Sanad was based on the plots allotted to their ex-proprietary tenancy originally in 1947, which allotment was set aside because of a restoration application made by Bakhtawar, and, thereafter a fresh allotment was made in 1951 whereunder the plots were to some extent changed. That was the reason why the Bhuraidhari Sanad did not contain the number of these three plots. The learned Munsif held that if that was so, the remedy of the plaintiff was to get the bhumidhari Sanad corrected from the revenue court. That was the reason why the Bhuraidhari Sanad did not contain the number of these three plots. The learned Munsif held that if that was so, the remedy of the plaintiff was to get the bhumidhari Sanad corrected from the revenue court. Till it was so corrected the plaintiffs could not have any remedy from the civil courts as a bhumidhar on the basis of the bhumidhari sanad. Thus the civil courts did not negative the plaintiff's title, but refused to adjudicate on k. It held that the plaintiff had established title to plot No. 503, because it was mentioned in the bhumidhari sanad. With respect to this plot also the suit failed, because it was found that the plaintiff was not in possession in 1362 Fasli, the year in which the suit for an injunction was filed. The suit for an injunction was hence not maintainable. The decree of the civil court based on these findings cannot naturally operate as res judicata in the present suit where the title of the parties is in issue. That decree will at best operate on the question that the plaintiffs were not in possession in 1362 Fasli, the year when that suit was filed, but the present suit being within time the operation of that finding of the civil court will have no effect on the fate of the present suit. 10. The judgment of the Board of Revenue does not suffer from any manifest en-or of law. The petition fails and is dismissed with costs. Petition dismissed.