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1968 DIGILAW 420 (ALL)

Bihari v. State of U. P.

1968-11-12

R.S.PATHAK

body1968
JUDGMENT R.S. Pathak, J. - The petitioner, Bihari, prays for certiorari against the orders of the Settlement Officer (Consolidation) and the Deputy Director of Consolidation. 2. The petitioner alleges that the plots in dispute originally comprised part of two joint khatas held by his grand-father Jasai and one Ghure, father of Rupai, the contesting respondent, in 1322 Fasli; that in 1927 Jasai filed a suit under Section 37 of the Agra Tenancy Act, 1926 for partition of the holding which resulted in a compromise decree on March 24, 1927. Under the compromise decree the plots in dispute along with certain other plots fell to the exclusive share of Jasai. It is said that Jasai continued in exclusive possession of the plots ever since and upon his death Badal became a tenant thereto. Badal adopted the petitioner as his son and upon Badal's death, the petitioner claims to have inherited his title. The petitioner alleged that thereafter he continued in exclusive possession of the plots and his possession was confirmed by the order of the Magistrate in proceedings under Section 145 of the Code of Criminal Procedure taken during the year 1961-62 between the petitioner and Rupai. 3. In proceedings under the U. P. Consolidation of Holdings Act, an objection was filed by Rupai asserting that he alone was the tenure-holder of the plots and the petitioner had no concern with them. The objection was opposed by the petitioner. The Assistant Consolidation Officer rejected the objection. An appeal filed by Rupai was dismissed by the Settlement Officer (Consolidation) . A second appeal was allowed by the Deputy Director of Consolidation who remanded the case for fresh consideration. Thereafter the Consolidation Officer examined the case again and after considering the material on the record made an order dated March 13, 1963 dismissing the objection filed by Rupai. Rupai appealed to the Settlement Officer (Consolidation) and on March 28, 1963 the Settlement Officer (Consolidation) allowed the appeal in part holding that Rupai was entitled to be enered as co-tenure-holder along with the petitioner. Both the petitioner and Rupai then filed revision applications. These were dismissed by the Deputy Director of Consolidation by his order dated July 27, 1963. 4. Both the petitioner and Rupai then filed revision applications. These were dismissed by the Deputy Director of Consolidation by his order dated July 27, 1963. 4. Learned counsel for the petitioner points out that the petitioner had applied for admission of a number of documents on the record before the Deputy Director of Consolidation establishing that there was a compromise decree between Jasai and Ghure under which the plots in dispute had been awarded to Jasai exclusively and that Jasai, and then Badal after him and thereafter the petitioner, continued in exclusive possession of those plots. Learned counsel for the petitioner says that the admission of the documents on the record was sought for the purpose of raising the plea that the Consolidation authorities were barred by the doctrine of res judicata from making a fresh adjudication of the rights of the parties in respect of the plots in dispute. The application for bringing the documents on the record was rejected by the Deputy Director of Consolidation. It is urged that the Deputy Director of Consolidation did so without applying his mind to the merits of the application. It is contended that the documents were necessary for the proper and effective adjudication of the question raised before the Deputy Director of Consolidation and in declining to admit them on the record, the Deputy Director committed a manifest error of law and erroneously declined to exercise jurisdiction duly vested in him. On the other hand, the learned counsel appearing on behalf of Rupai submits that the Deputy Director was plainly right in rejecting the application because while exercising his revisional jurisdiction he was confined to the existing material on the record for the purpose of determining whether the order of the Settlement Officer (Consolidation) was vitiated and while deciding that question, it is urged, he was not entitled to take into consideration additional material. Reliance has been placed on the decision of the Supreme Court in Swastik Oil Mills v. H. B. Munshi, A.I.R. 1968 SC 843. 5. It seems to me that learned counsel for Rupai is right. It is apparent from what the Supreme Court laid down in Swastik Oil Mills that when deciding whether the order of the inferior tribunal is vitiated the revising authority must confine itself to the record which was before the inferior tribunal. 5. It seems to me that learned counsel for Rupai is right. It is apparent from what the Supreme Court laid down in Swastik Oil Mills that when deciding whether the order of the inferior tribunal is vitiated the revising authority must confine itself to the record which was before the inferior tribunal. Section 48 of the U. P. Consolidation of Holdings Act says : "(1) The Director of Consolidation may call for and examine the record of any case decided or proceedings taken by any subordinate authority for the purpose of satisfying himself as to the regularity of the proceedings." 6. It is clear that the Director is confined to an examination of the record of the subordinate authority. Accordingly, for the purpose of deciding whether the order of the Settlement Officer, Consolidation questioned by the petitioner in revision was vitiated the Deputy Director exercising his revisional jurisdiction under Section 48, could not travel outside the record. He was confined to the material already existing on the record. He could not take any additional material on the record for coming to a decision in the matter. He was not entitled to take into consideration the documents sought to be filed by the petitioner for deciding whether the order of the Settlement Officer was vitiated. 7. The petitioner says that the question whether he alone was entitled to the plot or Rupai was co-tenure-holder with him fell to be decided by reference to the partition decree between Jasai and Ghure, through whom they respectively claimed, and that the consolidation authorities were precluded by the bar of res judicata from adjudicating on that issue again. It is contended that the plea of res judicata, since it relates to the jurisdiction of the consolidation authorities, could properly be raised for the first time before the Deputy Director and decided even on the basis of the material de hors the existing record. I am unable to accept the contention. It is contended that the plea of res judicata, since it relates to the jurisdiction of the consolidation authorities, could properly be raised for the first time before the Deputy Director and decided even on the basis of the material de hors the existing record. I am unable to accept the contention. It has been laid down by a Full Bench of this Court in Ram Kinkar Rai v. Tufani Ahir, 1930 ALJ 1601 that while a point involving the principle of res judicata may be allowed to be raised for the first time in second appeal, that can be only if it can be decided upon the material before the Court and does not involve the taking of further evidence or the sending of the case, or any issue, back to the lower court, or a decision on a question of fact. What has been said in this respect applies, in my opinion, equally to the case of a revision application under Section 48 of the U. P. Consolidation of Holdings Act. 8. The result is that the writ petition fails and is dismissed. But in the circumstances there is no order as to costs.