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1970 DIGILAW 497 (ALL)

Hari Ram v. Deputy Director of Consolidation

1970-12-23

H.C.P.TRIPATHI, S.N.DWIVEDI

body1970
JUDGMENT S. N. Dwivedi, J. - The dispute relates to some agricultural plots. Hari Ram, the appellant, filed an objection under Section 12, Consolidation of Holdings Act as it stood before its amendment in 1958 in respect of those plots. He claimed to be the co-bhumidhar of the plots with Makhan, the tenth respondent. Makhan, on the other hand, claimed to be the sole bhumidhar of the plots. The Consolidation Officer forwarded the case to the Civil judge for reference to an arbitrator as contemplated by the said Act. The Civil judge framed two issues : "Whether Hari Ram is the daughter's son of Harchain or Bhikhan ? if so, has he got any share in the holding in suit ?", and referred them to the arbitrator for decision. On February 17, 1956 the arbitrator gave his award. He held that Hari Ram has one third share in the plots. Makhan filed an objection to the award before the Civil Judge under the Arbitration Act. By his order dated May 31, 1956 the Civil judge set aside the award. He held that Hari Ram was not entitled to any interest in the plots. Hari Ram then filed a writ petition in this Court. It was eventually dismissed on the ground that he had an alternative remedy of an appeal against the order of the Civil Judge. Then Hari Ram filed an appeal before the District Judge. The appeal was dismissed on February 15, 1960 as time-barred. Hari Ram then filed Civil Revision No. 598 of 1960 against the order of the District Judge. The revision was filed under Section 115, Code of Civil Procedure in this Court. Hari Ram and Makhan arrived at a compromise. The compromise gave plots Nos. 1319, 1320, 1325, 1327 and 1328 to Makhan and the remaining plots to Hari Ram. The revision was finally decided in terms of the compromise on November 27, 1961. 2. It may now be mentioned that already on June 3, 1960 Makhan had executed two sale deeds in favour of the respondents 4 to 9. He sold all the plots in dispute to them. They got their names mutated in the revenue records by an order of the Assistant Consolidation Officer. However, after the compromise order of this Court in Civil Revision No. 598 of 1960 Hari Ram applied for mutation of his name. He sold all the plots in dispute to them. They got their names mutated in the revenue records by an order of the Assistant Consolidation Officer. However, after the compromise order of this Court in Civil Revision No. 598 of 1960 Hari Ram applied for mutation of his name. Only two of the vendees were parties in this application. On September 6, 1962 the Consolidation Officer allowed the application and expunged the names of the two vendees. Thereupon the respondents 4 to 9 filed an appeal against his order. 3. On November 19, 1962 the Settlement Officer, Consolidation allowed their appeal and directed the Consolidation Officer to decide the case again after impeding all the respondents 4 to 9. On April 6, 1963 the Consolidation Officer again decided in favour of Hari Ram. On June 2, 1964, the appeal of the respondents was dismissed by the Settlement Officer, Consolidation. On September 19, 1964 their revision was also dismissed. Then they filed a writ petition in this Court. It has been allowed by a learned single judge. 4. Hari Ram urged before the consolidation authorities that the respondents are bound by the order of this Court in Civil Revision No. 598 of 1960 and that their purchases were affected by the rule of lis pendens. The Consolidation authorities accepted his contention. The learned single judge did not agree with their view. According to the learned judge the "proceeding terminated with the dismissal of the appeal and cannot be said to have continued beyond that date. The revision application was certainly not a continuation of the proceeding, and the doctrine of lis pendens cannot be invoked because it was filed." 5. The appeal of Hari Ram was dismissed on February 15, 1960. He filed his revision on July 7, 1960. In between these two dates on June 3, 1960 Makhan sold the plots to the respondents 4 to 9. In the absence of any argument to the contrary, we will assume that the revision was filed within reasonable time. The question is whether the sale falls within the vortex of Section 52 Transfer of Property Act which embodies the doctrine of lis pendens. The answer depends on whether any proceeding was pending on the date of sale in a competent court. 6. The Explanation to Section 52 is material for our purpose. The question is whether the sale falls within the vortex of Section 52 Transfer of Property Act which embodies the doctrine of lis pendens. The answer depends on whether any proceeding was pending on the date of sale in a competent court. 6. The Explanation to Section 52 is material for our purpose. It provides pertinently : "For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order ....................". According to this Explanation the pendency of a suit or proceeding is deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a competent court. The pendency of a suit or proceeding is deemed to continue until the suit or proceeding has been disposed of by a "final decree or order." As long as the final decree or order is not made, the suit or proceeding is deemed to be pending. 7. When the Civil judge set aside the award of the arbitrator and held that Hari Rain had no interest in the plots, his order was not final, for it was subject to any order in an appeal by the District Judge or in a revision by this Court. Accordingly if a revision is filed within reasonable time, we think that a suit or a proceeding should, speaking broadly, be deemed to continue until the revision is decided. 8. The expression "final decree or order" seems to us to be reminiscent of similar language in Section 11, Code of Civil Procedure Section 11 comes into play when a suit has been finally heard and decided. It has been held that a decree passed by the trial court in a suit will not operate as res judicata in another suit, if an appeal has already been filed from the decree. It has been held that a decree passed by the trial court in a suit will not operate as res judicata in another suit, if an appeal has already been filed from the decree. In S.P.A. Annamalay Chettey v. B.A. Thornhill, A.I.R. 1931 P.C. 263, the Privy Council said : "Where an appeal lies the finality of the decree on such appeal being taken, is qualified by the appeal and the decree is not final in the sense that it will form res judicata as between the same parties." Similarly where a revision lies against a decree passed by the trial court or the appellate court, the decision of the trial court or the appellate court will not operate as res judicata for neither decree is final and is subject to be qualified by the order in revision. Likewise, there is no `final decree or order' within the contemplation of Section 52 till the revisional court has decided the suit or proceeding. We think that the expression "final decree or order" in Section 52 means the decree or order of the ultimate court of appeal or revision as the case may be. Accordingly, in the instant case, the respondents 4 to 9 purchased the plots when a proceeding was pending. So their purchases are affected by Sec. 52. 9. Section 52 embodies an equitable principle and should be so construed as to effectuate its purpose. In Krishna Ji Pandharinath v. Anusayabai, A.I.R. 1959 Bombay 475, it was held that a suit under Order 21, Rule 63, Code of Civil Procedure is a continuation of the claim proceeding under Order 21, Rule 58, Code of Civil Procedure and that accordingly a sale made during the period intervening between the disposal of the claim and the institution of the suit is affected by Sec. 52. 10. Reliance is, placed by the respondents 4 to 9 on New Singhal Dal Mill v. Firm Sheo Prasad Jainti Prasad, AIR 1958 Allahabad 404. In that case a revision lay under Section 25, Small Cause Courts Act to the High Court. The U.P. Legislature amended Section 25 so as to take away the revisional power of this Court and to vest it in the District Judge. A revision was nevertheless filed against the decree of the Judge Small Causes Court in this Court after the amendment. The U.P. Legislature amended Section 25 so as to take away the revisional power of this Court and to vest it in the District Judge. A revision was nevertheless filed against the decree of the Judge Small Causes Court in this Court after the amendment. The applicant urged that he could file a revision in this Court with the aid of Section 6 (e) of the U.P. General Clauses Act. Sec. 6 (e) provides that where any Uttar Pradesh Act repeals any enactment the repeal shall not affect any remedy, or any investigation or legal proceeding commenced before the repealing Act shall have come into operation in respect of a right, privilege, obligation, or liability acquired accrued or incurred under the repealed enactment. The argument was that the applicant acquired on the date when the suit was instituted or on the date when the suit was decreed, a right to apply for revision in the High Court. A Division Bench of this Court did not accept the argument based on Section 6 (e) . The Court said : "There is no question of the legal proceeding being continued as if the Amendment Act had not been passed; the suit came to an end when it was decreed by the Court of Small Causes. Its judgment has been made final; no proceeding can be said to be pending after a final judgment has been passed in it. A final judgment must always terminate the proceeding. 11. A proceeding under Section 25 of the Small Cause Courts Act is not a continuance of the proceeding commenced in the Court of the Small Causes, and, therefore is not required by Section 6 (e) to be continued in the High Court as if an Amendment Act had not been passed." The respondents cannot derive any help from this passage because of the verbal and achematic differences between Section 6 (e) and Sec. 52. 12. The decision in Nagappa Chetty v. Maung Po Gwe, 12 Indian Cases 849, is also not helpful to the respondents. It was held in that case that no suit or proceeding is pending when an application for review of a decree or order passed in the suit or proceeding is filed. 13. In Chidambara Nadar v. Rama Nadar, A.I.R. 1937 Mad. It was held in that case that no suit or proceeding is pending when an application for review of a decree or order passed in the suit or proceeding is filed. 13. In Chidambara Nadar v. Rama Nadar, A.I.R. 1937 Mad. 395, it was held that the word "appeal" in Article 182 of the Limitation Act, 1908 includes an application in revision. Article 182 uses the words "appeal" and "the date of the final decree or order of the appellate court." Three years' period for execution is to he counted from "the date of the final decree or order of the appellate court." The expression "final decree or order of the appellate court" includes the final decree or order of the revision court. There is no reason why the expression "final decree or order" in Section 52 should not be construed accordingly to effectuate its equitable purpose. 14. It is not disputed that where an appeal is filed, the proceeding will be deemed to be pending. Now, a revision is also an appeal Nagendra Nath v Suresh Chandra, A.I.R. 1932 P.C. 165. In Raja of Ramanand v. Kamid Rowthen, A.I.R. 1926 P.C. 22, a revision was considered to be all appropriate form of appeal from the judgment in a suit of Small Causes nature in Shankar Ramchandra v. Krishnaji Dattatraya, A.I.R. 1970 S.C. 1, the Supreme Court observed :- "Now when the aid of the High Court is invoked on the revisional side it is done because it is a superior Court and it can interfere for the purpose of ratifying, the error of the court below.......... basically and fundamentally (revision) is the appellate jurisdiction of the High Court." Consequently, where a revision is filed, the proceeding will be deemed to be pending. 15. So the pendency test of Section 52 is satisfied in the case before us. But that does not conclude the matter in favour of Hari Ram. Sec. 52 also requires that the suit or proceeding should not be collusive. It is clear from the order of the Consolidation Officer that the respondents 4 to 9 have taken the plea that the compromise was collusive and fraudulent. The Consolidation Officer, how ever, held that they had failed to establish their plea of fraud and collusion. The matter was again raised on their behalf before the Settlement Officer, Consolidation. It is clear from the order of the Consolidation Officer that the respondents 4 to 9 have taken the plea that the compromise was collusive and fraudulent. The Consolidation Officer, how ever, held that they had failed to establish their plea of fraud and collusion. The matter was again raised on their behalf before the Settlement Officer, Consolidation. He held that there was no sufficient evidence to prove fraud. In addition, he also said that the compromise order of this Court in the Civil Revision could not be challenged before him on the ground of fraud and collusion. In revision the Deputy Director did not express any opinion on their plea of fraud and collusion. Thus their plea regarding the compromise being collusive has remained undecided by the Deputy Director, Consolidation. There is little doubt that if the compromise is collusive, Sec. 52 will not be attracted. 16. Accordingly we allow the appeal and set aside the judgment of the learned single judge. The writ petition is, however, allowed and the order of the Deputy Director, Consolidation is quashed. We direct the Deputy Director of Consolidation to decide the respondents' plea of a collusive compromise on the evidence already on record and after hearing the parties. In the circumstances of this case there shall be no order as to costs.