Khudai v. Ram Phal — 1973 DIGILAW 188 (ALL)

JUDGMENT O.P. Trivedi, J. - These two writ petitions have been filed by Khudai under Art. 226 of the Constitution of India. They involve common questions of fact and law and, therefore, may be disposed of by one judgment. 2. The dispute relates to the same property, being plot No. 99 situate in village Kamp Fatehullahpur, pargana Ram Nagar, Tahsil Fatehpur, District Barabanki. The petitioner's case is that he had obtained this plot from the zamindar for cultivation before abolition of the Zamindari system in 1343 Fasli as a hereditary tenant and eve since then he was in cultivatory possession of the same; but the zamindar fictitiously got the name of his brother-in-law Gur Din, who resided about 24 miles away, recorded as a hereditary tenant against this plot and in 1353 Fasli the name of the petitioner was recorded as Bila Tasfia tenant. In 1356 F., however, both in the Khasra and in the Khatauni the petitioner was recorded as occupant of this land. After the death of Gur Din, the name of his widow Smt. Ruksana was entered in the column meant for tenant although she never remained in possession. She died long before the abolition of zamindari system although her name continued to be wrongly recorded in 1352 Fasli and from 1353 Fasli the names of sister's sons of Gurdin, namely, Radhey Shyam, Uma Shanker and Radhey Krishna were recorded as sirdar-tenants of this land. These persons also, according to the petitioners, never remained in possession over the disputed plot. They, however, obtained bhumidhari sanad and transferred the land in favour of Ramphal opposite party No. 1 and Mansha Ram, opposite party No. 2, by sale deed dated 11-8-1960. The said opposite parties started disputing the petitioner's title to the land whereupon the petitioner filed a suit for declaration of his right and in the alternative for possession against them in the year 1960 impleading the vendors of the opposite parties. This suit was dismissed by the Judicial Officer on 29-9-1961. The petitioner filed a first appeal before the Additional Commissioner who, however, decreed the petitioner's suit holding him to be sirdar of the disputed land by judgment dated 29-9-1962 (Annexure 3 of writ petition No. 31 of 1968. This suit was dismissed by the Judicial Officer on 29-9-1961. The petitioner filed a first appeal before the Additional Commissioner who, however, decreed the petitioner's suit holding him to be sirdar of the disputed land by judgment dated 29-9-1962 (Annexure 3 of writ petition No. 31 of 1968. Opposite parties 1 and 2 then filed a second appeal before the Board of Revenue which was dismissed in default of the opposite parties on 4-12-1962 (vide copy of the order Annexure 6 of writ petition No. 31 of 1968). The opposite parties then applied for setting aside the ex parte decree on 7-12-1962 which was dismissed by the Board order dated 31-5-1963 (Annexure 10 on Writ Petition No. 31 of 1968). The opposite parties then filed a second application for setting aside the ex parte decree and for restoration of the appeal on 29-9-1965 i.e. several years after dismissal of the appeal by the Board of Revenue. Meanwhile the village in which the disputed property lies was brought under consolidation operations on 6-3-1965 by a notification under Section 4 of the U. P. Consolidation of Holdings Act (hereinafter called the Act). 3. The Consolidation Officer allowed the objection of the petitioner order Section 9 of the Act holding him to be sirdar of the disputed plot. An appeal filed against that order by the opposite parties was dismissed by the Settlement Officer (Consolidation). The opposite parties then filed a revision before the Deputy Director of Consolidation who allowed the revision holding opposite parties 1 and 2 to be bhumidhars of plot No. 99 as purchasers from the heirs and successors of Gur Din. The plea of Khudai petitioner that he was hereditary tenant of plot No. 99 since before the abolition of zamindari system and that after abolition of Zamindari system he become its sirdar was rejected by the Deputy Director of Consolidation on the ground of that decision to this effect in his favour by the Additional Commissioner dated 29-9-1962 in the suit under Sec. 229/209 of the U.P. Zamindari Abolition and Land Reforms Act did not operate as res judicata on account of the pendency of a restoration application in the Board of Revenue. 4. 4. It was urged by learned counsel for the petitioner that the Deputy Director of Consolidation was in error in taking this view and it was submitted that the pendency of an application for restoration did not prevent the judgment and decree of the Additional Commissioner from operating as res judicata between the parties. I have heard Sri K. N. Misra and Sri Hargur Charan Srivastava, learned counsel for the parties and I am of the opinion that there is force in the petitioner's contention that the judgment and decree of the Additional Commissioner by which Khudai was held to be sirdar of the disputed plot operated as res judicata between the parties. An appeal does not become sub judice merely by the filing of an application for restoration when the appeal was dismissed in default of the appellant or when the appeal is decided ex parte. The appeal was finally disposed of by the Board of Revenue by its order dated 4-12-1962. It was a final order in the appeal so far as the Board was concerned and that appeal would have become sub judice and would have been revived only if and when the application for setting aside the order of 4-12-1962 was allowed. The mere filing of an application for setting aside an ex parte decree or for restoration of the appeal does not render the appeal sub judice. 5. In the case of B. Jitendra Mohan Singh v. Bindbaseni Kuer, AIR 1949 Oudh 1 there was a decision of a special Judge under Section 11 of the U. P. Encumbered Estates Act against which the aggrieved party had filed an application for leave to appeal to the Privy Council. It was held that the mere fact that the landlord had filed an application for leave to appeal to the Privy Council in the case would not deprive the decision of its finality and would not render it sub judice. I am in respectful agreement with this view and hold that the finality of the decision of the Board of Revenue dated 4-12-1962 in the second appeal was not mitigated by the fact of the opposite parties having filed an application for setting aside the ex parte decree and for restoration of the second appeal with the result that by the pendency of the restoration application the second appeal will not become sub judice. It was, therefore, a final decision and did not cease to operate as res judicata. The Deputy Director of Consolidation was in error in holding otherwise. 6. Learned counsel for the opposite parties Sri Hargur Charan Srivastava, however, submitted that the decision of the Additional Commissioner in favour of the petitioner could not operate as res judicata because a second appeal was dismissed by the Board of Revenue in default and was not decided on merits. It is submitted, therefore, that the second appeal would not be regarded as having been heard and finally decided within the meaning of Section 11 of the Code of Civil Procedure. This argument is unsound in view of the Supreme Court decision in Sheodan Singh v. Daryao Kunwar, AIR 1966 S.C. 1332 . Similar question arose before the Supreme Court in that case. It was observed : - "Where the trial Court has decided two suits having common issues on the merits and there are two appeals therefrom and one of them is dismissed on some preliminary ground, like limitation or default in printing, with the result that the trial court's decision stands confirmed, the decision of the appeal court will be res judicata and the appeal court must be deemed to have heard and finally decided the matter. In such a case the result of the decision of the appeal court is to confirm the decision of the trial court given on merits, and if that is so the decision of the appeal court will be res judicata." In para 13 of the report in this connection the Supreme Court observed : "To hold otherwise would make res judicata impossible in cases where the trial court decides the matter on merits but the appeal court dismisses the appeal on some preliminary ground thus confirming the decision of the trial court on the merits. It is well-settled that where a decree on the merits is appealed from, the decision of the trial court loses its character of finality and what was once res judicata again becomes res sub-judice and it is the decree of the appeal court which will then be res judicata. It is well-settled that where a decree on the merits is appealed from, the decision of the trial court loses its character of finality and what was once res judicata again becomes res sub-judice and it is the decree of the appeal court which will then be res judicata. But if the contention of the appellant were to be accepted and it is held that if the appeal court dismisses the appeal on any preliminary ground, like limitation or default in printing, thus confirming in to the trial court's decision given on merits, the appeal court's decree cannot be res judicata the result would be that even though the decision of the trials court given on the merits is confirmed by the dismissal of the appeal on a preliminary ground there can never be res judicata." In this case the Supreme Court approved the decision of the Oudh Chief Court in the case of Ahmad Ali Khan v. Hingalal, AIR 1947 Oudh 74 see also Raghunath Das v. Ganesh Das, AIR 1932 Alld. 603 and Janki Nath Ray v. Asad Raza, AIR 1936 Patna 211. On principle I can see no difference between an appeal which may have been dismissed on a preliminary ground and an appeal which may have been dismissed in default and hold on the above authorities that an appeal is dismissed in default then the judgment and decree of the trial court passed on merits shall ope rat as res judicata because the effect of dismissal of the appeal in default of the appellant is confirmation of the decision of the trial court on merits. That being so, dismissal of the second appeal by the Board of Revenue in default will be deemed to be decision of the appeal on merits and as it has the effect of confirmation of the judgment and decree of the Additional Commissioner, made on merits, the said judgment and decree of the Board will be deemed to be "heard and finally decided." Consequently, the principle of res judicata applies and the judgment and decree of the Additions. Commissioner in the suit under Secs. 229-B and 209 of the U.P. Zamindar Abolition and Land Reforms Act would operate as res judicata between the parties and on the basis of that decision the petitioner ought to have been and must be held to be sirdar to plot No. 99. Commissioner in the suit under Secs. 229-B and 209 of the U.P. Zamindar Abolition and Land Reforms Act would operate as res judicata between the parties and on the basis of that decision the petitioner ought to have been and must be held to be sirdar to plot No. 99. As a previous decision operated as res judicata it was not open to the Deputy Director of Consolidation to examine the evidence afresh on this issue and to determine a fresh the right and title of the petitioner in this plot. The finding of the Deputy Director being contrary to the decision of the Additional Commissioner, which operated as res judicata, is, therefore, unsustainable in law and discloses a manifest error which must be corrected in the present proceedings. 7. For the foregoing reasons I allow the petition, holding the petitioner to be sirdar of plot No. 99 and quash the order of the Deputy Director of Consolidation dated 28-9-1967, copies of which are (Annexure 9 in writ petition No. 31 of 1968 and Annexure 3 in writ petition No. 88 of 1968). The order of the Consolidation Officer dated 23-12-1966 (Annexure 7 in writ petition No. 31 of 1968 and Annexure 1 in writ petition No. 32 of 1968) is restored. Let certiorari issue accordingly. The petitioner will get costs of the petition from contesting opposite parties 1 and 2. This judgment shall govern Writ Petition Nos. 31 of 1968 and 32 of 1968.