Panchoo Gaon Sabha v. Ram Prajalit — 1978 DIGILAW 255 (ALL)

JUDGMENT G.S. Sial, Member. - This is a defendant's second appeal under Sec. 229-B of the UPZA and LR Act against the order of the learned Additional Commissioner, Varanasi Division, allowing the first appeal and setting aside the judgment and decree of the trial court. 2. Briefly, the facts of the case are that a Patta was executed by the Gaon Sabnha on March 21, 1966 in favour of the plaintiff-respondent, Ram Prajalit, a military employee. Certain persons moved an application for cancellation of the Patta but their challenge was rejected on February 8, 1972. Thereafter the plaintiff-respondent made an application for mutation on the basis of the Patta. This mutation application was rejected and hence he filed the present suit for declaration. The defendant appellant, Panchoo is claiming right only in respect of plot No. 384 area 0.71 decimal. Panchoo filed a suit under Sec. 229-B which was decreed on December 16, 1966. This order of the court became final and the review application filed by the plaintiff-respondent, who was not a party to the proceedings in the trial court, was dismissed. The trial court dismissed the present suit of the plaintiff. The lower appellate court reversed the finding of the trial court and allowed the appeal. Before the Board two second appeals have been filed; one by Panchoo defendant, and the other by the Gaon Sabha. 3. The learned counsel for the defendant-appellant Panchoo, submitted that in case the suit by the defendant was filed after the execution of the Patta in favour of the plaintiff-respondent, he had made Gaon Sabha, lesser, a party and, therefore, the decree against the lessor is infact and if the lessors till executed a lease without title no right could pass on to the lessee. Therefore the stand of the plaintiff-respondent that he was not a party in that suit fails. The learned counsel argued that the earlier suit by the defendant had been decreed by the trial court and no appeal was filed against that order an hence that decree will operate as res judicata against the Gaon Sabha and also the plaintiff-respondent. Further the present suit by the plaintiff-respondent has been dismissed by the trial court. The learned Addl. Commissioner has recorded a finding that the earlier orders passed in proceedings under Sec. 198 will act a res-judicata against Panchoo though he was not a party in these proceedings. Further the present suit by the plaintiff-respondent has been dismissed by the trial court. The learned Addl. Commissioner has recorded a finding that the earlier orders passed in proceedings under Sec. 198 will act a res-judicata against Panchoo though he was not a party in these proceedings. He submitted that Sec. 198(4) does not permit filing of the suit by aggrieved person alone. The learned counsel submitted that the point of a decision under Sec. 198 being res judicata in a regular suit is not valid. Therefore the finding of the lower appellate court is incorrect and illegal. 4. The learned counsel for the Gaon Sabha stated that the trial court had dismissed the suit of the plaintiff on many grounds. The lower appellate court has reversed the decree of the trial court without considering the grounds on which the trial court has dismissed the suit. He argued that the land of the Gaon Sabha is less than 8 per cent. and, therefore, no lease could be granted and this is the finding of the trial court. The trial court has also held that certain other tenure holders were recorded in possession over the plot in dispute but they have not been impleaded and hence the suit is defective for want of necessary parties. The lower appellate court does not give any finding on these points. He, therefore, submitted that the orders of the lower appellate court be set aside and that of the trial court be restored. 5. The learned counsel for the plaintiff-respondent stated that the lease deed had been executed in favour of the plaintiff-respondent earlier that the suit filed by the Panchoo and, therefore, the argument that the decree passed in favour of the defendant-respondent Panchoo will operate as res judicata is not correct as he was not party in that suit. The learned counsel submitted that by merely filing a review application, that judgment in which the plaintiff-respondent was not a party cannot operate as res judicata or binding against him. He submitted that in the proceeding under Sec. 198 the lease in favour of the plaintiff-respondent had been held to be validly made and the objection of the other side was overruled but since the mutation application was rejected, the present suit had to be filed. He submitted that in the proceeding under Sec. 198 the lease in favour of the plaintiff-respondent had been held to be validly made and the objection of the other side was overruled but since the mutation application was rejected, the present suit had to be filed. He argued that no body had challenged the orders of the SDO under S. 198(4) of the ZA Act holding the Patta to be valid and legal and no steps have been taken by the other side to file a regular suit for cancellation of the Patta. He, therefore, argued that the lower appellate court has rightly held that the decision of the proceedings under Sec. 198(4) will operate as res judicata and has right decreed the suit of the plaintiff-respondent. He referred to 1973 RD 83 and 265 and 1976 RD 221 in support of the view taken by the Additional Commissioner and submitted that a voidable document can be cancelled only by a regular suit. As regards the point raised by Ram Surat Singh, DGC(R.) that the land is less than 8 per cent. this point was not raised before the lower appellate court and cannot be allowed to be raised before this court. Further this point should have been taken into consideration at the time of execution of lease in favour of the plaintiff-respondent granted by the Gaon Sabha. As regards the suit being defective for want of the necessary parties, he submitted that the persons against whom the plaintiff-respondent has cause of action have been impleaded and it was not necessary to implead others. He, therefore, submitted that the judgment of the lower appellate court is just and proper, and no interference is called for in this second appeal. 6. I have considered the arguments and gone through the record of the case . The main point taken by the learned counsel for the appellant Panchoo is that the decree stood in his favour and therefore the plaintiff could not get relief is not well taken. Firstly, the decree obtained was ex parte and the plaintiff-respondent in the present case was not even a party to the proceedings. Secondly, the suit was brought after the execution of the lease by the Gaon Sabha and as such it was incumbent upon Panchoo to make the plaintiff-respondent also party in that case. Firstly, the decree obtained was ex parte and the plaintiff-respondent in the present case was not even a party to the proceedings. Secondly, the suit was brought after the execution of the lease by the Gaon Sabha and as such it was incumbent upon Panchoo to make the plaintiff-respondent also party in that case. He deliberately chose not to make him a party and therefore the ex parte decree, in which neither the Gaon Sabha nor the plaintiff was interested, could not have any binding effect on the present plaintiff-respondent. The mere filing of the review application which was rightly rejected, does not make the plaintiff-respondent a party to the suit. As regards the second point made by him that the view of the Additional Commissioner that the order passed under Sec. 198 will act as res judicata, the legal position is that when a lease has been challenged before the competent authority, the regular revenue court which is deciding a declaratory suit on the basis of the lease deed cannot cancel it. The power of cancellation thus rests only with the Collector or the SDO under Sec. 198(4) and not a revenue court. In this view of the matter the Patta made by the Gaon Sabha must be deemed to be valid against Panchoo as well as Gaon Sabha. Therefore the argument of the learned counsel for the Gaon Sabha that the Patta is not maintainable because the land is less than 8 per cent. will also have no force. This ground should have been taken before the SDO in proceedings under S. 198. Moreover this point has not been raised before the lower appellate court and cannot be allowed to be raised in this court. Thus, I am of the view that the decision of the lower appellate court is on the whole, sound and it ahas correctly decreed the suit of the plaintiff-respondent. 7. In the result the second appeals have no force and are hereby dismissed. 8. This order will govern Second appeal Nos. 231 and 234 of 1975-76 Jaunpur.