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Allahabad High Court · body

1979 DIGILAW 554 (ALL)

Ram Adhar v. Lochan

1979-05-02

DEOKI NANDAN

body1979
JUDGMENT Deoki Nandan, J. - This is a plaintiff-decree-holders second appeal in a proceeding for execution of a decree of perpetual injunction restraining the judgment-debtor-respondents from interfering with the plaintiffs possession over the land in suit. The trial court found that the judgment-debtor-respondents had ample opportunity to obey the decree but they had wilfully failed to do so and ordered the detention of the judgment-debtors in civil prison for six months under O. 21 R. 32 of the Code of Civil Procedure. The judgment-debtors appeal therefrom was allowed by the lower appellate court on the finding that the decree for injunction had been rendered infructuous by the course of the proceedings in the consolidation of holdings operations in the village as a result of which the judgment-debtors were held to be the tenure-holders in possession of the land in suit. 2. The primary facts may now be stated. The suit giving rise to the execution proceedings was decreed on 17th April, 1953, the first appeal therefrom was dismissed on 14th March, 1957 and the second appeal was dismissed on 20th November, 1964. The execution application was filed on 1st April, 1966. The judgment-debtors filed an objection on 30th July, 1966 pleading that in the consolidation of holdings operations the decree-holder was found not to have any right in the land in suit and the decree of the civil court had become ineffective and un-executable. In the consolidation of holdings operations the statement of plots and tenure-holders was published on 27th June, 1957 under Section 11 (2) of the U. P. Consolidation of Holdings Act, as it stood prior to its amendment by U. P. Act No. 38 of 1958. The time for filing objections to the entries contained in the statement as prescribed by Section 12 of the Act as it then stood was 30 days from the date of the publication of the statement. It accordingly expired on 27th July, 1957. The decree-holder-appellant did not file any objection within the prescribed period of limitation. His objection was dismissed as time barred by the Consolidation Officers order dated 6th May, 1958. The appeal therefrom was dismissed by the Settlement Officer Consolidation on 27th June, 1958. The decree-holder then filed an objection under Section 20 of the Act to the statement of proposals prepared under Section 19 of the Act as it then stood. His objection was dismissed as time barred by the Consolidation Officers order dated 6th May, 1958. The appeal therefrom was dismissed by the Settlement Officer Consolidation on 27th June, 1958. The decree-holder then filed an objection under Section 20 of the Act to the statement of proposals prepared under Section 19 of the Act as it then stood. That objection was dismissed by the Consolidation Officer by order dated 7th March, 1959. The objection was dismissed on the grounds that the objection involved a question of title and ought to have been raised under Section 12 of the Act and was, therefore, not maintainable at the stage of proceeding under Section 20 of the Act. It was further found that the statement of proposals under Section 20 had been published in the village on 8th August, 1958 and the objection was belated without there being any sufficient ground for condoning the delay. The appeal from that order was dismissed on 20th January, 1960. 3. On these facts it was contended by the learned counsel for the respondents that the entries in the record of right prepared by the consolidation authorities were final and conclusive under Section 27 (2) of the Act as it then stood, and that being so the foundation of the decree of injunction under execution, namely, the finding that the plaintiff-decree-holder was the bhumidhar of the land in suit had disappeared-The land being a grove, it was not subject to re-arrangement of holdings in such a way as to make the holdings of the tenure-holders concerned more compact and, therefore, there was no question of any delivery of possession under consolidation proceedings but the judgment-debtor respondents having been finally found to be the tenure-holders of the land by the consolidation authorities, they must also be deemed to be in lawful possession of the land. 4. Learned counsel for the appellant contended that notwithstanding the conclusive nature of the entries in the record of rights prepared by the consolidation authorities, the judgment-debtor-respondents could not have entered into or upon the land in suit in view of the decree of perpetual injunction against them and their claim to have done so amounts to a deliberate and wilful violation of the injunction. The only omission on the part of the decree-holders happened to be that they did not file an objection to the statement published under Section 11 within the limitation prescribed for doing so under Section 12 of the Act as it then stood. If they had filed the objection within limitation, the consolidation authorities would have been bound to give effect to the decree of the civil court and to correct the entries in the record of rights accordingly. The dismissal of their objection as time barred did not amount to any adjudication of their rights by the consolidation authorities. The only effect of the dismissal of their objection as time barred was as if they had filed no objection before the consolidation authorities. The record of rights prepared by the consolidation authorities is clearly wrong, being inconsistent with the decree under appeal. The decree under appeal had been passed earlier. Its force and effect cannot be displaced merely by the decree-holders omission in objecting to the wrong entries made by the consolidation authorities in the record of rights prepared by them. The title to the land had already been adjudicated upon by the civil court and the consolidation authorities were bound by the decree. It was, however, pointed out by the learned counsel for the respondents that the decree under appeal had not become final when the limitation for filing an objection under Section 12 was allowed to let go-by by the decree holder and if he had filed the objection within time, the proceedings in the appeal from the decree would have been stayed and later on disposed of in the manner prescribed, under Section 12 (5) of the Act as it then stood. Learned counsel for the appellant pointed out that before the amendment by U. P. Act No. 38 of 1958, the proceedings in the court of the first instance, appeal etc. could be stayed only if a question whether any person is a Sirdar, Adivasi or Assam was involved. The question involved in the present case was whether the decree-holder was the bhumidhar of the land in suit and accordingly even if he had filed an objection under Section 12 of the Act within limitation, the proceedings in the second appeal from the decree, were not liable to be stayed. The question involved in the present case was whether the decree-holder was the bhumidhar of the land in suit and accordingly even if he had filed an objection under Section 12 of the Act within limitation, the proceedings in the second appeal from the decree, were not liable to be stayed. He also urged that there had been such frequent changes and uncertainty about the law that the decree-holder cannot be blamed for relying on the decree of the civil court in his favour, and in not embarking upon an uncertain and indefinite course of litigation before the consolidation authorities. The provisions of Section 5 of the U. P. Consolidation of Holdings Act as it then stood required a stay of only such proceedings as related to correction of records. The second appeal from the decree was not a proceeding for correction of records and was not liable to be stayed on account of the consolidation of holdings operations under the Act as it then stood. Learned counsel urged that the decree-holder cannot in this situation be blamed for not filing an objection under Section 12 of the Act within the time prescribed thereby; and he was fully justified in continuing to rely on the decree of the civil court. 5. Learned counsel for the judgment-debtor respondents has filed an affidavit in this Court along with the certified copy of a judgment dated 21st September, 1970 of the court of the Sub-Divisional Officer, Sadar, Azamgarh in Suit No. 1196 under Section 229-B of the U. P. Zamindari Abolition and Land Reforms Act, which had been filed by the decree-holder against the judgment-debtor-respondents in the present case. This suit was dismissed in view of tha finality attaching to the record of rights prepared by the consolidation authorities, and for being barred by Section 49 of the U. P. Consolidation of Holdings Act. This judgment does not add any weight to the judgment-debtor-respon-dents case as they could not have on the authority of this judgment lawfully entered into possession of the land in suit if they were not otherwise entitled in law to do so. The record of rights prepared by the consolidation authorities were erroneous in face of the decree under execution. The consolidation authorities did not correct the record of rights prepared by them for one technical reason or another. The record of rights prepared by the consolidation authorities were erroneous in face of the decree under execution. The consolidation authorities did not correct the record of rights prepared by them for one technical reason or another. The entries at the close of the consolidation operations may be final and conclusive, so far as they go but they do not or could not have authorised the judgment-debtor respondents to enter into possession of the land they were not already in possession. The civil court had found that the decree-holder was the bhumidhar in possession and on that basis passed the decree of perpetual injunction against the judgment-debtor-respondents. In my opinion it was not open to the judgment-debtor-respondents to interfere with or to disturb the possession of the decree-holder notwithstanding that the entries in the record of rights prepared by the consolidation authorities were in their favour. Those entries could not supersede or set aside the decree under execution passed by a civil court of competent jurisdiction. 6. There is the further principle that an executing court cannot go behind the decree. This appeal arises from execution proceedings. The decree under execution has not been set aside or annulled and, therefore, subsists. Full force and effect must, therefore, be given to it by the executing court. 7. In the result the appeal succeeds and is allowed. The judgment and decree of the lower appellate court are set aside and the decree of the trial court committing both the judgment-debtor-respondents to six months detention in civil prison for wilful disobedience of the decree under execution is restored with costs throughout.