Ali Khan v. Ram Prasad — 1980 DIGILAW 975 (ALL)

JUDGMENT R. B. Misra, J. 1. A learned Single Judge while admitting the aforesaid appeal under Or. 41 Rule 11, CPC referred it to a larger Bench, as he was doubtful about the correctness of the decision in Smt. Rekha Singh v. The State of U. P., AIR 1973 All. 539 cited before him. This is how the present appeal has come before us. 2. ALI Khan, the appellant, was, admittedly, the sirdar of plot no. 320 area 2.52 acres. This plot was given to him in lieu of his old plot with the same area during consolidation proceedings. Ram Prasad respondent no. 1 was also a tenure holder of plot no. 321 measuring 0.65 acre, adjacent to plot no. 320 lying towards south. Plot no. 316 constitutes a chak road and belongs to the Gaon Sabha. In the consolidation map prepared by the authorities, the area of plot no. 320 was shown as 2.18 acres instead of 2.52 acres while the area of plot no. 321, belonging to respondent no. 1 was shown as .92 acre in place of .65 acre. Likewise, the area of plot no. 316 of the Gaon Sabha, lying towards the west of plot no. 321, was shown in excess by 0.8 acre than what it actually was. As a result of the incorrect map prepared by the consolidation authorities, the area of the appellant's plot no. 320 was reduced by 0.34 acre while the area of plot no. 321 belonging to respondent no. 1, was in excess by 0.26 acre and the area of plot no. 316 belonging to the Gaon Sabha, was also shown in the map in excess by 9.08 acre. Although the appellant has been in actual possession of the total area of 2.52 acres of plot no. 320 but on account of the incorrect map prepared by the consolidation authorities, a cloud was cast on the title of the appellant and respondent no. 1 forcibly cut away the crops sown by the appellant. The appellant moved an application for correction of the map before the revenue court, but the same was dismissed on the ground that the revenue court had no jurisdiction to make corrections in the map prepared by the consolidation authorities. The appeal filed by the appellant against the order of the revenue court also met the same fate. The appellant moved an application for correction of the map before the revenue court, but the same was dismissed on the ground that the revenue court had no jurisdiction to make corrections in the map prepared by the consolidation authorities. The appeal filed by the appellant against the order of the revenue court also met the same fate. In the circumstances, the appellant has been obliged to file the suit for injunction restraining the respondent no. 1 from cutting away the crops sown by the appellant and for the correction of the map prepared by the consolidation authorities. 3. THE claim was resisted by respondent no. 1 mainly on the ground that the civil court had no jurisdiction to entertain the suit and that the area of plot no. 320 is in accordance with the map and that he is the bhumidhar of plot no. 321 and the area whereof is also according to the map prepared by the consolidation authorities. 4. THE learned Munsif decreed the suit by his order dated 20th March, 1978 holding that the Civil Court had jurisdiction to try the suit. On appeal by respondent No. 1, the learned District Judge, Rampur, by his order dated 22nd July, 1978 reversed the judgment and decree of the trial court and dismissed the suit of the appellant holding that the Civil Court had no jurisdiction to try the suit. The plaintiff has now come in second appeal to this Court against the judgment and decree of the learned District Judge dated 22nd July, 1978. The only point for consideration in this appeal is whether the Civil Court has the jurisdiction to make corrections in the map prepared by the consolidation authorities. 5. IF the village had not been denotified under section 52 of the U. P. Consolidation of Holdings Act, the obvious mistake in the map could have been rectified by moving an application under section 42-A of the U. P. Consolidation of Holdings Act. It is, however, admitted on all hands that the village had already been denotified under section 52 of the U. P. Consolidation of Holdings Act. In this situation, there was no remedy open to the appellant for getting the needful correction done. Section 27 of the U. P. Consolidation of Holdings Act provides for the preparation of the revenue records after the enforcement of the final consolidation scheme. In this situation, there was no remedy open to the appellant for getting the needful correction done. Section 27 of the U. P. Consolidation of Holdings Act provides for the preparation of the revenue records after the enforcement of the final consolidation scheme. Section 27 reads : "27. As soon as may be after the final Consolidation Scheme has come into force, the District Deputy Director of Consolidation shall cause to be prepared for each village a new map, field book and record of rights in respect of the consolidation area, on the basis of the entries in the map as corrected under section 7, the khasra chakbandi, the annual register prepared under section 10 and the allotment orders as finally made and issued in accordance with the provisions of this Act. The provisions of the Uttar Pradesh Land Revenue Act, 1901, shall subject to such modifications and alterations as may be prescribed be followed in the preparation of the said map and records. (2) All entries in the record of rights prepared in accordance with the provisions of sub-section (1) shall be presumed to be true until the contrary is proved. (3) After the issue of notification under section 52, the Collector shall, instead of the map, field-book and record of rights previously maintained by him, maintain the map, field-book and record of rights prepared in accordance with the provisions of sub-section (1) and the provisions of sections 28 and 33 of the U. P. Land Revenue Act, 1901 shall apply to the maintenance of such map, field book and record of rights, as the case may be." 6. IN view of sub-section (3) of section 27 of the U. P. Consolidation of Holdings Act, after the denotification of the village under section 52,the Collector has been enjoined to maintain the map, field-book and -record of rights prepared in accordance with the provisions of sub-section (1) of section 27. The provisions of sections 28 and 33 of the U. P. Land Revenue Act have been made applicable for the maintenance of such map, field book and record of rights. Consequently, the appellant moved an application under section 28 of the U. P. Land Revenue Act for making a correction in the map to bring it in line with the record of rights. The revenue court, however, took the view that it had no jurisdiction. Consequently, the appellant moved an application under section 28 of the U. P. Land Revenue Act for making a correction in the map to bring it in line with the record of rights. The revenue court, however, took the view that it had no jurisdiction. The same was confirmed even by the appellate authority. The appellant was, under the circumstances, compelled to file a regular suit in the Civil Court for injunction restraining the respondent from interfering with his possession over the disputed area of plot No. 320 and also for the correction of the map. As stated earlier the trial court decreed the suit, but the appellate court took the view that the Civil Court had no jurisdiction to entertain the suit. 7. IT may be pointed out that if the appellant had remedy under the U. P. Consolidation of Holdings Act, section 49 would bar the suit. But the appellant had no remedy before the consolidation authorities on account of the denotification of the village under section 52 of the U. P. Consolidation of Holdings Act. Besides, the title of the parties had already been determined by the consolidation authorities. But while preparing the record, the area shown in the map was not in conformity with the area shown in the annual register. This was an obvious mistake to be rectified. The appellant tried to get the same rectified dy the revenue court, further failed. He next attempted to get the same relief in the Civil Court, but there also he failed. Thus, he has been running from pillar to post to get an obvious mistake rectified, but of no avail. 8. The learned counsel for the appellants cited Smt. Rekha Singh v. The State of U. P. (supra). In that case, Justice O. P. Trivedi (as he then was) took the view : "Under section 28, the Collector is empowered to cause to be recorded annually or of such intervals as may be prescribed by Government all changes in the map regarding boundaries of each village and field. He has also been empowered to correct any errors which are shown to have been made in such map or field book. It is clear that Section 28 does not empower the Collector to make any changes or alterations in the entries of khatauni. He has also been empowered to correct any errors which are shown to have been made in such map or field book. It is clear that Section 28 does not empower the Collector to make any changes or alterations in the entries of khatauni. He can make changes in the field book or khasra and the map only under specified conditions." He also found that the power exercised under Section 28 by the Collector is a non-judicial power, which is well settled by a Full Bench of this Court (? Board of Revenue) in Raj Kumar v. Bhagwat Singh, 1956 AWR (Rev.)202. He further found : "This implies that the power which may be exercised under section 28 administratively should not adversely affect the rights of any one. The moment a certain error is a disputed one, the Collector cannot obviously decide it u/S. 28 without affecting the rights of the disputants. In conferring power of correcting errors in the field-book and the map under Section 28 in a unilateral manner by a executive order the Legislature clearly did not intend to confer on the Collector power to make correction in the field book and the map in respect of disputed entries. Where there is a disputed error in the map or Khasra it is the Civil Court only which is competent to adjudicate upon it. Under section 57 of the Act, all entries in the record of rights prepared in accordance with the provisions of Chapter IV of the Act are presumed to be true until the contrary is proved and the entries which are binding on all Revenue Courts can be challenged only before the Civil Court. The presumption of correctness about these entries must hold until the contrary is proved before the Civil Court. The presumption of correctness about these entries must hold until the contrary is proved before the Civil Court. It is, therefore, clear from Section 57 of the Act that in the case of a disputed error in the field book and the map or the record of rights prepared in accordance with Chapter IV of the Act the Collector has no power to decide whether there is an error or there is no error and it is the Civil -Court alone which can adjudicate upon a disputed error............All disputes regarding the annual registers and records of rights must have been disposed of and decided by the Record Officer under Section 51 of the Act in accordance with the procedure laid down in section 41 and after the close of these operations the Khasras, Khataunis and the maps of these villages became final." In the instant case, in the first instance, the error has crept in only in the map which was not in conformity with the annual register. Therefore, the case in fully covered by Section 28 of the U. P. Land Revenue Act and the mistake could have been rectified. Section 49 of the U. P. Consolidation of Holdings Act would also not stand as a bar inasmuch as the rights and title of the parties had already been decided by the consolidation authorities in respect of the disputed plot. The only dispute was that the map prepared by the consolidation authorities at the close of the consolidation scheme was not in accordance with the record of rights. La Ganga Glass Works (Private) Ltd. Balwali v. The State of U.P., AIR 1972 All. 158 Justice B. N. Lokur (as he then was) took the view that a map prepared by the consolidation authorities can be corrected by those authorities alone and the revenue authorities cannot resort to section 28 of the U. P. Land Revenue Act to make corrections in that map. Section 42-A of the U. P. Consolidation of Holdings Act does enable the authorities concerned to correct the size and shape of the plots in the map prepared with the size recorded in the record of rights. Similarly, the shape also would be an error which would come within the purview of section 42-A of the Act and can be corrected by the consolidation authorities. 9. Similarly, the shape also would be an error which would come within the purview of section 42-A of the Act and can be corrected by the consolidation authorities. 9. THE case is also distinguishable inasmuch as, in the instant case, there had already been a denotification under section 52 of the U. P. Consolidation of Holdings Act and, therefore, there was no question of making an application under section 42-A for the correction of the map and, in this situation, it was open to the appellant to have got the map corrected by moving an application under Section 28 of the U. P. Land Revenue Act. 10. IN Jaggu v. Patan Din, 1960 RD 63 the boundaries of chak Nos. 287 and 272 shown by the consolidation authorities in the map prepared by them did not accord with the record of rights prepared by them. Taking advantage of this mistake, the defendants interfered with the plaintiff's possession. The plaintiff, therefore, applied to the Collector concerned for correction of the map after the close of the consolidation operation. The Additional Collector dismissed the plaintiff's application on the ground that the map had become final and conclusive under Sec. 28 of the U. P. Consolidation of Holdings Act and he had no jurisdiction to correct it. The plaintiff then filed the suit giving rise to the present second appeal. The defendant raised the plea that the suit was barrad by Sec. 49 of the U. P. Consolidation of Holdings Act. The argument was repelled. Reference was made to Section 27 of the U. P. Consolidation of Holdings Act. It contemplates that the entries in the record of rights prepared in accordance with the provisions of sub-section (1) shall be presumed to be true until the contrary is proved. Thus, presumption of correctness is only rebuttable. There is no such presumption of correctness with regard to the map. Section 49 of the U. P. Tenancy Act also speaks of the rights of tenure holders to land. If the map does not accord with the record of rights, the error could certainly be corrected by the revenue authorities after the close of the consolidation operations. There is no such presumption of correctness with regard to the map. Section 49 of the U. P. Tenancy Act also speaks of the rights of tenure holders to land. If the map does not accord with the record of rights, the error could certainly be corrected by the revenue authorities after the close of the consolidation operations. On an analysis of the relevant provisions of the Act and the cases cited before us, we are satisfied that the mistake could have been rectified by the Revenue Court and the cases cited on behalf of the appellant in support of the contention that the Civil Court has the jurisdiction are distinguishable. 11. THERE is, however, another aspect of the matter which cannot be lost sight of. The Revenue Court, which was competent to entertain the application under Sec. 28, however, erroneously held that it had no jurisdiction to entertain the application under Sec. 28. The order was confirmed even in revision by the Additional Commissioner, Bareilly, by his order dated 2nd March, 1977. 12. IT is now well settled that even an erroneous judgment by a competent Court between the parties can operate res-judicata. In Avtar Singh v. Jagjit Singh, 1979 AWC 635 (SC), the appellant filed a civil suit claiming one fourth share on the ground that he was the fourth son of his father. An objection was raised by the respondents that the Civil Court had no jurisdiction. A preliminary issue was framed and it was held by the Subordinate Judge that the Civil Court had no jurisdiction to try the suit and directed the return of plaint for presentation to the proper revenue court. When the appellant filed the suit in the revenue court, the petition was returned holding that the revenue court had no jurisdiction to try the suit. Thereupon, the appellant again instituted Suit No. 13 of 1960 in the Court of the Civil Judge. That suit failed throughout on the ground of res-judicata. IT was contended before the Supreme Court that the appellants were driven from pillar to post for the redress of their grievances. When they instituted the suit in the Civil Court, the Court held that it had no jurisdiction to try. When the suit was filed in the revenue court, the said Court took a contrary view. Where could the appellant go then ? When they instituted the suit in the Civil Court, the Court held that it had no jurisdiction to try. When the suit was filed in the revenue court, the said Court took a contrary view. Where could the appellant go then ? The Supreme Court repelled the argument and observed as under :- "We do sympathise with the appellant's dilemma but they were wrongly advised to do as they did. Either they ought to have followed the matter in the First Civil suit and insisted upto the end that the suit was triable by a Civil Court, or they would have taken the matter further before the higher authorities and Court from the order of the Revenue Court and persisted that the matter whether the Civil Court had jurisdiction to decide the dispute between the parties or not was res-judicata, the Revenue Court had no jurisdiction to go behind the decision of the Civil Court. The appellants did neither. IT is unfortunate that due to the wrong paths which they followed under wrong advice they have ultimately to fall on the technical ground of res-judicata but there is no way out." Again, in Upendra Nath Bose v. Lall, 1940 AWR (PC) 147 the Privy Council laid down that there would be res-judicata in regard to the question of lack of jurisdiction of the Civil Court to try the matter. If the defendant appears and an issue is raised and decided then the decision on the question of jurisdiction will operate as res-judicata. In this view of the law enunciated by the Supreme Court, the judgment of the Revenue Court that it had no jurisdiction would operate as res-judicata between the parties and it was not open to the Civil Court to take a contrary view and hold that the Civil Court had no jurisdiction. After all the error in the map prepared by the consolidation authorities is obvious. The area of plot no. 320 shown in the map is not in conformity with the area shown in the record of rights prepared by the consolidation authorities. Such an obvious error has got to be rectified and it will be a sad commentary in judicial proceeding that despite the fact that the obvious mistake is there in the map but the Court is helpless to rectify the same. Such an obvious error has got to be rectified and it will be a sad commentary in judicial proceeding that despite the fact that the obvious mistake is there in the map but the Court is helpless to rectify the same. We, therefore, hold that in view of the finality of the decision of the Revenue Court on the question of jurisdiction, the Civil Court had no jurisdiction to hold to the contrary and should have decided the appeal on merits. 13. AS this is the only question involved in the appeal, as is clear from the observation made by the learned Judge referring the case, it is not necessary to send the case back again to the learned Single Judge for deciding the appeal inasmuch as the decision of this point itself disposes of the appeal. We, accordingly, allow the Second Appeal with costs and set aside the judgment and decree of the District Judge, Rampur, dated 22nd July, 1978 and remand the case to him for deciding the appeal afresh on merit. Ordered accordingly.