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1982 DIGILAW 1064 (ALL)

Ram Pher v. State of U. P

1982-09-17

K.N.MISRA

body1982
ORDER K.N. Misra, J. - This petition under Article 226 of the Constitution is directed against the orders passed by opposite parties 2 to 4 in proceedings under S. 9-A (2) U.P. Consolidation of Holdings Act. 2. The dispute in the present case relates to plots 50, 51, 84, 85, 3501/148 and 3502/97 situate in village Tendwaranipur, Pargana Bamnipayar, Tehsil Utraula, district Gonda, which were recorded in the basic year Khatauni in the name of opposite parties 5 and 6, Ram Milan and Daya Ram. Neemar, father of petitioners 1 and 2, filed an objection under S. 9-A(2), U.P. Consolidation of Holdings Act, claiming to be sirdar tenant of the aforesaid plots. It was asserted by him that he had been in possession since much prior to abolition of zamindari and his name was also recorded as occupant in 1356 and 1359F. He thus claimed sirdari rights being adhivasi of the land in suit and also sirdari rights by adverse possession. Similar objection was filed by Budhu, Petitioner 3. Who has died during the pendency of the writ petition and the name of Bipat has been substituted in his place. He claimed sirdari rights in plot 49 situate in the said village on aforesaid grounds. The case was contested by opposite parties 5 and 6, who claimed to have purchased the land in question from Smt. Asharfa and Smt. Kailash Pati, the original sir holders, through sale deed dated 16.1.1970. It was further asserted by them that the entry in the name of the said objectors in class 7, Part II of the Khatauni was wrong and they are not in possession and held no title in the land in dispute. It was prayed that the entry be expunged of their names in class 7 of Part II of the Khatauni. 3. The Consolidation Officer after taking evidence of the parties held the objectors Neemar and Budhu to be asami tenants of the land in dispute, and rejected the objection of opposite parties 5 and 6, who had claimed expunction of class 7 entry in the name of Neemar and Budhu. Against the said order the objectors Neemar and Budhu as well as opposite parties 5 and 6, Ram Milan and Daya Ram, filed appeals. Against the said order the objectors Neemar and Budhu as well as opposite parties 5 and 6, Ram Milan and Daya Ram, filed appeals. Both these appeals were heard together and decided by a common judgment and order dated 12.8.1975 and the same were rejected by the Settlement Officer (Consolidation) Gonda. Still feeling aggrieved by the said orders revisions were filed by both the parties which too were rejected by the Deputy Director of Consolidation, Gonda, by his order dated 10.5.1978. The petitioners have challenged the aforesaid order passed by opposite parties 2 to 4. 4. Learned counsel for the petitioner, Sri Har Gur Charan Srivastava, argued that since the names of the objectors, Neemar and Budhu, were recorded as occupants in 1356 as well as in 1359 F under class 12 they became adhivasi tenants under S. 20, U.P. Zamindari Abolition and Land Reforms Act, hereinafter referred to as the Act, and acquired sirdari rights under S. 240-B of the Act. He referred to the Khatauni of 1362 F wherein the names of Neemar and Budhu were recorded as adhivasi sirdars in proceedings under Chapter IX-A of the Act. He further contended that since it had neither been asserted nor proved that the land in dispute was let out by Smt. Asharfa and Smt. Kailash Pati the land holders, hence the said objectors could not be said to be asami tenants merely on the ground that the said land holders were disabled ladies being widows. According to him if the land in dispute was not let out by the said ladies no benefit of disability could be claimed by them and the said objectors could not be held to be asami tenants under the said Act which presupposes the existence of disability of the landlord both on the date of letting out as well as on the date of abolition of zamindari. If land was not let out the disability of the land-holder on the date of occupation of land by the said objectors, who were recorded under class 12, would not be at all material and the provisions of S. 21 of the Act would not be attracted to the facts of the case. The said objectors who were recorded occupant in the relevant years of 1356 and 1359F both in Khasra and Khatauni in class 12 would be entitled to adhivisi rights and thus on 30th Oct. The said objectors who were recorded occupant in the relevant years of 1356 and 1359F both in Khasra and Khatauni in class 12 would be entitled to adhivisi rights and thus on 30th Oct. 1954 they acquired sirdari rights under S. 240-B of the Act. In support of his contention learned counsel placed reliance upon Shiveshwar Prasad Narain Singh v. Gharahu, 1979 Rev Dec 26 : 1979 All LJ 49 (SC). Learned counsel for the petitioner next contended that opposite parties 2 to 4 legally erred in holding the objectors to be asami tenants on the basis of order dated 2nd July 1958 passed by the Tahsildar in correction of paper case wherein the names of the said objectors were directed to be recorded as asami instead of sirdar tenants on the land in dispute. Learned counsel contended that the orders passed in correction of paper case did not operate as res judicata nor the objectors would be estopped from challenging the correctness of those orders in the present proceedings wherein rights and title of the parties in respect of land in dispute are to be determined on merits by the consolidation authorities irrespective of the orders passed in correction of paper case. Learned counsel urged that the impugned orders which are based on the said ex parte decision dated 2nd July 1958 in correction of paper case are legally erroneous. 5. Having given my anxious consideration to the aforesaid arguments raised by the learned counsel and having perused the impugned orders and the averments made in the writ petition I find that opposite parties 2 to 4 have legally erred in basing their decision on the aforesaid order dated 2.7.1958 passed by Tahsildar in a correction of paper case. The order passed in correction of paper case is always subject to decision in a regular title suit as is envisaged in S. 40-A U.P. Land Revenue Act. It is well settled the compensation statement signed and sealed under section 240-J (2) of the Act is final between the land-holder and the State alone. (See Avdhesh Singh v Bikarma Ahir, AIR 1975 All 324 (FB)). It is well settled the compensation statement signed and sealed under section 240-J (2) of the Act is final between the land-holder and the State alone. (See Avdhesh Singh v Bikarma Ahir, AIR 1975 All 324 (FB)). In the aforesaid decision it was further held that the compensation statement amounts to an adjudication of title between the land-holder and the person claiming Adhivasi rights and the principle of res judicata and constructive res judicata will apply only to an adhivasi who has been a party to proceedings consequent on an objection of the nature contemplated by S. 240-H(2) of the Act. 6. In this view of the matter it cannot be said that the said order passed in correction of paper case would operate as res judicata by which names of Neemar and Budhu were directed to be recorded as asami instead of sirdar of the plots in dispute. If the land holder would have filed an objection under S. 240-G before the compensation officer within one month from the date of publication of the statement prepared under Chapter IX-A of the Act impleading the adhivasi as a party to the case and the said objection would have been decided on merits on contest between the parties the order passed thereon would certainly operate as res judicata. The order passed in correction of paper case although decided by the Tahsildar/ Compensation Officer would not be deemed to be an order passed under S. 240-H of the Act. Hence, in this view of the matter, I find that the aforesaid order dated 2nd July 1958 passed by the Tahsildar, which appears to be an ex parte order passed in correction of paper case, would not operate as res judicata. Even if the said ex parte order could be treated to be an order passed on an objection under S. 240-G of the Act, it would not operate as res judicata in the absence of proof to the effect that the objectors Neemar and Budhu were served with the notice in the said case and they deliberately omitted to contest the case and suffered ex parte order. In Brij Lal v. Deputy Director of Consolidation, Lucknow, Camp at Lakhimpur Kheri, Writ Petition No. 802 of 1973 decided on 8-9-1982: reported in 1982 All WC 862, considering the question I had held that: "For an ex parte decree to operate as res judicata between the parties it has to be established that the defendants had or must be deemed to have notice of the suit which was decided ex parte against them. The burden of proving this fact would be on the person, who pleaded the bar of res judicata. It is no doubt correct to say that the doctrine of res judicata may apply even though the party against whom it is sought to be enforced, did not in the previous suit think fit to enter appearance and contest the suit. For an ex parte decree to operate as res judicata it must be established that in the suit the defendants were served with the notice and in spite of service they did not appear to contest the case." 7. In the present case, it has not been established whether any notice was served upon Neemar and Budhu of the said case and they had in spite of service of notice upon them omitted to appear and contest the case. The burden of proof of such fact lay upon opposite parties 5 and 6 and they have failed to discharge it. In this view of the matter I am of the opinion that the aforesaid ex parte order dated 2nd July 1958 cannot be taken to operate as res judicata between the parties firstly because it was an order passed in correction of paper case and apart from it, it being an ex parte order could not operate as res judicata in the absence of said fact being established that notice was served upon Neemar and Budhu and in spite of service of notice upon them they had omitted to appear and contest the case. Opposite parties 2 to 4 thus committed a manifest error in basing their orders on the aforesaid order dated 2nd July 1958 by which the Tahsildar had directed expunction of sirdari entry in the names of Neemar and Budhu and for recording their names as asami tenants. Thus I find that the impugned orders suffer from a manifest error of law and cannot be sustained. 8. Thus I find that the impugned orders suffer from a manifest error of law and cannot be sustained. 8. Thus, without expressing any opinion on merits with regard to the first argument raised by the learned counsel for the petitioner regarding acquisition of adhivasi/sirdari rights, I find that the case deserves to be remanded back to the Deputy Director of Consolidation for deciding it afresh as he can in exercise of revisional jurisdiction record findings both on question of fact and law. 9. In the result the writ petition succeeds and the impugned order dated 10th May 1978 passed by the Deputy Director of Consolidation, Gonda, contained in Annexure 3 is hereby quashed and the Deputy Director of Consolidation, Gonda, is directed to restore the revision of the petitioners and decide the case on merits according to law and in the light of observations made above. In the circumstances of the case parties shall bear their own costs.