Gajroop v. Deputy Director of Consolidation, Allahabad
1983-04-01
K.P.SINGH
body1983
DigiLaw.ai
ORDER K.P. Singh, J. - By means of this writ petition the petitioners have prayed for quashing the judgments of the consolidation authorities. 2. Necessary facts giving rise to the present writ petition are that the petitioners and opposite party 9 in the present writ petition had claimed co-tenancy right along with opposite parties 4 to 6. According to the petitioners the names of the opposite parties 4 to 6 alone were wrongly recorded over the disputed plots. The claim of the petitioners was denied by the contesting opposite parties 4 to 6 on the allegations that they were sole sirdars of the disputed land. It is noteworthy that Binda, opposite party 7 in the present writ petition, had filed a suit for ejectment under S. 209. U.P. Zamindari Abolition and Land Reforms Act (hereinafter referred to as the Act) against opposite parties 4 to 6 impleading the petitioners as defendants in that suit and had alleged that the disputed plots had fallen to the share of aforesaid Binda and that the contesting opposite parties 4 to 6 were trespassers and liable to ejectment. In that suit, the contesting opposite parties had claimed Sirdari right and their claim was accepted by the revenue court and the plaintiffs suit was dismissed. 3. In the litigation giving rise to the present writ petition, the consolidation authorities have accepted the claim of the opposite parties 4 to 6 on the basis of res judicata. Aggrieved by the judgments of the consolidation authorities, the petitioners have approached this court under Article 226 of the Constitution. 4. The learned counsel for the petitioners contends before me that one of the co-tenure holders could maintain suit against the opposite parties 4 to 6 and since the suit filed by Binda was dismissed and the petitioners being defendants in that suit, the judgment of the revenue court in favour of the opposite parties 4 to 6 would not operate as res judicata between the parties. According to him the consolidation authorities have patently erred in recognising the claim of the contesting opposite parties. The learned counsel for the petitioners has placed reliance on 1979 All LJ 546 Chandra Deo Pal v. Jhinak, AIR 1974 SC 749 , Iftikhar Ahmad v. Syed Meharban Ali, AIR 1970 SC 809 , Shashibhushan Prasad Misra v. Babuaji Rai and AIR 1931 PC 114 .
The learned counsel for the petitioners has placed reliance on 1979 All LJ 546 Chandra Deo Pal v. Jhinak, AIR 1974 SC 749 , Iftikhar Ahmad v. Syed Meharban Ali, AIR 1970 SC 809 , Shashibhushan Prasad Misra v. Babuaji Rai and AIR 1931 PC 114 . He has also placed reliance upon the ruling reported in 1979 Rev Dec 159 : 1979 UPLT (NOC) 37 Janki v. Deputy Director of Consolidation and has also contended that as the petitioners had no right to file appeal against the judgment of the revenue court, hence that judgment cannot operate as res judicata between the parties. 5. The learned counsel for the contesting opposite parties has tried to refute the contentions raised on behalf of the petitioners. According to him the judgment between the parties in the suit under S. 209 of the Act would operate as res judicata and the consolidation authorities have correctly applied the principle of res judicata in the circumstances of this case. He has placed reliance upon a number of rulings in this connection, namely (1899) ILR 21 All 117 : 1978 All CJ 1 Aleemuddin v. Haji Bashir Ahmad and AIR 1982 All 414 , Babu Ram v. Basdeo. 6. I have considered the contentions raised on behalf of the parties and I have gone through the rulings cited at the Bar. The main grievance of the petitioners before me is that the suit filed by Binda, opposite party 7, could be decreed against the opposite parties 4 to 6, hence the petitioners were not seriously called upon to put in appearance in that case and that there was no conflict between the co-defendants of that suit which deserved to be solved with a view to grant relief to the plaintiff. In my opinion, the learned counsel for the petitioners has not correctly appreciated the pleadings of the parties in the suit under S. 209 of the Act. The plaintiff had alleged in that suit that the disputed land had fallen to the share of the plaintiff and that the petitioners in the present writ petition had no concern with the subject matter of the suit and had also alleged that the present opposite parties 4 to 6 were trespassers and were liable to ejectment. Whereas the opposite parties 4 to 6 had claimed Sirdari right in the disputed land.
Whereas the opposite parties 4 to 6 had claimed Sirdari right in the disputed land. The petitioners also claimed, according to them, co-tenancy right with Binda, opposite party 7 (plaintiff of the suit under S. 209 of the Act). In this view of the matter the fight amongst the parties was triangular. If the petitioners did not appear in that suit and did not put forward their claim and the decision was in favour of the opposite parties 4 to 6, I think that the judgment of the revenue court would be binding upon the parties. If opposite parties 4 to 6 in the present writ petition were held sirdars of the disputed land, the petitioners would not be co-tenure-holders of the disputed land nor the plaintiff of that suit would be sirdar of the disputed land. Since the opposite parties 4 to 6 had claimed sirdari right in the disputed land, they did not accept co-sirdari of the present petitioners with Binda, opposite party 7 in the present writ petition and the plaintiff of the suit under S. 209 of the Act. Therefore. I think that the triangular fight amongst the parties ending in favour of the opposite parties 4 to 6 could be binding on the plaintiff of that suit as well as the pro form a defendants (now petitioners in the present writ petition). Since the consolidation authorities have negatived the claim of the petitioners on the ground of res judicata, I think that their judgments do not suffer from an error of law much less patent error of law. Both the parties have placed reliance on the ruling of their Lordships of the Supreme Court reported in AIR 1974 SC 749 Iftikhar Ahmad v. Syed Meharban Ali and they have tried to support their contentions. According to the petitioners as there was no conflict between the co-defendants, hence the aforesaid authority helped them and according to the opposite parties the conflict between the petitioners and the opposite parties 4 to 6 was evident in the earlier revenue suit due to their stand in the subject matter of that 'suit and when that conflict has been resolved in favour of the opposite parties 4 to 6, the judgment was rightly held as final against the petitioners. In my opinion, the contention of the learned counsel for the opposite parties is correct. 7.
In my opinion, the contention of the learned counsel for the opposite parties is correct. 7. The second controversy between the parties before me is that by dismissal of the revenue suit under S. 209 of the Act filed by Binda, opposite party 7, the petitioners did not have any right to file an appeal, hence the aforesaid judgment would not operate as res judicata between the parties and the consolidation authorities have patently erred in holding so. The learned counsel for the opposite parties has tried to refute the contention of the learned counsel for the petitioners by placing reliance upon a number of rulings. It would be sufficient to quote the following observations from the ruling reported in AIR 1982 All 414 at p. 417 Babu Ram v. Basdeo : "......... An appeal shall lie "from every decree passed by any court exercising original jurisdiction" under S. 96, C.P.C., save "where otherwise expressly provided in the body of this Code or by any other law for the time being in force". A decree under S. 2(2) C.P.C. means "the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit". There are certain exceptions contained in the definition which are not material. The finding that he was not the adopted son of Krishna Behari being a necessary finding and being operative as res judicata against him, would be a finding prejudicial to Babu Ram resulting from the decree in the suit, albeit dismissing it. It would be assailable in an appeal by him. (See Lachman Singh v. Mohan, (1878-80) ILR 2 All 287, Alleemuddin v. Haji Bashir Ahmad, 1977 All WC 683.) 8. In AIR 1942 Cal 1 Hafiz Mohammad Fateh Nasib v. Sir Swarup Chand Hukum Chand Firm a division bench of that Court has indicated at page 16(d) the essential ingredients of res judicata between co-defendants in the following words : "In such a case, therefore, three conditions are requisite: (1) There must be a conflict of interest between the defendants concerned, (2) It must be necessary to decide this conflict in order to give the plaintiff the relief he claims; and (3) The question between the defendants must have been finally decided." 9.
In the present case when the petitioners considered themselves co-tenure-holders of the disputed land in the suit under 5.209 of the Act, and the opposite parties 4 to 6 had claimed exclusive sirdari right therein, there was a conflict between the interest of the petitioners and that of the opposite parties 4 to 6 in the present writ petition. The plaintiff of the revenue suit under S. 209 of the Act had claimed the disputed land as his exclusive tenancy by way of arrangement. hence it had become necessary to decide the conflict between the present petitioners and the opposite parties 4 to 6 because their interests were conflicting in the disputed land. Unless that conflict was decided, the plaintiff could not get the relief claimed in the suit. Since the opposite parties 4 to 6 in the present writ petition were held sirdar of the disputed land in the suit under S. 209 of the Act, filed by opposite party No. 7) who was plaintiff in that suit), I think that all the essential ingredients of res judicata between the co-defendants were satisfied and the judgment in the above mentioned revenue suit has become final and binding upon the parties. To my mind, the consolidation authorities have correctly held that the claim of the petitioners was barred on the principle of res judicata. 10. At para 17 (e) in the above mentioned ruling of Calcutta High Court, it has been observed as below : ".........The law allows in any party to a suit who is adversely affected by a decree to appeal from it. (1905) (9 Calcutta Weekly Notes 584), and if a pro forma defendant considers that his interests with reference to the subject-matter of the suit have been prejudiced, an appeal filed by him would be competent." 11. Therefore, the contention of the learned counsel for the petitioners that they had no right to file appeal against the judgment in the revenue suit, hence the judgment in that suit would not operate as res judicata against them is not acceptable to me in the circumstances of the present case. In this connection the learned counsel the petitioners has relied upon my decision in 1979 Rev. Dec.
In this connection the learned counsel the petitioners has relied upon my decision in 1979 Rev. Dec. 159 : 1979 U.P.L.T. NOC 37 Janki v. Deputy Director of Consolidation and has pressed his point that since the petitioners had no right to file appeal against the judgment in revenue suit under section 209 of the Act, that judgment would not operate as res judicata. No doubt I have indicated that aggrieved party in the earlier litigation had no right to prefer an appeal, hence the judgment in the earlier litigation would not operate as res judicata but in that case the materials before me were not sufficient to sustain the plea of res judicata urged. The copy of the written statement was not on the record whereas in the present case the judgment in revenue suit under S. 209 of the Act and the copy of the plaint and copy of the written statements of the opposite parties 4 to 6 have been filed hence the contentions between the parties in the revenue suit are clear and the materials in the present case are sufficient to hold that the earlier judgment in the revenue suit would operate. as res judicata and binding upon the parties in the present writ petition. 12. The various rulings cited by the counsel for the opposite parties also justify the inference that in the circumstances of (the present case, the consolidation authorities have correctly held that the earlier judgment in the revenue suit under S. 209 of the Act would bind the parties. 13. Both the parties have placed reliance upon the ruling reported in AIR 1974 SC 749 Iftikhar Ahmad v. Syed Meharban Ali wherein their Lordships of the Supreme Court have indicated the essential ingredients for a judgment to operate as res judicata amongst co-defendants or co-plaintiffs. 14. The contention of the learned counsel for the petitioners to the effect that the plaintiff being one of the co-tenure-holders could maintain the suit under S. 209 of the Act against the opposite parties 4 to 6, hence there was no conflict between the interest of the petitioners and that of the plaintiff (opposite party 7) and that of the opposite parties 4 to 6, is not acceptable to me in view of the pleadings of the parties and the judgment in that suit. 15.
15. In the result, the writ petition fails and both the contentions raised on behalf of the petitioners have no force in my view. However, the parties are directed to bear their own costs.