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Allahabad High Court · body

1983 DIGILAW 36 (ALL)

Suraj Din v. Deputy Director of Consolidation, Allahabad

1983-01-10

K.P.SINGH

body1983
ORDER K.P. Singh, J. - The petitioners claim Sirdari right in the disputed land. Their claim has been contested by Gaon Sabha, opposite party 4. 2. All the consolidation authorities have given judgments against the petitioners. Aggrieved by their judgments the petitioners have approached this Court under Article 226 of the Constitution. 3. The learned counsel for the petitioners has contended before me that the appellate authority and the revisional court have patently erred in ignoring the ex parte decree in favour of the petitioners. 4. The learned counsel for the contesting opposite party Gaon Sabha has submitted that the ex parte decree in favour of the petitioners is really a collusive decree and was rightly ignored by the higher consolidation authorities. In this connection the learned' counsel for the contesting opposite party has invited my attention to the allegations contained in paras 4 and 5 of the counter affidavit. 5. I have examined the contentions raised on behalf of the parties, and I have gone through the judgments of the consolidation authorities. In my opinion the appellate authority and the revisional court have patently erred in ignoring the ex parte decree in favour of the petitioners. The reasons given by them are faulty, hence their conclusions deserve to be quashed. 6. The consolidation authorities have not negatived the claim of the petitioners on the ground that the ex parte decree was fraudulent and void, hence it did not confer any right on the petitioners. The learned counsel for the petitioners has invited my attention to the ruling reported in 1982 All WC 631 : 1983 All LJ 107 Sukhram Giri v. Dy. Director of Consolidation, U.P. Lucknow and has emphasised that a final order recognising the claim of the petitioners should be passed by me. It is noteworthy that the higher consolidation authorities have not negatived the claim of the petitioners on the ground that the ex parte decree in favour of the petitioners was either etc. In such a circumstance it is proper that the appellate authority should be asked in the present case to decide the claims of the parties in the light of the well-settled principle that ex parte decree works as an estoppel against the party against whom the same has been passed. The ex parte decree, unless set aside in a competent proceeding, is final between the parties. The ex parte decree, unless set aside in a competent proceeding, is final between the parties. In this connection the attention of the consolidation authorities is invited to the ruling reported in AIR 1956 SC 346 Sailendra Narayan Bhanja Deo v. State of Orissa and the ruling of this Court reported in 1982 All WC 631 : (1983 All LJ 107) mentioned supra. It is also well known that in writ jurisdiction this Court ordinarily does not pass final order in favour of a party. It only quashes the erroneous judgments and the final suitable orders are required to be passed by the authorities concerned, hence I am not inclined to accept the contention of the learned counsel for the petitioners that I should pass final order recognising the claim. of the petitioners in the present case. In AIR 1965 SC 111 , Prem Sagar v. Standard Vacuum Oil Company, Madras, their Lordships of the Supreme Court have observed in para 22 as below : "Incidentally, we ought to point out that even if the Division Bench was right in holding that the impugned order should be corrected by the issue of a writ of certiorari, it would have been better if it had not made its own findings on the evidence and passed its own order in that behalf. In writ proceedings if an error of law apparent on the face of the record is disclosed and a writ is issued, the usual course to adopt is to correct the error and send the case back to the Special Tribunal for its decision in accordance with law .......". I think it proper to direct the appellate authority to decide the claim of the petitioners afresh in the light of the rulings mentioned above. 7. In the result, the writ petition succeeds and the judgments of the appellate authority and that of the revisional court are hereby quashed and the appellate authority is required to deal with the claims of the parties strictly in accordance with law. Parties are directed to bear their own costs.