Ram Dulari v. Dy. Director of Consolidation — 1985 DIGILAW 234 (ALL)

ORDER B.L. Yadav, J. - This petition under Article 226 of the Constitution is directed against the order dated 28-2-1974 passed by the Deputy Director of Consolidation in revision under S. 48 of the U.P. Consolidation of Holdings Act. 2. The facts, shorn of details are that the plots in dispute Nos. 40/-16, 83/-4, 109/-14, 117/9-14 are situated in village Aswa, Pargana Barsethi, District Jaunpur and were recorded in the basic year in the names of the petitioner along with Rama Shanker and Hari Shanker (not parties to this petition). An objection was filed under S. 9-A(2) of the U.P. C.H. Act by Respondents Nos. 3 and 4 claiming co-tenancy rights along with Ram Lakhan. It was further alleged by them that the claim of the petitioner was barred by res judicata as earlier suit filed under S. 229-B of the U.P. Zamindari Abolition and Land Reforms Act by Rama Shanker and Hari Shanker against Respondents Nos. 3 and 4 as defendants Nos. 1 and 2 and the petitioner and the State of U.P. etc. as defendants, decided by the Board of Revenue would operate as res judicata. 3. The petitioner contested the case of Respondents Nos. 3 and 4 and alleged that she had obtained a sale deed dated 1-7-1940 from Ram Nandan, father of Respondents Nos. 3 and 4, and that she was the sole Bhumidhar of the plots in dispute and that Respondents Nos. 3 and 4 were not the sons of Ram Nandan and her claim was not barred by principles of res judicata between the co- defendants. 4. The Consolidation Officer by order dated 10-10-1969 decided the case against the petitioner. She preferred an appeal which was allowed by the Assistant Settlement Officer (Consolidation) by the order dated 25-1-1972. Respondents Nos. 3 and 4 preferred a revision before the Deputy Director of Consolidation which has been allowed by the impugned order dated 28-2-1974. 5. 4. The Consolidation Officer by order dated 10-10-1969 decided the case against the petitioner. She preferred an appeal which was allowed by the Assistant Settlement Officer (Consolidation) by the order dated 25-1-1972. Respondents Nos. 3 and 4 preferred a revision before the Deputy Director of Consolidation which has been allowed by the impugned order dated 28-2-1974. 5. Sri Satya Narain Mishra and Sri K. K. Tewari appearing for the petitioner urged that the revision has incorrectly been decided on the basis of the plea of res judicata (between co-defendants) as in the earlier Suit No. 129 of 1963 there was no conflict of interest between the defendants (the petitioner as defendant No. 3 and other defendants), nor it was necessary to decide such conflicts in order to give relief which the plaintiff claimed, nor any such question between the defendants was ever finally decided. The earlier suit under S. 229-B of the U.P. Z.A.L.R. Act was filed by Rama Shanker and Hari Shanker who are not parties to the present petition against Indrajit and Sarbjit, Respondents Nos. 3 and 4 and against Smt. Ram Dulari (vide Annexure 5). The relief in that case was that the plaintiffs (Rama Shanker and Hari Shanker) may be declared to be bhumidhars along with defendant No. 3 (the present petitioner) and other defendants (Respondents Nos. 3 and 4 to the present petition have got no right. title and interest in the property in dispute. In this way the present petitioner and Respondents Nos. 3 and 4 were arrayed as defendants Nos. 1, 2 and 3. There was no conflict of interest between defendants Nos. 1 and 21 Respondents Nos. 3 and 4) on the one hand and the present petitioner Smt. Ram Dulari as defendant No. 3) on the other, for the disposal of the suit. In other words, there was no controversy involved between the co-defendants so that the same may be effectively decided in order to grant relief to the plaintiff, hence such decision cannot operate as res judicata between the co-defendants. 6. It was further urged on behalf of the petitioner that as the claim of the present petitioner so (as defendant) was not to be decided in the earlier suit under S. 229-B of the U.P.Z.A.L.R. Act. 6. It was further urged on behalf of the petitioner that as the claim of the present petitioner so (as defendant) was not to be decided in the earlier suit under S. 229-B of the U.P.Z.A.L.R. Act. there was accordingly no occasion that the sale deed dated 1-7-1940 should have been set up by the present petitioner so as to prove that defendants Nos. 1 and 2 (respondents Nos. 3 and 4) have no right in the land in dispute. 7. Sri S. N. Singh has appeared for Respondents Nos. 3 and 4 and urged that the earlier judgment and decree in the earlier suit fought up to the Board of Revenue would operate as res judicata and that later on a civil suit was also filed for cancellation of the decree of the revenue courts including the Board of Revenue but that suit was also dismissed. Hence the earlier decree has become final and operates as res judicata. It was further urged that in case any claim of the petitioner was sought to be urged on the basis of the sale deed against respondents Nos. 3 and 4 could have been agitated in the earlier suit. This has not been done. Now the remedy of the petitioner is barred and the principles of res judicata have correctly been applied. 8. In the instant case it is clear from the copy of the plaint (Annexure 5) that the present respondents Nos. 3 and 4 were defendants Nos. 1 and 2 in the earlier suit and the present petitioner Smt. Ram Dulari was defendant No. 3. In this way the petitioner and respondents Nos. 3 and 4 both were defendants. From the reading of the plaint and the relief sought therein it is clear that there was no dispute or conflict of interest between defendants Nos. 1 and 2 on the one hand and defendant No. 3 on the other. There was no such dispute or controvens between the defendants so that the same could have been decided for the relief being granted to the plaintiffs. As there was no denial of the claim of the present petitioner in the earlier suit, there was no occasion for the present petitioner to have urged in the earlier suit that she had obtained a sale deed from Ram Nandan father of the respondents Nos. 3 and 4. As there was no denial of the claim of the present petitioner in the earlier suit, there was no occasion for the present petitioner to have urged in the earlier suit that she had obtained a sale deed from Ram Nandan father of the respondents Nos. 3 and 4. Unless there was some dispute between the co-defendants and that was necessary for the effective disposal of the suit itself and unless that controversy was act vally decided between the co-defendants, the decision so rendered cannot be said to be res judicata between the co-defendants. In view of these facts it is clear that there was no dispute or conflict of interest between the co-defendants and unless the same was necessary for granting relief to the plaintiffs and unless this conflict of interest or dispute was actually decided while granting relief to the plaintiff and the said order has become final, it cannot operate as res judicata between co-defendants. Simply because those parties were as co-defendants in the earlier suit the judgment so rendered could not be said to be effective or binding as res judicata as there was no occasion for the present petitioner to have set up the sale deed executed by Ram Nandan, father of respondents Nos. 3 and 4. In this view of the matter, it cannot be said that the judgment and decree in the earlier suit under S. 229-B of the U.P.Z.A.L.R. Act in which litigation continued till the Board of Revenue and subsequently a civil suit was also filed for the cancellation of that judgment and decree, would operate as res judicata. (See Iftikhar Ahmad v. Syed Meharban Ali, AIR 1974 SC 749 ). The order passed by the Deputy Director of Consolidation on the basis of the plea of res judicata is manifestly erroneous in law and the same cannot be sustained. It shall, however be open to the Deputy Director of Consolidation to decide the revision afresh in the light of the evidence on record without taking into consideration the plea of res judicata. 9. In view of the discussions made hereinbefore, the present petition succeeds and is accordingly allowed with costs. It shall, however be open to the Deputy Director of Consolidation to decide the revision afresh in the light of the evidence on record without taking into consideration the plea of res judicata. 9. In view of the discussions made hereinbefore, the present petition succeeds and is accordingly allowed with costs. The judgment of the Deputy Director of Consolidation dated 28-2-1974 is quashed and he is directed to decide the revision afresh in the light of the observations made above and on the basis of the evidence on record without considering the plea of res judicata as set up by respondents Nos. 3 and 4.