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1985 DIGILAW 509 (ALL)

Kesho v. Board of Revenue

1985-05-03

K.P.SINGH

body1985
ORDER K.P. Singh, J. - This is a defendant's writ petition against the judgment of Sri I. B. Singh, Member Board of Revenue dated 21-1-82 whereby the plaintiff opposite party has been declared as a co-tenure holder of the disputed plot and his share has been determined to the extent of half in the subject-matter of the suit. 2. The facts given in the judgment of the revenue Courts are not much disputed between the parties. The plaintiff opposite party had claimed co-tenure-holdership in the disputed land on the ground that the disputed land was coming down in the family from the time of the father of the contesting parties and that the defendants-petitioner had admitted the claim of the plaintiff-opposite party in the disputed land before the consolidation authorities and that the plaintiff opposite party had been in possession over the disputed land. Therefore, the suit for declaration of the plaintiffs right. 3. The defendant-petitioner had contested the claim of the plaintiff opposite party on the allegations that the disputed land was his tenancy and that the plaintiffs claim was barred by the provisions of S. 49 of U.P. C. H. Act and that the defendant-petitioner was exclusive tenure-holder of the disputed land and his possession as such was recognised by a criminal Court in proceedings under S. 145 Cr. P.C. and that the plaintiff-opposite party had been restrained from interfering with the possession of the defendant petitioner and that the plaintiffs suit was barred by time and various other pleas were taken. 4. The trial Court gave judgment for the plaintiff-opposite party and the first appellate Court gave judgment for the defendant petitioner whereas the second appellate Court has restored the judgment of the trial Court. Aggrieved by the judgment of the second appellate Court the defendant petitioner has approached this Court under Article 226 of the Constitution. 5. The learned counsel for the petitioner has contended before me that the judgment of the second appellate Court suffers from patent error of law in so far as it has held that the Civil Court's judgment recognising the claim of the defendant petitioner did not operate as res judicata between the parties. 6. The second contention raised on behalf of the petitioner is that the claim of the defendant petitioner was recognised by the consolidation authorities. 6. The second contention raised on behalf of the petitioner is that the claim of the defendant petitioner was recognised by the consolidation authorities. Therefore, the plaintiffs claim was rightly held as barred by the provisions of S. 49 of the U.P.C.H. Act by the first appellate Court and the second appellate Court has patently erred in this regard. 7. The learned counsel for the plaintiff opposite party has submitted in reply that on the facts and circumstances of the present case the plaintiffs claim was not barred by the provisions of S. 49 of U.P.C.H. Act. It has been emphasised that during consolidation operation the defendant-petitioner had admitted the claim of the plaintiff opposite party. Therefore, the name of the defendant- petitioner was recorded in the consolidation record in representative capacity and in clear contradiction of the admission made by the defendant-petitioner. It is well known that in a claim of co-tenancy right when cause of action arises after the close of consolidation operations no question of bar of S. 49 of U.P.C.H. Act arises. Therefore, the second appellate Court has rightly held that the claim of the plaintiff opposite party was not barred by S. 49 of the U.P.C.H. Act. 8. The third submission made by the learned counsel for the plaintiff opposite party is that the impugned judgment has done substantial justice between the parties by recognising the claim of the plaintiff-opposite party in the disputed land as co-tenure holder; therefore, no interference should be made with the impugned judgment in writ jurisdiction under its extraordinary jurisdiction. 9. I have considered the contentions raised on behalf of the parties. 10. The second appellate Court has dealt with the question of res judicata in the impugned judgment vide paragraph 8 as below : "The Civil Court's judgments do not operate as res judicata as the Civil Court has got no jurisdiction to grant declaratory relief under S. 229B of Act 1 of 1951. It being only an injunction suit, hence these judgments are of no help to the respondents. Reliance has rightly been placed on Hardwari v. Mir Hasan, 1973 Rev Dec 98. 11. In my opinion the second appellate Court has patently erred in deciding the question of res judicata in the facts and circumstances of the present case. It being only an injunction suit, hence these judgments are of no help to the respondents. Reliance has rightly been placed on Hardwari v. Mir Hasan, 1973 Rev Dec 98. 11. In my opinion the second appellate Court has patently erred in deciding the question of res judicata in the facts and circumstances of the present case. In 1968 All LJ 1108 : AIR 1969 All 526 , Ram Awalamb v. Jata Shankar a Full Bench of this Court has observed as below : "Where on the basis of a cause of action - (a) The main relief is cognizable by a revenue Court the suit would be cognizable by the revenue Court only. The fact that the ancillary reliefs claimed are cognizable by Civil Court would be immaterial for determining the proper forum for a suit. (b) The main relief is cognizable by the Civil Court the suit would be cognizable by the Civil Court only and the ancillary reliefs, which could be granted by the revenue court may also be granted by the Civil Court. The above principle will apply also to a suit for injunction and demolition relating to agricultural land and brought against a trespasser. Where the revenue Court was not competent to grant all such reliefs arising out of one and the same cause of action and the main relief was that of injunction and demolition the suit would lie in the Civil Court." 12. In the present case, prima facie the defendants' claim was recognised by the consolidation authorities and thereafter the defendant petitioner's possession was found by a criminal Court in a proceeding under S. 145 Cr. P.C. Therefore, the relief claimed by the defendant-petitioner in the Civil Suit was for injunction and that relief was the main relief, therefore, the Civil Court has jurisdiction to try the suit. The observation of the second appellate Court that the judgment in civil suit would not operate as res judicata between the parties in the circumstances of the present case appears to me suffering from patent error of law. 13. The observation of the second appellate Court that the judgment in civil suit would not operate as res judicata between the parties in the circumstances of the present case appears to me suffering from patent error of law. 13. The learned counsel for the contesting opposite party has invited my attention to the rulings reported in 1978 Rev Dec 253 : 1978 All LJ NOC 68, Munni Nath v. Ram Surat and 1973 Rev Dec 365, Chandrika Misir v. Bhaiya Lal in support of his contention that the suit for injunction regarding agricultural land did not lie in the Civil Court. The ruling reported in 1973 Rev Dec 365, Chandrika Misir v. Bhaiya Lal is distinguishable because in that case the defendant petitioner was held retaining possession of the land contrary to law whereas in the present case the possession of the defendant petitioner has been found as a fact by a criminal Court in proceedings under S. 145 Cr. P.C. hence the suit by the defendant petitioner in Civil Court was maintainable and the plaintiff opposite party cannot derive any benefit out of the ruling reported in 1973 Rev Dec 365, Chandrika Misir v. Bhaiya Lal. The ruling reported in 1978 Rev Dec 253 : 1978 All LJ NOC 68, Munni Nath v. Ram Swarup is also distinguishable and inapplicable to the facts and circumstances of the present case, because in view of the consolidation record as well as the finding of the Civil Court and the criminal Court the defendant petitioner was exclusive tenure-holder of the disputed land and was in possession over the same. Therefore, I think that the aforesaid ruling also does not help the plaintiff opposite party in any manner. 14. The learned counsel for the plaintiff opposite party has cited a large number of rulings reported in 1970 Rev Dec 12, Kanchan Singh v. Dy. Director of Consolidation, AIR 1971 SC 2228 , Pandurang Mahadeo Kaveda v. Annaji Balwant Bokil; AIR 1971 SC 2355 , Mathura Prasad Sarjoo Jaiswal v. Dossibai N.G. Jeejeebhoy, 1978 Rev Dec 98 Hardwari v. Mir Hasan, AIR 1984 SC 1696 , Rajendra Jha v. Presiding Officer, Labour Court, Bokaro Steel City Dhanbad for the proposition that a judgment without jurisdiction would never operate as res judicata between the parties. It is not necessary for me to deal with the dictum of law laid down in the aforesaid rulings because on the findings recorded by the Civil Court as well as in view of the finding of a criminal Court in proceedings under S. 145 Cr. P.C. as well as the entries in consolidation record the defendant petitioner was exclusive tenure-holder of the disputed land and was found in possession over the same, hence the appropriate relief of an injunction was sought in the Civil Court and that the Civil Court had jurisdiction to proceed with the suit of the defendant petitioner. 15. It is noteworthy that the question of jurisdiction in the Civil Court was raised and had been negatived by the subordinate Civil Court and their judgments were upheld by this Court in a second appeal. Therefore, I am not prepared to hold that the Civil Court had no jurisdiction to proceed with the injunction suit filed by the defendant-petitioner. The second appellate Court in the present litigation has patently erred in ignoring the judgments of the Civil Courts in view of the dictum of law laid down in 1978 Rev dec 98, Hardwari v. Mir Hasan without addressing itself to the dictum of law laid down in 1968 All LJ 1108 : AIR 1969 All 526 ) (FB), Ram Awalamb v. Jata Shankar. 16. As regards the contention of the plaintiff opposite party that substantial justice has been done between the parties and this Court should not interfere with the impugned judgment of the second appellate Court in view of the observations made in the ruling reported in 1980 Rev Dec 275 at page 278 : (1980 All LJ NOC 112), it is sufficient to indicate that when the judgment of the Civil Court would operate as res judicata between the parties it cannot be said that substantial justice has been done between the parties : rather a person entitled to the subject-matter of the suit will be deprived of his claim based on principles of res judicata due to wrong approach of the second appellate Court in the present litigation. In the facts and circumstances of the present case I am unable to accept the contention of the learned counsel for the contesting opposite party that by the impugned judgment substantial justice has been done between the parties. 17. In the facts and circumstances of the present case I am unable to accept the contention of the learned counsel for the contesting opposite party that by the impugned judgment substantial justice has been done between the parties. 17. For the foregoing discussions I think that the impugned judgments of the second appellate Court suffers from a patent error of law and deserves to be quashed. Accordingly I allow the above noted writ petition and quash the impugned judgment of the second appellate Court dated 21-1-1982 in second appeal No. 36 of 1973-74/Agra. Mool Chand v. Keshwa, and direct the second appellate Court to pass final order in the second appeal in the light of the observation made above. 18. There would be no order as to costs.