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1985 DIGILAW 531 (ALL)

Tej Bahadur v. Deputy Director Of Consolidation

1985-05-08

B.L.YADAV

body1985
JUDGMENT : B.L. Yadav, J. The present petition under Article 226 of the Constitution of India is directed against the order dated 16-3-74 passed by the Deputy Director of Consolidation Deoria u/s 48 of the U.P. Consolidation of Holdings Act, (hereinafter referred to as the Act), whereby the revision of the Petitioner was dismissed. The revision was tiled against the order passed by the Consolidation Officer allowing the application u/s 5 of the Limitation Act filed by the contesting Respondents. By this petition the Petitioners have prayed for a writ of Certiorari for quashing the aforesaid two orders. 2. The facts of the case in brief are that in respect of the plots in dispute, which have been given in Annexure-4 to the supplementary affidavit, a suit u/s 229-B of the U.P. Zamindari Abolition & Land Reforms Act was filed by the Petitioners against the State Government and the Gaon Sabha, which was Suit No. 40 of 1966-Deep Chand v. Gaon Sabha. This suit was ultimately decreed ex-parte on 19-4-66. Against that ex-parte decree a restoration application was filed by one Habibullah, a member of the Land Management Committee. On this application the restoration was earlier allowed, but later on a revision was filed by the Petitioners before the Board of Revenue, which was ultimately allowed by an order dated 29-6-77 and the ex-parte decree was maintained and the order of the trial court dated 3-2-72 setting aside the expaite decree was itself set aside and the restoration application was dismissed. The order of the Board of Revenue dated 29-6-77 has been filed as Annexure-I to the supplementary affidavit filed by the Petitioners. Before the revision could be decided by the Board of Revenue the consolidation operation commenced in the village Damodarpur, Tappa Salempur Pargana Salempur Majhauli, District Deoria, where the plots in dispute are situate by issuing a notification u/s 4 of the Act. In pursuance of the decree in favour of the Petitioners passed in a suit u/s 229-B of the UP ZA and LR Act, the Petitioners were recorded in the basic years as Bhumidhar in respect of the plots in dispute. During the consolidation operation the Petitioners were also found to be in possession and no objection was filed by anybody. In pursuance of the decree in favour of the Petitioners passed in a suit u/s 229-B of the UP ZA and LR Act, the Petitioners were recorded in the basic years as Bhumidhar in respect of the plots in dispute. During the consolidation operation the Petitioners were also found to be in possession and no objection was filed by anybody. The dispute, however, in the present petition appears to have been confined only to plot No. 121/2 area 07 acre, plot No. 123/2 area 20 acre and plot No. 137 area 08 acre as stated in para 3 of the writ petition. 3. A much belated objection was filed by the Respondents u/s 9-A(2) of the Act along with an application to condone the delay u/s 5 of the Act. The title of the Petitioners was also denied in respect of the plots in dispute. The delay was, however, condoned by an order of the Consolidation Officer vide Annexure-1 to the writ petition. The Petitioners preferred a revision and there the correctness of the order passed by the Consolidation Officer was challenged and it was also urged that the judgment and decree dated 19-4-66 passed in Suit No. 40 of 1966 filed u/s 229-B of the UP ZA and LR Act would operate as res-judicata even though it may have been ex-parte decree. But the Deputy Director of Consolidation repelled the contention of the Petitioner with the observation that the delay has been correctly condoned and that as the judgment and decree u/s 229-B was ex-parte, hence, it would not operate as res-judicata. The revision of the Petitioners was consequently dismissed by the impugned order (Annexure-2 to the petition). It is against these two orders that the present petition has been filed. 4. Sri Sadanand Shukla, learned Counsel for the Petitioner urged that the judgment and decree dated 19-4-66 passed in the suit u/s 229-B of the UP ZA and LR Act, even though ex-parte, was upheld even by the Board of Revenue by its judgment and order dated 29-6-77 and the revision preferred by the Petitioners was allowed and the application filed by the contesting Respondents for setting aside the ex-parte decree was dismissed and as no writ petition has been filed by Habibullah, Respondent No. 3 in this Court, hence the judgment and order dated 29-6-77 became final between the parties and would operate as resjudicata. There was no sufficient cause for condonation of delay. 5. Sri Swaraj Prakash, learned Counsel for the Respondents urged that the delay u/s 5 of the Limitation Act has correctly been condoned and that the judgment and decree of the Board of Revenue being ex-parte, would not operate as resjudicata. He placed reliance on Kalika v. Deputy Director of Consolidation 1977 RD 5, But in that case a decree u/s 59 of the U.P. Tenancy Act was obtained and it: was stated in the decree that as the Defendant was absent, hence the suit was decreed. But that decree was later on set aside on the restoration application being moved by the other side and the suit itself abated u/s 5(2)(a) of the Act, as the consolidation operation has commenced. The suit was itself restored. In that case the judgment of the suit was not in accordance with the principles about the contents of the judgments laid down under Order 20 Rules 4(2) and 5 of the CPC and the suit was decreed simply on the ground that the Defendant was absent. But the facts of the present case are entirely different. In the Instant case the decree obtained by the Petitioner has been upheld by the Board of Revenue and that order has not been challenged by filing any writ petition in this Court. 6. It is a fact that ex-parte decree obtained by the Petitioner u/s 229-B of the UP ZA and LR Act has been upheld by the Board of Revenue and the restoration application filed by Respondent No. 3 as a member of the Land Management Committee has been dismissed. I am accordingly of the view that the Respondents had opportunity to challenge the legality or otherwise of the exparte decree dated 19-4-66. It is also Important to mention that even Respondent No. 3 has tiled a suit for cancellation of the ex-parte decree. Plaint of that Suit No. 1491 of 1966 has been filed by the Petitioner as Annexure-3 to the supplementary affidavit and that gives details how the ex-parte decree was challenged, but ultimately that suit was also dismissed in default by the learned Munsif by his order dated 24-2-70 and that order dismissing the suit in default was never recalled nor any application for restoration was filed by Respondent No. 3 etc. Hence there is no reason to hold that the ex-parte decree would not operate as res judicata. It cannot be held that Respondent No. 3 and the Goan Sabha etc. who were parties to that suit were not bound by the decree which is binding on them as res-judicata and in any case as an estoppel. 7. Ordinarily the Consolidation Officer could proceed to decide the case on merits after delay u/s 5 of the Limitation Act, 1963 has been condoned, but as Respondent No. 3 and all other persons who were interested in challenging the ex-parte decree in favour of the Petitioner have filed a restoration application and also a civil suit for cancellation of that decree and that suit was also dismissed in default. The restoration application was dismissed by the Board of Revenue and the ex-parte decree was maintained. Keeping in view the fact that even the ex-parte decree was challenged by filing a restoration application by Respondent No. 3 as a member of the Land Management Committee and that application was also dismissed in the revision by the Board of Revenue by the aforesaid order dated 29-6-77 and that order became final, hence it does not appear to be proper to direct the parties to go to the Consolidation Officer and to re-agitate the claim and the legality or otherwise of the ex-parte decree which has become final in all respect. In view of the facts stated above in my considered opinion the proceedings before the Consolidation Officer would be just an exercise in futile. 8. In this case the findings about sufficient cause for condonation of delay u/s 5 of the Limitation Act, are findings of fact and need not be interfered with. 9. Another important aspect of the matter is that the Petitioners have already obtained an ex-parte decree which has become final against the contesting Respondents, who have already filed a suit for cancellation of that decree, which was also dismissed in default and that order was also left to become final as no restoration application was filed against that order. Even against the ex-parte decree Respondent No. 3 etc. Even against the ex-parte decree Respondent No. 3 etc. had filed restoration application which was much belated and that restoration application was allowed, but later on, the revision filed by the Petitioners against that order was allowed by the Board of Revenue by the order dated 29-6-77 and the ex-parte decree was maintained and the restoration application was dismissed. 10. As the matter has finally been decided between the parties in the suit u/s 229-B of the UP ZA and LR Act, it is no use that the parties may be directed to go before the Consolidation Officer to get their rights determined again The ex-parte decree having become final would operate as re-judicata or in any case as an estoppel and the contesting Respondents are bound by the said decree.--See Brij Lal v. Deputy Director of Consolidation 1982 AWC 862 . The order passed by the Deputy Director of Consolidation that as the decree dated 19-4-65 was ex-parte hence it would not operate as res-judicata, was manifestly erroneous and cannot be sustained. 11. The jurisdiction of this Court under Article 226 of the Constitution of India is unlimited but there are certain self imposed limitations. But in such situation where an ex-parte decree has obviously become final in favour of the Petitioner, there would have been an alternative that the matter could have been sent back to the Deputy Director of Consolidation, but that would prolong the matter. I am of the view that the High Court while entertaining a writ petition has got the same power as the authority against whose decision the writ petition has been filed. This Court has, therefore, all the powers of the Deputy Director of Consolidation and can pass the similar orders as could have been passed by the Deputy Director of Consolidation in the exercise of jurisdiction u/s 48 of the U.P. Consolidation of Holdings Act. As the ex-parte-decree in favour of the Petitioners has become final and is binding on the parties, I am accordingly of the opinion that an order consistent with the ex-parte decree has to be passed--See Ganesh Das Ram Gopal v. The Munsif South Lucknow AIR 1976 All 3 The Director of Inspection of Income Tax (Investigation), New Delhi and Another Vs. Pooran Mal and Sons and Another, (1975) 4 SCC 568 . 12. Pooran Mal and Sons and Another, (1975) 4 SCC 568 . 12. As the Petitioners were recorded in basic year on the basis of the exparte decree in their favour, It is therefore, eminently just under the facts and circumstances of the case that instead of remanding the case to the Deputy Director of Consolidation, the basic year entry should be maintained. 13. In the result the writ petition succeeds and is allowed. The impugned order dated 16-3-74 passed by the Deputy Director of Consolidation is hereby quashed. The basic year entries in favour of the Petitioners as Bhumidhars in respect of the plots in dispute are maintained. There shall, however, be no order as to costs under the facts and circumstances of the case.