Ghisiyawan v. Board of Revenue, U. P — 1987 DIGILAW 140 (ALL)

ORDER K. P. Singh, J. - This is a defendant's writ petition arising out of a suit under S. 229- B/209 of the U.P. Zamindari Abolition and Land Reforms Act against the petitioner. 2. To appreciate the facts involved in the present case the following pedigree is necessary : 3. Shorn of unnecessary details it is, not disputed that the disputed land was the tenancy of Baij Nath in the above pedigree: It appears that Smt. Gudda co-opted petitioner Ghisi-yawan, who claimed co-tenancy right in the disputed land. During the consolidation operation a dispute arose amongst Kabutra, Ghisiyawan petitioner, and Lalit, father of opposite party No. 4 Ram Gulam in the present writ petition. In that dispute on 9-5-1962 it was decided by this Court that the petitioner along with Smt. Kabutra were co-tenure-holders of the disputed land. The claim of the father of opposite party No. 4 Ram Gulam was not recognised during the consolidation operations. This court decided the dispute between the parties in a proceeding arising out of the provisions of S. 12 of the U.P. Consolidation of Holdings Act. During the pendency of the dispute before the consolidation authorities Smt. Kabutra, mentioned in the above pedigree, instituted a suit under S. 229-B/209 of the U.P.Z.A. and L.R. Act claiming sole sirdari right in the disputed land and she had asserted that the petitioner Ghisiyawan was not a co-sirdar of the disupted land. She had also asserted that the father of opposite party No. 4 Ram Gulam had no concern with the disputed land. In that suit petitioner Ghisiyawan had claimed co-sirdari right in the disputed land. Lalit, father of opposite party No. 4, Ram Gulam in the present writ petition, had claimed sole sirdari right in the disputed land denying the claim of the plaintiff Smt. Kabutra and also the claim of the present petitioner Ghisiyawan in that suit. 4. The suit filed by Smt. Kabutra was decreed on 21-5-62 holding that petitioner Ghisiyawan had no interest in the disputed land and that Smt. Kabutra was sole tenure- holder of the disputed land and that Lalit, father of opposite party No. 4 Ram Gulam, was only a trespasser. 4. The suit filed by Smt. Kabutra was decreed on 21-5-62 holding that petitioner Ghisiyawan had no interest in the disputed land and that Smt. Kabutra was sole tenure- holder of the disputed land and that Lalit, father of opposite party No. 4 Ram Gulam, was only a trespasser. The decree in favour of Smt. Kabutra was not executed within time and, therefore, opposite party No. 4 Ram Gulam filed a suit giving rise to the present writ petition on the allegations that he had acquired sirdari right in the disputed land under the provisions of;S. 210 of the U.P.Z.A. and L.R. Act. The aforesaid opposite party No. 4 also pleaded in the suit that the name of petitioner Ghisiyawan was recorded as a co-tenure-holder with Smt. Gudda at one point of time, therefore, necessity arose in the suit as the petitioner was trying to assert his right. 5. The petitioner contested the suit filed by opposite party No. 4 Ram Gulam and had asserted that the plaintiff had no right and title to the disputed land; that the petitioner himself was the sole tenure-holder of the land in suit; that the plaintiff was never in possession over the disputed land; that the plaintiffs suit was barred by S. 11, C.P.C. and also was barred by the provisions of S. 49 of U.P.C.H. Act and that the suit was barred by time, and various other pleas were taken to negative the plaintiffs suit as is evident from Annexure 1' attached with the writ petition. 6. All the revenue courts have given judgments against the present petitioner and aggrieved by their judgments he has approached this Court under Article 226 of the Constitution. 7. Learned counsel for the petitioner has contended before me that the plaintiffs suit was barred by the provisions of S. 49 of U.P.C.H. Act and the revenue courts have patently erred in granting decree in favour of Ram Gulam, opposite party No. 4. 8. Second contention raised on behalf of the petitioner is that the revenue courts have patently erred in holding that the decree in favour of Smt. Kabutra was final as regards the claim of the petitioner. 8. Second contention raised on behalf of the petitioner is that the revenue courts have patently erred in holding that the decree in favour of Smt. Kabutra was final as regards the claim of the petitioner. According to the learned counsel for the petitioner as the petitioner was only a,co-defendant in the suit filed by Smt. Kabutla and the judgment in that suit was in favour of Smt. Kabutra and against the father of opposite party No. 4 Ram Gulam, who was held only a trespasser in the suit, therefore, the judgment in the aforesaid suit filed by Smt. Kabutra could not operate as res judicata and would not be a relevant evidence against the claim of the petitioner in the suit giving rise to the present writ petition. 9. Learned counsel for the contesting opposite party Ram Gulam has tried to refute the contentions raised on behalf of the defendant petitioner. According to him the revenue courts were fully justified in taking the view that the judgment dated 21-5-1962 in the suit of Smt. Kabutra would be final regarding the claims of the parties in the disputed land. It has also been contended by the learned counsel for the plaintiff-opposite party No. 4 in the present writ petition that the proceeding under S. 12 of the U.P.C.H. Act was only decided in favour of the petitioner finally on 9-5-1962. Therefore, any finding recorded in that proceeding would not be relevant when the claims of the parties are decided in a regular title suit. It has also been stressed in the facts and circumstances of the present case that the earlier decision of this Court dated 9-5-1962 would not clothe the present petitioner with any right and title to the disputed land and no question of bar of S. 49 of U.P.C.H. Act would arise against the plaintiff's claim. 10. I have considered the contentions raised on behalf of the parties and I have perused the judgments attached with the writ petition and other documents attached with the affidavit, counter-affidavit, supplementary affidavit and rejoinder affidavit. In my opinion bar of S. 49 of U.P.C.H. Act would not be attracted to the facts of the present case. This court decided the claims of the parties on 9-5-1962 in a writ petition arising out of proceedings under S. 12 of U.P.C.H. Act prior to amendment of 1963. 11. In my opinion bar of S. 49 of U.P.C.H. Act would not be attracted to the facts of the present case. This court decided the claims of the parties on 9-5-1962 in a writ petition arising out of proceedings under S. 12 of U.P.C.H. Act prior to amendment of 1963. 11. In 1985 Rev Dec 336 Malkhan Singh v. Sohan Singh their Lordships of the Supreme Court have indicated that the decision in a proceeding under S. 12 of the U.P.C.H. Act prior to the amendment of 1963 would not be final as there was no provision for adjudication of rights and title of a tenure-holder when once the title and interest of the original tenure- holder had been finally determined and chak had been allotted. 12. The perusal of the judgment dated 9-5-1962 passed by this Court in Writ Petn. No. 2233 of 1960 Ghisiyawan v. Deputy Director of Consolidation indicates that the proceedings had arisen under S. 5-A of the U.P.C.H. Act. To my mind the decision of this Court would be in a proceeding for correction of record only. Therefore, the contention of the learned counsel for the petitioner that the decision by this Court in his favour would clothe the petitioner with a title to the disputed land does not appear correct. 13. Moreover after the decision in favour of the petitioner by this Court the petitioner's claim in the disputed land was negatived in the suit filed by Smt. Kabutra and the petitioner did not prefer any appeal and the latter judgment would stand in the way of the petitioner while claiming any title to the disputed land. 14. During the course of arguments the learned counsel for the petitioner invited my attention to the ruling reported in AIR 1950 PC 17 Chandu Lal Agarwalla v. Khalilur Rehman and AIR 1974 SC 749 Iftikhar Ahmad v. Meharban Ali and has contended that for a judgment to operate as res judicata, amongst the co-defendants it is necessary to establish that there was a conflict of interest between the co-defendants and that it was necessary to decide the conflict in order to give the relief which the plaintiff claimed in the suit and that the court actually decided the question. 15. 15. According to the learned counsel for the petitioner (in) the judgment in the suit filed by Smt. Kabutra only one contention was satisfied that there was a conflict between the interest of the present petitioner and that of the father of opposite party No. 4 Ram Gulam named Lalit but it was not necessary to decide the conflict between the petitioner and Lalit with a view to grant relief to the plaintiff Smt. Kabutra. It has also been stressed that the third contention was not present because the court did not decide the conflict between Lalit and the present petitioner Ghisiyawan in the judgment dated 21-5-1962. It has been stressed before me that when Smt. Kabutra was found sole sirdar of the disputed land and father of Ram Gulam named Lalit was only a trespasser therefore, the plaintiff Smt. Kabutra could get relief of possession and it was not at all necessary to decide whether the present petitioner Ghisiyawan was co-tenure-holder or not. Therefore, the revenue courts have patently erred in treating the judgment dated 21-5-1962 as final while negativing the claim of the petitioner. The contentions raised on behalf of the petitioner might have been true if the suit filed by Smt. Kabutra was only for recovery of possession against the father of Ram Gulam named Lalit. Since that suit was for declaration of plaintiffs tenancy right, every person interested in the land was a necessary party and his claim was necessary to be determined for giving effective relief to the plaintiff. Viewing from this angle I am unable to agree with the contention of the learned counsel for the petitioner that it was not necessary to decide the conflict between Lalit and the present petitioner Ghisiyawan in the suit filed by Smt. Kabutra. 16. As regards necessary findings it is sufficient to mention that there is categorical finding that the petitioner Ghisiyawan was not co-tenure-holder of the disputed land and that the plaintiff Smt. Kabutra was the sole tenure-holder of the disputed land and Lalit, father of opposite party No. 4 Ram Gulam in the present writ petition, was held as a trespasser of the disputed land. Therefore, all the ingredients are present in the decision dated 21-5-1962 which is against the petitioner Ghisiyawan. Therefore, all the ingredients are present in the decision dated 21-5-1962 which is against the petitioner Ghisiyawan. In my opinion the revenue courts have not at least patently erred in placing reliance upon the judgment dated 21-5-62 while negativing the claim of the petitioner. 17. However, in the present case, it appears that Ram Gulam opposite party No. 4 has got only a declaratory decree to the effect that he is sirdar in possession over the disputed land. Due to the circumstance that Smt. Kabutra or the present petitioner had not executed decree for possession within the prescribed period of limitation, therefore, the plaintiff Ram Gulam has acquired sirdari right under S. 210 of the U.P. zamindari Abolition and Land Reforms Act. 18. If the petitioner is really a tenure-holder of the disputed land and is in possession of the same since the dispute was decided by the consolidation authorities the present decree would not stand in the way of the petitioner because it is only a declaratory decree on the basi9 of continuous possession for more than statutory period. During the pendency of the present litigation the petitioner would acquire sirdari right and can enforce that right in a properly instituted suit. If the finding given in the present litigation is correct that the plaintiff Ram Gulam has been in possession over the disputed land. I think that he has acquired valid title to the land in suit and the petitioner's right if any, on the basis of the finding recorded by this Court on 9-5-62 would stand extinguished because the present petitioner never brought any suit for possession against the plaintiff Ram Gulam or his father Lalit within the period of limitation. Therefore, it is not a fit case where interference should be made with the impugned judgment at the instance of the petitioner. 19. It is necessary to note that the petitioner has failed to attach necessary documents to demonstrate that the petitioner had taken possession in pursuance of the order of this court dated 9-5-62. 20. Therefore, it is not a fit case where interference should be made with the impugned judgment at the instance of the petitioner. 19. It is necessary to note that the petitioner has failed to attach necessary documents to demonstrate that the petitioner had taken possession in pursuance of the order of this court dated 9-5-62. 20. Section 49 of U.P.C.H. Act reads thus : "Notwithstanding anything contained in any other law for the time being in force, the declaration and adjudication of rights of tenure-holders in respect of land lying in an area for which a notification has been issued under sub-section (2) of Section 4 or adjudication of any other right arising out of consolidation proceedings and in regard to which a proceeding could or ought to have been taken under this Act, shall be done in accordance with the Provisions of this Act and no Civil or Revenue Court shall entertain any suit or proceeding with respect to rights in such land or with respect to any other matter for such a proceeding could or ought to have been taken under this Act." 21. In the facts and circumstances of the present case the right of sirdari in the disputed land accrued to Ram Gulam opposite party No. 4 or his father Lalit due to the circumstance that Smt. Kabutra or the present petitioner Ghisiyawan did not succeed in getting possession from the trespasser within the period of limitation which occurred after the close of consolidation operations, therefore in no circumstance bar of S. 49 of the U.P.C.H. Act would be applicable to the facts of the case giving rise to the present writ petition. 22. In view of the foregoing discussions the contentions raised on behalf of the petitioner are devoid of merits and this writ petition deserves dismissal. Accordingly, I dismiss the writ petition but I make no order as to costs.