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1996 DIGILAW 478 (PAT)

Alakhdeo Singh v. State Of Bihar

1996-08-06

J.N.DUBEY

body1996
Judgment J.N.Dubey, J. 1. This writ petition is directed against the order dated 28.11.1991 of the respondent No. 2, the Joint Director of Consolidation, Gaya. 2. It appears that the petitioners filed objections under Sec. 10(2) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (for short "the Act) challenging the correctness of the statement of principles prepared by the consolidation authorities under Sec. 9-A, which were dismissed by the respondent No. 4, the consolidation officer (Central Range), Imanganj on 28.7.1986. They filed appeals which were also dismissed by the respondents No. 3, the Deputy Director of Consolidation (Central Range) Gaya on 31.3.1987, thereafter they filed revisions to the respondent No. 3 the Joint Director of Consolidation, Gaya. 3. The respondent No. 16, Sahdeo and the respondent No. 17, Jagat Singh, who had neither filed objection under Sec. 10(2) of the Act nor appeal, filed revisions to the respondent No. 2, claiming co-tenancy in the land in dispute along with the petitioners. 4. The respondent No. 16 also filed application for impleadment as party in the revision filed by the petitioners. The petitioners contested the impleadment application on the ground that the respondent No. 16, not having filed objection under Sec. 10(2) of the Act of appeal, was not legally entitled to be impleaded in the pending revision. The respondent No. 2, after hearing the argument of the learned Counsel for the parties at length and considering the entire facts and circumstances of the case, rejected the impleadment application by a detailed order on 6.7.1990 with the observation that the claim of the respondent No. 16 the family was joint and that he was defrauded by Mann was disproved from his own admission and further, that in absence of any objection under Sec. 10(2) of the Act, he was not legally entitled at the stage of revision. The order dated 67.1990 of the respondent No. 2, not having been challenged has become final. 5. The respondent No. 2 heard the revision of the petitioners and allowed them by a common order on 28.11.1991. However, he also declared the respondent Nos. 16 and 17 as co-tenants of the land in dispute along with the petitioners with equal share. 6. Heard the Counsel for the-parties and perused the record, 7. Learned Counsel for the petitioners contended that the respondent Nos. However, he also declared the respondent Nos. 16 and 17 as co-tenants of the land in dispute along with the petitioners with equal share. 6. Heard the Counsel for the-parties and perused the record, 7. Learned Counsel for the petitioners contended that the respondent Nos. 16 and 17 did not file any objection under Sec. 10(2) and as such, their claim was barred by Sec. 10-A of the Act. He further contended that in view of the rejection of the impleadment application of the respondent No. 16, his claim was also barred by the principles of res judicata. According to him, the respondent No. 2 himself having rejected the impleadment application of the respondent No. 16 with the observation that the claim of the respondent No. 16 that the family was joint and that he was defrauded by Mann was disproved from his own admission and further, that in absence of any objection under Section 10(2) of the Act, he was not legally entitled to claim any share in the property in dispute directly at the stage of revision, was not legally justified in declaring them as co-tenants Of the land in dispute alongwith the petitioners subsequently. He also contended that the finding of the respondent No. 2 that the family of the petitioners and respondents Nos. 16 and 17 was joint and that they were cotangents of the land in dispute with equal shares, is based on no evidence and is clearly perverse, According to him, the respondent Nos. 16 and 17 did not lead any evidence in support of their claim at any point of time and the respondent No. 2, has declared them as co-tenants of the land in dispute merely on the basis of conjecture and surmises. 8. I find substance in the argument of the learned Counsel. In order to appreciate the argument of the learned Counsel, Sec. 10-A of the Act is quoted below: No question is respect of any entry made in he map of registers prepared under Sec. 9 or the statement of principles prepared under Sec. 9-A relating to the consolidation area, which might of ought to have been raised, under Sec. 10 but has not been raised/shall not be raised or heard at any subsequently stage of the consolidation proceeding. 9. 9. A plain reading of Sec. 10-A would shoe that any entry made in the map or registers or the statement of principles relating to the consolidation area which might or ought to have been raised under Sec. 10 but has not been raised, shall not be raised or heard at any stage of the consolidation proceeding. Since the respondent Nos. 16 and 17 did not file any objection under Sec. 10(2) their claim was clearly barred by Sec. 10-A of the Act. 10. The argument of the learned Counsel that the claim of the respondent No, 16 was barred by the principles of res judicata is equally well founded. The respondent No. 2 having himself rejected the impleadment application of respondent No. 16 was not legally justifies in declaring him as co-tenant of the land in dispute subsequently. It is now well settled that an order passed in the earlier stage of a proceeding operates as res judicata in the subsequent stage of the same proceeding. The being so/so long the order dated 6.7.1990 passed in the impleadment application of the respondent No. 16 stands, he could not be allowed any share in the land in dispute. 11. Coming to the last argument of the learned Counsel I find that there was no legal evidence on record on the basis of which respondent Nos. 16 and 17 could be declared as co-tenants of the land in dispute along with the petitioners. As stated above the respondent Nos. 16 and 17 neither filed any objection under Sec. 10(2) of the Act, nor appeal and started claiming cotenancy in the land in dispute directly at the stage of revision. They also did not lead any evidence in support of their claim at any point of time. This being so, merely because after Durga, ancestor of the petitioners, the word others was also mentioned in the revenue record could not lead to the conclusion that they were also co-tenants of the land indispute. The respondent No. 2 was not legally justifies in jumping to the conclusion that the word others refers to the ancestors of the respondents Nos. 16 and 17, more so, when there was sufficient material on record to show the there has been petition in the family and the parties have been living separately since long. However, in view of the fact that the claim of the respondent Nos. 16 and 17, more so, when there was sufficient material on record to show the there has been petition in the family and the parties have been living separately since long. However, in view of the fact that the claim of the respondent Nos. 16 and 17 was barred by Sec. 10-A of the Act and that of respondent No, 16 was also barred by the principle of res judicata, it is not necessary for me to record a detailed finding on this point. 12. In may be pointed out that at though the order dated 6.7.1990 of the respondent No. 2 may not operate as res judicata against the respondent No. 17, it is of great evidently value on the point of bar of Sec. 10-A of the Act and jointness of family etc. In other words, so long the finding of the respondent No. 2 recorded on the respondent No. 16 that neither family was joint, nor respondent No. 16 was defrauded by Mann and that in absence of any objection under Sec. 10(2) of the Act, he was not entitled to claim any share in the property in dispute directly at the stage of revision, stands no relief could legally be granted to either of them. 13. In my opinion, the order of the respondent No. 2 granting co-tenancy rights to the respondent Nos. 16 and 17 in the land in dispute, suffers from an error apparent on the face of the record and is, therefore, liable to be quashed. 14. In the result, the writ-petition succeeds and is allowed. The order dated 28.11.1991 of the respondent No. 2, the Joint Director of Commission, Gaya, so for it related to granting co-tenancy rights to the respondent Nos. 16 and 17 in the land in dispute, is quashed. 15. No order as to costs.