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2015 DIGILAW 588 (ALL)

Sharda Prasad Tiwari v. State of U. P.

2015-03-26

RAM SURAT RAM (MAURYA)

body2015
JUDGMENT Ram Surat Ram (Maurya), J. 1. Heard Sri R.S. Pandey, for the petitioner. The writ petition has been filed for quashing the proceedings of Appeal No. 1132 of 2002 and orders of Settlement Officer Consolidation dated 7.8.2013 and Deputy Director of Consolidation dated 8.9.2014 passed in title proceeding in U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act). 2. The dispute relates to basic consolidation year khata 105 consisting plot 309 (area 2-7-5 bigha) of village Puredurawa Uparwar, pargana Bhadohi, district Sant Ravidas Nagar Bhadohi, which was recorded in the name of Ram Adhar, father of respondents-4 and 5 (hereinafter referred to as the respondents). During consolidation, the petitioner and his brothers filed an objection claiming co-tenancy in the land in dispute. It is alleged that the parties appeared before Assistant Consolidation Officer on 29.11.1983, and entered into compromise in presence of two members of Consolidation Committee, which was signed by them and on its basis, the names of the petitioner and his brothers were directed to be recorded as co-tenants in the disputed land. Thereafter chak was carved out in the names of the petitioner and his brothers. The consolidation was closed in the village by notification dated 30.4.1990 under section 52 of the Act. 3. The respondents filed a time barred appeal (registered as Appeal No. 1132 of 2002), on 13.5.2002, along with delay condonation application. Settlement Officer Consolidation by order dated 18.12.2003, condoned the delay in filing appeal, allowed the appeal and set aside the order of Assistant Consolidation Officer dated 29.11.1983 and remanded the matter to Consolidation Officer to decide the case on merit in accordance with law. The respondents filed a revision (registered as Revision No. 154/475) from the aforesaid order. Deputy Director of Consolidation, by order dated 26.7.2010 allowed the revision and remanded the case to Settlement Officer Consolidation, to decide delay condonation application before deciding the appeal on merit. The respondents challenged the aforesaid order in Writ-B No. 49484 of 2010, which was dismissed on 18.8.2010. 4. Settlement Officer Consolidation, by order dated 7.8.2013, condoned the delay in filing the appeal, after remand. The petitioner and his brothers filed a revision (registered as Revision No. 170 of 2013-14) from the aforesaid order. However, this writ petition has been filed for the relieves mentioned above during pendency of the revision before Deputy Director of Consolidation. 4. Settlement Officer Consolidation, by order dated 7.8.2013, condoned the delay in filing the appeal, after remand. The petitioner and his brothers filed a revision (registered as Revision No. 170 of 2013-14) from the aforesaid order. However, this writ petition has been filed for the relieves mentioned above during pendency of the revision before Deputy Director of Consolidation. The order of Deputy Director of Consolidation dated 8.9.2014, challenged in the writ petition, is an order of adjournment of the revision, due to advocates strikes. 5. The Counsel for the petitioner submits that order of Assistant Consolidation Officer dated 29.11.1983, is based on compromise between the parties. Being consent order, it could not be challenged in appeal and the appeal was not maintainable. He relied upon the judgments of Supreme Court in Pulavarthi Venkata Subba Rao v. Valluri Jagannadha Rao AIR 1967 SC 591 , in which it has been held that compromise decree, based on the agreement of the parties, creates an estoppel by conduct between the parties. Katikara Chintamani Dora v. Guntreddi Annamanaidu AIR 1974 SC 1069 , in which it has been held that the bar to an appeal against a consent decree, in sub-section (3) of section 96 of the Code is based on the broad principle of estoppel. It presupposes that the parties to an action can, expressly or by implication, waive or forego their right of appeal by any lawful agreement or compromise, or even by conduct. Therefore, as soon as the parties made the agreement to abide by the determination and induced the Court to pass a decree in terms of that agreement, the principle of estoppel underlying section 96(3) became operative and the decree to the extent it was in terms of that agreement, became final and binding between the parties. And, it was as effective in creating an estoppel between the parties as a judgment on contest. Judgment of Orissa High Court in Pradeep Kumar Das v. Abanti Das AIR 1998 Orissa 26, in which it has been held that in view of section 96(3) C.P.C., an appeal is not maintainable from the compromise decree. He further submits that the consolidation operation was closed in the village by notification under section 52 of the Act, on 30.4.1990. The appeal was filed on 13.5.2002. He further submits that the consolidation operation was closed in the village by notification under section 52 of the Act, on 30.4.1990. The appeal was filed on 13.5.2002. After close of consolidation operation, the authorities under the Act, had no jurisdiction in respect of any dispute of the land of the village. The appeal is not maintainable as such entire proceedings of the appeal is liable to be quashed. 6. I have considered the arguments of the Counsel for the petitioner and examined the record. The judgments relied upon by the Counsel for the petitioner are related to the law as it was prior of amendment of Civil Procedure Code, by Act No. 104 of 1976. A proviso and Rule 3-A has been added to Order XXIII Rule 3 and Rule 1-A has been added to Order XLIII C.P.C. by Act No. 104 of 1976 are as follows "Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment. Explanation.--An agreement or compromise which is void or voidable under the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the meaning of this rule." "3-A. Bar to suit.-- No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful." "1-A. Right to challenge non-appealable orders in appeal against decree.--(1) Where any order is made under this Code against a party and thereupon any judgment is pronounced against such party and a decree is drawn up, such party may, in an appeal against the decree, contend that such order should not have been made and the judgment should not have been pronounced. (2) In an appeal against a decree passed in a suit after recording a compromise or refusing to record a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should, or should not, have been recorded." 7. (2) In an appeal against a decree passed in a suit after recording a compromise or refusing to record a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should, or should not, have been recorded." 7. After amendment, the controversy as to whether, the appeal is maintainable from the order based on compromise came for consideration of Supreme Court in Banwari Lal v. Chando Devi AIR 1993 SC 1139 , in which, it has been held that section 96(3) of the Code says that no appeal shall lie from a decree passed by the Court with the consent or the parties. Order XLIII, Rule 1-A(2) has been introduced saying that against a decree passed in a suit after recording a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should not have been recorded. When section96(3) bars an appeal against decree passed with the consent of parties, it implies that such decree is valid and binding on the parties unless set aside by the procedure prescribed or available to the parties. One such remedy available was by filing the appeal under Order XLIII, Rule 1(m). If the order recording the compromise was set aside, there was no necessity or occasion to file an appeal against the decree. Similarly a suit used to be filed for setting aside such decree on the ground that the decree is based on an invalid and illegal compromise not binding on the plaintiff of the second suit. But after the amendments which have been introduced, neither an appeal against the order recording the compromise nor remedy by way of filing a suit is available in cases covered by Rule 3-A of Order XXIII. As such a right has been given under Rule 1-A(2) of Order XLIII to a party, who challenges the recording of the compromise, to question the validity thereof while preferring an appeal against the decree. Section 96 (3) of the Code shall not be a bar to such an appeal because section 96(3) is applicable to cases where the factum of compromise or agreement is not in dispute. 8. Section 96 (3) of the Code shall not be a bar to such an appeal because section 96(3) is applicable to cases where the factum of compromise or agreement is not in dispute. 8. Supreme Court, again, in Kishun v. Behari 2005 (99) RD 468 (SC), held that when there is a contest on the question whether there was a compromise or not, a decree accepting the compromise on resolution of that controversy, cannot be said to be a decree passed with the consent of the parties. Therefore, the bar under section 96(3) of the Code could not have application. An appeal and a second appeal with its limitations would be available to the party feeling aggrieved by the decree based on such a disputed compromise or on a rejection of the compromise set up. This judgment has been again followed in Daljit Kaur v. Muktar Steels (P.) Ltd. (2013) 16 SCC 607 . 9. In the present case, the factum of compromise has been challenged as such the appeal is maintainable. The argument that factum of compromise can be challenged before the same authority and not in appeal, is also not liable to be accepted as jurisdiction of original authority and appellate authority is coextensive. If validity of the compromise can be examined by the original authority then it can also be examined by the appellate authority. This point has been considered by Supreme Court in Daljit Kaur v. Muktar Steels (P) Ltd. (2013) 16 SCC 607 . 10. The other argument that the consolidation operation was closed in the village by notification under section 52 of the Act, on 30.4.1990 and the appeal was filed on 13.5.2002 as such it was not maintainable has also no force. Section 6 of the General Clauses Act, authorizes for filing of the appeal after repeal of the Act. Supreme Court in Gurcharan Singh Baldev Singh v. Yashwant Singh (1992) 1 SCC 428 , and Glaxo Smith Kline PLC v. Controller of Patents and Designs AIR 2009 SC 1147 , held that preexisting right of appeal under the old law continues to exist and not destroyed, by necessary implication after repeal of the law, in the absence of contrary intention in the repealing law. Division Benches of this Court in Gopi Singh v. DDC and others 1667 RD 214 (DB), and Ram Bahadur v. DDC and others 1974 RD 627 (DB), and in Siddh Narain v. DDC and others 2007 (103) RD 627 , have held that appeal and revision etc. can be filed against the orders passed by consolidation authorities, even after the notification under section 52 of the Act. In view of the aforesaid discussions, the writ petition has no merit and is dismissed.