Research › Search › Judgment

Allahabad High Court · body

2017 DIGILAW 1188 (ALL)

AIJAZ AHMAD v. DEPUTY DIRECTOR OF CONSOLIDATION

2017-05-04

RAM SURAT RAM (MAURYA)

body2017
JUDGMENT Hon’ble Ram Surat Ram (Maurya), J.—Heard Sri R.K. Kakkar alongwith Sri Sumit Kakkar, for the petitioners and Sri Avneesh Tripathi, for contesting respondents. 2. The writ petition has been filed against the orders of Assistant Settlement Officer Consolidation dated 23.7.1976 and Joint Director of Consolidation dated 27.10.1976, passed in title proceeding, under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to the Act). 3. Dispute between the parties is in respect of land recorded in basic consolidation year khata-109 (consisting plots 124, 644, 744, 768, 1182, 1298, 1346, 1447, 1498, 1503, 1714, 651 and 1730) of village Hirdayapur, tahsil Hapur, district Meerut. In basic consolidation year, names of Naimuddin, Tayyab, Iqbal Ahmad, Qafil Ahmad and Jamal Ahmad (respondents-4 to 8) (hereinafter referred to as the respondents) were recorded. The petitioners filed an objection (registered as Case No. 4078/227/2811) under Section 9-A of the Act, for recording their names as sirdar of the land in dispute. It has been stated by the petitioners that they were in actual physical possession of the disputed land on the date of vesting and acquired adhivasi and subsequently sirdari right over the land in dispute. The respondents filed a suit for ejectment of the petitioners from the land in dispute under Section 209 of U.P. Act No. 1 of 1951. Judicial Officer, by judgment dated 31.12.1961, dismissed the suit. The respondents filed an appeal from the aforesaid decree. Additional Commissioner, by order dated 29.9.1963, allowed the appeal and decreed the suit for ejectment of the petitioners. The petitioners filed a second appeal from the aforesaid decree. In the meantime, the respondents filed an application for execution of appellate decree dated 29.9.1963, in which they obtained possession over disputed land on 31.1.1964. Board of Revenue U.P. allowed the second appeal of the petitioners on 26.12.1967. Thereafter, the respondents filed an application for review, in which initially stay order was granted but subsequently review application was rejected by Board of Revenue, U.P. on 7.1.1970. The respondents then filed a writ petition (registered as Civil Misc. Writ Petition No. 821 of 1970), which was dismissed by High Court on 29.4.1974. In the meantime, the petitioners filed an application (registered as Misc. Case No. 3/6/4 of 1973) under Section 144 C.P.C. for restitution of their possession, which was rejected by Sub-Divisional Officer on 19.9.1974 as time barred. Writ Petition No. 821 of 1970), which was dismissed by High Court on 29.4.1974. In the meantime, the petitioners filed an application (registered as Misc. Case No. 3/6/4 of 1973) under Section 144 C.P.C. for restitution of their possession, which was rejected by Sub-Divisional Officer on 19.9.1974 as time barred. The petitioners filed an appeal (registered as Appeal No. 213 of 1974), which was allowed by Additional Commissioner by order dated 3.1.1975. The respondents then filed a second appeal, which was abated, under Section 5 (2) of the Act, by order of Board of Revenue, U.P. dated 30.4.1975. Board of Revenue, U.P. by order dated 26.12.1967, declared them as sirdar of the disputed land and this order has been affirmed by High Court and become final between the parties. 4. The respondents contested the objection on the ground that on the basis of order of Additional Commissioner dated 29.9.1963, they were given possession over the disputed land on 31.1.1964. The application for restitution of possession was filed in the year 1973, although the order of Additional Commissioner dated 29.9.1963 was set aside by Board of Revenue, U.P. on 26.12.1967. The application under Section 144 C.P.C. ought to have been filed within one year from 26.12.1967. The application has become time barred as such no relief can be granted to the petitioners. Consolidation Officer, after hearing the parties, by order dated 29.3.1975, held that Board of Revenue U.P. allowed the second appeal of the petitioners on 26.12.1967 and declared them as sirdar. The respondents filed Civil Misc. Writ Petition No. 821 of 1970 against aforesaid decree, which was dismissed by High Court on 29.4.1974. Thus right of the parties has been finally decided. There was no issue relating to delivery of possession, before him. He further held that plots 651 and 1730 of khata-109 were not subject-matter of suit in previous litigation. On these findings, he allowed the objection and directed for recording the names of petitioners over disputed land except plots 651 and 1730. 5. The respondents filed an appeal (registered as Appeal No. 655) and the petitioners filed an appeal (registered as Appeal No. 716) from the aforementioned order. On these findings, he allowed the objection and directed for recording the names of petitioners over disputed land except plots 651 and 1730. 5. The respondents filed an appeal (registered as Appeal No. 655) and the petitioners filed an appeal (registered as Appeal No. 716) from the aforementioned order. Both the appeals were consolidated and heard by Assistant Settlement Officer Consolidation, who by order dated 23.7.1976, held that restitution application ought to have been filed within one year from the order of Board of Revenue U.P. dated 26.12.1967, while it was filed in 1973 as such right of the petitioners to restore their possession has become time barred. On these findings, he allowed the appeal of the respondents, set aside order of Consolidation Officer and dismissed the appeal of the petitioners. The petitioners filed two revisions (registered as Revision Nos. 1995 and 1996). Both the revisions were consolidated and heard by Joint Director of Consolidation, who by his order dated 27.10.1976, dismissed both the revisions. Hence this writ petition has been filed. 6. I have considered the arguments of the counsel for the parties and examined the record. Earlier there was controversy in respect of limitation for filing an application under Section 144 C.P.C. However, Constitution Bench of Supreme Court in Mahijibhai Mohanbhai Barot v. Patel Manibhai Gokalbhai, AIR 1965 SC 1477 , has resolved the controversy and held that Section 144, as enacted in Civil Procedure Code, 1908, to avoid the earlier conflict, prescribes the procedure, defines the powers of the Court and expressly bars the maintainability of a suit in respect of a relief obtainable under this section. The section does not either expressly or by necessary implication change the nature of the proceedings. Its object is limited. It seeks to avoid the conflict and to make the scope of the restitution clear and unambiguous. It does not say that an application for restitution, which till the new Procedure Code was enacted, was an application for execution, should be treated as an original petition. Whether an application is one for execution of a decree or is an original application depends upon the nature of the application and the relief asked for. It does not say that an application for restitution, which till the new Procedure Code was enacted, was an application for execution, should be treated as an original petition. Whether an application is one for execution of a decree or is an original application depends upon the nature of the application and the relief asked for. When a party, who lost his property in execution of a decree, seeks to recover the same by reason of the appellate decree in his favour, he is not initiating any original proceeding, but he is only concerned with the working out of the appellate decree in his favour. The application flows from the appellate decree and is filed to implement or enforce the same. He is entitled to the relief of restitution, because the appellate decree enables him to obtain that relief, either expressly or by necessary implication. He is recovering the fruits of the appellate decree. Prima facie, therefore, having regard to the history of the section, there is no reason why such an application shall not be treated as one for the execution of the appellate decree. In the present case, the petitioners were dispossessed in execution of appellate decree, which has been set aside by second appellate Court. The petitioners filed an application under Section 144 C.P.C. for implementing decree passed in second appeal. In view of above, limitation for filing an application under Section 144 C.P.C. would be limitation for execution of a decree, as prescribed under U.P. Act No. 1 of 1951 and Rules, 1952, framed in it. 7. Rule 338 of the Rules, 1952 and Appendix attached to it (as it was in the year 1970) prescribed limitation for various suits and application under U.P. Act No. 1 of 1951. Entry-51 of the Appendix provided three years limitation from the date of final decree, in the case of a decree under Section 209, in so far as it relates to payment of damages not being a decree for a sum exceeding Rs. 500/- inclusive of the cost of executing such decree but exclusive of any interest which may have accrued after decree upon the sum decreed. In other case in which payment of damages exceeds Rs. 500/-, Entry-52 of the Appendix, provided limitation for execution of such decree as the limitation provided under Limitation Act, 1963 for execution of decree of the Civil Court. In other case in which payment of damages exceeds Rs. 500/-, Entry-52 of the Appendix, provided limitation for execution of such decree as the limitation provided under Limitation Act, 1963 for execution of decree of the Civil Court. Article 136 of Limitation Act, 1963 provides 12 years limitation for execution of decree for possession. Settlement Officer Consolidation and Joint Director of Consolidation have wrongly held that limitation for filing an application under Section 144 C.P.C. was one year. 8. These entries of Appendix use the phrase “from the date of final decree”. The controversy between the parties is in respect of “the date of final decree”. According to the counsel for the respondents, second appeal of the petitioners was allowed on 26.12.1967, which was the date of final decree, for the purposes of the application under Section 144 C.P.C. The Application under Section 144 C.P.C. at the most ought to have been filed on or before 25.12.1968, while in present case, the application was filed in the year 1973 as such the respondents acquired sirdari right over disputed land under Section 210 of U.P. Act No. 1 of 1951. He relied upon judgment of three Judges Bench of Supreme Court in Bhaskaran v. Sreedharan, (2002) 3 JT 568 SC, in which it has been held that dismissal of SLP by Supreme Court does not amount to confirmation of judgment of High Court on merit. Period of limitation will not be counted from the date of dismissal of SLP for the purposes of execution. He further relied upon judgment of Supreme Court in Bimal Kumar v. Shakuntala Debi, (2012) 3 SCC 548 , in which it was argued by the learned counsel for the respondents, in support of the order passed in the civil revision that when a suit was filed for declaring the earlier compromise decree to have been obtained by fraud and the same remained pending for more than 21 years, the period of limitation commenced only after the suit and the appeal arising therefrom were dismissed, since only on the conclusion of the said proceeding, the decree became enforceable and further, the time consumed in the said proceeding is to be excluded for computation of the period of limitation under Article 136 of the Limitation Act. Supreme Court held that the decree was a final decree. Therefore, it was immediately executable. Supreme Court held that the decree was a final decree. Therefore, it was immediately executable. The question, thus, would be “was the time arrested?” On a query being made, it was fairly conceded at the Bar that at no point of time, there was any order by any Court directing stay of operation of the judgment and decree passed in PS No. 131 of 1962. The question that emanates for consideration is whether the period during which the suit and appeal preferred by the appellants remained pending is to be excluded for the purpose of limitation. When is a decree becoming enforceable? Normally a decree or order becomes enforceable from its date. But cases are not unknown when the decree becomes enforceable on some future date or on the happening of certain specified events. The expression ‘’enforceable’ has been used to cover such decrees or orders also which become enforceable subsequently. Filing of an appeal would not affect the enforceability of the decree, unless the appellate Court stays its operation. But if the appeal results in a decree that would supersede the decree passed by the lower Court then it is the appellate Court decree which becomes enforceable. When the appellate order does not amount to a decree there would be no supersession and hence the lower Court decree continues to be enforceable. 9. The counsel for the petitioners, on the other hand relied upon Full Bench judgment of this Court in State of U.P. v. Ram Prasad Chaudhary, 1982 All C J 272 (FB), in which for the purposes of arrears of salary during the period, for which he was not allowed to discharge his duties due to termination of service, it has been held that limitation would run from the date of order allowing the writ petition and setting aside the order of termination. Judgment of 7 Judges Bench of Supreme Court in S.S. Rathore v. State of M.P., (1989) 4 SCC 582 , in which it has been held that we are of the view that the cause of action shall be taken to arise not from the date of the original adverse order but on the date when the order of the higher authority where a statutory remedy is provided entertaining the appeal or representation is made and where no such order is made, though the remedy has been availed of, a six months’ period from the date of preferring of the appeal or making of the representation shall be taken to be the date when cause of action shall be taken to have first arisen. We, however, make it clear that this principle may not be applicable when the remedy availed of has not been provided by law. Repeated unsuccessful representations not provided by law are not governed by this principle. It is appropriate to notice the provision regarding limitation under Section 21 of the Administrative Tribunals Act. Sub-section (1) has prescribed a period of one year for making of the application and power of condonation of delay of a total period of six months has been vested under sub-section (3). The Civil Court’s jurisdiction has been taken away by the Act and, therefore, as far as Government servants are concerned, Article 58 may not be invocable in view of the special limitation. Yet, suits outside the purview of the Administrative Tribunals Act shall continue to be governed by Article 58. A three Judges Bench of Supreme Court in Chandi Prasad v. Jagdish Prasad, (2004) 8 SCC 724 , in which it has been held that the doctrine of merger is based on the principles of propriety in the hierarchy of the justice-delivery system. The doctrine of merger does not make a distinction between an order of reversal, modification or an order of confirmation passed by the appellate authority. The said doctrine postulates that there cannot be more than one operative decree governing the same subject-matter at a given point of time. The doctrine of merger does not make a distinction between an order of reversal, modification or an order of confirmation passed by the appellate authority. The said doctrine postulates that there cannot be more than one operative decree governing the same subject-matter at a given point of time. It is trite that when an appellate Court passes a decree, the decree of the trial Court merges with the decree of the appellate Court and even if and subject to any modification that may be made in the appellate decree, the decree of the appellate Court supersedes the decree of the trial Court. In other words, merger of a decree takes place irrespective of the fact as to whether the appellate Court affirms, modifies or reverses the decree passed by the trial Court. When a special leave petition is dismissed summarily, doctrine of merger does not apply but when an appeal is dismissed, it does as held in V.M. Salgaocar and Bros. (P) Ltd. v. CIT, (2000) 5 SCC 373 . The concept of doctrine of merger and the right of review came up for consideration recently before this Court in Kunhayammed v. State of Kerala, (2000) 6 SCC 359 , wherein this Court inter alia held that when a special leave petition is disposed of by a speaking order, the doctrine of merger shall apply. ‘’To merge’ means to sink or disappear in something else; to become absorbed or extinguished; to be combined or be swallowed up. Merger in law is defined as the absorption of a thing of lesser importance by a greater, whereby the lesser ceases to exist, but the greater is not increased; an absorption or swallowing up so as to involve a loss of identity and individuality. (See Corpus Juris Secundum, Vol. LVII, pp. 1067-68.) We may look at the issue from another angle. The Supreme Court cannot and does not reverse or modify the decree or order appealed against while deciding a petition for special leave to appeal. What is impugned before the Supreme Court can be reversed or modified only after granting leave to appeal and then assuming appellate jurisdiction over it. If the order impugned before the Supreme Court cannot be reversed or modified at the SLP stage obviously that order cannot also be affirmed at the SLP. What is impugned before the Supreme Court can be reversed or modified only after granting leave to appeal and then assuming appellate jurisdiction over it. If the order impugned before the Supreme Court cannot be reversed or modified at the SLP stage obviously that order cannot also be affirmed at the SLP. Once the superior Court has disposed of the lis before it either way — whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior Court, tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the Court, tribunal or the authority below. However, the doctrine is not of universal or unlimited application. The nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or which could have been laid shall have to be kept in view.” The said decision has been followed by this Court in a large number of decisions including Union of India v. West Coast Paper Mills Ltd., (2004) 2 SCC 747 . He also relied upon judgment of this Court in Pradeep Jain v. Smt. Urmila Devi, 2012(4) ADJ 261 , in which it has been held that dismissal of revision for want of prosecution amounts to confirmation of order challenged in it and doctrine of merger would apply. 10. In Chandi Prasad v. Jagdish Prasad, (2004) 8 SCC 724 , it was further held that it is not disputed that all decrees, be they original or appellate, are enforceable. Once a decree is sought to be enforced for the purpose of execution thereof irrespective of being original or appellate, the date of the decree or any subsequent order directing any payment of money or delivery of any property at a certain date would be considered to be the starting period of limitation. It is axiomatic true that when a judgment is pronounced by a High Court in exercise of its appellate power upon entertaining the appeal and a full hearing in the presence of both parties, the same would replace the judgment of the lower Court and only the judgment of the High Court would be treated as final. It is axiomatic true that when a judgment is pronounced by a High Court in exercise of its appellate power upon entertaining the appeal and a full hearing in the presence of both parties, the same would replace the judgment of the lower Court and only the judgment of the High Court would be treated as final. When an appeal is prescribed under a statute and the appellate forum is invoked and entertained, for all intent and purport, the suit continues. 11. Thus Constitution Bench of Supreme Court in S.S. Rathore’s case (supra) held that order of subordinate authority would merge in the order of higher authorities under the Statute. A three Judges Bench of Supreme Court in Chandi Prasad’s case extended doctrine of merger to constitutional remedy of Special Leave Petition under Article 136 of the Constitution and held that once the superior Court has disposed of the lis before it either way — whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior Court, tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the Court, tribunal or the authority below. Although judgment of co-ordinate Bench of Supreme Court in Bhaskaran’s case (supra) appears to be contrary but in that case Special Leave Petition was dismissed at initial stage and leave to appeal was not granted. 12. In the present case, the respondents filed an application for review of judgment dated 26.12.1967 before Board of Revenue U.P., in which initially stay order was granted and review application was dismissed on merit on 7.1.1970. Review is a statutory remedy under U.P. Act No. 1 of 1951, as such doctrine of merger would apply for it. Thereafter, the respondents filed a writ petition (registered as Civil Misc. Writ Petition No. 821 of 1970), which was initially admitted and notices were issued to the petitioners. Later on, it was dismissed by High Court on 29.4.1974. In the meantime, the petitioners filed an application (registered as Misc. Case No. 3/6/4 of 1973) under Section 144 C.P.C. for restitution of their possession, in the year 1973. Writ Petition No. 821 of 1970), which was initially admitted and notices were issued to the petitioners. Later on, it was dismissed by High Court on 29.4.1974. In the meantime, the petitioners filed an application (registered as Misc. Case No. 3/6/4 of 1973) under Section 144 C.P.C. for restitution of their possession, in the year 1973. The application was within time, for both the reasons i.e. (i) order of Board of Revenue, U.P. dated 26.12.1967 has merged with order of High Court dated 29.4.1974 and (ii) Limitation for filing execution was 3 years and 12 years. The respondents did not acquire right under Section 210 of U.P. Act No. 1 of 1951. 13. Section 210 of U.P. Act No. 1 of 1951, provides consequences of not filing execution application within time. Section 210 as it was in 1970, is quoted below : 210. Failure to file suit under under Section 209 or to execute decree obtained thereunder.—If a suit is not brought under Section 209 or a decree obtained in any such suit is not executed within the period of limitation provided for the filing of the suit or the execution of the decree, the person taking or retaining possession shall- (i) where the land forms part of the holding of a bhumidhar or sirdar, become a sirdar therof and the rights, title and interest of an asami, if any, on such land shall be extinguished; (ii) where the land forms part of the holding of an asami on behalf of the Gaon Sabha, becomes an asami thereof holding from year to year; (iii) in any case to which the provisions of clause (b) of Section 209 apply become a sirdar or asami holding holding from year to year as if he had been admitted to the possession of the land by the Gaon Sabha. 14. So far as claim for plots 651 and 1730 are concerned, Consolidation Officer found that these plots were not subjected matter of dispute in previous litigation as such order of Board of Revenue, U.P. dated 26.12.1967 was not in respect of it. The petitioners could not challenge aforesaid findings in this writ petition. 15. In result, the writ petition succeeds and is allowed. The orders of Assistant Settlement Officer Consolidation dated 23.7.1976 and Joint Director of Consolidation dated 27.10.1976 are set aside. The order of Consolidation Officer dated 29.3.1975 is re-instated.