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2019 DIGILAW 1573 (ALL)

Sonpal v. Board of Reveue U. P. at Allahabad

2019-07-02

ANJANI KUMAR MISHRA

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JUDGMENT : 1. On the previous occasion i.e. 06.03.2019, I had heard Sri Anupam Kulshreshtha, learned counsel for the petitioner and Sri. Shiv Nath Singh, learned counsel for the contesting respondents. 2. The matter is listed today for dictation of judgment. 3. The instant writ petition arises out of proceedings under Section 229 of the U.P.Z.A and L.R. Act and seeks a writ of certiorari for quashing the judgments and orders dated 31.01.2006 and 24.04.2006 passed by the Additional Commission, Kanpur Division, Kanpur and the Board of Revenue, respectively. 4. The facts of the case briefly stated are that the petitioner filed two declaratory suits under Section 229B of the U.P.Z.A and L.R. Act. The first suit no. 32/79, re-numbered as 31/2003, sought a declaration regarding 4 plots and was filed arraying Harishchandra s/o Molu, Deshraj and Dayaram s/o Baldeo as defendants on the plea that Harishchandra was wrongly recorded over the said 4 plot, in collusion with the Lekhpal. It was alleged that Harishchandra is not his (plaintiffs) brother and is the son of Molu. Harishchandra could not be the brother of the plaintiff who is son of Bansi. 5. The plaintiff also filed another suit no. 19/47/1979. This suit was regarding plot no. 436/2. In this suit also, plaint allegation was that Harishchandra was wrongly recorded over the land in collusion with the revenue authorities and that Harishchandra is not his brother. Harishchandra is in fact the s/o of Molu and had inherited the land recorded in the name of Molu in village Khemapur. 6. Both the suits were consolidated and they were decreed by a common judgment. It was held that Harishchandra had wrongly been recorded over the plots in suit and his name was directed to be expunged. 7. It is contended that against the judgment and decrees passed by the trial court in the two suits aforesaid, only a single appeal was filed by Harishchandra. In this appeal the parties in suit no. 31/2003, alone were impleaded. The parties in suit no. 19/47/1979 were not impleaded in the first appeal filed by Harishchandra. 8. The appeal aforesaid was allowed by the appellate court vide judgment and decree dated 31.01.2006 and the matter was remanded back to the trial court for a fresh decision. 9. In this appeal the parties in suit no. 31/2003, alone were impleaded. The parties in suit no. 19/47/1979 were not impleaded in the first appeal filed by Harishchandra. 8. The appeal aforesaid was allowed by the appellate court vide judgment and decree dated 31.01.2006 and the matter was remanded back to the trial court for a fresh decision. 9. Against the order of remand the petitioner filed a revision which was dismissed by the Board of Revenue vide judgment and order dated 24.04.2006. 10. It is these two judgments namely dated 31.01.2006 and 24.04.2006 which are impugned in this writ petition. 11. The submissions on behalf of plaintiff are 2 fold. First, only one appeal had been filed by Harishchandra before the Commissioner. Since two suits, wherein parties were substantially different as was the property in dispute, had been decided by a single common judgment, the defendant Harishchandra was necessarily required to file two separate appeals. He had filed only one appeal impleading the parties in one suit alone. Under the circumstances and since the common judgment, in so far as it pertained to other suit, i.e. suit no. 19/47/1979, has never been challenged, the findings returned therein would operate as res judicata. Therefore the appeal filed by Harishchandra was liable to be dismissed as barred by res judicata. 12. In support of this contention, reliance has been placed upon Premium Tyre versus Kerela State Road Transport Ltd. 1993 (ACJ) 1011. 13. The second contention of counsel for the petitioner is that the first appellate court, unnecessarily remanded the matter. The order of remand is hit by rules 23 and 25 of order 41of the Civil Procedure Code. 14. It has also been submitted that once the entire evidence was available or record, the first appellate court was required to decide the matter finally, one way from the other but it unnecessarily remanded the matter to the trial court. The order of remand should therefore have been set aside by the Board of Revenue but this aspect has wronglyand illegally been ignored while rejecting revision filed by the petitioner. In support of this argument, reliance is placed upon Kaushallya Devi Versus Ram Naresh and other 2012 (92) ALR 580 and Gannmani versus Parvatani Amarendra Chaudhary, (2007) 10 SCC 293 15. Sri Shiv Nath Singh counsel for respondents no. 3 has refuted the submissions made by counsel for the petitioner. In support of this argument, reliance is placed upon Kaushallya Devi Versus Ram Naresh and other 2012 (92) ALR 580 and Gannmani versus Parvatani Amarendra Chaudhary, (2007) 10 SCC 293 15. Sri Shiv Nath Singh counsel for respondents no. 3 has refuted the submissions made by counsel for the petitioner. He has submitted that the pleas being raised before this Court had not been raised before the Courts below, namelythe first appellate court and the Board of Revenue in revision. These absolutely new pleas cannot be permitted to be raised for the first time in writ petition. 16. However, on a query by the court he concedes that the plea that the first appellate court had un-necessarily-remanded the matter to the trial court instead of deciding the case itself was raised before the Board of Revenue. 17. He thus, seeks to submit that the plea that only appeal had been filed when in fact two appeals ought to have been filed, had not been raised earlier. Therefore this plea cannot be considered for the first time by the writ court. 18. It is additionally submitted that the orders impugned are in essence orders of remand, in pursuance whereof petitioner still has every opportunity of canvassing his claim before the trial court. Therefore also this Court should refuse to interfere. 19. In support of his contentions he has placed reliance upon Chhagan Lal versus Municipal Corporation Indore, (1977) 2 SCC 409 , specially paragraph 8, thereof. 20. I have considered the submissions of counsel for the parties and perused the record. 21. For considering the first plea raised on behalf of the petitioner it is necessary to state that in both the suits, the crucial issue involved was whether the plaintiff Sonpal is the only son of Banshidhar and whether Harishchandra, the resident of village Khemapur, is the son of Molu. In fact this was the precise controversy involved in both the suits. The only difference in the suits was of the plots in issue and the persons recorded thereon, apart from the plaintiff and respondent Harischandra. 22. The crucial point referred to above, was decided in favour of the plaintiff namely that he is the sole son of Banshidhar and that Harishchandra is the son of Molu resident of village Khemapur. The only difference in the suits was of the plots in issue and the persons recorded thereon, apart from the plaintiff and respondent Harischandra. 22. The crucial point referred to above, was decided in favour of the plaintiff namely that he is the sole son of Banshidhar and that Harishchandra is the son of Molu resident of village Khemapur. On this crucial finding the two suits were decreed and the name of Harishchandra was ordered to be expunged from the plots which were subject matter of the two suits. 23. A similar controversy has been decided by the Apex Court in Premier Tyre Ltd, (supra). Paragraph 4 of this judgment is relevant for the purpose of this writ petition and is quoted below:- "Although none of these decisions were concerned with a situation where no appeal was filed against the decision in connected suit but it appear that where an appeal arising out of connected suit is dismissed on merits the other cannot be heard and has to be dismissed. The question is what happens where no appeal is filed as in this case from the decree in connected suit. Effect of non filing of appeal as in this case from the decree in that it becomes final. This finality can be taken away only in accordance with law. Same consequences follow when a judgment or decree in a connected suit is not appealed from.” 24. In view of the ratio of the judgment in Premier Tyre it must necessarily be held that an appeal filed by the opposite party no. 3 only in one of the suits and not in both the suits the same findings on the crucial issues which were the basis of the judgment and decree in suit no. 19/47/1979 have never been assailed and therefore, the same had attained finality rendering the appeal filed, allowed and remanded, as barred by res judicata. 25. The appeal therefore, could not and should not have been allowed and should have been dismissed as barred by res judicata. 26. 19/47/1979 have never been assailed and therefore, the same had attained finality rendering the appeal filed, allowed and remanded, as barred by res judicata. 25. The appeal therefore, could not and should not have been allowed and should have been dismissed as barred by res judicata. 26. The other aspect requiring consideration is whether the writ petition, on the pleas considered and decided hereinabove, is liable to succeed or whether this Court should refuse to interfere with the impugned orders of remand on the ground that the plea of the petitioner has been raised for the first time in writ petition and should therefore, not be considered in view of Chhagan Lal (supra), cited on behalf of the respondent. 27. For the above purpose this Court considers it necessary to refer to the judgment of the Apex Court in Sheodan Singh versus Daryao Kunwar, AIR 1966 SC 1332 specially paragraph 17 thereof quoted below "The next case to which reference may be made is Obedur Rahman v. Darbari Lal, AIR 1927 Lah 1. In that case there were five appeals before the High Court three of which had abated. There was a common issue in all the five appeals namely, whether a certain lease had expired or not and it was urged that in view of the abatement of the three other appeals, the decision of that issue had become res judicata. The contention was overruled by the observation that "where there has been an appeal, the matter is no longer res judicata but sub judice and where an appeal is not finally heard and decided any matters therein cannot possibly be said to be res judicata. This view in our opinion is incorrect. We may in this connection refer to Ahmad Ali Khan v. Hinga Lal, ILR 21 Luck 586; (AIR 1947 Oudh 74), where it was held that where the appeal was struck off as having abated, the decision would operate as res judicata. If the view taken by the Lahore High Court is correct, the result would be that there may be case, namely, whether a certain lease had expired or not and the very object of res judicata is to avoid inconsistent decisions. If the view taken by the Lahore High Court is correct, the result would be that there may be case, namely, whether a certain lease had expired or not and the very object of res judicata is to avoid inconsistent decisions. Where therefore the result of the dismissal or abatement of an appeal is to confirm the decision of the trial Court on the merits such dismissal must amount to the appeal being heard and finally decided and would operate as res judicata." 28. Under the circumstances, in case the plea of counsel for the respondent is accepted, the same shall necessarily result in two conflicting judgments on the same issue. The resultant situation is that in one suit a judgment which has attained finality holds, as regards two plots, that Harishchandra is not the brother of the plaintiff petitioner and is not son of Banshi while this very same finding, stands set aside at the appellate stage in the other suit. 29. The settled legal principle of a new plea, not being permitted to be raised for the first time in writ petition, was never intended to give rise to a situation where two conflicting decisions would necessarily result, in case such a view is adhered to. 30. Even otherwise, I am of the considered opinion, that the new plea raised goes to the very root of the matter. Therefore, it cannot be brushed aside on the ground that it had not been raised before the Board of Revenue, earlier. 31. The question as to whether the Commissioner was justified in remanding the matter or should have decided the appeal himself in view of what has been held herein-above, become a purely academic question. Therefore, this Court does not consider it necessary to examine it. In my considered opinion the appeal was not liable to be allowed by the Commissioner, as held above, being barred by res judicata. Refusal by this Court to interfere shall only prolong the litigation between the parties, unnecessarily. 32. Under the circumstances the writ petition is hereby allowed. 33. The orders impugned therein 31.01.2006 and 24.04.2006 passed by the Additional Commission, Kanpur Division Kanpur and the Board of Revenue, respectively, are quashed. The judgment of the trial court is affirmed. 34. No orders as to cost.