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2019 DIGILAW 2256 (ALL)

Brij Kumar v. D. D. C.

2019-09-25

JAHANGIR JAMSHED MUNIR

body2019
JUDGMENT : Jahangir Jamshed Munir, J. 1. This writ petition has been filed by Brij Kumar and Uma Shankar both sons of Harihar, of whom Brij Kumar is no more and is represented by his heirs and legal representatives, petitioner Nos. 1/1, 1/2 and 1/3. The petitioners assail an order dated 17.6.1997 passed by the Deputy Director of Consolidation, Gorakhpur in Revision No. 3201 and a further order dated 25.6.1992, passed by the Deputy Director of Consolidation, Gorakhpur in Revision No. 2830, earlier filed by the petitioner. 2. Heard Sri A.K. Srivastava, learned Counsel for the petitioners and Sri H.P. Mishra, Advocate holding brief of Sri G.M. Tripathi, learned Counsel for the respondent No. 2. 3. The dispute in the instant petition arises from objections filed by the petitioner under section 20 of the U.P. Consolidation of Holdings Act, 1953 (for short, the 'Act') dated 10.7.1992. These objections were filed beyond time with a prayer to condone the delay. The claim put forth in the objections was that the petitioner was not satisfied with the Assistant Consolidation Officer's proposal about allotment of the two Chaks to Smt. Dharmraji, widow of late Ram Priti, whose rights, the petitioners purchased through a registered sale-deed, dated 9.1.1991. The Assistant Consolidation Officer had proposed two Chaks to Smt. Dharmraji, the petitioner's vendor, comprising inter alia Khasra Nos. 55, 119, 132, 225, 51, 221, 146 and certain other plot numbers. Smt. Dharmraji, who was the widow of the petitioners' father's brother, Ram Priti and the Bhoomidhar of Chak No. 65, never objected to the Assistant Consolidation Officer's proposal. The petitioners upon purchasing the holdings of Smt. Dharmraji comprising Chak No. 65, filed these time barred objections, as aforesaid, on basis that they had become Chak holders in her stead, post execution of the sale-deed in their favour. The petitioners claimed that in their right as holders of Chak No. 65, they were entitled to restoration of one of the two Chaks on their original holding in Khasra No. 132, excluding plot numbers that were not theirs, in the manner that on the southern side of this Chak they be given a single Chak oriented in length from East to West. It was, alternatively claimed, that in the event according to the rights purchased by them in Chak No. 65 that was not feasible, going by the area to which the petitioners were found entitled, a Chak be allotted to them, including their original holding in Khasra No. 132, entering plot numbers again on the Eastern side in a single Chak, oriented from East to West in length in a manner that the Chak is properly rectangulated. 4. The aforesaid objections of the petitioners were allowed by the Consolidation Officer by his order dated 9.11.1992, after condoning the delay, passed in Case No. 1140. The contesting opposite party to these objections was one Hari Narayan, the original respondent No. 2 to the writ petition here and now represented by his heirs and legal representatives, respondent Nos. 2/1, 2/2 and 2/3. Hari Narayan is Chak holder No. 188. Hari Narayan, aggrieved by the order of the Consolidation Officer dated 9.11.1992, carried an appeal to the Settlement Officer of Consolidation under section 21(2) of the Act. That was numbered as Appeal No. 133. 5. The Settlement Officer of Consolidation heard and dismissed the aforesaid Appeal vide judgment and order dated 27.6.1995, affirming the order of the Consolidation Officer, dated 9.11.1992. Aggrieved, Hari Narayan carried a Revision to the Deputy Director of Consolidation, Gorakhpur that was registered as Revision No. 3201, under section 48 of the Act. By means of the impugned order dated 17.6.1997, the said Revision was allowed. The orders dated 9.11.1992 and 27.6.1995 passed by the Consolidation Officer and the Settlement Officer of Consolidation, respectively, were set aside with a direction that Chak holder Nos. 188, 84, 65 shall have their respective Chaks restored to the position obtaining before the orders impugned in Revision were made and Khasra No. 130, ad measuring 0-600 ares, that had been valued at 60 paise instead of 80 paise, would have its valuation restored to 80 paise. 6. This order of the Deputy Director of Consolidation dated 17.6.1997, is one of the two orders impugned in this writ petition. But, this does not exhaust the scope of the challenge laid by the petitioners here. 6. This order of the Deputy Director of Consolidation dated 17.6.1997, is one of the two orders impugned in this writ petition. But, this does not exhaust the scope of the challenge laid by the petitioners here. A further order under challenge is an earlier order dated 25.6.1992, passed by the Deputy Director of Consolidation, Gorakhpur in Revision No. 2830, filed by the petitioners against a concurrent failure about the Chak allotted to them in their rights as Chak holder No. 84. The rights asserted there about the carvation of their Chak, in their right as Chak holder No. 84, made vide orders dated 6.4.1991 by the Consolidation Officer and in Appeal by the Settlement Officer of Consolidation vide order dated 25.3.1992, was upheld by the Deputy Director of Consolidation in Revision vide order dated 25.6.1992. It needs mention here that the petitioners in terms of their inherited holding from the joint Khata are Chak holder No. 84. In addition, the petitioners purchased the consolidated holding of their aunt, Smt. Dharmraji vide registered sale-deed dated 9.1.1991, who was assigned Chak holder No. 65. 7. The crux of the reasoning adopted by the Deputy Director of Consolidation, in setting aside the two concurrent determinations made in favour of the petitioner by the Consolidation Officer and the Settlement Officer of Consolidation, is that the petitioner had already suited his rights in one concluded round of objections, under section 20 of the Act, that had attained finality with the Deputy Director of Consolidation deciding Revision No. 2830, vide judgment and order dated 25.6.1992. The present objections, again under section 20, have been brought agitating the same-rights, in the camouflage of asserting fresh rights on basis of those purchased from Chak holder No. 65, Smt. Dharmraji and suppressing the earlier determination of the petitioners' rights finally made by the Deputy Director of Consolidation in Revision, as aforesaid. It is for that reason that the order dated 25.6.1992, passed by the Deputy Director of Consolidation, in the earlier objections preferred by the petitioner that he had concurrently lost before all the three Authorities, has also been challenged in this petition. 8. It is for that reason that the order dated 25.6.1992, passed by the Deputy Director of Consolidation, in the earlier objections preferred by the petitioner that he had concurrently lost before all the three Authorities, has also been challenged in this petition. 8. It must be remarked that challenge to the order dated 25.6.1992, through the present writ petition, almost five years after the said round of litigation was decided in terms of the revisional order passed by the Deputy Director of Consolidation, appears to be no serious challenge to that order. So far as the order of 25.6.1992 is concerned, it is ex facie discernible that the challenge that has been laid to the revisional order, without questioning the orders of the Consolidation Officer and the Settlement Officer of Consolidation, is an attempt to get over the hurdle of finality that has otherwise attached to the order dated 25.6.1992, passed by the Deputy Director of Consolidation, in the earlier round of litigation by the petitioner about the settlement of his Chak. 9. This Court does not think that at this distance of time and in the manner this petition has been framed, a challenge can at all be raised to the order dated 25.6.1992, which is not only belated but patently mala fide brought in order to overcome finality that attaches to the said order. An objection in this regard, has been taken in paragraph 30 of the counter affidavit filed on behalf of respondent No. 2 which appears to be well founded. This Court, therefore, declines to look into the validity of the order dated 25.6.1992, passed in Revision No. 2830 by the Deputy Director of Consolidation, Gorakhpur. Sri A.K. Srivastava, learned Counsel for the petitioners has strenuously urged before this Court, in support of the present petition that the impugned order passed by the Deputy Director of Consolidation has wrongly invoked the principle of finality, to reverse the orders of the two Authorities below. He submits that the impugned order is flawed because the objections from which the present writ petition arises, are based on subsequently acquired fresh rights. It is based on rights purchased from Chak holder No. 65, Smt. Dharmraji, whereas the earlier objections that culminated in the order of the Deputy Director of Consolidation dated 25.6.1992, were in the petitioners' right as Chak holder No. 84, which was their original holding. It is based on rights purchased from Chak holder No. 65, Smt. Dharmraji, whereas the earlier objections that culminated in the order of the Deputy Director of Consolidation dated 25.6.1992, were in the petitioners' right as Chak holder No. 84, which was their original holding. He submits that Dharmraji was an illiterate woman and did not know, at all, as to what had gone about her holdings during consolidation operations. She could not understand the ramification of CH Form 23, issued to her by the Consolidation Authorities. It is for the said reason that she did not object to the carvation of Chaks made vis-a-vis. her holding, that are two in number. 10. He has gone on to urge that better advised, Smt. Dharmraji would also file the present objections, though belated, asking for condonation of delay and a determination of her rights about carvation of her Chak to her best advantage under the law. Now, that the petitioners have purchased those rights, the present set of objections have been filed by the petitioners asserting those independent rights which Dharmraji had and the petitioners now have, in her instead, by stepping into her shoes. 11. Sri A.K. Srivastava has argued that it is not a case where the petitioner has reagitated the same claim, or have split their cause of action by claiming relief regarding one part of it in the earlier objections filed by them that culminated in the order of the Deputy Director of Consolidation, dated 25.6.1992 and resorted to asserting rights about the other part now, through the present objections. The present objections as already said are about a whole new set of rights that were neither available or forthcoming at the time, when the earlier objections were filed and decided finally by the Deputy Director of Consolidation. He submits, therefore, that the Deputy Director of Consolidation went utterly wrong in allowing the Revision by adopting the reasoning that the petitioners' rights were already agitated once during the first round of litigation and concluded in terms of the order of the Deputy Director of Consolidation, dated 25.6.1992. 12. In this connection, Sri A.K. Srivastava has placed reliance upon a decision of the Supreme Court in Deva Ram and another v. Ishwar Chand and another 1995 (6) SCC 733 : 1996 (Suppl.) RD 261. 12. In this connection, Sri A.K. Srivastava has placed reliance upon a decision of the Supreme Court in Deva Ram and another v. Ishwar Chand and another 1995 (6) SCC 733 : 1996 (Suppl.) RD 261. He has placed reliance upon exposition of the principle of the bar under Order II, Rule 2 C.P.C. and also res judicata in the context, where between the same parties, it is possible to agitate rights regarding the same subject matter that are fresh and different from ones litigated earlier. He submits that in case of fresh rights that accrue subsequently to the same subject matter, no bar under Order II, Rule 2 C.P.C. or res judicata or constructive res judicata would apply, in view of their Lordships authoritative pronouncement in Deva Ram and another (supra). He has invited the attention of the Court to paragraphs 18 to 24 of the report, that read thus: "18. The subsequent suit was brought by the respondents for recovery of possession on the ground that they were the owners of the land in suit and were consequently entitled to recover its possession. The cause of action in the subsequent suit was, therefore, entirely different. Since the previous suit was for recovery of sale price, the respondents could not possibly have claimed the relief of possession on the basis of title as title in that suit had been pleaded by them to have been transferred to the defendants (appellants). The essential requirement for the applicability of Order II, Rule 2, namely, the identity of causes of action in the previous suit and the subsequent suit was not established. Consequently, the District Judge as also the High Court were correct in rejecting the plea raised by the appellants with regard to Order II, Rule 2 of the Civil Procedure Code. 19. Learned Counsel for the appellants next contended that the finding recorded by the Trial Court in the previous suit on Issue 5 that the appellants were the tenants of the land in suit under the respondents since Samvat, 2005 should be treated to be still available to them and on that basis they can legally plead that the suit of the respondents for possession of the land in suit was liable to be dismissed. It is contended that the finding on Issue 5 was reversed by the lower Appellate Court in an appeal which was ultimately decided in their favour and, therefore, it was not possible for them to challenge the findings of the lower Appellate Court in any higher forum for the simple reason that an appeal under section 96, or, for that matter, under section 100 of the Civil Procedure Code, lies only against a decree and not against a finding. In this situation, it is contended, the appellate judgment insofar as it relates to the finding on Issue 5, is liable to be ignored. It is pointed out that if this is done, the original findings recorded by the Trial Court on the status of the appellants that they are the tenants of the land under the respondents, would revive and operate as res judicata against the respondents who cannot be granted the relief of possession. 20. We may, at the very outset, point out that in the subsequent suit, the appellants in their capacity as defendants did not plead the rule of res judicata. As a matter of fact, they did not in their written statement even refer to the findings recorded by the Trial Court in the previous suit nor did they claim that they were tenants of the land in suit under the respondents. Their main defence was that they were in possession over the land in suit since Samvat, 2005 and had, therefore, acquired title by adverse possession. They also pleaded that the suit was barred by time and was, in any case, not maintainable in view of the provisions contained in Order II, Rule 2 of the Civil Procedure Code. The appellants, thus, raised an altogether new defence and did not plead that they were tenants under the respondents. Consequently, an issue whether the appellants were tenants of the land in dispute was not framed and, therefore, there was no occasion to refer to the findings recorded in the previous suit. 21. Rule of res judicata is contained in section 11 of the Civil Procedure Code. Bereft of all its explanations, namely, Explanations I to VIII, section 11 is quoted below: "11. 21. Rule of res judicata is contained in section 11 of the Civil Procedure Code. Bereft of all its explanations, namely, Explanations I to VIII, section 11 is quoted below: "11. Res judicata.--No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such; subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court." 22. "Res judicata pro veritate occipitur" is the full maxim which has, over the years, shrunk to mere "res judicata". 23. Section 11 contains the rule of conclusiveness of the judgment which is based partly on the maxim of Roman Jurisprudence "Interest reipublicae ut sit finis litium" (it concerns the State that there be an end to law suits) and partly on the maxim "Nemo debet bis vexari pro una et eadem causa" (no man should be vexed twice over for the same cause). The section does not affect the jurisdiction of the Court but operates as a bar to the trial of the suit or issue, if the matter in the suit was directly and substantially in issue (and finally decided) in the previous suit between the same parties litigating under the same title in a Court, competent to try the subsequent suit in which such issue has been raised. 24. In the previous suit, which was instituted by the respondents, an issue, namely, Issue 5 was framed on the status of the appellant as to whether they were the tenants of the land in suit under the respondents but in the subsequent suit this issue was not raised as the appellants who were the defendants in the subsequent suits did not plead that they were the tenants under the respondents. What they pleaded was that they were in possession since a long time namely from Samvat, 2005 and had, therefore, acquired title by adverse possession. Consequently, in the subsequent suits, the issue which was raised and tried in the previous suit was not raised, framed or tried and no finding, therefore, came to be recorded as to whether the defendants were tenants of the land in suit. Consequently, in the subsequent suits, the issue which was raised and tried in the previous suit was not raised, framed or tried and no finding, therefore, came to be recorded as to whether the defendants were tenants of the land in suit. It is true that the instant suit which is the subsequent suit, is between the same parties who had litigated in the previous suit and it is also true that the subject-matter of this suit, namely, the disputed land, is the same as was involved in the previous suit but the issues and causes of action were different. Consequently, the basic requirement for the applicability of rule of res judicata is wanting and, therefore, in the absence of pleadings, in the absence of issues and in the absence of any finding, it is not open to the learned Counsel for the appellants to invoke the rule of res judicata on the ground that in the earlier suit it was found by Trial Court that the appellants were the tenants of the land in dispute under the respondents." 13. Sri H.P. Mishra, learned Counsel for respondent Nos. 2/1, 2/2 and 2/3 on the other hand has supported the impugned order and says that on facts, the rights presently agitated were considered in the earlier round of litigation, if not by the Authorities of first instance and appeal, certainly by the Deputy Director of Consolidation, while writing his judgment and order dated 17.6.1997. He has taken the Court through the impugned order dated 17.6.1997, as well as the Order II 5.6.1992 made in Revision No. 2830. 14. This Court, has carefully considered the rival submissions advanced. There can be no quarrel about the principle laid down by their Lordships of the Supreme Court in Deva Ram and another (supra) that says that in case of a distinct or different set of rights than the one involved in the previous action, neither the bar of res judicata would apply or the principle of impermissible splitting up of the cause of action, embodied in Order II, Rule 2 C.P.C. In the present case, there is an additional feature which may be noticed that was urged during the course of hearing. It was argued that in the previous round of litigation, there was no lis decided between the petitioner, on one hand and the original respondent No. 2 on the other, so as to attract the principle of res judicata. This Court thinks that this reasoning is not at all tenable in proceedings for allotment of Chaks. 15. A look at the provisions of the U.P. C.H. Act carried in sections 7, 8, 8-A, 9, 9-B, 19, 19-A, 20, 21 and 23 would show that carvation of Chaks is an exercise, that is part of a larger one, which is finalization of the consolidation scheme. It involves a plot to plot partial, framing of statement of principle, then the provisional consolidation scheme, objection by parties, the disposal of those objections finally, through different levels of Authorities constituted under the Act to deal with those objections and then finalization of the scheme. The entire nature of proceedings of Chak carvation is not limited to the sense of a lis inter se two or more parties. It is a more wholesome exercise, where each party is entitled to a consideration of his rights, in the manner provided under the Statute. It is not that having agitated rights against one party that are finally determined under the Act, these can be reagitated under section 20, picking up another opponent. It is in this sense that the principle of res judicata does not apply strictly to carvation of Chaks on an inter se basis between the two parties; it applies, so to speak, between each party and the Consolidation Authority, deciding his rights. Of course, this principle would not apply to title objections under section 9, dealt with under the Act. That is properly so called as much a lis between two parties, as any other, before a Court of Civil or Revenue jurisdiction. 16. These principles apart, so far as the present case is concerned, a reading of the order passed by the Deputy Director of Consolidation in Revision No. 2830, decided vide judgment and order dated 25.6.1992, clearly indicates that the petitioner did canvass their rights before the Deputy Director of Consolidation, if not before the Authorities below, about rights that they had derived on assignment vide registered sale-deed dated 9.1.1991 from Smt. Dharmraji. The rights of the petitioners to carvation of Chaks based on accretion to their holding, in consequence of the sale-deed from Chak holder No. 65, Smt. Dhanraji, were considered by the Deputy Director of Consolidation while deciding the earlier revision. In this regard it has been recorded in the order of the Deputy Director of Consolidation, dated 25.6.1992 as follows: ^^;g Hkh dgk x;k fd fuxjkuhdrkZ us viuh pkph /keZjkth ls xkVk la-118] 119 ij cuk pd dk cSukek fy;k gS blls fuxjkuhdrkZ dk pd ,y vkd`fr dk gks x;k gSA vr,o fuxjkuhdrkZ dk pd nf{k.k vkSj gjukjk;.k ds pd esa cuk;k tk;A flok; o gjukjk;.k dks lsDVj ekXkZ ds vkSj xkVk 130 ij cढ+k;k tk; blesa fuxjkuhdrkZ dk de ekfy;r dh Hkwfe fey tk,xh ftlls bldk jdck ckn tk;sxkA^^ 17. Now, once the petitioners' rights were considered during proceedings that originated in the earlier objections under section 20, at whatever stage, and were decided by the Deputy Director of Consolidation vide order dated 25.6.1992, one way, it was most certainly not open to the petitioner to file fresh objections, seeking to agitate rights based on acquisition of new rights from Smt. Dhanraji, Chak holder No. 65. Also, this Court finds that apparently, in the objections giving rights to the impugned order by the Deputy Director of Consolidation, under section 20 of the Act, there was no disclosure of the earlier litigation that concluded in terms of the order dated 25.6.1992, so far as the petitioners are concerned. The allotment of Chaks so far as the petitioners are concerned, have been conclusively determined between the petitioners and the Consolidation Authority, finally in terms of the order dated 25.6.1992, including those based on acquisition of new rights to more holdings from Smt. Dharmraji, vide sale-deed dated 9.1.1991. The same set of rights cannot, therefore, be agitated again by the petitioner by merely pitting himself against another Chak holder in the Consolidation scheme. 18. In the considered opinion of this Court, the Deputy Director of Consolidation has rightly held the rights of the petitioner no longer open to a fresh determination, under section 20, after the order dated 25.6.1992 passed in Revision No. 2830 has attained finality. 19. In the result the petition fails and is dismissed with costs. The interim order dated 14.7.1997 is hereby vacated. Let this order be communicated to the Deputy Director of Consolidation, Gorakhpur by the office.