Shiv Narain vs Deputy Director Of Consolidation ...
2013 Latest Caselaw 6448 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Court No. - 10
 
Case :- CONSOLIDATION No. - 625 of 2013
 

 
Petitioner :- Shiv Narain
 
Respondent :- Deputy Director Of Consolidation Bahraich & Ors.
 
Counsel for Petitioner :- Rama Kant Dixit
 
Counsel for Respondent :- C.S.C.,B.L. Mishra
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Heard Sri Rama Kant Dixit, learned counsel for the petitioner and Sri B.L.Mishra, learned counsel appearing for respondent no.4.

Under challenge in the instant writ petition is an order dated 31.07.2013, passed by Deputy Director of Consolidation, Bahraich/Shravasti whereby revision petition filed by petitioner-Shiv Narayan, namely, Revision Petition No. 692 was dismissed and Revision Petition No. 630 filed by respondent no.4-Khushi Ram was allowed.

The facts of the case which are not in dispute are that petitioner and respondent no.4 are real brothers. When the consolidation operations in the village concerned started, it was found that basic year entry in the khatauni was in the name of petitioner alone, accordingly, respondent no.4 preferred his objections under Section 9A (2) of U.P. Consolidation of Holdings Act (hereinafter referred to as 'C.H.Act') stating therein inter alia that the land in dispute was initially recorded in the name of Ram Shanker, father of the petitioner as well as respondent no.4 both. However, on the death of Ram Shanker, the property was got recorded erroneously and fraudulently only in the name of Shiv Narayan i.e. the petitioner and as such since respondent no.4 is a co-sharer, hence property in dispute be recorded in the respondent no.4 as well as the petitioner as co-sharers.

Before the Consolidation Officer, an objection was raised by the petitioner stating therein that in a declaratory suit filed earlier under Section 229-B of Uttar Pradesh Zamindari Abolition & Land Reforms Act, a judgement was delivered by the court of competent jurisdiction on 31.03.1995 and as such the said judgement will operate as res judicata on the proceedings instituted under Section 9A (2) of C.H.Act by the respondent no.4. Accordingly, prayer was made to reject the claim put fourth by respondent no.4 before the Consolidation Officer.

Opposing the aforesaid plea based on the principle of res judicata, it was submitted by learned counsel for the respondent no.4 that judgement dated 31.03.1995 cannot be termed to be a judgement which finally decides the point in issue, as such the said judgement will not operate as res judicata and hence, the proceedings initiated by the respondent no.4 before the Consolidation Officer ought to be continued. The Consolidation Officer on the basis of pleadings of respective parties framed several issues including an issue as to whether the proceedings instituted on the objection filed by the respondent no.4 before him are barred by the principle of res judicata on account of the earlier judgement dated 31.03.1995 passed by the Sub-Divisional Officer in a declaratory suit filed by respondent no.4 where petitioner was defendant. The said issue was decided in negative by the Consolidation Officer by means of order dated 15.02.2007 and the matter was posted further for disposal of other issues.

Feeling aggrieved by the aforesaid judgement and order dated 15.02.2007 passed by the Consolidation Officer, the petitioner filed an appeal before the Settlement Officer, Consolidation under Section 11 (1) of C.H.Act which was allowed by means of order dated 24.04.2013. While allowing the aforesaid appeal, no findings on the issue as to whether proceedings instituted by the respondent no.4 before the Consolidation Officer were barred by res judicata on account of judgement dated 31.03.1995 rendered by Sub-Divisional Officer, were given by the Settlement Officer, Consolidation. He, however, set aside the order dated 15.02.2007 on the ground that it was not open for the Consolidation Officer to have decided the single issue separately without deciding the other issues.

Challenging the aforesaid order dated 24.04.2013 passed by the Consolidation Officer, two revision petitions were preferred. Revision petition no.630 was preferred by respondent no.4 whereas revision petition no. 692 was preferred by the petitioner. By means of common judgement and order dated 31.07.2013, revision Petition preferred by the petitioner has been dismissed whereas revision petition preferred by respondent no.4 has been allowed and for decision on other issues by the Consolidation Officer, parties have been required to be present before the trial court i.e. the court of Consolidation Officer. It is this judgement and order dated 31.07.2013 which is under challenge in the instant writ petition.

Canvassing the case of petitioner, Sri Dixit has vehemently argued that the judgement rendered by the revenue court of competent jurisdiction dismissing the suit seeking declaration of rights between the petitioner and respondent no.4 under Section 229-B of U.P.Z.A & L.R. Act would operate as res judicata on the proceedings instituted by the respondent no.4 under Section 9A (2) of C.H.Act. He further stated that the Consolidation Officer, Settlement Officer, Consolidation and Deputy Director of Consolidation i.e. all the three courts below have failed to appreciate the legal position in regard to applicability of principle of res judicata on the proceedings instituted by the respondent no.4 under the Consolidation of Holdings Act. He has also stated that all the three courts below have completely failed to appreciate that the judgement dated 31.03.1995 rendered by Sub-Divisional Officer put a seal so far as rights of respondent no.4 over the property in dispute is concerned for the reason that it was respondent no.4 who sought declaration of his rights by instituting the suit which was dismissed.

Relying on the judgement of this Court in the case of Maharaji Kunwar vs Sheo Shanker reported in 2013 (31) LCD 944, Sri Dixit has submitted that since the matter in issue before the Consolidation Officer was the matter directly and substantially in issue in a declaratory suit filed by respondent no.4 earlier before the Sub-Divisional Officer, as such the judgement dated 31.03.1995 will act as res judicata on the proceedings instituted before the Consolidation Officer by the respondent no.4. He further stated that Section 11 of Code of Civil Procedure embodies the principle of public policy and it is in public interest as well as in the interest of the State inasmuch as the said principle attaches finality to litigation between the parties. He has, thus, urged that principle of res judicata has full applicability to the proceedings under the C.H.Act and by not respecting the said principle, all the three courts below have completely erred in law.

On the other hand, Sri Mishra, learned counsel for respondent no.4 has submitted that there cannot be any quarrel with regard to applicability of principle of res judicata on the proceedings instituted under the provision of C.H.Act, however, he stated that the judgement dated 31.03.1995 rendered by the Sub-Divisional Officer in the suit instituted by respondent no.4 under Section 229-B of U.P.Z.A.& L.R. Act will not act as res judicata for the reason that it cannot be termed to be a judgement deciding the point in issue finally. He has further stated that for a judgement to operate as res judicata, there are four pre-conditions which need to be fulfilled and the conditions are (1) that the litigating parties in the previous suit as well as in subsequent suit or proceedings must be the same, (2) that the subject matter of both previous as well as the subsequent suits should be identical, (3) that the matter must be heard and finally decided by the court and (4) the decision should be by a court of competent jurisdiction.

Placing reliance on the judgement of this Court in the case of Nitin Kumar and others vs Rajendra Kumar reported in 2010 (109) RD 390, Sri Mishra has submitted that there is no dispute that the parties in the suit instituted by respondent no.4 under Section 229-B of U.P.Z.A.& L.R. Act before commencement of consolidation proceedings in the village are the same who are parties in the proceedings instituted by respondent no.4 before the Consolidation Officer by way of filing objection under Section 9 A (2) of C.H.Act. He also states that the subject matter of suit instituted by the respondent no.4 before the revenue court is identically the same which is engaging attention of the Consolidation Officer in the proceedings instituted by the respondent no.4 by filing objection under Section 9A (2) of C.H.Act. He further admits that the judgement dated 31.03.1995 cannot be termed to be a judgement not by the court of competent jurisdiction for the reason that under the relevant provision of U.P. Z.A. & L.R. Act the earlier suit could be instituted before and tried by Sub-Divisional Officer. However, what he strenuously refutes is that the judgement dated 31.03.1995 would bar the proceedings before the Consolidation Officer on the rule of res judicata as the said judgement did not decide the matter finally and further that in the facts and circumstances of the case, it cannot be said that the judgement dated 31.03.1995 was rendered after hearing the respondent no.4.

This Court in the case of Nitin Kumar (supra) while dealing with the conditions precedent for the application of principle of res judicata has probed the issue in detail. In the said judgement, it has clearly been observed by this Court that the four conditions elaborated above in preceding paragraphs are essential conditions for applying the principle of res judicata. Para 9 of the aforesaid judgement is referable in this regard which runs as under:-

"9.The principle of res judicata is enshrined under section 11 of the Civil Procedure Code. The purpose behind the aforesaid provision is that there has to be an end to a litigation and that no person should be vexed twice for the same cause of action. Section 11 C.P.C. reads as under :

"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."

A plain reading of the aforesaid provision brings about the following essential conditions for applying the principle of res judicata :-

(i) that the ligating parties in the two suits must be the same;

(ii) that the subject matter of the suit must also be identical;

(iii) the matter must be heard and finally decided by the Court; and

(iv) the decision should be by a court of competent jurisdiction."

The Court in the aforesaid judgement has further held that all the four conditions elaborated above must be fulfilled before the judgement rendered at earlier point of time can be said to operate as res judicata. In the said case except for the pre condition that "matter must be heard and finally decided by the Court", all the other pre conditions for application of principle of res judicata were fulfilled. However, condition that "matter must be heard and finally decided by the court" was the bone of contention between the parties. The Court in the said case examined as to whether the judgement which was said to operate as res judicata was rendered after hearing the parties and whether the said judgement decided the matter finally. The Court in the given facts and circumstances of the case came to the conclusion that judgement did not fulfill the pre condition that "matter must be heard and finally decided by the Court" and as such the said judgement was held as one which would not operate as res judicata.

While scrutinizing the judgement to operate as res judicata in the aforesaid case of Nitin Kumar (supra), the Court came to the conclusion that since the judgement did not contain the statement of facts and reasons and also precise reasons for granting or refusing the relief as such in the said circumstances, the said judgement cannot be said to have finally decided the matter in issue.

In light of the principles enunciated by this Court in the aforesaid judgement in the case of Nitin Kumar (supra), I now proceed to examine as to whether the judgement dated 31.03.1995 rendered by the Sub-Divisional Officer can be said to have decided the matter in issue between the parties finally or not.

The suit seeking declaration of rights over the property in dispute was filed by the respondent no.4 under Section 229-B of U.P.Z.A & L.R. Act on the allegation that property in dispute was originally recorded in the name of Ram Shanker who was father of respondent no.4 as well as petitioner. It was further alleged that after the death of Ram Shanker, as per provision of Section 171 of U.P.Z.A.& L.R.Act both, respondent no.4 as well as petitioner being legal heirs of their father inherited the property in dispute, however, fraudulently the entire land was got recorded in the name of petitioner alone. On these averments, suit was filed and evidence was also led by the respondent no.4. However, the judgement dated 31.03.1995 which is said to operate as res judicata on the proceedings instituted before the Consolidation Officer, is an absolutely cryptic order running hardly in three and half lines. The alleged true certified photocopy of said judgement dated 31.03.1995 has been annexed at page 52 of this petition. The said order runs as under:-

"पुकार कराई गई। उभय उपिस्थत परन्तु वादी द्वारा विवादित आराजी के सम्बन्ध मे कागजी सबूत से प्रमाणित न कर पाने एवं गवाह के कथन सदिग्ध पूर्ण होने के कारण बलहीन है वाद निरस्त किया जाता है।

हस्ताक्षर अपठनीय

३१-०३-१९९५"

Perusal of the aforesaid so called judgement dated 31.03.1995 allegedly passed by the Sub-Divisional Officer clearly shows that the said judgement neither contains the statement of facts nor the reasons for refusing the relief prayed for by the respondent no.4. The said judgement dated 31.03.1995, on the face of it, appears to have been passed as both the parties were present. In such a situation, it was incumbent upon the Sub-Divisional Officer, rather he was legally bound to have at least stated the statement of facts and reasons and he ought to have discussed the evidence led by the parties and then only he could have refused the relief prayed for by the respondent no.4.

This Court in the case of Nitin Kumar (supra) in paras 15 and 16 has appropriately elaborated as to what does "decision" or "judgement" mean, which are fruitfully quoted below:-

"15. The word "decision" is a popular word rather then a technical or a legal word. It refers to a determination arrived at after consideration of facts and law. A decision of the Court is its judgment. In other words, a judgment, decree, or order pronounced by a Court in settlement of a controversy submitted by way of authoritative answer to the question raised before it is a decision. It involves the power and right to deliberate to weigh the reasons for and against and to come to a definite conclusion.

16.Judgment as defined under Section 2(9) C.P.C. means the statement given by the judge on the ground of decree or order. Therefore, it must contain the statement of facts and the reasons and the precise reasons for granting the relief. It must contain not only the findings on the issues involved but also the analysis of the evidence and the reasoning in support of coming to the conclusion or a finding. This is also the requirement of Order XX Rule 4(2) C.P.C. which provides that judgment of court must contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision. Therefore, recording of reasons in support of the conclusion or the decision is imperative. An order without such reasons as such would not be "judgment". The mere fact that the defendant absented and the suit had proceeded ex-parte would not be sufficient to pass a decree as prayed for unless the Court records reasons for the satisfaction thereof. The Court is obliged to apply its mind to the facts of the case, evidence on record and to come to a particular conclusion on analysis of the same. In other words a judgment of a Court should contain concise statement of a case points of decision, the reasons for such decision and the decision thereupon. However, where a decision is given without formulating the points of determination and recording finding, it was held not to be a judgment within the meaning of Section 2(9) C.P.C. Similarly, a judgment whether it is passed ex-parte or not affects the rights and the liabilities of the parties. Therefore, merely because the Court passed a judgment ex-parte the essential requisites of a judgment cannot be omitted".

If tested on the principles enunciated by this Court in the case of Nitin Kumar (supra), the judgement dated 31.03.1995 cannot, by any stretch of imagination, be termed to be a 'judgement' much less a 'judgement finally deciding the issue between the parties'.

In view of discussions made above, I am of the definite opinion that the judgement dated 31.03.1995 does not qualify itself to be a judgement finally deciding the matter between the parties so as to operate as res judicata on the subsequent proceedings instituted by the respondent no.4 before the Consolidation Officer by filing objections under Section 9A (2) of C.H.Act.

The writ petition, thus, is hereby dismissed being highly misconceived.

The Consolidation Officer concerned is directed to decide rest of the issues except the issue relating to the judgement dated 31.03.1995 rendered by the Sub-Divisional Officer operating as res judicata on the proceedings pending before him, within a period of six months from the date a certified copy of this order is produced before him. It is further observed that neither parties before the Consolidation Officer shall seek unnecessary adjournments, nor shall the adjournments be granted unless it becomes inevitable in exceptional circumstances.

There will be no order as to cost.

Order Date :- 11.10.2013

Renu/