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Anwar Khan Vs. the Deputy Director of Consolidation and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberWrit Petn. No. 733 of 1966
Judge
Reported inAIR1973All146
ActsConstitution of India - Article 226; Code of Civil Procedure (CPC) , 1908 - Order 1, Rule 9 - Order 22
AppellantAnwar Khan
RespondentThe Deputy Director of Consolidation and ors.
Appellant AdvocateM.L. Trivedi, Adv.
Respondent AdvocateK.S. Verma, Adv. for Respondents 4 and 5
DispositionPetition dismissed
Excerpt:
.....under article 226 - completed in respect to one respondent - matter of the case i.e. finding of deputy director of consolidation cannot be divided as regard to respondents - matter cannot continue in respect of other respondent as it may lead to contradictory findings on same issue. - - varma for the respondents and i am of the opinion that this objection is well-founded. courts will not proceed with an appeal (a) when the success of the appeal may lead to the court's coming to a decision which will be in conflict with the decision between the appellant and the deceased respondent and therefore which would lead to the court's passing a decree which will be contradictory to the decree which had become final with respect to the same subject-matter between the appellant and the..........latter filed an appeal which was dismissed. respondents 2 to 5 then filed a revision before the deputy director of consolidation which was allowed, the deputy director holding that no rights had accrued in favour of imamuddin khan as he had migrated to pakistan despite the fact that his possession was recorded in the year 1359 fasli. it was further held that the petitioner was not proved to have been in possession over the disputed land during the statutory period of six years and had not acquiredany title by adverse possession. it is in these circumstances that the petitioner comes to this court invoking its jurisdiction under article 226.3. a preliminary objection was raised by sri k. s. varma representing respondents 4 and 5. it is submitted that khadim haider. respondent no. 2.....
Judgment:
ORDER

Omprakash Trivedi, J.

1. This petition under Article 226 of the Constitution of India has been filed by Anwar Khan.

2. The dispute relates to certain agricultural land which in the basic year was recorded in the name of the petitioner. Earlier it was recorded in the name of petitioner's father Imamuddin Khan. Objections under Section 9 of the U. P. Consolidation of Holdings Act were filed both by the petitioner and respondents 2 to 6. The petitioner claimed to be the exclusive sirdar of disputed plot No. 57 on the basis that his father was recorded in possession over the disputed land in the Khasra for 1359 Fasli and that the petitioner himself had acquired title over the land by adverse possession. Respondents 2 to 6 contested that the petitioner had any title, their main ground of attack being that the petitioner's father having migrated to Pakistan before coming into force of the U. P. Zamindari Abolition and Land Reforms Act, no benefit from the fact of petitioner's father's possession in 1359 Fasli accrued to him at law. The respondents also denied that the petitioner had acquired right or interest by adverse possession. The respondents claimed to be sole bhumidhars of the land. The Consolidation Officer allowed the petitioner's objection holding him to be the sirdar of the land in dispute and rejected the respondents' objection. The latter filed an appeal which was dismissed. Respondents 2 to 5 then filed a revision before the Deputy Director of Consolidation Which was allowed, the Deputy Director holding that no rights had accrued in favour of Imamuddin Khan as he had migrated to Pakistan despite the fact that his possession was recorded in the year 1359 Fasli. It was further held that the petitioner was not proved to have been in possession over the disputed land during the statutory period of six years and had not acquiredany title by adverse possession. It is In these circumstances that the petitioner comes to this Court invoking its jurisdiction under Article 226.

3. A preliminary objection was raised by Sri K. S. Varma representing respondents 4 and 5. It is submitted that Khadim Haider. respondent No. 2 having died and his legal representatives not being brought on record by the petitioner, by order dated 3-11-1971 the petition so far as it is against Khadim Haider has already abated. It is submitted that the finding of the Deputy Director of Consolidation being joint and Indivisible the whole petition abates.

4. I have heard Sri M. L. Trivedi, learned counsel for the petitioner and Sri K. S. Varma for the respondents and I am of the opinion that this objection is well-founded. In the case of State of Punjab v. Nathu Ram. : [1962]2SCR636 the Supreme Court observed that

'the provisions of Order 1. Rule 9 of the Code of Civil Procedure show that if the Court can deal with the matter in controversy so far as regards the rights and interests of the appellant and the respondents other than the deceased respondent it has to proceed with the appeal and decide it. It is only when it is not possible for the Court to deal with such matters, that it will have to refuse to proceed further with the appeal, and, therefore, dismiss it .....The test to determine this has been described in diverse forms. Courts will not proceed with an appeal (a) when the success of the appeal may lead to the court's coming to a decision which will be in conflict with the decision between the appellant and the deceased respondent and therefore which would lead to the Court's passing a decree which will be contradictory to the decree which had become final with respect to the same subject-matter between the appellant and the deceased respondent; (b) when the appellant could not have brought the action for the necessary reliefs against those respondents alone who are still before the court and (c) when the decree against the surviving respondents, if the appeal succeeds, will be ineffective, that is to say, it could not be successfully executed.'

5. In the case of Onkar Singh v. Rameshwar. (AIR 1954 All 7861 the appellant before the Court made an application under Section 4 of the Encumbered Estates Act. Dori Lal and others filed a joint written statement under Section 11 of the Act wherein they claimed that they were the owners of these villages and were in possession of them and the property was, therefore, not liable to attachment and sale in satisfaction of the debts of the landlordapplicants. There was nothing in the written statement to indicate the shares of each of the persons who had filed the joint written statement. During appeal, Dori Lal. one of the respondents, died and his heirs were not brought on record. The question arose whether the entire appeal failed or it failed only to the extent of the share of Dori Lal. In deciding this question their Lordships referred to the observations contained in Kali Dayal Bhattacharya v. Nagendranath, (AIR 1920 Cal 264). Their Lordships of the Calcutta High Court ob-served:

'The representatives of the deceased decree-holders, against whom the appeal has abated, have obtained an unassailable decree declaring that they jointly with the other decree-holders are proprietors in possession of the suit land. If the appeal were allowed as against the other decree-holders the result would be two contrary declarations; one declaring that the proprietors of the respondent's village are entitled to and in possession of the land in question and the other declaring that they are not so entitled and in possession. It has been held in these cases that this is a state of things which the law does not contemplate and which cannot be allowed and that it would result in very serious inconveniences.'

It was further observed by their Lordships deciding Onkar Singh's case. : AIR1954All786 that to determine whether the appeal fails as a whole or only to the extent of the interest of the deceased respondent the test is whether in case the appeal is allowed against the respondents who are already on record there would be two inconsistent decrees in the same case with respect to the same subject-matter or not. In case there will be two inconsistent decrees which, will be infructuous the appeal should fail as a whole because it would be fruitless to pass a decree which will be ineffective and incapable of execution in view of the decree in favour of the deceased respondent which has become final.

6. Similar view was expressed In the case of Rani Dhandei Kuer v. Fatma Zuhra : AIR1939All698 . The copy of the order passed by the Deputy Director of Consolidation (Annexure 3) shows that a finding was recorded to the effect that no rights accrued in favour of Imamuddin Khan, father of the petitioner on the basis of his possession in 1359 Fasli. because he had migrated to Pakistan. Whether this finding is right or wrong is immaterial. The fact remains that this finding of the Deputy Director has become final between the petitioner and the legal representatives of Khadim Haider. If the petitioner'scontention is accepted and the writ petition is heard against the remaining respondents who are on record and a finding is reached that imamuddin Khan had acquired sirdari rights over the disputed land under Section 3 of the U. P. Land Reforms (Supplementary) Act, 1952 (U. P. Act XXXI of 1952) on the basis of petitioner's father being recorded in possession in the Khasra for 1359 Fasli then such a decision in the writ petition would be clearly inconsistent with the decision of the Deputy Director of Consolidation so far as the legal representatives of Khadim Haider are concerned. In other words, it will lead two two contradictory decrees. The petitioner has not taken the ground of adverse possession in the writ petition. Even If he had taken the plea of adverse possession it is clear that such a plea, If It would have succeeded against the remaining respondents, would lead to finding inconsistent with the one which was recorded by the Deputy Director and is now final between the petitioner and Khadim Haider. One of the tests, therefore, laid down by the Supreme Court in : [1962]2SCR636 (Supra) is present in this case, viz., that to hold that the petition does not abate as a whole would lead to a finding which would be contradictory to the finding of the Deputy Director which has become final. Secondly, if the writ petition succeeds it will be ineffective, that is to say, it would not be successfully executable in view of the finding of the Deputy Director of Consolidation in favour of the legal representatives of Khadim Haider, for it is not the petitioner's case that he is a co-sharer in the disputed land with Khadim Haider. On these considerations I am of the opinion that the preliminary objection raised by learned counsel for the respondents is well-founded and hold that the petition abates as a whole and should be dismissed.

7. The petition is accordingly dismissed with costs to the respondents.


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