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Surajpati and ors. Vs. Dy. Director of Consolidation, Allahabad and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ Petn. No. 3562 of 1972
Judge
Reported inAIR1981All265
ActsCode of Civil Procedure (CPC) , 1908 - Sections 11; Uttar Pradesh Tenancy Act, 1939 - Sections 49 and 59
AppellantSurajpati and ors.
RespondentDy. Director of Consolidation, Allahabad and ors.
Advocates:Gyan Prakash, Adv.
DispositionPetition partly allowed
Excerpt:
.....7- right of party number 7 to file separate suit will not be barred as res judicata. - - in this view of the matter i am not satisfied that the contesting oppositeparties nos......surajpati shridhar | ________________________________________________| | | sukhdeo baldeo | | mata sewak | (not shown in the pedigree in the revenue | and civil suit) | __________________________________|_______________________ | | | raj pati ram lakhan ram shiromani4. the revenue courts gave iudg-ments against the contesting opposite party ram lakhan and others and did not accept the pedigree set up by them. before the consolidation authorities, the contesting opposite parties including mata sewak claimed co-tenancy right on the ground that the disputed khatas belonged to common ancestor sheo dutt and they being descendants of matroo were entitled to co-tenancy right in the disputed khatas. the consolidation officer and the settlement officer of consolidation both have given.....
Judgment:
ORDER

K.P. Singh, J.

1. This writ petition is against the judgment of Shri Lalta Prasad, Deputy Director of Consolidation, Allahabad, dated 28-4-1972, whereby the revision petitions filed by Mata Sewak and Rai Pati were allowed.

2. In this writ petition the only question under consideration is how further claim of the contesting opposite parties Nos. 4 to 7 is barred by Explanation 6 to Section 11 of the Code of Civil Procedure. Necessary facts relating to the question posed are as follows :--

3. In the basic year the names of the petitioners were recorded over the disputed Khatas and the contesting opposite parties had claimed co-tenancy right in the same. The opposite parties Raj Pati, Ram Lakhan and Ram Shiro-mani in the present writ petition, had filed a suit under Sections 59/49 of the U. P. Tenancy Act and had set up the following pedigree :--

SHEO DUTT

|_______________________________________________

| | |

Ram Tahal Sitaram Matroo=Mst. Majhari

___________________________|______________________________________ |

| | | | |

Ram Sundar=Mst. Kalasi Ram Sumer Ram Lakhan= Jhinguri |

(widow) | Mst. Chhitka |

| |___________________________ |

Parsottam=Mst. Chhabi Raji | | |

(widow) Surajpati Shridhar |

________________________________________________|

| |

Sukhdeo Baldeo

| |

Mata Sewak |

(not shown in the pedigree in the revenue |

and Civil Suit) |

__________________________________|_______________________

| | |

Raj Pati Ram Lakhan Ram

Shiromani

4. The revenue courts gave iudg-ments against the contesting opposite party Ram Lakhan and others and did not accept the pedigree set up by them. Before the consolidation authorities, the contesting opposite parties including Mata Sewak claimed co-tenancy right on the ground that the disputed Khatas belonged to common ancestor Sheo Dutt and they being descendants of Matroo were entitled to co-tenancy right in the disputed Khatas. The Consolidation Officer and the Settlement Officer of Consolidation both have given iudgments for the petitioners on the ground that the claim of the contesting opposite 'parties stood barred by the principle of res judicata. In revision the claim of the contesting opposite parties has.been directed to be decided on merits in the light of the observation made in the impugned judg-ment of the revisional court The re-visional court has held that the claim of the contesting opposite party No. 7 in the present writ petition, namely, Mata Sewak, was wrongly held as barred by the principle of res judi-cata by the Consolidation Officer and the Settlement Officer of Consolidation as he was not party in the earlier litigations. The revisional court also held that the principle of res judicata would not apply to the plots Nos. 694, 798, 781. 690. 651, 784, 779, 856, 704 and 716 as they were not subiect matter of litigation at the earlier occasions. Aggrieved by the judgment of the revisional court the petitioners have approached this Court under Article 226 of the Constitution.

5. The learned counsel for the petitioners has emphasized before me that the claim of the contesting opposite parties was rightly held as barred by the principles of res judicata and the revisional court has patently erred in remanding the case to the Consolidation Officer for decision on merits. The learned counsel for the petitioner has emphasized before me that Mata Sewak opposite party No. 7 in the present writ petition also claims co-tenancy rights on the basis of being descendant of Matroo in the above pedigree, hence his claim stands barred in view of the provisions of Explanation 6 to Section 11 of the Civil Procedure Code. It has also been emphasized that the claim of the opposite parties Nos. 4 to 6 in the present writ petition regarding the plots mentioned above which were not subject matter of the earlier litigation stands barred by the principle of res judicata in view of the ruling reportedin : [1953]4SCR154 , Raj Lakshmi Dasi v. Banamali Sen.

6. The learned counsel for the contesting opposite parties has submitted in reply that the impugned judgment of the revisional court is correct in the eye of law and it needs no interference by this Court in the exercise of writ jurisdiction. According to the learned counsel for the contesting opposite parlies. Mata Sewak was not a party in the litigations at the earlier occasion, hence his claim cannot stand barred by the principle of res judicata and when the claim of the contesting opposite party Mata Sewak was directed to be decided on merits, there is no harm if the claim of the other contesting opposite parties Nos. 4 to 6 in the present writ petition is also re-examined by the consolidation authorities. According to him substantial justice has been done between the parties by the impugned judgment of the revisional court, hence the aforesaid judgment should not be interfered with.

7. During the course of argument my attention has been drawn to the ruling reported in , Lingangowda Dod-Bastangowda Patil v. Bastangowda Bistangowda Patil and it has been contended that the contesting opposite party Mata Sewak being a member of Hindu family cannot be permitted to agitate the same point again and his claim was rightly held as barred by the principle of res iudicata by the Consolidation Officer and the Settlement Officer of Consolidation. In this connection my attention was also invited to the rulings reported in AIR 1937 Bom 238, Gurushiddappa Guru-basappa Bhusanur v, Gurushiddappa Chenavirappa Chetni, AIR 1949 All 761, B. Mohan Kishan Seth v, Ram Prasad AIR 1956 Pepsu 69, Sarswati Jiwa Ram v. Ralla Ram Gonda Ram : AIR1957All270 , Sudenhaiya Kumar v. Ram Das Pandey and 1963 Rev Dec 162, Sheo Harakh v. Jokhoo and it has been contended that Mata Sewak. opposite party No. 7, in the present writ petition cannot be permitted to reopen the controversy as he did not figure in the earlier litigations and allowed the judgment between the present petitioners and the contesting opposite parties Nos. 4 to 6 becoming final.

8. It is also necessary to mention the ruling reported in 1967 All WR (HC) 290, Smt. Dhana Kuer v. Kashi Nath Chaubey wherein a learned single Judge of this Court has held as below :

'If there is a litigation in respect of a private right claimed in common for oneself and others then all persons interested in such right shall for the purposes of Section 11 be deemed to be claiming under the person so litigating. The necessary test is the claim put forth by the person in the litigation as a plaintiff or a defendant and is not dependent on the decision. If he was litigating for himself and for others and it was a bona fide litigation the ingredients necessary for the applicability of Section 11 Explanation VI. Civil P. C. would be present.'

(Emphasis is mine)

I have examined the above mentioned rulings and in my opinion they are distinguishable and inapplicable to the facts and circumstances of the present case. In the present case Mata Sewak, opposite party No. 7, was not a party in the revision and the civil suit between the petitioners and the contesting opposite parties Nos. 4 to 6. It is also evident that the opposite parties Nos. 4 to 6 in the present writ petition did not claim right at the earlier occasions for themselves and for Mata Sewak and their claim has been negatived due to the circumstances that they did not succeed in proving the pedigree set up by them, wherein Mata Sewak was not shown. In this view of the matter I am not satisfied that the contesting oppositeparties Nos. 4 to 6 had litigated bona fide claiming right for themselves and Mata Sewak in the revenue court or in the civil court. Thus, the revisional court has rightly held that the earlier decisions between the petitioners and the contesting opposite parties Nos. 4 to 6 in the present writ petition cannot operate as res judicata regarding the claim put forward by the opposite party No, 7 Mata Sewak in the present writ petition. I am unable to accept the contention raised by the learned counsel for the petitioners that the claim of. Mata Sewak was rightly held as barred by the principle of res .iudicata by the Consolidation Officer and the Settlement Officer of Consolidation. To my mind, the judgment of the revisional Court is correct regarding the claim of contesting opposite party No. 7 Mata Sewak and his claim has rightly been directed to be decided by the Consolidation Officer on merits.

9. It is noteworthy that the petitioners were asserting that Mata Sewak,opposite party No. 7 in the present writpetition had accepted the claim of thepetitioners, hence his claim stands barred on the principle of res iudicata aswell as on the principle of estoppel.The opposite party No. 7 has taken astand that he had not given any statement at the earlier occasion acceptingthe claim of the present petitioners. Theperusal of various judgments attachedwith the writ petition indicates that itis doubtful whether Mata Sewak really had given any statement at the earlier occasion, hence it is not properfor me to express any concluded opinion on the controversy and it wouldbe open to the Consolidation Officer todecide the question whether the claimof the contesting opposite party No. 7Mata Sewak can be barred in view ofany statement given by him at theearlier occasion. The ruling reported in1963 Rev Dec 162, Sheo Harakh v.Jokhu is inapplicable to the facts andcircumstances of the present case as ithas not been established beyond shadowof doubt that the opposite partyNo. 7 Mata Sewak had knowinglyand deliberately allowed thedecision between the petitionersand the contesting opposite parties Nos.4 to 7 becoming final. Rather, the factsmentioned in the various judgmentsindicate that Mata Sewak was not a party in the earlier litigations.

10. It would be proper to mention that in AIR 1949 All 761 B. Mohan Kishan Seth v. Ram Prasad it has been emphasized that the previous suit must be a bona fide suit and in my opinion in the present case, the opposite parties Nos. 4 to 6 did not claim their cotenancy right in the suit under Sections 59/49 of the U. P. Tenancy Act for themselves and Mata Sewak hence the earlier litigation cannot be characterised as bona fide litigation for the claim of opposite party No. 7 Mata Sewak. To my mind on the basis of Explanation 6 to Section 11 of the Code of Civil Procedure, the claim of Mata Sewak cannot be held as barred. I am also not prepared to hold that the re-visional court has patently erred in holding that the claim of opposite party No. 7 Mata Sewak was not barred on the principle of res iudicata in view of the observations made in the rulings reported in : AIR1963All187 , Janki Prasad v. Kuber Singh and also : [1968]1SCR652 , Municipality of Taloda v. Charity Commissioner, Bombay. In the earlier litigations it is difficult to say that the opposite parties Nos. 4 to 6 represented the interest of Mata Sewak, opposite party No. 7 in the present writ petition in any manner.

11. As regards the petitioner's claim that the revisional court has patently erred in holding that the claim of the contesting opposite parties Nos. 4 to 8 is not barred by the principle of res iudicata in respect of plot Nos. 694, 798, 781, 690, 651, 784, 779, 856, 704 and 716, I think it has force. The contesting opposite parties Nos. 4 to 6 are claiming right in the aforesaid plots only on the ground that they are descendants of Matroo. They have not been able to establish their relation ship with Matroo in the earlier litigation against the petitioners hence they cannot claim any right in the aforesaid plots being descendants of Matroo. In this view of the matter, I think that the revisional court has patently erred in holding that the claim of opposite parties Nos. 4 to 6 was not barred by the principle of res iudicata in respect of the above mentioned plots. In : [1953]4SCR154 . Rai Lakshmi Dasi v. Ban Mali Sen, their Lordships of the Supreme Court have observed as below (at p. 39) :--

'The test of res iudicata is the identity of title in the two litigations and not the identity of actual property involved in the two cases.'

12. Viewed from this angle, it is evident that the revisional court has patently erred in holding that the claim of the contesting opposite parties Nos. 4 to 6 in the present writ petition was not barred on the principle of res iudicata in respect of plots Nos. 694, 798, 781, 690, 651, 784, 779, 856, 704 and 716.

13. In the result, the writ petition succeeds in part. The impugned judgment of the revisional Court is hereby quashed regarding the claim of opposite parties Nos. 4 to 6 in respect of plots Nos. 694, 798, 781, 690, 651, 784, 779, 856, 704 and 716, and the impugned judgment regarding the claim of opposite party No. 7 is hereby confirmed and the contention of the learned counsel for the petitioners that the revisional court has patently erred in holding that the claim of opposite party No. 7 Mata Sewak was not barred by the principle of res iudicata in view of the provisions of Explanation 6 to Section 11 of the Code of Civil Procedure is hereby repelled. In the circumstances of the present case, the parties are directed to bear their own costs.


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