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Ram Awadh and anr. Vs. Deputy Director of Consolidation and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 3735 of 1975
Judge
Reported inAIR1986All167
ActsCode of Civil Procedure (CPC) , 1908 - Sections 11
AppellantRam Awadh and anr.
RespondentDeputy Director of Consolidation and anr.
Appellant AdvocateU.K. Misra, Adv.
Respondent AdvocatePadam Nath Singh, Adv. and ;Standing Counsel
DispositionPetition allowed
Excerpt:
(i) property - confirmation of title - paragraph a 71 of land record manual - entry was not made in accordance with law - entries confer tenancy right and should be in red ink - wrong entry does not confer any tenancy right upon party. (ii) res judicata - section 11 of code of civil procedure, 1908 - dismissal of suit in default would not operate as res judicata - bar on bringing another suit on the same cause of action. - .....court the petitioners have approached this court under article 226 of the constitution.4. the learned counsel for the petitioners has contended before me that the revisional court has patently erred in placing reliance upon the entries in favour of the contesting opposite party, which were not strictly in accordance with the rules, hence the conclusions arrived at by the revisional court regarding the possession of the contesting opposite party over the plots in dispute has been vitiated in law and deserves to be set aside.5. the learned counsel for the contesting opposite party has submitted in reply that the comments made by the revisional court are quite correct in the circumstances of the present case and moreover the arguments advanced by the learned counsel for the petitioners.....
Judgment:
ORDER

K.P. Singh, J.

1. In this writ petition the contesting opposite party Ram Deo now represented by his heirs had claimed a sirdari right in the disputed plots on the basis of his unauthorised occupation for more than statutory period without the consent of the tenure-holders.

2. In the basic year the petitioners' father Kanhai was recorded as tenure-holder and the contesting opposite party Ram Deo was found in possession over the disputed plots. The petitioner's father had contested the claim of contesting opposite party Ram Deo and had alleged that the claim of the contesting opposite party was wholly unfounded and his name should be expunged.

3. The Consolidation Officer and the appellate authority gave judgments for the petitioners whereas the revisional Court has recognised the claim of the contesting opposite party Ram Deo. Aggrieved by the judgment of the revisional Court the petitioners have approached this Court under Article 226 of the Constitution.

4. The learned counsel for the petitioners has contended before me that the revisional Court has patently erred in placing reliance upon the entries in favour of the contesting opposite party, which were not strictly in accordance with the rules, hence the conclusions arrived at by the revisional Court regarding the possession of the contesting opposite party over the plots in dispute has been vitiated in law and deserves to be set aside.

5. The learned counsel for the contesting opposite party has submitted in reply that the comments made by the revisional Court are quite correct in the circumstances of the present case and moreover the arguments advanced by the learned counsel for the petitioners are in the realm of appraisal of evidence, therefore, the impugned judgment need not be quashed.

6. The second submission made on behalf of the contesting opposite party is that the claim of the petitioners could not be recognised in the disputed plots and the earlier order dismissing the suit of the petitioners would operate as res judicata and it would be final between the parties. In this connection the learned counsel for the contesting opposite party has referred to the rulings reported in : AIR1924Cal830 Kalimuddin Ahmad v. Esabokuddin and : AIR1942Cal539 Abdul Majid Mridha v. Amina Khatun.

7. I have examined the contentions raised by the counsel for the parties. In my opinion the impugned judgment suffers from patent error of law and deserves to be quashed. A heavy burden lies upon a person claiming right on the basis of unauthorised occupation over a plot for more than statutory period without the consent of the tenure-holders. In the present case the revisional Court while recognising the claim of the contesting opposite party has observed as below :--

'..... Vipakshi Ki Taraf Se Yeh Tark Prastut Kiyagaya Ki Khatauni Me Ankit Amaldaramad Me PA.KA. 10 Ka Ullekh Nahin Kiya Gaya Hai. Unhonne Yeh Bhi Kaha Ki Khasrey Ke Vishesh Vivaran Ke Stambh Me Kabol Ka Ullekh Lal Syahi Se hona Chahiye. Nigrani Karta Ki Taraf Se Khasre Ki Pramnit Pratilipi Prastut Ki Gayee Hai. Mool Khasre Me Kaboeka Ullekh Kis Syahi Se Kiya Gaya Hai. Yeh Is Se Nahin Dekha Ja Sakta Tatha Kewal Syahi Ki Bhinnata Se Pravishit Ki Vaidhta Nahin Badal Jayegi. Khatauni Me Ankit Amaldaramad Me PA.K A. 10 Ka Ullekh Nahin Ha Kintu Iske Na Rahne Se Hi Yeh Nahin Kaha Ja Sakta Ki PA.KA. 10 Jari Nahin Ki Gayee Thi Kyonki Khasre Ki Pramanit Pratilipi Dekhne Se Vidit Hota Hai Ki Usme Iski Sankhya Di Gayee Hai.'

8. To my mind the approach of the revisional Court is patently erroneous. The provisions of para A 71 of Land Record Manual enjoins a duty upon the Lekhpal to make entry in the following manner : --

'A-71(3) :

If a person other than the one recorded in Col. 4 or 5 is found to be in actual occupation of the plot at the time of the partal, his name shall be recorded in the, remarks column as 'baquabza' so and so. All such entries shall be made in red ink and in cases in which Court order regarding them are riot received during the year, they shall be repeated in the same ink in the past year's Khasra, if possession is found to continue and treated as new entries so that they may be checked by the inspecting officers. Such entries shall in no case be made in black ink. In case the person recorded in column 5 of the Khasra is Asami holding land in lieu of maintenance allowance, the Qabiz will be recorded with the words 'Dar Asami' before the name of such person in the remarks column of the Khasra by the Supervisor Qanungo.'

9. In : [1968]1SCR617 Smt. Sonawati v. Sri Ram, their Lordships of the Supreme Court have also emphasised that the entry of Qabiz should be in red ink.

10. A learned single Judge of this Court in 1982 Rev Dec 1 : (1981 UPLT NOC 213) Ganga Ram v. D.D.C has also emphasised that the entry in the remarks column should be in red ink. Therefore, I think that the revisional Court has patently erred in placing reliance upon the revenue entries in favour of the contesting opposite party and has wrongly commented that whether the entry is in black ink or red ink would not matter for its evidenciary value. Since the entries in favour of the contesting opposite party was not made strictly in accordance with the rules, the revisional Court was not justified in placing reliance upon the same with a view to confer tenancy right upon the contesting opposite party Ram Deo.

11. As regards the submission of the learned counsel for the contesting opposite party that the dismissal of the petitioner's suit in default would be tantamount to a decree and would be final between the parties, I think that the rulings cited by the learned counsel for the contesting opposite party are not at all relevant in the circumstances of the present case. The dismissal of a suit in default would not operate as res judicata between the parties. The only bar against the plaintiff in such a suit would be that he would not be able to bring another suit on the same cause of action. It has been held by this Court that when C.H. Form 5 is distributed in the village a fresh cause of action arises to the respondents to agitate their claim. Therefore, the dismissal of the petitioner's earlier suit in default would not stand in the way of the petitioaer's getting requisite relief in law. Since the approach of the revisional Court to the problems between the parties is patently erroneous in view of the discussions made above, the impugned judgment deserves to be quashed.

12. In the result the writ petition succeeds and the impugned judgment of the revisional Court dt. 16-12-1974 is hereby quashed and the revisional Court is directed to re-examine the claims of the parties strictly in accordance with law. There would be no order as to costs.


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