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Jokhan and ors. Vs. the Joint Director of Consolidation, Allahabad and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ Petn. No. 2356 of 1976
Judge
Reported inAIR1980All215
ActsCode of Civil Procedure (CPC) , 1908 - Sections 11 - Order 9, Rule 13 - Order 20, Rules 4(2), 5 and 18; Uttar Pradesh Consolidation of Holdings Act, 1954 - Sections 5; Transfer of Property Act, 1882 - Sections 41
AppellantJokhan and ors.
RespondentThe Joint Director of Consolidation, Allahabad and ors.
Appellant AdvocateS.R. Singh, Adv.
Respondent AdvocateR.K. Jain, ;V.K. Sinha, ;B.N. Misra, ;K.N. Tripathi and ;H.M. Sharma, Advs.
DispositionAppeal dismissed
Excerpt:
.....patently erred in recognizing the claim of the contesting opposite parties on the basis of an ex parte decree specially when the suit in which the ex parte decree was passed in favour of the father of the contest-ing opposite parties. 1 to 3, as well as moti lal, petitioner no. 8 and that the petitioners have utterly failed to bring relevant evidence on the record to establish that any admission was made by mahadeo in the petitioners case. the documents relied upon by the petitioners to prove the admission of mahadeo have not been proved in accordance with law and the petitioners have failed to examine the ex parte decree in the present case to prove their bona fide claim, hence they cannot rely upon the documents filed in the present writ petition to indicate the admission of mahadeo..........patently erred in recognizing the claim of the contesting opposite parties on the basis of an ex parte decree specially when the suit in which the ex parte decree was passed in favour of the father of the contest-ing opposite parties. was ultimately abated under the provisions of section 5 of the u. p. consolidation of holdings act. 5. secondly, he has contended that the revisional court and the appellate authority have misread the evidence on record and are under wrong notion that there is no evidence on the record to indicate that the petitioner no. 4 and the vendor of the petitioners nos. 1 to 3 were co-tenure holders of the disputed land. he has emphasized that the admission of mahadeo, father of the contesting opposite parties nos. 3 to 7, admitting the claim of the vendor of the.....
Judgment:
ORDER

K.P. Singh, J.

1. This writ petition under Article 226 of the Constitution is against the judgment of the Joint Director of Consolidation Allahabad, dated 27-9-1976 whereby the revisibn petitions filed by the petitioners were dismissed.

2. Necessary facts giving rise to the present writ petition are that in the basic year Mahadeo, father of the contesting opposite parties Nos. 3 to 7. Mewalal, opposite party No. 8, and Moti Lal were recorded as Bhumidhars of the disputed land. The petitioners Nos. 1 to 3, namely Jokhan, Ram Naresh and Panchu, had claimed 1/4th share in the disputed land being trans-feree of Mewalal, Opposite Party No. 8.

3. The contesting opposite parties Kailash and others had contested the claim of the petitioners on the allegations that the names of Mewalal and Moti Lal were fictitiously recorded over the disputed land and that the contesting opposite parties were sole tenure holders and that the claim of the petitioners was barred by res judi-cata. The Consolidation Officer through his judgment dated 15-11-1971 had accepted the claim of the present peti-tioners and had held that the petitioner No. 4 Moti Lal, was entitled to l/4th share and the remaining 1/2 share was given to the contesting opposite parties. Aggrieved by the judgment of the Consolidation Officer the contesting opposite parties had preferred an appeal which was allowed by the appellate authority through its judgment dated 1-5-1972 and the contesting opposite parties were held sole tenure holders of the disputed land and the claim of the present petitioners was negatived as is evident from Annexure 2 attached to the writ petition. Thereafter the petitioners had preferred two revision petitions which have been dis- missed by the revisional court through the impugned judgment dated 27-9-1976 (Annexure 4 attached to the writ petition). Now the petitioners have approached this Court.

4. The learned counsel for the petitioners has contended before me that the appellate authority as well as the revisional court have patently erred in recognizing the claim of the contesting opposite parties on the basis of an ex parte decree specially when the suit in which the ex parte decree was passed in favour of the father of the contest-ing opposite parties. was ultimately abated under the provisions of Section 5 of the U. P. Consolidation of Holdings Act.

5. Secondly, he has contended that the revisional court and the appellate authority have misread the evidence on record and are under wrong notion that there is no evidence on the record to indicate that the petitioner No. 4 and the vendor of the petitioners Nos. 1 to 3 were co-tenure holders of the disputed land. He has emphasized that the admission of Mahadeo, father of the contesting opposite parties Nos. 3 to 7, admitting the claim of the vendor of the petitioner Nos. 1 to 3 and that of the petitioner No. 4 has been misappreciated and misunderstood, hence the judgment stands vitiated in law and deserves to be set aside.

6. Thirdly, he has contended that the ex parte decree in favour of Mahadeo. father of the contesting opposite parties, is no judgment in the eye of law, hence it cannot operate as res judicata between the parties and since reliance has been placed upon the ex parte judgment and decree by the appellate authority and the revisional court, their judgments need be quashed.

7. The learned counsel for the contesting opposite parties has submitted in reply that Mewalal opposite party No. 8, vendor of the petitioners Nos. 1 to 3, as well as Moti Lal, petitioner No. 4, were not co-tenure holders of the disputed land nor they were ever admitted by the father of the contesting opposite parties as co-tenure holders of the disputed land. He has emphasized that mere Bhumidhari Sanad in the name of a person cannot confer any valid title upon him unless he was Sirdar of the disputed land before acquisition of Bhumidhari Sanad. According to the learned counsel for the opposite parties the appellate authority and the revisional court have correctly negatived the claim of the petitioners. He has also contended that the ex parte decree in favour of their father Mahadeo is a valid decree and binding upon the petitioners. Since the ex parte decree was not set aside by the trial court and the suit was wrongly abated, hence the order abating the suit was without jurisdiction and it cannot mitigate the effect of the decree in favour of their father. According to him the appellate authority and the revisional court have properly appreciated the effect of the ex parte decree and they have correctly recognized the claim of the contesting opposite parties.

8. Alternatively, he has submitted that the appellate authority and the revisional court have recognized the claim of the contesting opposite parties even on other evidence and circumstances involved in the present case, hence their judgments cannot -be characterised as perverse or without any basis in evidence and in the exercise of writ jurisdiction the impugned judgments cannot be interfered with.

9. He has also emphasized that there is no admission of Mahadeo re-garding the claim of the petitioner No. 4 and opposite party No. 8 and that the petitioners have utterly failed to bring relevant evidence on the record to establish that any admission was made by Mahadeo in the petitioners case. The documents relied upon by the petitioners to prove the admission of Mahadeo have not been proved in accordance with law and the petitioners have failed to examine the ex parte decree in the present case to prove their bona fide claim, hence they cannot rely upon the documents filed in the present writ petition to indicate the admission of Mahadeo about their claim.

10. The learned counsel for the contesting opposite parties has also emphasized that the ex parte judgment and decree in favour of Mahadeo may not be satisfactory but it cannot be characterised as a nullity and on that score its effect cannot be ignored. According to him mere reliance upon the ex parte decree in favour of Mahadeo should not be a ground for disturbing the impugned judgments.

11. I have considered the contentions raised on behalf of the parties and I have gone through the impugned judgments. As regards the first contention raised on behalf of the petitioners, it is noteworthy that the ex parte decree in favour of Mahadeo. the father of the contesting opposite parties 3 to 7. was not set aside and the suit was abated. Unless the ex parte decree was properly set aside the trial court had no jurisdiction to abate the suit. In this connection the learned counsel for the petitioners has invited my attention to the rulings of this Court wherein it has been emphasized that if the proceeding at the stage of final decree in a partition suit is abated, the effect of preliminary decree also vanishes (see 1976 All WC 591 Bam Gharib Singh v. Bhagauti Din Singh). To my mind the principle enunciated in the aforesaid ruling is inapplicable to the facts and circumstances of the present case. A partition suit finally terminates with the passing of the final decree but where an ex parte decree has been passed and unless that decree has been properly set aside, the court does not get jurisdiction to decide the claims of the parties in the suit nor it can abate the suit. Since in the present case the order of abating the suit has been passed without setting aside the ex parte decree, I think that the contention of the learned counsel for the petitioners is not correct to the effect that the effect of the ex parte decree has vanished due to the circumstance that the suit in which the ex parte decree was passed stood ultimately abated.

12. The learned counsel for the petitioners has also placed reliance upon the ruling of this Court reported in 1976 All WC 112, Daleep Singh v. Dy. Director of Consolidation Morada-bad and has contended that since the suit giving rise to the ex parte decree in favour of Mahadeo was ultimately abated, the order of abatement would be final between the parties and the appellate authority and the revisional court have patently erred in placing reliance upon the ex parte decree in favour of Mahadeo, father of the contesting opposite parties Nos. 3 to 7, The following observation in the aforesaid ruling has been emphasized by the learned counsel for the petitioners :--

'It is well settled that a decree or order which has become final operates as res judicata even though it may proceed upon an erroneous decision of a quos'ion of law.'

In my opinion the above observation and the ruling relied upon by the learned counsel for the petitioners are inapplicable to the facts of the present case. The order of abatement in the present case would be without jurisdiction as the ex parte decree in favour of Mahadeo, the father of the contesting opposite parties No 3 to 7, had not been set aside and unless it had been Bet aside the trial court had no jurisdiction to abate the suit. An order passed without jurisdiction cannot operate as res judicata between the parties, hence I am not inclined to agree with the contention of the learned counsel for the petitioners that due to abatement of the suit giving rise to the ex parte decree in favour of Mahadeo, father of the contesting opposite parties Nos. 3 to 7, the effect of the ex parte decree had 'lost its significance. Moreover, I find that the claim of the contesting opposite parties has been recognized in the present case not only due to the ex parte decree in favour of Mahadeo, father of the contesting opposite parties Nos. 3 to 7, but also on other evidence and circumstances involved, hence I repel the first contention raised on behalf of the petitioners.

13. As regards the second contention the learned counsel for the petitioners has not been able to satisfy me that Mahadeo had made any admission with regard to the right and title of Mewa-lal and Moti Lal in the disputed land. The application (annexure S-2 attached with the writ petition) has been filed to demonstrate that Mahadeo had admitted the claim of the alleged co-tenure holders Mewalal and Moti Lal. The contesting opposite parties had denied that any application had been moved by Mahadeo. It has not been established by the evidence on record that the aforesaid application (S-2) was really moved by Mahadeo. The petitioners have failed to file the original application of Mahadeo in the present case whereby a prayer was made for issuing Sanad in the name of Mewalal and Moti Lal. In the circumstances of the present case and on the materials before me I am not at all satisfied that any admission had been made by Mahadeo regarding the claim of the alleged co-tenure holders Moti Lal and Mewa Lal. I agree with the reasonings of the appellate authority in the present case that the disputed land was the acquisition of Magan, father of Mahadeo, in the very beginning and thereafter it has devolved upon the contesting opposite parties alone. Nothing material has been shown to me to demonstrate that the appell st e authority and the revisional court have misread or misappreciated the evidence on record which has brought in any patent error in their impugned judgments. I do not agree with the contention of the learned counsel for the petitioners that the judgments of the appellate authority and the revisional court deserve to be quashed due to misreading or misap-preciation of the evidence on record.

14. As regards the third contention raised on behalf of the petitioners that the ex parte judgment and decree in favour of Mahadeo, father of the contesting opposite parties Nos. 3 to 7, is no j udgment in the eye of law and cannot operate as res judicata, it is noteworthy that the learned counsel for the petitioners has placed reliance upon the ruling reported in 1977 Rev Dec 5 (All) Kalika v. Dy. Director of Consolidation and in this connection he has drawn my attention to the j udgment passed in favour of Mahadeo in a suit under Section 229-B of the U. P. Z. A. and L. R. Act which is Annexure P-1 to the supplementary affidavit filed on 6-12-1969 in this case. According to the learned counsel for the petitioners the judgment in favour of Mahadeo is no judgment in the eye of law as it did not comply with the provisions of Order XX. Rule 4 of the Civil P. C. and his contention is that in view of the ruling cited by him, ex parte decree in favour of Mahadeo should have been completely ignored.

15. In reply the learned counsel for the contesting opposite parties has invited my attention to the ruling reported in AIR 1957 All 107, Pitambar Prasad v. Sohan Lal wherein a Division Bench of this Court has made the following observation in para 21 of its judgment :--

'The argument that the order could not. be treated as a decree as it was not preceded by a judgment is not tenable. Order 20 Rules 4 (2) and 5 are not necessarily to be strictly followed when there is absolutely no evidence on the record. When the plaintiff is wholly unable to proceed with the case, an order simply dismissing the suit may be made. In such circumstances it would be a sheer formality to write a judgment on every issue because it will be a repetition of the same reason for every issue.

The mere fact that Rules 4 and 5 of Order 20 have not been complied with will not render the ultimate order any thing other than a decree. A decree does not depend upon the quality of the judgment but upon the fact that the Court has given formal expression of an adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. A decision dismissing a suit for want of evi -dence or proof disposes of all the matters in controversy in the suit against the plaintiff and, therefore, the decision is a decree,'

16. My attention was also drawn to the ruling reported in AIR 1964 Orissa 98, Kulamani Misra v. Makhanlal Moda wherein a learned single Judge of that Court had observed in para 7 of his judgment as below :--

'.....It is a matter of common knowledge that in ex parte cases, judgments are cryptic, evidence is barely referred to and hardly elaborate discussions are made. Merely from the fact of absence of elaborate discussion, as in contested cases, it cannot be said that the Court did not apply its judicial mind and did not appreciate the issue and evidence properly. Another Court might have come to a different conclusion; but on the ex parte evidence the Court was possibly more right in accepting plaintiff's version in preference to that of defence which was not supported by any evidence.....'

17. I fully agree with the above observation of the learned single Judge of Orissa High Court and I find that the ex parte judgment in favour of Mahadeo is the result of the application of judicial mind by the trial Court to the facts and circumstances involved. However, the claim of the contesting opposite parties has been recognized by the appellate authority and the revisional court after examining the claims of the parties to the disputed land and other evidence on record. The petitioners have utterly failed to show that the petitioner No. 4 or opposite party No. 8 Motilal were co-tenure-holders of the disputed land. The appraisal of evidence on this question by the appellate authority is quite satisfactory and the same judgment has been confirmed by the revisional court hence I am not prepared to hold that the judgments suffer from patent error or they stand vitiated in law due to the circumstance that the last two courts have referred to the ex parte decree in favour of Mahadeo, the father of the contesting opposite parties.

18. During the course of argument the learned counsel for the petitioners suggested that the petitioners have acquired right in the disputed land on the basis of estoppel, acquiescence and adverse possession and also due to Bhumidhari Sanad in favour of the petitioner No. 4 and opposite party No. 8 and he has placed reliance upon the ruling in 1971 All LJ 700, Deo Narain Singh v. Aditya Prasad and has emphasized para. 10 of the aforesaid ruling.

19. There is quibble that co-tenancy can be acquired by acquiescence, estoppel or adverse possession but I think in the present case the appellate authority and the revisional court have taken correct view of law in negativing the claim of the present petitioners. The petitioners have failed to establish in this case that either the petitioner No. 3 Motilal or opposite party No. 8 had acquired co-tenancy right on the date when the alleged application for obtaining Bhumidhari Sanad was moved nor it has been established that they or the petitioners 1 to 3 have been in possession over the disputed land and have succeeded in acquiring the right claimed. However. I am not prepared to hold that the appellate authority and the revisional court have patently erred in appreciating the claim of the petitioners based on estoppel, acquiescence or adverse possession.

20. It has also been suggested that the petitioners Nos. 1 to 3 have acquired right in view of the provisions of Section 41 of the Transfer of Property Act. To my mind the petitioners 1 to 3 have not examined the relevant documents before purchasing the share of Mewalal. the alleged co-tenure-holder, hence they are not entitled to take the benefit of Section 41 of the T. P. Act.

21. In the result. the contentions raised on behalf of the petitioners fail and the writ petition being devoid of merits is hereby dismissed. Parties are directed to bear their own costs.


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