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Sarbati and ors. Vs. Zaminpal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1933All291
AppellantSarbati and ors.
RespondentZaminpal and ors.
Excerpt:
- .....respective villages were not parties to this litigation. there was a proceeding under section 41, land revenue act, between the parties and a copy of the judgment has been filed, ex. a, which is the judgment of a competent revenue court under section 41, in regard to this boundary dispute. the lower appellate court has held that this judgment operates as res judicata between the parties. the relevant section is 44 which states as follows:all entries in the annual registers made under sub-section (3), s. s3, shall be presumed to be true until the contrary is proved; and, subject to the provisions of sub-section (3), section 40, all decisions under ids. 40, 41 and 42 shall be binding on all revenue courts in respect of the subject-matter of the dispute; but no such entry or decision shall.....
Judgment:

1. This is a second appeal by the plaintiffs against the decree of the lower appellate Court dismissing their suit on the ground that it is barred by res judicata. The plaintiffs brought a suit as the occupancy tenants of plot No. 158 in village Asrauli and plot No. 606 in village Tatarpur against the defendants who are occupancy tenants in mauza Tatarpur only of plot No. 620. A preliminary objection was taken by learned Counsel for the respondents to the hearing of this second appeal. He said that he had filed an affidavit, which is in the office but not before the Court to the effect that of the respondents, one Zaminpal had died and that Zaminpal had left two sons of whom Bindaban was now surviving. The death took place on 27th October 1930. Consequently he claimed that the whole of the appeal would have abated. He also claimed that one of the plaintiffs, Gyan Singh had died in October 1931 leaving three sons, Nathu, Sukhai and Radhcy and that none of these persons were on the record. The suit however is by a number of joint tenants that plaintiffs who are stated in the recital of the plaint to be members of a joint family and this is not denied in the written statement. So far as the plaintiffs are concerned therefore the death of one member of the joint family would not be any reason why the appeal should abate.

2. As regards the defendants, learned Counsel admits that in the affidavit it is not slated whether they formed a joint Hindu family or not. The affidavit therefore would not throw any light on the matter, but the defendants are sued as joint occupancy tenants and they accepted that position. If they were members of a joint family no further question would arise. If they were not members of a joint family still they were joint tenants and the son Bindaban of Zaminpal has admittedly not taken possession of the occupancy holding or applied to have his name entered as a joint tenant. No doubt he might have a claim to that effect, but I do not see any reason why this appeal should abate on that account. One co-tenant can represent all the co-tenants for the purpose of suits of this nature. Now as regards the facts of this case the allegation in para. 3 of the plaint is that the defendants had included in their holding in Tatarpur certain land from each number of the plaintiffs, that is, some from Tatarpur and some from Asrauli. It is to be rioted that the zamindars of these respective villages were not parties to this litigation. There was a proceeding under Section 41, Land Revenue Act, between the parties and a copy of the judgment has been filed, Ex. A, which is the judgment of a competent Revenue Court under Section 41, in regard to this boundary dispute. The lower appellate Court has held that this judgment operates as res judicata between the parties. The relevant section is 44 which states as follows:

All entries in the annual registers made under Sub-section (3), S. S3, shall be presumed to be true until the contrary is proved; and, subject to the provisions of Sub-section (3), Section 40, all decisions under ids. 40, 41 and 42 shall be binding on all revenue Courts in respect of the subject-matter of the dispute; but no such entry or decision shall affect the right o any person to claim and establish in the civil Court any interest in land which requires to be recorded in the register prescribed by Clauses (a) to (d), Section 32.

3. The latter portion is of importance, and it lays down that any person may have a right to establish in the civil Court any interest in land which is recorded in the registers prescribed by Clauses (a) to (d), Section 32. Now the interest in land which the plaintiffs claim is the interest of occupancy tenants. That interest is recorded in the khatauni which is the register under-S. 32 (c), a register of all persons cultivating or otherwise occupying land. Accordingly Section 44 does not give the plaintiffs a right to establish in the civil Court the interest which they claim, because it is an interest in a register prescribed by Section 32(e) and Section 44 does not allow such a suit to be brought. learned Counsel for the plaintiffs-appellants has not been able to show any authority for his claim that he can sue in the civil Court in face of the order for correction of boundary. In Sheoambar Singh v. Sheoambar Singh : AIR1927All780 there was a case in which there had been previous proceedings not under Section 41 but under Section 42, Land Revenue Act, between the parties. Sections 40, 41 and 42 are treated in Section 44 in the same manner, and therefore a ruling in regard to a previous proceeding under Section 42 is relevant in the present case. In Sheoambar Singh v. Sheoambar Singh : AIR1927All780 it was laid down at p. 801:

It was suggested that the decision of a revenue Court in miscellaneous proceedings under Section 42, would not prevent the plaintiff from establishing his claim in the Court. The last sentence to Section 44 read with Section 32 however makes it clear that this is not the case. The entries in the register referred to in Clauses (a) to (d), Section 32, may be challenged in the civil Courts. They relate to matters of proprietary title. The entries referred to in Clause (e), Section 32 are expressly excluded from the last sentence of Section 44. They relate to persons cultivating or otherwise occupying land as distinct from proprietors, under-proprietors and revenue-free holders, and it appears therefore to be quite clear that the final decision in these cases would rest with the revenue Courts, and will be binding on the parties to the proceeding.

4. This is a ruling by a Bench of this Court which I am bound to follow and with which I am in complete agreement. Accordingly I dismiss this second appeal with costs.


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