Baljeet Singh & Ors Vs. Risal
Singh & Ors [1962] INSC 55 (15 February 1962)
ACT:
Civil Procedure-Res judicata-Twelve suits
against of defendants--Decreed by common judgment-Twelve appeals--Appeals by
one set of defendants dismissed for default-Whether other appeals
barred-Appeals to Supreme Court-consolidation Operations-If make appeals
infructuousU.P. Consolidation of Holdings Act, 1953, (U.P. V of 1954).
HEADNOTE:
K, H and M filed four suits each against four
sets of defendants in respect of different sets of plots under s. 175 U. P.
Tenancy Act, 1939. Since similar points were involved the twelve suits were
tried together and were disposed of by a common judgment decreeing them. Twelve
decrees were prepared and the defendants preferred twelve appeals to the
Additional Commissioner. Three appeals by one set of the defendants B were
dismissed for default and the remaining nine were dismissed on merits. Against
the dismissal of the nine appeals on merits the three sets of defendants preferred
nine second appeals before the Board of Revenue but they were dismissed as
barred by res judicata on May 7, 1954. In November, 1954, the appellants filed
petitions for special leave before the Supreme Court and on April 18, 1955, special leave was granted. In July 1954, the villages in Which the lands
in suit were situate came under consolidation operations under the U. P.
Consolidation of Holdings Act, 1953, and the operations were completed by the
publication of a notification 218 under s. 52 of the Act on October 17, 1953.
The appellants did not file any objections before the consolidation
authorities. The respondent contended that in view of the consolidation
operations the appeals before the Supreme Court had become infructuous.
Held, that the appeals had not become
infructuous. There was nothing in the U. P. Consolidation of Holdings Act,
1953, as it stood during the period the village in suit was under consolidation
operations which could have in any way affected these appeals, during or after
the consolidation operations. The subsequent Amending Acts did not affect the
appeals as they were prospective in operation and applied only to cases where
-the consolidation operations were started after the Amending Acts had come
into force.
Held, further that the appeals before the
Board of Revenue were not barred by resjudicata. It was essential for the bar
of res judicata that the previous and judication must have been between the
same parties. The three -suits in which judgments had become final were against
one B and not against any of the appellants . The matter in issue in those
three suits was different from that in the other nine suits as each of the
suits related to different plots. The common judgment was really twelve
judgments in the twelve suits.
Badri Narayan Singh v. Kamdeo Prasad Singh,
(1962) 3. S. C. R. 759 referred to.
CIVIL APPELLATE, JURISDICTION: Civil Appeals
Nos. 67 to 75 of 1959.
Appeals by special leave from the judgment
and order dated May 7, 1954 of the U.P. Board of Revenue, in Second Appeals
Nos. 53 to 61 of 1945-46.
S. P. sinha, J. P. Goyal and Sadhu Singh, for
the appellants.
Bishan Narain and E. L. Mehta, for the
respondents.
1960. February 15. The Judgment of the Court
was delivered by RAGHUBAR DAYAL, J.-These nine. appeals, by special leave, are
against the orders of the Board of Revenue, Uttar Pradesh, dismissing nine 219
second appeals filed by the appellants in circumstances hereinafter, mentioned,
on the ground that the orders of the First Appellate Court in three other
connected first appeals had become final and operated as res judicata.
Khub Chand had three sons Karan Singh,
Hoshiar Singh and Mukhtiar Singh. Each of these brothers instituted four suits.
Hoshiar Singh instituted suit No. 48 of 1944 under s. 175 of the U.P. Tenancy
Act, 1939 (U.P. XVII of 1939), against one Bhartu, suite No.49 against Har
Gyan, Mukhtiar Singh and Data Ram, sons of Sis Ram, brother of Bhartu, suite
No.50 against Har Gyan and Mukhtiar Singh, sons of Sis Ram, and suit No. 51
against one Banwari. Karam Singh similarly instituted suits Nos. 63, 61, 60 and
62 against similar defendents respectively. Mukhtiar Singh's suits against
those defendants, respectively. were Nos.67, 65, 64 and 66.
Each of these suits was for different sets of
plots. The allegations of the plaintiffs in each suit and the contentions of
the defendent in each suit were similar and therefore similar issues were
framed in each suit and all the suits were tried together and were disposed of
by one common judgment. Twelve decrees were, however, prepared.
Against the twelve decrees the
defendants-judgment debtors in each decree filed twelve first appeals in the
Court of the Additional Commissioner, Meerut Division. The Additional
Commissioner dismissed three appeals for default, These -were the appeals which
were filed against Hoshiar Singh, Karam Singh and Mukhtiar Singh by Banwari.
The Additional Commissioner heard the remainmg nine appeals on merits and
dismissed them. The defendants-judgment debtors then filed nine second appeals
before the Board of Revenue.
They were dismissed as barred by res judicata
on May 7, 1954.
The applications for special leave were filed
in this Court in November 1954. Special leave was 220 granted on April 18,
1955. By the time the appeals came up for hearing, some other events took place
and as a result of them the respondents filed an application for adducing
additional evidence under O.XLV, rr. 1 to 5, Supreme Court Rules in November
1959, and also included in their statement of case a narration of those events
and their effect.
It appeals that the villages in which-the
lands in suit were situate, come under Consolidation Operations under the U.P.
Consolidation of Holding.s Act, 1953(U. P. V
of 1954), hereinafter called the Act, sometime in July 1954, when a declaration
was issued by the State Government under s.4 of the Act to the effect that it
had been decided to make a Scheme of consolidation for that area. In December
1954, a statement of plots and tenure holders was prepared and in May 1955 a
statement of proposals under s.19 was prepared;
in August 1955 final statements in chak form
25 were issued.
On October 17, 1955, the State Government
published a notification under s.52 of the Act.
section 52 of the Act then read:
"As soon as may be after the
tenure-holders have entered into possession of their new holding in pursuance
of ;Section 26, the State Government shall issue a notification in the Official
Gazette that the Consolidation operations have been closed in the village and
the village shall then cease to be under consolidation operation." It is
thus seen that this village remained under Consolidation operations from sometime
in July 1954 to October 17, 1955.
The appellants did not file any objections
before the Consolidation authorities under s.12 of the Act disputing the
correctness or the nature of the entries in the statement prepared under s.11
or under s.20 against -the statement of proposals prepared under s.19 221
Section 21 provides for the fixing of a date for the enforcement or the
consolidation scheme. Section 25 provides for the issuing of the allotment
order showing the new fields allotted to each tenure-holder in accordance with
the said scheme. Section 26 provides for the tenure-holders to enter into
possession of the fields allotted to them on or after a certain date. Section
27 provides for the preparation of new village maps, khasra and the record-ofrights,
in accordance with the Provisions of the U. P. Land Revenue Act, 1901. Its
sub-s (2) provides that all entries in the record-of-rights prepared under
sub-s.(1) small be final and conclusive, Section 30 provides that the rights,
title, interest and liabilities of the tenure holder in his original holding
shall be extinguished and he will have the same rights, title, interest and
liabilities subject to modification, if any, in the plots allotted to him under
s.25 with effect from the date on which he enters into possession of the plots
allotted to him.
It was contended for the respondents that in
view of these consolidations operation and s.5 of the Act, as amended up to
date, these appeals have become infructuous as this Court cannot pass any
orders on the merits of the controversy.
The Act has been amended several times since
it was originally enacted. The various amending Acts are: Act XXVI of 1954
which came into force on December 13, 1954; Act XIII of 1955 which me into
force on June 10, 1955; Act XX of 1955 which came into force on October 21,
1955; Act XXIV of 1956 which came into force on July 3, 1956; Act XVI of 1957
which came into force on May 25, 1957 and Act XXXVIII of 1958 which came into
force on November 19, 1958.
During the period the village in suit was
under Consolidation Operations, the Act applicable 222 to the proceedings was
the Original Act as amended by Acts XXVI of 1954 and XIII of 1955. The other
Acts came into force subsequent to the issue of the notification under s.52 of
the Act. It is necessary to bear this in mind in view of the contentions
raised.
Section 5 of Act V of 1954 was as follows (1)
Upon the publication of the declaration under section 4, the district or the
local area; as the case may be, shall be deemed to be under consolidation
operations from the date of such publication until this publication of the
Notification under section 52 in the official Gazette to the effect that the
consolidation operations have been closed.
(2) Where a district or any other local area
is under consolidation operations, the duty of preparing and maintaining the
maps the khasra and the annual register under Chapter ITI of the U.P. Land
Revenue Act, 1901, shall stand transferred to the Settlement Officer
(Consolidation), and thereupon all the powers conferred on the Collector,
Assistant Collecter and the Tahsildar under the said Chapter shall, so long as
that district or the area remains under consolidation operations be exercised
respectively by the Settlement Officer (Consolidation), Consolidation Officer
and the Assistant Consolidation Officer." Act XXVI of 1954 deleted the
last portion of sub-s.(2) commencing from the words "and there. upon. No
change in this section was made by the Amending Act XIII of 1955.
There was therefore nothing in this section
which in any way would have affected the hearing of these appeals, during or
after the consolidation operations.
223 Section 12 of Act V of 1954 provided for
the publication of the statement of plots and tenure holders prepared under s. II
and for filing objections disputing the correctness or nature of entries in it.
Its subsections (4), (5) and (6) were :
" (4) Where the objection filed under
subsection (1) involves a question of title and such question has not already
been determined by a competent court, the Consolidation Officer shall refer the
question for determination to the Arbitrator.
(5) All suits or proceedings in the court of
first instance or appeal in which a question of title in relation to same land
has been raised, shall be stayed.
(6) The decision of the Arbitrator under subsection
(4) shall be final." There was nothing in these sub-sections -which
provided as to how the suits or proceedings stayed been under subsection (5)
would be decided or how matters in connection of which no objection bad raised
under s.12 would be dealt with. These provisions too did not affect the pending
Appeals as no objection had been filed under s.12.
Act XXVI of 1954 amended sub-s.(4) to the
effect that the objection coming under sub-s.(4) would be referred to the Civil
Judge, who will then refer it to the Arbitrator, and substituted another
sub-section in the place of original sub-s.(5). The substituted sub-s.(5) read
:
"(5) Upon the making of reference under
subsection (4) all suits or proceedings in the Court of first instance, appeal,
reference or revision in which the question of title in relation to the same
land has been raised, shall be stayed." This amendment in sub-s.(5) stayed
the suits and 224 proceedings not only in the Courts of the first instance and
appeal but also in the Courts of reference and revision, but did not affect
these appeals.
Sub-s.(2) of s.27 as originally enacted, was
not amended up to the 17th October, 1955. Its sub-s.(2) made the entries in the
record of rights Prepared under sub-s.(1) final and conclusive. 'We are not
concerned with its effect in these appeals.
Section 49 of the Act bars the jurisdiction
of Civil Courts.
This section, before its amendment by Act
XTTT of 1955, -which came into force on June 10, 1955, did not bar the
institution of a suit or proceedings in the, revenue court.
It did so after the amendment. The,.;,)
appeals had been filed long before the amendment.
We may state that no objection was raised on
behalf of the respondent to the effect that these appeals could not have been
instituted, but we have discussed that matter, in view of the fact that the
appeals were filed after the State Government had made a declaration under s.4
of the Act.
We have not been referred to any provision in
these, Acts, viz.. Act V of 1954, Act xxvr of 1954 and Act XIII of 1955 which
would lead to the conclusion that these appeals have become infructuous.
Act XX of 1955 made an amendment in s.27 of
the Act. The amendment however does not affect the question before us.
Act XXIV of 1956 which came into force on
July 3, 1956, substituted a new section 5 in the place of the old. The
substituted section 5 read :
"5. When the declaration under section 4
has been published in the Gazette, the consequences as hereinafter set forth
shall, 225 from the date specified there under till the publication of the
notification under section 52 in the Official Gazette to the effect that the
consolidation operations have been closed, ensue in the area to which the
declaration relates, namely ;
(a) the district or the local area, as the
case may be, shall be deemed to be under consolidation operations from the
specified date, and the duty of preparing and maintaining the khasra and the
annual Register under Chapter III of the U.P. Land Revenue Act, 1901, shall
stand transferred to the Settlement Officer (Consolidation), and (b) all
proceedings for the correction of any such records pending before any court or
authority shall be stayed but without prejudice to the right of the persons
affected to agitate the question before the Assistant Consolidation Officer
under sub-section (3) of Section 8, or in proceedings commenced under and in
accordance with section 10" Clearly, cl. (b) does not apply to these
appeals as they have not arisen out of proceedings for the correction of
village records.
Act XXIV of 1956 made certain amendments in
s. 11 with which we are not concerned. We are not also concerned with the
amendments this Act made in subs. (1) of s. 12. It substituted a new
sub-section (5) and added sub-s. (7).
These new subsections (5) and (7)are:
"(5) Upon the publication of the
statement under section 11, all suits or proceedings in the Court of first
instance, appeal, reference or revision, in which the question of title in
respect of any plot mentioned in the statement with reference to clause (c) of
sub-section (1) of section II has been raised, shall be 226 stayed to the
extent it relates to such plot and shall thereafter be disposed of in the
manner prescribed.
(7) A question of title in respect of any
plot mentioned in the statement in clause (c) Of sub-section 1 of section 11,
which might and ought to have been raised under subsection (1) but had not been
raised, shall not be raised in any objection filed under subsection (2) of
section 20, or under sub-section (1) of section 34." It is for the first time
that such suits and proceedings in the various Courts had to be stayed in which
a question of title in respect of any plot mentioned in the statement with
reference to el. (c) of sub-s. (1) of s. 11 had been raised and that these
stayed suits or proceedings were to be decided subsequently in the manner
prescribed, i. e., in the manner laid down under rules framed under the Act. These
provisions of sub-s. (5) do not affect the appeals as they were prospective in
operation and could apply to those cases only in which at statements under s.
11 were filed after the amendment had been made.
The amendments made by the other sections of
this Act and Act XVI of 1957, do not affect the hearing of the appeals in any
way.
Thereafter case Act XXXVIII of 1958. This Act
again substituted a new s. 5, and the relevant portion of the substituted
section reads:
5.Upon the publication of the notification
under section 4 in the Official Gazette, the consequences, as hereinafter set
forth, shall, subject to the provisions of this Act, from the date specified
there under till the publication of notification under section 52 or
sub-section (1) of section 6, as. the case may 227 be, ensue in the area to
which . the declaration relates; namelyx x x x x (b) (1) all proceedings for
correction of the records and all suits for declaration of rights and interest
over land , or for possession of land or for partition, pending before any
authority or court, whether of first instance, appeal or reference or revision,
shall stand stayed, but without prejudice to the right of the persons affected
to agitate the right or interests in dispute in the said proceedings or suits
before the consolidation authorities under and in accordance with the
provisions of this Act and the Rules made there under:
(ii) the findings of consolidation authorities
in proceedings under this Act in respect of such right or interest in the land,
-shall be acceptable to -the authority or court before whom the proceeding or
suit was pending which may, on communication thereof by the parties concerned.
proceed with the proceeding or suit, as the case may be;
These provisions operate prospectively. The
consequences mentioned in s. 5 ensue upon the publication of the notification
under S. 4 in the Gazette and continue up to the publication of the
notification under s. 52. They do not continue thereafter and could not operate
on these cases in which the notification under s. 52 was issued on the 17th
October 1955. They do not therefore bar the hearing of these appeals. These a
peals have not. therefore become infructuous.
Sections 7, 8, 9, 10, 11, 11-A, 11-B, 12,
12-A, 12-B, 12-C and 12-D have been substituted by new section which apply to
proceedings taken in consolidation operations subsequent to the coming into
force of 'the Amending Act XXXVIII of 1858.
Sub-s. (1) of 228 is. 12 makes it clear that
the matters mentioned in that sub-section cannot be raised subsequent to the
date of notification under s. 52.
There has been no material change made in as.
27 and 30, but s. 49 now reads:
"49. Notwithstanding anything contained
in any other law, for the time being in force the declaration and adjudication
of rights of tenure holders in respect of land lying in an area, for which a
declaration has been issued under section 4, or adjudication of any other right
arising out of consolidation proceedings and in regard to which a proceeding
could or ought to have been taken under this Act, shall be done in accordance
with the provisions of this Act and no civil or revenue court shall entertain
any suit or proceeding with respect to rights in such land or with respect to
any other matters for which a proceeding could or ought to have been taken
under this Act." This now provides that the adjudication of' rights of
tenure holders in respect of land lying in an area under consolidation
operations shall be done in accordance with the provisions of the Act. This
leads practically to the same result to which cl. (ii) of sub-s. (b) of s. 5
leads to. The provisions of this section are not expressly limited to the
period between the declaration under s. 4 and the notification under s. 52, but
can be so construed as they relate back to s. 5 (b) (ii) of the Act as the
declaration and adjudication of rights have to be done in accordance with the
provisions of the Act. Further the amended provision would apply to the
proceedings regarding rights in land in the area for which a declaration under
s. 4 has been issued after the amendment.
We are therefore of opinion that these
appeals have not become infructuous.
229 On the merits, we are of opinion that the
Board of Revenue erred in holding that the appeals before it were barred by res
judicata. It is essential for any previous Adjudication of a point to bar its
consideration second time that, the previous adjudication must have been
between the same parties and that it be with respect to the same matter.
The three suits in which judgments became
final were against one Banwari and', not against any of the present appellants.
The matter in issue in those three suits were
also different 'from that in the suits which have given rise to these appeals. Each
of the twelve suits related to different plots. A common judgment on account of
similar questions being raised for decision in the different suits, does not
always make that judgment amount to one judgment in those suits. Such a
judgment will ordinarily be deemed to be really so many judgments as the suits
disposed of by it.
This Court expressed a similar view in Badri
Narayan Singh v. Kamdeo Prasad Singh(1).
We therefore allow the appeals, set aside the
order of the Court below and remand the appeals to it for further hearing and
decision according to law.' We may make it clear that it can take into
consideration the effect of the Consolidation Act and proceedings there under,
after giving an opportunity to the parties to submit what, they like in regard
to them costs to abide the result.
Appeals. allowed, (1) [1962] 3 S. C. R. 759.
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