Malkhan Singh Vs. Sohan Singh &
Ors [1985] INSC 192 (2 September 1985)
MISRA, R.B. (J) MISRA, R.B. (J)
VENKATARAMIAH, E.S. (J)
CITATION: 1986 AIR 500 1985 SCR Supl. (2) 747
1985 SCC (4) 469 1985 SCALE (2)614
ACT:
Uttar Pradesh Consolidation of Holdings Act
(as it stood before the Amendment Act of 1963) section 49 - Bar to civil
jurisdiction and/or applicability of the principle of res Judicata, when there
is no provision for the adjudication of rights and title after the statements
of proposals had become final under section 23 of the Act and if in the
mutation proceedings the issue of adoptions is found against.
HEADNOTE:
Kishan Singh, Natha Singh and Guman Singh
were three I- brothers. Kishan Singh had no issue while Natha Singh had three
sons: Chajju, Rambir and Malkhan Singh; Guman Singh hat two sons: Sohan Singh
and Rohan Singh. Gishan Singh was possessed of some agricultural land and also
a house. The village, where the agricultural plots of Gishan Singh were situate
was brought under Consolidation of holdings Act, the rights and title of gishan
Singh were determined in these proceedings and eventually chak No- 14 was
allotted to him.
Although the notification under section 52
had not been issued bringing to an end the consolidation proceedings, the
statement of proposals (allotment of chak) had been confirmed under section 23
of the Act.
1. At this stage Kishan Singh died and a
dispute arose about his heirship. There were two sets of competitive claimants.
Malkhan Singh son of Natha Singh claimed to be adopted son of Gishan Singh
while the two other sons of Natha Singh and the sons of Guman Singh formed the
other set and claimed to succeed ; gishan Singh alongwith Malkhan Singh jointly
as nephew denying the factum of adoption of Malkhan Singh by Gishan Singh. The
consolidation authorities found that Malkhan Singh was not the adopted son.
2. When the village was denotified under
section 52 of the Act and the consolidation proceedings came to an end, Malkhan
Singh filed a suit claiming to be the adopted son of the deceased. The claim
was resisted by the defendants. They denied the factum of adoption set up by
the plaintiff and they also 748 pleaded the bar of section 42 of the Specific
Relief Act ant section 49 of the Consolidation Act. The bar of section 49 set
up in the written statement was, however, given up. The trial Court dismissed
the suit holding that Malkhan Singh was not the adopted son. On appeal the
civil and Sessions Judge reversed the finding of the trial court and decreed
the suit holding that Malkhan Singh was the adopted son of Kissing Singh and
that he was given in adoption by his mother after the death of her husband.
Feeling aggrieved, the respondents took up the matter to the High Court in
second appeal and the High Court in its turn allowed the appeal and dismissed
the suit on a short ground that the suit giving rise to appeal was barred by
the principles of res judicata as the question of adoption had already been
determined by the consolidation authorities during consolidation proceedings
and that decision could not be upset by any other court as provided by section
49 of the said Act and the earlier decision of the consolidation authorities
would operate as res judicata on general principles. In the view that the High
Court took it did not decide the question of adoption. Hence the appeal by
special leave.
Allowing the appeal, the Court, ^
HELD: 1.1 The decision of the consolidation
authorities may operate as a bar on the principles of res judicata as correctly
laid down in Raj Lakshmi Dasi's case in the instant case there has been no
adjudication of the rights and title of Malkhan Singh. Under the Consolidation
Act as prevailing at that time there was no provision for the adjudication of
rights and title after the statement of proposals had become final. The
consolidation authorities, thereafter, were only required to maintain the
record and in 80 doing they could also entertain an application for mutation.
The application filed by Malkhan Singh to succeed Kishan Singh was virtually an
application for mutation and the decision of the consolidation authorities that
Malkhan Singh was not an adopted son of Kishan Singh would not amount to a
decision of the title and interest of Malkhan Singh. [751 G-H, 752 A-C]
1.2 It is well settled that the mutation
proceedings do not decide the rights and title of the parties and it is always
open to a party aggrieved to get its rights adjudicated upon by a competent
court despite the order in mutation proceedings. If the consolidation authorities
had decided the title of Malkhan Singh in consolidation proceedings then
certainly a subsequent suit for the same would be barred by the principles of
res judicata. [752 C-D 749
1.3 Whether the bar is created by the
principles of res judicata or by section 49 of the Act the results REDDENS the
same. If once it is accepted that the decision of the consolidation authorities
after the final allotment of chak to Kishan Singh that the appellant was not
the adopted son of Kishan Singh amounts to an order under mutation proceedings
and there was no adjudication of rights and title of the appellant in the
earlier proceedings, there is question of the suit being barred by res judicata
or by the principles of res judicata. The position after the amendment of the Consolidation
Act in 1963, however, materially changed. Section 12 of the Act brought in by
the amendment gives power to the consolidation authorities to decide matters
relating to changes ant transactions affecting rights or interest recorded in
the revised records even after the statement of proposals had became final
provided that the ¯ notification under section 52 had not been slued, the
provisions of section 7 to 11 have been made applicable to the proceedings
under section 12. The adjudicating of the fresh cause of action will therefore
amount to the adjudication of right and title.[755 A-D,G-H,756 A ] Smt. Natho
& Anr. v. Board of Revenue, U.P. Aallhabad & Ore., 1966 A.L.J. 563
approved.
Suba Singh v. Mahendra Singh & Ors.,
A.I.R. 1974 S.C.
1657 followed.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 650 of 1972.
from the Judgment and Order dated the 28th
October, 1971 of the Allahabad High Court in Second Appeal No. 94 of 1965.
J.P. Goyal and S.K. Jain for the Appellant.
M.V. Goswami for the Respondent.
The Judgment of the Court was delivered by
MISRA, J. The present appeal by special leave is directed against the judgment
of the High Court of Allahabad dated 28th October, 1971.
One Ganga Singh had three sons, Kishan Singh,
Natha Singh and Guman Singh. Kishan Singh had no issue while Natha Singh had
three sons, Chajju, Rambir and Malkhan Singh.
Guman Singh 750 had two sons, Sohan Singh and
Rohan Singh. Kishan Singh was possessed of some agricultural land and also a
house. It appears that the village where the agricultural plots of Kishan Singh
were situate was brought under Consolidation operations and the rights and
title of Kishan Singh were determined in those proceedings and eventually chak
No. 14 was allotted to him. The consolidation proceedings start with a
notification under s. 4 of the U.P. Consolidation of Holdings Act and comes to
an end with a denotification under s. 52 of the Act. Although the notification
under s. 52 had not been issued but the statement of proposals (allotment of chak)
had been confirmed under s. 23 of the Act Kishan Singh at this stage died
without leaving any issue and a dispute arose about his heirship. Malkhan Singh
son of Natha Singh claimed to be an adopted son of Kishan Singh and on that
basis claimed to inherit the interest of Kishan Singh while Sohan Singh and
Rohan Singh claimed to inherit the interest of Kishan Singh along with Chajju,
Rambir and Malkhan Singh. The consolidation authorities after taking evidence,
both oral and documentary came to the conclusion that Malkhan Singh was not the
adopted son.
When the village was denotified under s. 52
of the Act and the consolidation operations came to an end, Malkhan Singh filed
a suit in respect of the agricultural plots as well as the house left by Kishan
Singh alleging that he was given in adoption by his mother, wife of Nathu Singh
to Kishan Singh and Kishan Singh took him in adoption on 9th June 1946 with all
the formalities of given and taking and' datta-homa. He also executed a deed of
adoption on 29th November, 1948 in proof of adoption. The suit was contested
only by defendants Nos. 1 and 2, Sohan Singh and Rohan Singh. The other
defendants Rambir Singh and Chajju, sons of Nathu Singh did not contest. Their
defence in the main was that the plaintiff was not the adopted son of Kishan
Singh, that the court had no jurisdiction to try the suit and that the suit was
barred by s. 49 of the Act and also by s. 42 of the Specific Relief Act. The
plea of jurisdiction and bar of s. 49 of the Consolidation Act were not pressed
by the defendants. The issue of adoption was decided against the plaintiff. The
bar of s. 42 of the Specific Relief Act was also negatived. On these findings
the plaintiff's suit was dismissed by the trial Court. On an appeal the Civil
and Sessions Judge reversed the finding of the trial court and decreed the suit
holding that Malkhan Singh was the adopted son of Kishan Singh and that he was
given in adoption BY his mother after the death of her husband. Feeling 751
aggrieved the defendants took up the matter to the High Court in second appeal
and the High Court in its turn allowed the appeal and dismissed the suit on a
short ground that the suit giving rise to appeal was barred by the principles
of res Judicata us the question of adoption had already been determined by the
consolidation authorities during consolidation proceedings and that decision
could not be upset by any other court as provided by s. 49 of the said Act and
the earlier decision of the consolidation authorities would operate as res
judicata on general principles. In the view that the High Court took it did not
decide the question of adoption. The plaintiff has now come to this Court by
special leave as stated earlier.
Shri J.P. Goyal appearing for the appellant
contended that the High Court had carved out a new case for the defendants
which was not their case in the written statement. Elaborating the argument the
counsel urged that the plea of Jurisdiction and bar of s. 49 had been taken at
one stage but at a later stage the two pleas were given up and were not
pressed, and that the bar of res judicata had never been set up. This
contention was raised even before the High Court but the same was repelled on
the ground that the application of the general principles of res judicata as a
bar to the suit did not require much evidence and all that was necessary to
prove was that the earlier court or authority had the jurisdiction to decide
the question of title.
Shri M.V. Goswami appearing for the
respondents has tried to support the judgment on the ground that the suit may
not 'be barred by s. 11 of the Code of Civil Procedure as the consolidation
authorities had no jurisdiction to decide the rights and title in respect of
the house property, but all the same the principles of res judicata would be
applicable if the question of adoption had been decided by the consolidation
authorities which had the exclusive jurisdiction. to decide the rights and
title during the pendently of the consolidation libation proceedings. In
support of his contention he relied upon Raj Lakshmi Dasi & Ors. Banamali
Sen & Ors. [1953] S.C.R. 154.
There is no quarrel with the proposition of
law laid down in Raj Lakshmi Dasi's case (supra) that the decision of the
consolidation authorities may operate as a bar on the principles of res
judicata. But the question in the instant case is whether there has been an
adjudication of the rights and title of Malkhan Singh. As stated earlier the
rights and title of Kissing Singh had already been determined Ind that is no more
in dispute. It was 752 only when Kishan Singh died before denotification of the
village under s. 52 of the Act and after the statement of proposals had become
final that the question cropped up about the heirship of Kishan Singh deceased.
Under the Consolidation Act as prevailing at that time there was no provision
for the adjudication of rights and title after the statement of proposals had
become final. The consolidation authorities thereafter were only required to
maintain the record and in so doing they could also entertain an application
for mutation. The application filed by Malkhan Singh to succeed Kishan Singh
was virtually an application for mutation and the decision of the consolidation
authorities that Malkhan Singh was not an adopted son of Kishan Singh would not
amount to a decision of the title and interest of Malkhan Singh. It is well
settled that the mutation proceedings do not decide the rights and title of the
parties and it is always open to a party aggrieved to get its rights adjudicated
upon by a competent court despite the order in mutation proceedings. If the
consolidation authorities had decided the title of Malkhan Singh in
consolidation proceedings then certainly a subsequent suit for the same would
be barred by the principles of res judicata.
The contention of Shri J.P. Goyal is that the
decision By the consolidation authorities that Malkhan Singh was not the
adopted son of Kishan Singh amounts to an order passed by the mutation court in
mutation proceedings. In support of his contention he has relied upon two
decisions: Smt. Natho Anr. v. Board of Revenue, U.P. Allahabad & Ors., 1966
A.L.J.
563 and Suba Singh v. Mahendra Singh &
Ors., A.I.R. 1974 S.C. 1657. In both these cases the bar of s. 49 of the U.P.
Consolidation of Holdings Act had been
pleaded. It will be pertinent to read s. 49:
"49. Bar to civil jurisdiction.
Notwithstanding any thing contained in any other law for the time Being in
force, the declaration and adjudication of rights of tenure holders in respect
or Land lying in an area, for which a notification has been issued under
sub-section (2) of Section 4 or adjudication of any other right arising out of
consolidation proceedings are 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
proceedings 753 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." In the instant case as stated in the earlier part of the
judgement the defendants had given up the plea of Jurisdiction and bar of s. 49
of the Act. They, however, banked upon the bar of principles of res judicata
although no such specific plea had been taken by them in the written statement.
As the High Court has allowed the defendants to take up this plea, we propose
to decide the question of bar of principles of res judicata. Whether the bar is
created by the principles of res judicata or by s. 49 of the Act the result
remains the same. While considering the applicability of s. 49 of the Act the
Allahabad High Court in Smt. Natho's case (supra) observed:
"Consequently, Sec. 49 will only come
into play if either there had been proceedings relating to declaration and
adjudication of rights of tenure- holders in respect of the disputed land or if
a proceeding for such declaration or adjudication of rights of tenure holders
in respect of the land could or ought to have been taken under the
Consolidation of Holdings Act. In the present case, the proceedings that were
taken before the consolidation authorities on the death of Bakhtawar were
admittedly for mutation of names in the revenue records. We need not cite any
ruling for the well settled principle that proceedings for mutation of names in
revenue' courts do not decide any rights or title of tenure-holders, so that
those mutation proceedings were not proceedings in which there could be any
declaration or adjudication of rights of these parties by the consolidation
authorities. All that the consolidation authorities could do was to enter the
name of the person found entitled in place of Bakhtawar without adjudicating
upon or declaring the rights of any of the parties to the land to which the
proceedings for mutation related. At the stage at which Bakhtawar died, no
proceeding could have been taken before the consolidation authorities for the
purposes of having the rights declared or adjudicated upon.
The powers of consolidation authorities to
adjudicate upon rights of tenure-holders are confined to proceedings taken
under section 9 or section 20 of 754 the Consolidation of Holdings Act or
subsequent proceedings arising out of those proceedings itself, such as appeals
or revisions. Once the proceedings up to the stage of Sec. 23 of the
Consolidation of Holdings Act have been completed and the statement of
proposals under Sec. 23 have been confirmed, the statement of proposals becomes
final and the effect of finality is that all adjudications already made upto
that date became final. The further effect is that, thereafter there is no
provision empowering the consolidation authorities to go into new questions of
title or rights, which may arise as a result of new causes of action which may arise
after the statement of proposals have been confirmed." In Suba Singh's
case (supra) a had been allotted to the original tenure holder and the same had
become final under s.23. The tenure holder thereafter died but before his death
the possession over the had allotted to him had been given to him and nothing
substantial remained to be done in the shape of consolidation operations so far
as his parcel of land was concerned. Title, conglomeration, allotment and
occupation practically the whole gamut of consolidation stages was thus
covered. This Court held that the present case was neither covered by the first
clause or by the second clause of s.49 of the Act inasmuch as after the death
of the chak holder the question of his heirship arose which could not be
decided by the consolidation authorities after the statement of proposals had
become final. It observed:
"Section 27(1) requires the Director of
Consolidation to cause soon after the consolidation scheme has come into force,
the preparation of the record of rights and other revenue records, but this, in
terms of that sub- section, is to be done in accordance with the provisions of
the U.P. Land Revenue Act, 1901.
According to sub-section 27(3), after the
records have been so prepared, their further maintenance will be the
responsibility of the Collector, and this, too, is to be done under Section 33
of the U.P. Land Revenue Act, 1901. It was thus abundantly clear that an
application for mutation on the basis of inheritance when the cause of action
arose, after the finalisation and publication of the scheme under Section 23,
is not a 755 matter in regard to which an application could be filed under the
provisions of this Act within the meaning of clause 2 of Section 49." If
once it is accepted that the decision of the consolidation authorities after
the final allotment of chak to Kishan Singh that the appellant was not the
adopted son of Kishan Singh amounts to an order under mutation proceedings and
there was no adjudication of rights and title of the appellant in the earlier
proceedings, there is no question of the suit being barred by res judicata or
by the principles of res judicata. The High Court in our opinion had committed
a manifest error in holding that the suit giving rise to the present appeal was
barred by the principles of res judicata or by s. 49 of the Consolidation of
Holdings Act.
Before we close the judgment we would like to
make it clear that after the amendment of the U.P. Consolidation of Holdings
Act in 1963 the position has materially changed.
Section 12 of the Act brought in by the
amendment deals with the decision of matters relating to changes and
transactions affecting rights or interests recorded in revised records.
It reads:
"12.(1) All matters relating to changes
and transfers affecting any of the rights or interests recorded in the revised
records published under sub-section (1) of Section 10 for which a cause of
action had not arisen when proceedings under Section 7 to 9 were started or
were in progress, may be raised before the Assistant Consolidation Officer as
and when they arise, but not later than the date of notification under Section
52, or under sub-section (1) of Section 6.
(2) The provisions of Sections 7 to 11 shall
mutatis mutandis, apply to the hearing and decision of any matter raised under
sub-section (1) as if it were a matter raised under the aforesaid
sections." Sections 7 to 11 of the Act deal with the rights and title of
the tenure holder and by the application of those provisions to the proceedings
under s. 12 in matters for which cause of action had arisen subsequently will
make the decision a decision of title. But the position prior to the amendment
of 1963 was different and there was no provision for the adjudication of the H
756 right and title of a tenure holder once the title and interest of the
original tenure holder had been finally determined and had been allotted.
The inevitable result is that the judgment
and order of the High Court cannot be sustained and it must be set aside.
The appeal is accordingly allowed, the
impugned judgment and order of the High Court are set aside and the case is
sent back to it for deciding the question of adoption according to law. There
is, however. no order as to cost.
S.R. Appeal allowed.
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