Preetam
Singh & Ors Vs. Assistant Director of Co., [1996] INSC 32 (9 January 1996)
Punchhi,
M.M.Punchhi, M.M.Manohar Sujata V. (J)
CITATION:
1996 SCC (2) 270 JT 1996 (1) 471 1996 SCALE (1)496
ACT:
HEAD NOTE:
O R D
E R
This
appeal is by certificate granted by the Allahabad High Court. A division Bench
of the High Court vide order dated 2-1-1978 dismissed the writ petition of the
appellants. The question of law arising therein related to the finality of an
order of remand containing findings, recorded by an intermediate court during
consolidation proceedings. The principles of Section 11 of the Code of Civil
Procedure and those contained in Section 105 thereof were found attracted in
the case.
Regretfully
we do not have the assistance of the respondents, who even though served have
not put in appearance. They are therefore proceeded against ex-parte.
On May 17, 1969, a Notification under Section 4 of
the U.P. Consolidation of Holdings Act was published in the U.P. Gazette
for bringing about consolidation of holdings in the village where the land in
dispute is situate. In the year in which the village came under consolidation
(known as the basic year), the appellants were recorded as Bhoomidars over a
holding measuring 38.25 acres and also being in its possession. The Gaon Sabha
of the village filed an objection under the provisions of the Act before the
Consolidation Officer alleging that the appellants were wrongly recorded as Bhoomidars
over the disputed land and prayed that entries be corrected in favour of the Gaon
Sabha. The appellants contested the objections before the Consolidation
Officer.
Their
case was that the land in dispute was under the tenancy of some people when the
U.P. Zamindari Abolition Act was in force. The same did not vest in the Gaon Sabha
as unoccupied land. The Ashudhi Tehsildar during the correction of the records
operation found Gurbux Singh and Harbhajan Singh in possession of the land in
dispute and ordered them to be recorded as Seerdars by order dated 25-7-1957. On the basis of such corrected records Gurbux Singh
and Harbhajan Singh obtained Bhoomidari rights under the provisions of the U.P.
Zamindari Abolition Act, 1952. On 1-6-1959, those Bhoomidars sold the land to the appellants and thereafter the
names of the appellants as Bhoomidars were recorded in the revenue records,
continuously till consolidation operations commenced.
The
Consolidation Officer sustained the objection of the Gaon Sabha by his order
dated 21-2-1970 ordering expansion of the names of
the appellants from the revenue records. The appellants appeal before the
Settlement Officer (Consolidation) was allowed on 22-8-1970. A remand was effected to the Consolidation Officer for a
fresh decision, after giving an opportunity to the appellants to prove that
they had even acquired ownership rights by adverse possession. On the ground of
the appellants being owners by purchase the Settlement Officer (Consolidation)
observed that the disputed land had vested in the Gaon Sabha, as apparently the
tenants had abandoned the land without creating any rights in favour of the
predecessors-in-title of the appellants and sequally none in favour of the
appellants. On remand the Consolidation Officer again allowed the objection of
the Gaon Sabha on 31-1-1971. The Settlement Officer (Consolidation)
dismissed their appeal on 20-3-1976. The
appellants filed a revision petition under Section 48 of the Act before the
Assistant Director (Consolidation). The appellants raised the plea before the
Assistant Director (Consolidation) that there was no evidence on record to hold
that the previous recorded tenants had abandoned the land in dispute and such
findings recorded by the Settlement Officer was passed on no evidence. The
Assistant Director (Consolidation) did not entertain the plea and dismissed the
revision petition, whereupon the appellants were constrained to move the High
Court in writ jurisdiction. A learned Single Judge, before whom the writ
petition was placed referred the writ petition to a division bench as in his
opinion the law needed to be straightened as to whether the findings recorded
by the Settlement Officer (Consolidation) in its remand order was open to
correction in revisional jurisdiction of the Assistant Director (Consolidation)
as instantly attempted, since that remand order of the Settlement Officer
(Consolidation) had not been directly challenged in revision. The High Court
took the view that the remand order of the Settlement Officer became final,
since it was not independently challenged and what was challenged was the
subsequent order of the Settlement Officer (Consolidation), which came about
after remand and which stood challenged in revision before the Assistant
Director (Consolidation).
We
have heard learned counsel for the appellants. We can safely say on the strength
of the two precedents of this Court in Jasraj Inder Singh vs. Hemraj Multanchand
[1977(2) SCC 155] and Smt. Sukhrani (dead) by LRs and others vs. Hari Shanker
and others [1979(2) SCC 463] that the appellants should succeed. In the former
case this Court expressed its view that "the remand order by the High
Court is a finding at an intermediate stage of the same litigation. The appeal
before the Supreme Court is from the suit as a whole and, therefore, the entire
subject matter is available for adjudication before it....... Otherwise the
whole lis for the first time came to the Supreme Court and the High Court's
finding at an intermediate stage does not prevent examination of the position
of law by the Supreme Court.
Intermediate
stages of the litigation and orders passed at those stages have a provisional
finality....... The contention barred before the High Court is still available
to be canvassed before this Court when it seeks to pronounce finally on the
entirety of the suit......." In the later case this Court expressed the
view "that though a decision given at an earlier stage of the suit will
bind the parties at a later stage of the same suit, it is equally well settled
that because a matter has been decided at an earlier stage by an interlocutory
order and no appeal has been taken therefrom or no appeal did lie, a higher
court is not precluded from considering the matter again at a later stage of
the same litigation." When the matter was in revision before the Assistant
director (Consolidation), he had the entire matter before him and his
jurisdiction was unfettered. While in seisin of the matter in his revisional
jurisdiction, he was in complete control and in position to test the
correctness of the order made by the Settlement Officer (Consolidation)
effecting remand. In other words, in exercise of revisional jurisdiction the
Assistant Director (Consolidation) could examine the finding recorded by the
Settlement Officer as to the abandonment of the land in dispute by those
tenants who had been recorded at the crucial time in the Khasra of 1359 Fasli.
That power as a superior court the Assistant Director (Consolidation) had, even
if the remand order of the Settlement Officer had not been specifically put to
challenge in separate and independent proceedings. It is noteworthy that the
Court of the Assistant Director (Consolidation) is a court of revisional
jurisdiction otherwise having suo moto power to correct any order of the
subordinate officer. In this situation the Assistant Director (Consolidation)
should not have felt fettered in doing complete justice between the parties
when the entire matter was before him. The war of legalistics fought in the
High Court was of no material benefit to the appellants. A decision on merit
covering the entire controversy was due from the Assistant Director
(Consolidation).
Thus
for the above reasons we allow this appeal, set aside the impugned orders of
the High Court without dilating upon the abstract question of law, except in
pointing out the aforesaid two decisions of this Court and remitting the matter
back to the Assistant Director (Consolidation) for fresh decision of the entire
matter in accordance with the law. No costs.
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