JUDGMENT
P.S. Sahay, J.
1. The petitioners have moved this Court for quashing the order of the Director, Consolidation, Bihar, dated 1-11-77, as contained in Annexure 11, and for the restoration of the order of the Deputy Director dated 30-7-76, as contained in Annexure 10, passed under the provisions of the Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as the Act). The dispute relates to the following plots of Tauji No. 14464, village Rampur, within Ramgarh Anchal, in the district of Rohtas:
Cadastral survey plot No.
khata No.
Revsional survey plot No.
New khata No.
Area (in acre)
62
10
172
47
0.45
180
10
233
10
0.49
46 (18)
181
47
1.32
47 (17)
162
47
0.50
48 (14)
183
47
0.45
48 (6)
184
47
0.41
Total land
3.62
The aforesaid lands were Bakasht lands of the Malik, and, on private partition in the year 1931, had been allotted to Hari-har Rai, one of the co-sharer landlords. In the year 1949 the said Harihar Rai settled those lands along with other lands in favour of Hardwar Rai, husband of Jamurta Kuer (petitioner No. 1 since deceased) and father of petitioner Prem Shanker Rai, and put him in possession; and a receipt was granted in proof of the aforesaid settlement. Thus, Hardwar Rai came in possession of the lands and started paying rent to the extand lord. After the vesting of the estate, Harihar Rai filed a return, in which Hardwar Rai was shown as tenant, and this position was accepted by the State Government. The relevant extracts of the return submitted by Harihar Rai have been filed and marked as Annexure 1.
2. In January 1965 Bishwanath Ahir (respondent No. 4) and Mosst. Aharfi (respondent No. 9) filed two applications before the Anchal Adhikari for correction of the Jamabandi, which gave rise to Cases Nos. 12 and 13 of 1964-65. In those cases Hardwar Rai filed objections, but the Anchal Adhikari by his order dated 7-7-65 made necessary correction in the Jamabandi. Against that, Hardwar Rai preferred appeals before the Land Reforms Deputy Collector, Bhabua, being Miscellaneous Cases Nos. 20 and 21 of 1965-66 which are still pending after remand by the Additional Collector, Roh-tas. There was a proceeding under Section 145 of the Code of Criminal Procedure between respondents 4 and 9 and others on one side and Hardwar Rai and another on the other with regard to all the disputed lands, except Cadastral Survey Plot No. 47 which was decided in favour of Bishwanath Ahir and others. Against that Hardwar Rai preferred a revision which was dismissed on 8-3-68 vide Annexure F/1.
3. Revisional operation started in the village and Hardwar Rai filed Tanajas before the Assistant Settlement Officer, Arrah, against the erroneous recording of the names of respondents 4 to 9, which gave rise to Cases Nos. 2, 3, 4, 5 and 6. Objections regarding Cases Nos. 4, 5 and 6 were also heard and rejected by the Settlement Officer, Arrah Camp at Ramgarh by his order dated 11-4-66, copies whereof have been filed as Annexures 2 to 4. Record-of-rights was finally published on 8-1-70. Copy of the same has been filed as Annexure 5. Thereafter, respondents 4 to 9 filed a suit under Section 106 of the Bihar Tenancy Act with respect to plots 172, 181, 183, 184 and 233 which gave rise to Suit No. 2821 of 1970. There was a notification for consolidation under Section 3 of the Act which was published on 23-6-73, and Chak register was prepared under Section 9 of the Act in which the name of Hardwar Rai was shown as raiyat of the disputed lands. Respondent No. 4 filed an objection under Section 10 (2) before the Consolidation Officer which gave rise to Case No. 3 of 1973-74. The said objection was heard by the Consolidation Officer who, by his order dated 25-11-74, rejected the petition, in view of the pendency of the proceeding under Section 106 of the Bihar Tenancy Act. A copy of the said order has been filed and marked Annexure 15. Thereafter, the Chak Panji was published under Section 12 (1); copy thereof has been filed as an Annexure 6.
4. Respondents 4 to 9 filed an application under Section 12 (2) for entering their names in place of Hardwar Rai which was registered as Case No. 5 of 1975-76. In the meantime, the suit under Section 106 of the Bihar Tenancy Act was taken up and was dismissed after hearing the parties on 12-7-75 (Annexure 7) and a decree was drawn up on 15-7-75 (Annexure 8). The objection of respondents 4 to 9 under Section 10 (2) of the Act was heard and was decided in their favour on 31-1-76, and their names were ordered to be entered and necessary correction was ordered to be made. A copy of the aforesaid order has been filed as Annexure 9. Hardwar Rai preferred an appeal before the Deputy Director Consolidation, who by his order dated 30-7-76 allowed the same. A copy of the order has been filed as Annexure 10. Thereafter, respondents 4 to 9 preferred a revision under Section 35 of the Act before the Director, Consolidation, and Hardwar Rai also appeared and filed a number of documents in support of his case; details of the same have been mentioned in paragraph 27 of the petition. The Director (respondent No. 1), after hearing the parties on 1-11-77, as contained in Annexure 11, allowed the application and set aside the order of the Deputy Director, as contained in Annexure 10. Hardwar Rai died on 28-11-77, leaving behind his wife (petitioner No. 1) and son (petitioner No. 2), as already stated, as heirs and legal representatives. It may be mentioned that petitioner No. 1 also died on 19-12-79. The petitioners have moved this court under Articles 226 and 227 of the Constitution of India for quashing the order of the Director (respondent No. 1), as contained in Annexure 11.
5. Cause has been shown by respondents 4 to 9 by which they have supported the order of respondent No. 1 and also of respondent No. 3, and in support of their case a number of papers have been filed in order to show that there has been a long standing litigation, between them on one hand and Hardwar Rai on the other, and they have been coming in pos-
session of the lands. Supplementary affidavit and reply to the counter-affidavit have also been filed on behalf of the petitioners.
6. Mr. Kailash Roy, learned counsel appearing on behalf of the petitioner, has contended that respondents 4 to 9 had filed objection under Section 10 (2) and final order was passed on 25-11-74 and, no appeal having been preferred against the aforesaid order, it became final between the parties and, therefore, their objection under Section 12 (1) of the Act, claiming themselves as raiyats of the land is barred by the principles of res judicata, and the subsequent order of the Director passed in favour of the contesting respondents is bad in law, and has relied on a number of authorities. He has further contended that by the subsequent amendment of Section 10, a new Section 10A was inserted on 10-9-75, by which a complete bar to the objection has been made, but. according to learned counsel, it simply reiterates the law which was even prior to the amendment. Mr. Balbhadra Prasad Singh, learned counsel appearing on behalf of the contesting respondents has, however, submitted that the order passed on 25-11-74 (Annexure 15) was not a final order and had not decided the controversy between the parties and was merely tentative, because the suit was pending under Section 106 of the Bihar Tenancy Act, and, therefore, the matter being res Integra could be taken cognizance of by the authorities under the Act.
7. In order to appreciate the submissions made at the Bar, it will be necessary to refer to the relevant provisions of the Act. Section 10, at the relevant time, was as follows:
“10. (1) The registers prepared under Section 9 shall be published in the manner laid down in sub-section (2) of Section 3 and a notice with copies of the relevant entries in such registers shall be served upon the raiyat or under-raiyat of the land to which the entries relate.
(2) Any person interested in the land included in any entry in the registers may, within thirty days of the date of service of the notice upon such person under sub-section (1), make any objection in writing to the Consolidation Officer.
(3) As soon as may be after the expiry of the period for making objection under Sub-section (2), the Consolidation Officer shall visit the village concerned on a date of which previous notice has been given in the prescribed manner and decide the objection after hearing the persons interested and after such enquiry as may be necessary.
(4) Any person aggrieved by an order passed by the Consolidation Officer under Sub-section (3) may, within thirty days of such order, prefer an appeal to the Director of Consolidation who shall hear the appeal in the prescribed manner after giving reasonable opportunities to the parties interested of being heard and pass such orders as he may think fit.”
As I have said above, Section 10A was inserted in the statute book on 10-9-75, which reads as follows:
“10A. No question in respect of any entry made in the map or registers prepared under Section 9 or the statement of principles prepared under Section 9A relating to the Consolidation area, which might or ought to have been raised under Section 10 but has not been raised, shall not be raised or heard at any subsequent stage of the consolidation proceeding.” Thus, the point boils down to this that if the order dated 25-11-74 has finally decided the rights of the parties and the controversy raised between them and the contesting respondents having not preferred any appeal against the aforesaid order and having accepted the same, it will definitely operate as res judicata. It will thus be necessary in this connection to look into the nature of the order passed on 25-11-74, which is contained in Annexure 15.
8. On 11-11-74 the parties appeared in the Camp Court before the Consolidation Officer, but none of them produced any papers, and they were directed to bring them in the office on the next date, which was fixed on 18-11-74. On that date, both the parties were present and some papers were produced on behalf of the contesting respondents and no papers were filed on behalf of Hardwar Rai, because the papers had been filed in connection with some case which was pending in some other court, and prayer was made for time, which was granted till 25-11-74. On 25-11-74 both the parties were present, and a judgment passed in a proceeding under Section 145 of the Code of Criminal Procedure was produced by the contesting respondents, but, according to the Consolidation Officer, it had not much of bearing in the matter; and no papers were filed which could throw any light on the dispute between the parties. There is no mention that any paper was filed on behalf of Hardwar Rai. Therefore, it was ordered that till the matter was not decided under Section 106 of the Bihar Tenancy Act, the entry in the Khatian will
be taken into account by the Consolidation Officers.
9. Reading the aforesaid orders it is clear that nothing was decided, and the matter was kept open, in view of the suit pending under Section 106 of the Bihar Tenancy Act which abated on 12-7-75 in view of the provisions of Section 4 (c) of the Act Against the order dated 25-11-74 no appeal could have been filed by the contesting respondents, because nothing was decided on merits. Even Hardwar Rai did not file any paper, though time was prayed for, and, in that situation it can- not be urged by the petitioner that the matter was decided in his favour. Therefore, I am of the view that the aforesaid order having not decided the rights of the parties was a tentative one and will not operate as res judicata.
10. Learned counsel for the petitioner has relied on the decision of Gafoora v. Dy. Director of Consolidation, Meerut (AIR 1975 SC 1716), which was also a case under the U. P. Consolidation of Holdings Act, where it has been held that a party having not preferred any objection within the prescribed time under Section 9 could not raise any objection at a subsequent stage under Section 11A of the Act. Section 11A of the U. p. Act is analogous to Section 10A of the Bihar Act which bars an objection, if not raised at an earlier stage. But, in the instant case, objection was raised, but the matter was never decided, and, the contesting respondents had no hand in the matter; therefore, it cannot be said that they were not entitled to file objections under Section 12 of the Act. Learned counsel appearing on behalf of the contesting respondents in this connection has relied on a Bench decision of this Court in Prabhu Halwai v. Fulchand Khandelwal, (AIR 1969 Pat 16), where a similar point of res judicata was raised, because it had been decided in earlier proceedings in between the same parties while deciding the question of maintainability, and reliance in that connection was placed on a decision of Satyadhyan v. Smt. Deorajin Debi. (AIR 1960 SC 941) where it has been held that the principles of res judicata applies as between past litigation and future litigation, as embodied in Section 11 of the Code of Civil Procedure and the principle also applies between two stages in the same litigation to this extent that a Court, whether the final court or a higher Court, having at an earlier stage decided the matter in one way will not allow the parties to re-agitate the matter
again at a subsequent stage in the same proceeding. Their Lordships, however, repelled the argument, holding that the decision must be final in the strict sense of the term, because in the earlier proceedings only the question of maintain-ability was decided and the matter was left to the court of appeal below to decide whether a decree for eviction could ultimately be passed or not. Therefore, nothing was finally decided between the parties which was kept open, as in the instant case, and it fully supports the contention raised on behalf of the contesting respondents that the aforesaid order will not operate as res judicata. In this view of the matter, it is not necessary to consider the other decisions which have been relied upon by learned counsel on behalf of the petitioner, which are all clearly distinguishable from the facts of this case.
11. Next, it has been contended by Mr. Roy that the Director (respondent No. 1) has erroneously decided the matter in favour of the contesting respondents and has not taken into consideration a number of documents which have been filed on behalf of the petitioners and have been enumerated in paragraph 27 of the petition, and, therefore, this Court, exercising powers under Article 226 of the Constitution of India, should set aside that order. To start with, he has submitted that the orders passed in a proceeding under Section 145 of the Code of Criminal Procedure, could not be the basis of possession and are merely police orders, and in that connection he placed reliance on the decision of Bhinaka v. Cha-ran Singh, (AIR 1959 SC 960) and an un-reported decision of this Court in the case of Babulal Bahadur Singh v. Tansing Mahto (Second Appeal No. 148 of 1972) decided on 16-11-77. learned counsel has further relied on the decision of S.D.O. and Collector, Shivsagar v. Copal Chan-dra Khound, (AIR 1971 SC 1190) where it has been held that if a subordinate authority passes orders on the basis of incorrect presumptions and also by violating the principles of natural justice or suffer from error apparent on the face of the record or commits error of law, the High Court will be fully justified in interfering with such orders. The principle is well known and well settled and cannot be disputed.
12. Mr. Balbhadra Prasad Singh has, however, submitted that the authority had power to decide the matter and there was no inherent lack of jurisdiction and
had decided the matter after carefully considering all the points which were necessary to be considered, and even if another view was possible on the same materials, this Court should be loath to interfere with such order and has placed reliance on the decision of G. Ranga Reddi v. State of Andhra Pradesh, (AIR 1967 Andh Pra 14). He has further invited our attention to the order and has submitted that the Director (respondent No. 1) has given good reasons to interfere with the order of the Deputy Director. Reliance has also been placed on the case of Collector of Customs and Central Excise, Cochin v. Markose Arnacutakis (AIR 1973 Ker 7), and has drawn our attention to paragraph 17 which is as follows:
“The question of the evidence being satisfactory is a matter for the Collector or the authority functioning under the Act to consider. This Court in a proceeding under Article 226 of the Constitution cannot weigh the evidence and then say that the evidence is unsatisfactory or is inadequate or is insufficient to bring home the guilt to the person charged under the Act. This is a matter for the Appellate Authority and this Court cannot function as an Appellate Authority under Article 226 of the Constitution as it deals only with such cases as patent errors perverse or arbitrary orders and so forth.”
Reliance has also been placed on the decision of State of Orissa v. Nakula Sahu, (AIR 1979 SC 663), where it has been held that the revisional power under Section 439 read with Section 455 of the Code of Criminal Procedure is as wide as the power of appeal under Section 423 of the Code, but it is also equally settled that normally the jurisdiction of the High Court is to be exercised only in exceptional cases where there is glaring defect in the procedure or there is a manifest error on a point of law which has consequently resulted in flagrant miscarriage of justice.
13. Keeping the case law cited by the parties in my mind and after going through the impugned order, I find that the Director has passed the order on a consideration of all the materials and has given good reasons for reversing the order of the Deputy Director; and I see no reason to interfere with his order. The application is accordingly dismissed, but in the circumstances of the case there will be no order as to costs.
K.B.N. Singh, C.J.
14. I agree.