IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.366 of 2004.
IN
(CIVIL WRIT JURISDICTION CASE 7915/2000)
Hridya Nand Pandey son of late Ram Briksh Pandey,
Resident of village Milki Miyazipur P.S. Natwaar District
Rohtas.
.... .... Appellant.
Versus
1.The State of Bihar.
2.The Director of Consolidation, Bihar, Patna.
3.TheDeputy Director of Consolidation, Rohtas at
Sasaram
4.The Consolidation Officer, Dinara, Rohtas.
5.Sri Ganga Sagar Pandey son of Late Hari Naraya
Pandey,
6.Prabhawati Kuer wife of Late Triloki Pandey.
7.Sri Surendra Pandey son of Late Triloki Pandey.
8.Sri Talukraj Pandey
Res. 5 to 8 residents of village Milki Niyazipur P.S.Natwaar
District Rohtas.
9(i)Motijhari Kuer wife of late Lallan Pandey
9(ii) Vijay Kant Pandey @ Pappu Pandey son of late
Lallan Pandey
9.(iii) Munniji wife of Rajvansh Dubey R/o village
Mangraulia P.S.Rajpur District Rohtas.
9.(iv) Pushpa Kumari wife of Late Arun Tiwary R/o village
Sawandehri P.S. Kochas District Rohtas.
9(v) Kanchan Kumari wife of Dinesh Pandey, R /o village
Handi P.S.Rajpur District Rohtas.
9(vi)Ranju Kumari wife of Kalendra Chaubey R/o village
Dumri P.S. Bhojpur District Buxar.
10.Sri Rajbansh Pandey son of Late Chandra Kumar
Pandey.
11.Sri Ramashankar Tiwary.
12. Sri Shiv Shankar Tiwary sons of not known.
13. Raj Lakhi
14.Shivjhari
2
15.Sumitra.
All daughters of Late Chandra Kumar Pandey.
16.Sri Banarasi Pandey son of Late Deo Lochan Pandey.
Res.10 to 16 residents of village Milki Niyazipur
P.S.Natwaar District Rohtas.
17.Madan Pandey son of Late Jagarnath Pandey Resident of
village Milki Niyazipur P.S.Natwaar District Rohtas.
.... ....
Respondents.
===================================================
For the Appellant: :Mr. K.N.Singh,Sr.Adv.
Mr.Manish Kumar, Adv.
Mr.Kamaldeo Sharma,Adv.
For the Respondents : Mr.Shashi Shekhar
Dwevedi, Sr.Adv.
Mr.Shailendra Kumar
Chaubey,Adv.
===================================================
CORAM:
HON’BLE MR. JUSTICE SHIVA KIRTI SINGH
&
HON’BLE MR. JUSTICE SHIVAJI PANDEY.
Shivaji Pandey,J In this appeal, the primal question arises as to
whether the application filed by the appellant under Section
10B of the Bihar Consolidation of Holdings and Prevention
of Fragmentation Act, 1956 (hereinafter, in short, referred
to as the „Act‟) was maintainable, in view of the fact that
the objection raised by the appellant purportedly under
Section 10(2) of the Act was earlier rejected. Another point
3
which is also to be considered is as to whether the
application under Section 10B of the Act was maintainable
in view of a subsequent event of abatement of the suit at the
appellate stage. The next question is as to whether the
Revisional authority in stead of dismissing the revision
application on the ground that the application under Section
10B of the Act was not maintainable, in view of the
rejection of the application under Section 10(2) of the Act,
ought to have decided the case on merit.
2. The brief facts of the case are that admittedly
one Anarkali Devi was originally the land holder of C.S.
Khata No.4, plot nos.291, 279, 395 and 396 having an area
of 1.65 acres of village Sonbarsa P.S.Dinara in the district
of Rohtas. As per the claim of the writ-petitioner-appellant,
the original land holder sold the aforesaid land in favour of
Manbaso Kuer (Devi) by registered sale-deed in the year
1917 for consideration money of Rs.16/-. Later on in the
year 1919 Manbaso Kuer (Devi), orally sold the land to the
father of petitioner no.1 for Rs.19/- by way of oral sale and
in pursuance thereof, she had handed over the original sale-
deed to the father of petitioner no.1 and since then, he is
having possession of that registered sale-deed. In the year
4
1936, in between land-lords, there was a partition suit of
Tauzi of land-holders. The suit land had fallen in the share
of landlord Sri Ambika Mishra. Earlier it was under
Bhoali rent and thereafter it was converted into Nakadi
Rent and, accordingly, the ancestors of the petitioner-
appellant were paying rent which was being accepted by the
landlord. It was further averred by the appellant that the ex-
landlords were Yajman of respondents and in connivance
with the respondents, at the time of vesting, the landlord
filed return in favour of the respondents and, accordingly,
Jamabandi was created in the name of the respondents. It
was further asserted that Ambika Mishra filed Rent Suit
No. 1555 of 1953/71 of 1954 against the respondents for
realization of rent. In that rent suit, the petitioner-appellant
were not made party, having got knowledge of the same
they appeared in the court as interveners but with the
connivance of the respondents and Ambika Mishra, the case
was closed as the rent was purportedly paid by the
respondents. In 1962, the appellant filed Title Suit No.
25/306 of 1962 for declaration of title and confirmation of
possession of the suit land. The suit was decreed in favour
of the appellant. The respondents challenged
5
the decree before the appellate court and the appellate court
set aside the judgment and decree of the trial court, vide
judgment and decree dated 3rd January 1975. The appellant
filed Second Appeal before this Court vide S.A.No. 68 of
1975 and the judgment of the appellate court was set aside.
The case was remanded back to the appellate court. At the
appellate stage, an application under Section 4 ( c) of the
Act was filed making prayer for abatement of the suit in
appeal and in pursuance thereof, the suit abated, vide order
dated 19th July 1984.
3. After the abatement of the suit, the appellant
filed an application under Section 10B of the Act making a
prayer that the land in dispute be recorded in favour of the
appellant giving the fact as stated hereinabove and the
same was registered as Case No. 1 of 1984-85. The
Consolidation court rejected the application of the appellant
and confirmed the entries made in favour of respondents.
Being aggrieved by the order of the Consolidation court, an
appeal, vide Appeal No. 41 of 1985-86, was filed by the
appellant before the Deputy Director, Consolidation,
Rohtas, Sasaram which was allowed in favour of appellant.
The litigation did not stop there, the respondents filed
6
revision before the revisional court i.e. Director,
Consolidation vide Revision No. 10 of 1986 which was
allowed in favour of respondents. The revisional order was
challenged in writ petition vide C.W.J.C.No. 4997 of 1987
and this court remanded back the matter to the revisional
court. On remand, the Revisional Court again decided the
case in favour of respondents holding that the application
under Section 10B of the Act was not maintainable in view
of the fact that earlier an application filed u/s 10(2) of the
Act was rejected 10 years ago. This revisional order has
been affirmed by the Writ Court vide order under appeal.
4. The consolidation court in its order has said
that he made inspection of the land and took statement of
persons present at the spot and found possession of
respondents. This finding of Consolidation Officer was
challenged by the appellant, on the ground that the enquiry
was conducted behind the back of appellant and he was
not informed about the date of inspection by the
Consolidation Officer. Records do not contain any
Memorandum of Inspection.
5. It appears from the record that the writ
petitioners had filed an application in the year 1974 before
7
the Consolidation court vide Case No.20/6232 of 1974 for
correcting the entry made in the record of rights prepared
by the Consolidation authorities. The ground was simply
the judgment and decree in the title suit as passed by the
Munsif Court in favour of the appellant. Clearly the
application was in the nature of application under Section
10B of the Act bringing to the notice of authority the
subsequent development by way of judgment and decree of
learned Munsif. Entries in the record of rights were sought
to be corrected according to the judgment and decree of the
learned Munsif. There is not dispute that the Appellate
Court had reversed that judgment and decree in January
1975 itself. Hence such application was wrongly labeled
under Section 10(2) of the Act. Parties were litigating
before the Civil Court till 1984 and hence, such an
application, apparently under Section 10B of the Act was
prematured in 1974 or 1975. Any order on such application
could not have adversely affected the parties till the Civil
Court was proceeding with the suit or appeal in its plenary
jurisdiction. The consolidation officer without deciding any
issues, rejected the application vide order dated 22nd May
1975 (Annexure-B) on the ground that the supporting
8
documents i.e. the judgment etc. were not filed by the
appellant before the Consolidation Court.
6. The writ-petitioner/appellant in the writ
petition in Para-34 has asserted that there was no
notification under Section 3 of the Act and, as such, under
ignorance the application was filed under Section 10(2) of
the Act in the year 1974 and, hence, the order passed by the
consolidation authority under Section 10(2) of the Act has
no value in law.
7.At the appellate stage before this Court for the
first time the appellant in the Memo of appeal asserted that
even presuming the oral sale be not accepted, then also the
appellant has succeeded to title and possession of Manbaso
Kuer (Devi) who was from the family of the appellant, by
inheritance. .
8. The case of the respondents is that C.S. Khata
was recorded in the name of Mostt. Anarkali who was the
limited owner and she had no authority to sell the land in
favour of Mostt. Manbaso. It was further contended that as
no consideration amount was paid to Anarkali, as a
consequence thereof the sale remains only a paper
transaction and, in fact, it remained inoperative. The sale-
9
deed purportedly executed by Anarkali to Manbaso was
forged as she had no need for selling the suit property.
Anarkali was “Azi”(grand mother) of the respondents, on
her death, as she was issueless, ownership of the property
devolved upon the respondents by way of survivorship and,
as such, they are really title holders of the lands in question.
The Respondents stated that the appellant never raised
objection against the return filed by the ex-landlord at the
time of vesting of the land and, as such, they are real title-
holders of the land and they are in possession since the
death of Anarkali. About Manbaso Kuer it is alleged that
she had never been in possession of the aforesaid land and
she did not transfer any title and possession to the appellant.
There was a partition among the ex-landlords vide T.S.No.
3 of 1936. As per the partition the disputed land came to the
share of Ambika Mishra who filed Rent Case No. 799 of
1945 in which parties compromised after realization of the
arrears of rent from Hari Narayan Pandey, respondents‟
ancestor. Another Rent Suit No. 1955 of 1953/71 of 1954
was filed for realization of rent and the rent was paid by the
respondents and, accordingly, the suit was disposed of. The
respondents have claimed that they paid the rent to the ex-
10
landlord and accordingly, receipts were issued in their
favour. During the R.S. operation the land was recorded in
his name which further consolidates the case of the
respondents about the title over the land in question.
9. The appellant, during argument raised a point
that as there was no notification u/s 3 of the Act, relying on
a notification dated 4th October 1975 stated that any
decision prior to that date, has no value in law but the
respondents by way of supplementary affidavit have
brought the notification showing that the State Government
issued the Notification under Section 3 of the Act vide S.O.
1076 dated 12th October 1972, to controvert the fact that at
the time of decision under Section 10(2) of the Act there
was no notification under Section 3 of the Act. In view of
the notification filed by the respondents, the contention of
the appellant about the notification having been not issued
at the time of deciding the objection under Section 10(2) of
the Act is of no avail and this objection of the appellant is
not sustainable in law.
10. It was next contended that the case was heard
on 14th March 1975, the appellant and the respondents
were present, the objection of the respondents was heard,
11
the next date of hearing was fixed on 2nd April 1975 and
the direction was given by the Consolidation Officer for
production of the documents. It will be relevant to mention
that the Consolidation Officer fixed the next date of hearing
on 2nd April 1975 but it appears from the record that the
order of rejection was passed on 22nd May 1975 without
fixing any date of hearing. From the said order it appears
that the case was rejected only on the ground that the
appellant did not produce the supporting documents to
substantiate his case. The appellant at this stage has
contended that the order was illegal passed on a date when
the case was not fixed for hearing and, as such, this order
cannot be a bar for filing objection under Section 10B of
the Act.
11. The next contention has been raised that
the Revisional authority without considering the materials
on the records and without deciding the title of the parties,
rejected the application only on the ground that as already
the application under Section 10(2) of the Act was rejected
in the year 1975 and after 10 years, there was no subsequent
change of event, the application under Section 10B of the
Act was not maintainable. The revisional authority ought to
12
have decided the case looking into the merits and the
contention of the parties, merely because there was
rejection of the application under Section 10(2) of the Act
and that, too, without any consideration by a cryptic order,
it cannot be a ground for rejecting the application under
Section 10B of the Act.
12. In rebuttal, the respondents have stated that
the writ petition was not maintainable as there was a
suppression of fact. The appellant did not mention that the
earlier application filed under Section 10(2) of the Act was
rejected in the year 1975 and in support of the contention
relied on the judgments reported in the case of Prestige
Lights Ltd. V. State Bank of India, (2007)8 SCC 449,Para-
33 which is as under:
Para-33: It is thus clear that though the
appellant Company had approached the High Court
under Article 226 of the Constitution, it had not
candidly stated all the facts to the Court. The High
Court is exercising discretionary and extraordinary
jurisdiction under Article 226 of the Constitution.
Over and above, a court of law is also a court of
equity. It is, therefore, of utmost necessity that
13when a party approaches a High Court, he must
place all the facts before the Court without any
reservation. If there is suppression of material facts
on the part of the applicant or twisted facts have
been placed before the Court, the writ court may
refuse to entertain the petition and dismiss it
without entering into merits of the matter”.
13. Reliance was also placed upon the case of
K.D.Sharma v. Sail, reported in (2008)12 SCC 481, Para 38
& 39, the Court has held as follows:
Para: 38 :The above principles have been
accepted in our legal system also. As per settled
law, the party who invokes the extraordinary
jurisdiction of this Court under Article 32 or of a
High Court under Article 226 of the Constitution is
supposed to be truthful, frank and open. He must
disclose all material facts without any reservation
even if they are against him. He cannot be allowed
to play “hide and seek” or to “pick and choose” the
facts he likes to disclose and to suppress (keep
back) or not to disclose (conceal) other facts. The
very basis of the writ jurisdiction rests in
14disclosure of true and complete (correct) facts. If
material facts are suppressed or distorted, the very
functioning of writ courts and exercise would
become impossible. The petitioner must disclose
all the facts having a bearing on the relief sought
without any qualification. This is because “the
court knows law but not facts”.
Para: 39: If the primary object as
highlighted in Kensington Income Tax Commrs is
kept in mind, an applicant who does not come with
candid facts and “clean breast” cannot hold a writ
of the court with “soiled hands”. Suppression or
concealment of material facts is not an advocacy. It
is a jugglery, manipulation, manoeuvring or
misrepresentation, which has no place in equitable
and prerogative jurisdiction. If the applicant does
not disclose all the material facts fairly and truly
but states them in a distorted manner and misleads
the court, the court has inherent power in order to
protect itself and to prevent an abuse of its process
to discharge the rule nisi and refuse to proceed
further with the examination of the case on merits.
15
If the court does not reject the petition on that
ground, the court would be failing in its duty. In
fact, such an applicant requires to be dealt with for
contempt of court for abusing the process of the
court”.
14. Now the objection with regard to
suppression of material fact raised by the respondent
against the appellant is to be decided. In this connection
before relying upon the judgments cited by the
respondents, it has to be examined as to whether there was
really suppression of fact by the appellant or not in relation
to the fact that there was no averment made in the writ
petition about the decision rendered by the consolidation
authority ten years before under Section 10(2) of the Act. In
Para-34 of the writ petition, the writ-petitioner/appellant
has specifically mentioned about the Consolidation Case
No. 20/6232 of 1974. In that paragraph he has stated that as
there was no notification under Section 3 of the Act, the
decision rendered by the consolidation authority has no
value in law, as the consolidation authority had no
jurisdiction to decide any objection filed under Section
10(2) of the Act. In view of this fact, specifically stated in
16the writ petition and the fact that the Director, while
deciding the case has considered the objection of the
respondents about the rejection under Section 10(2) of the
Act, the objection of suppression of material fact is not
sustainable and the same is rejected. The judgments relied
on by respondents have no application in the present case.
15. Another point that has been raised by the
respondents is that in view of the fact that there was an
earlier decision of the Consolidation court under Section
10(2) of the Act which remains unchallenged and, as such,
the subsequent application under Section 10B of the Act
raising the same issue is certainly hit by the principle of res
judicata and has relied upon two judgments of the Hon‟ble
Supreme Court (1) State of West Bengal Vs.. Hemant
Kumar (AIR 1966 SC 1061) and (2) Sulochana Amma v.
Narayanan Nair (AIR 1994 SC 152). On the other hand the
appellant has controverted this argument of the respondents
on the ground that there was no decision rendered by the
Consolidation authority while deciding the application u/s
10(2) of the Act and, as such, as there was no decision on
merit, the application under Section 10B of the Act was
maintainable in view of the fact that after the abatement of
17
suit on remand before the appellate authority he had no
other forum to raise the issues before the Consolidation
authority except under Section 10B of the Act on the basis
of such subsequent event.
16. Now, in respect of applicability of res
judicata, it will be relevant to examine the statutory
provision and the relevant judgments relating to this issue.
Section 11 of the Code of Civil Procedure deals with the
applicability of res judicata and, as such, it will be relevant
to quote the same:
Section 11: Res judicata – No court shall try
any suit or issue in which the matter directly or
substantially in issue has been directly or
substantially in issue in a former suit between the
same parties, or between parties under whom they
or any of them claim, litigating under the same
title, in a Court competent to try such subsequent
suit or the suit in which such issue has been
subsequently raised, and has been heard and finally
decided by such Court.
Explanation-I – The expression “former
suit” shall denote a suit which has been decided
18
prior to the suit in question whether or not it was
instituted prior thereto.
Explanation-II – For the purposes of this
section, the competence of a Court shall be
determined irrespective or any provisions as to a
right of appeal from the decision of such Court.
Explanation-III – The matter above referred
to must in the former suit have been alleged by one
party and either denied or admitted, expressly or
impliedly, by the other.
Explanation-IV – Any matter which might
and ought to have been made ground of defence or
attack in such former suit shall be deemed to have
been a matter directly or substantially in issue in
such suit.
Explanation-V – Any relief claimed in the
plaint, which is not expressly granted by the
decree, shall, for the purposes of this section, be
deemed to have been refused.
Explanation-VI – Where persons litigate
bona fide in respect of a public right or of a private
right claimed in common for themselves and
19
others, all persons interested in such right shall, for
the purposes of this section, be deemed to claim
under the persons so litigating.
Explanation-VII -The provisions of this
section shall apply to a proceeding for the
execution of a decree and references in this section
to any suit, issue or former suit shall be construed
as references, respectively, to a proceeding for the
execution of the decree, question arises in such
proceeding and a former proceeding for the
execution of that decree.
Explanation- VIII – An issue heard and
finally decided by a Court of limited jurisdiction,
competent to decide such issue, shall operate as res
judicata in a subsequent suit, notwithstanding that
such Court of limited jurisdiction was not
competent to try such subsequent suit or the suit in
which such issue has been subsequently raised”.
17. On consideration of wordings which have
been used in Section 11 of Code of Civil Procedure which
specifically provides that if in the former suit, the same
issue has been raised and decided then if in a subsequent
20
suit the same issue has been raised, in that circumstance, the
judgments rendered in a former suit will act as res judicata
for the subsequent suit.
18.In this connection we will have to first decide
as to whether the order passed under Section 10(2) of the
Act amounts to a decision on the merit of the issues or not.
Unless the judgment has dealt with the merits, considered
the issues and decided the same, it will be very difficult to
subscribe to the view that the mere rejection of the
application without deciding the case on merits will operate
as a res judicata for a subsequent suit or proceeding. It is a
fact that the application under Section 10(2) of the Act was
rejected merely on the ground that the supporting materials
were not produced by the appellant. As noticed and
discussed earlier, the application under Section 10(2) of the
Act was actually one falling under Section 10B of the Act
and was filed prematurely in 1974 on the sole basis of
Munsif‟s judgment which was reversed in appeal in January
1975. Both the parties, till 1984 had accepted that the issues
in the suit lay within the jurisdiction of the civil court.
Hence, they had to wait till abatement of the suit in 1984,
before they could move the Consolidation authorities only
21
under Section 10B of the Act.
19. Now let us examine the judgment cited by the
respondents in support of the contention of res judicata. The
respondents in support of their contention have relied on the
judgment in the case of State of West Bengal Vs.. Hemant
Kumar (supra). Para-14, which is as under:
“Para-14 Before proceeding with
these arguments in detail, we can dispose of
second contention very shortly. This
argument proceeds on a fundamental
misconception, as it seeks to equate an
incorrect decision with a decision rendered
without jurisdiction. A wrong decision by a
court having jurisdiction is as much binding
between the parties as a right one and may
be superseded only by appeals to higher
tribunals or other procedure like review
which the law provides. The learned judges
of the High Court who rendered the decision
on 4.4.1952 had ample jurisdiction to decide
the case and the fact that their decision was
on the merits erroneous as seen from the
22
later judgment of this Court, does not render
it any the less final and binding between the
parties before the Court. There is, thus, no
substance in this contention. The decision of
the High Court dated 4.4.1952 bound the
parties and its legal effect remained the
same whether the reasons for the decision be
sound or not.”
20. On reading of Para-14, it is evident that the
word „decision‟ has been used in a sense which
presupposes that there should be an adjudication of the lis
between the parties. Of course, it cannot be said that a
wrong decision of a court having jurisdiction shall not be
binding between the parties, but it should be a decision. In
our view, in the facts of the case, the rejection of the
application purportedly under Section 10(2) of the Act,
cannot be, by any stretch of imagination, said to be a
binding decision on any issue. The respondents have relied
on another judgment in the case of Solochana Amma v.
Narayanan Nair reported (Supra) Para-8, which runs as
under:
“Para-8: Shri Sukumaran further
23
contended that the remedy of injunction is an
equitable relief and in equity, the doctrine of
res judicata cannot be extended to a decree of
a court of limited pecuniary jurisdiction. We
find no force in the contention. It is settled
law that in a suit for injunction when title is in
issue for the purpose of granting injunction,
the issue directly and substantially arises in
that suit between the parties. When the same
issue is put in issue in a later suit, based on
title between the same parties or their privies
in a subsequent suit the decree in the
injunction suit equally operates as res
judicata. In this case, when the right and
interest of the respondent were questioned in
his suit against K, the validity of the
settlement deed and the terms thereof were
gone into. The civil court found that K
acquitted life estate under the settlement deed
executed by his wife conferring vested
remainder in the respondent and on its basis
the respondent was declared entitled to an
24
injunction against K who was prohibited not
only from committing acts of waste, but also
from alienating the properties in favour of
third parties. The later suit of injunction to
which the appellant was a party also binds the
appellant. Therefore, even the decree founded
on equitable relief in which the issue was
directly or substantially in issue and decided,
and attained finality, would operate as res
judicata in a subsequent suit based on title
where the same issue directly and
substantially arises between the parties as the
appellant is deriving title from K who was a
party in the former suit is also hit by the
doctrine of lis pendens under Section 52 of
the Transfer of Property Act.”
21. In this case, the issue raised related to
Explanation-8 to Section 11 of the Code of Civil Procedure
which provides that judgment in a case heard and finally
decided by a court of limited jurisdiction shall operate as
res judicata. In this sub-clause also the word „decision‟ has
been used and in that context the Hon‟ble Supreme Court in
25
Para-8 of the said judgment has stated that res judicata is
also applicable to the judgments of a court of limited
jurisdiction. Only when there is a “decision” by a
competent court of limited jurisdiction, the parties cannot
be vexed for the second time on an issue which has
already been decided between the parties. In this case it is
completely clear that before the consolidation Officer the
issue of title was not raised nor the consolidation authority
has decided any issue, rather it was a simple rejection of the
application for non filing of required documents. In that
context, mere rejection only on the ground of not filing the
supporting documents will not attract the bar for the
subsequent proceeding under Section 10-B of the Act as
there is no decision on merits of the case. We are of the
opinion that in the present case, res judicata or constructive
res judicata is not applicable. This view is supported by the
judgments reported in the case of Krishan Lal Vs. State of J
&K reported in (1994)4 SCC 422 . In Para-12 of the
aforesaid judgment, the Hon‟ble Supreme Court has clearly
stated that there should be a decision on merit as regards the
grievance of the parties. Only in that situation, the principle
of res judicata or constructive res judicata will apply. It will
26
be apt to quote Para-12 of the aforesaid judgment.
“Para-12: Insofar as the second ground given by
the High Court – the same being bar of res
judicata – it is clear from what has been
noted above, that there was no decision on
merits as regards the grievance of the
appellant; and so, the principle of res
judicata has no application. The mere fact
that the learned single judge while disposing
of the writ petition No. 23 of 78 had
observed that:
“This syndrome of errors,
omissions and oddities, cannot be
explained on any hypothesis other
than the one that there is something
fishy in the petitioner‟s version.”
which observations have been relied upon
by the High Court in holding that the suit
was barred by res judicata do not at all make
out a case of applicability of the principle of
res judicata. The conclusion of the High
Court on this score is in deed baffling to us,
27because, for res judicata to operate the
involved issue must have been “heard and
finally decided”. There was no decision at
all on the merit of the grievance of the
petitioner in the aforesaid writ petition and,
therefore, to take a view that the decision in
earlier proceeding operated as res judicata
was absolutely erroneous, not speak of its
being uncharitable.”
On consideration of this judgment, we are
fortified with the view that as there was no decision
rendered by the consolidation authority on the lis in
between the parties and, as such, it is very difficult to apply
the principle of res judicata.
22. In support of the contention that res judicata
will not be applicable in a subsequent proceeding under
Section 10B of the Act, the appellant has relied on the case
of Lonankutty v. Thomman, AIR 1976 SC 1645 (Para-15)
which is as follows:
“Para:15: This contention is well-founded
and must be accepted. By Section 11, Code of
Civil Procedure, in so far as relevant, no court shall
28try any suit or issue in which the matter directly
and substantially in issue has been directly and
substantially in issue in a former suit between the
same parties and has been heard and finally
decided. Explanation I to the section provides that
the expression „former suit‟ shall denote a suit
which has been decided prior to the suit in question
whether or not, it was instituted prior thereto. The
only other aspect of the rule of res judicata which
on the facts before us must be borne in mind is that
it is not enough to constitute a matter res judicata
that it was in issue in the former suit. It is further
necessary that it must have been in issue directly
and substantially. And a matter cannot be said to
have been “directly and substantially” in issue in a
suit unless it was alleged by one party and denied
or admitted, either expressly or by necessary
implication, by the other”.
23. In view of the above discussions, the issue of
res judicata in the present proceeding arising under Section
10B of the Act is not sustainable in view of the fact that
there was no decision rendered by the court below, while
29
rejecting the application under Section 10(2) of the Act.
24. Let us examine the issue from another angle.
It is apparent from the order under Section 10(2) of the Act
that the consolidation authority has passed a cryptic order
without addressing the issues or deciding the same. The
consolidation authority has jurisdiction to decide the title
between the parties. It is legally expected from such
authority that while rendering a decision it must “assign
the reason” for coming to its own decision. The Hon‟ble
Supreme Court repeatedly has been giving command that
the judicial, quashi judicial or the court of limited
jurisdiction, while deciding an issue must assign reasons for
coming to a conclusion. The reason is a link in between
the maker of the decision and the decision which gives an
opportunity to the higher authority to assess the mind of the
decision maker, on what basis the decision has been
rendered. The Hon‟ble Supreme Court in the judgment
rendered in the case of Som Datt Builders Ltd.Vs. The State
of Kerala reported in (2009)10 SCC 259 (Para-21) has
relied on another judgment reported in the case of Union of
India Vs. Mohan Lal Capoor and specifically stated that the
reasons are links between the materials on which certain
30
conclusion are based and actual conclusions. It has further
been held as follows:
“Para-21: “In Union of India v. Mohan Lal
Capoor this Court said: (SCC 554, Para-28)
“28… Reasons are the links
between the materials on which
certain conclusions are based and
the actual conclusions”.
Para:22. In Woolcombers of India Ltd. V.
Workers‟ Union, this Court stated (SCC pp
320-21, para 5)
“5…. The giving of reasons in support
of their conclusions by judicial and quashi
judicial authorities when exercising initial
jurisdiction is essential for various reasons.
First, it is calculated to prevent unconscious,
unfairness or arbitrariness in reaching the
conclusions the very search for reasons will
put the authority on the alert and minimize
the chances of unconscious infiltration of
personal bias or unfairness in the
conclusion . The authority will adduce
31reasons which will be regarded as fair and
legitimate by a reasonable man and will
discard irrelevant or extraneous
considerations.
Para-23: In S.N.Mukherjee v. Union of India
the Constitution Bench held that recording
of reasons
“(i) Guarantee consideration by the
authority; (ii) introduce clarity in the
decisions; and (iii) minimize chances of
arbitrariness in decision-making” (SCC
p.612 para 35)”.
In this connection, following judgments are
relevant:
AIR 1976 SC 1785 (The Siemens Cimens
Engineering and MFG Co. Vs. Union of India)
AIR 2010 SC 1105( G.Valli Kumari Vs. Andhra
Education Society) (Para-13)
AIR 2010 SC 1285(Secretary & Curator, Victoria
Memorial Hall .Vs. Gantantrik Nagarik Society)
(Para 31 to 34)
(2010)9 SCC 486 (Maya Devi Vs. Raj Kumar
32Batra (Para-22 to 27)
(2007)10 SCC 712 Union of India vs. Jai Prakash
Singh (Para-6)
On the strength of the aforesaid judgments of the
Hon‟ble Supreme Court, it is held that since no reason has
been assigned by the consolidation authority while rejecting
the case under Section 10(2) of the Act, hence the order
cannot act as an obstacle to the subsequent proceeding
under Section 10B of the Act.
25. We have to examine further, as to whether the
subsequent proceeding under Section 10B of the Act was
liable to be rejected at the very outset or ought to have been
decided by the revisional authority on its own merits. In this
connection, Section 10A of the Act also comes in the way
of the appellant which talks of bar to the objection which is
as follows:
“Section 10A: Bar to objection- 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
33raised under Section 10 but has not been
raised, shall not be raised or heard at any
subsequent stage of the consolidation
proceeding.”
Section 10B deals with a situation of subsequent
events which is as follows;
Section-10B: Decision of matters relating to
charges and transaction affecting rights or interest
recorded in revised records -(1) All matters
relating to changes and transfers affecting any
rights or interest recorded in the register of land
published under sub-section (1) of Section 10 for
which cause of action had not arisen when
proceedings under Section 8 and 9 were started or
were in progressed may be raised before the
Consolidation Officer within 30 days of cause of
action, but not later than the date of notification
under Section 26A or under sub-section (1) of
Section 4A.
(2) The provisions of Sections 8 and 9 shall
mutatis mutandis apply to the hearing and decision
of any matter raised under sub-section (1) as if it
34were a matter raised under the aforesaid section.
Section 10B deals with a situation which had not
occurred while the proceeding under Section 10(1)
was in operation. It deals with a subsequent event”.
26. Now it has to be seen at what stage the
application under Section 10B of the Act was filed. The
application under Section 10B of the Act was filed
subsequent to abatement of the suit at the appellate stage
after the case was remanded by this Court in a second
appeal. It is a fact that in the civil suit both the parties had
raised their claim of title, one party placed reliance on the
registered sale deed of 1917 whereas the other party
disputed the enforceability of the sale-deed. The abatement
application was filed by the respondents after remand made
by this Court in the second appeal, before the appellate
Court. Soon after the abatement order of 1984, the
appellant filed the application under Section 10B of the
Act. In this view of the matter, the application under
Section 10B of the Act was amply justified by the
subsequent events. Hence, the revisional authority ought
not have refused to decide the issues raised in the
application merely on the ground that the application was a
35
subsequent application. More so, when the order rejecting
earlier application labelled under Section 10(2) of the Act
was no decision in the eyes of law so as to create the bar of
Res-judicata. In our view, the order passed by the
revisional authority refusing to decide the highly disputed
question of title between the parties is bad in law. It ought
to have decided the case on merits as the revisional
authority under Section 35 of the Act.
27. After this appeal was heard and judgment
reserved, learned counsel for the respondents served a list
of two cases, namely, 1997(1) BLJ 921 (Hari Narayan
Singh and others Vs. State of Bihar) and 2009(2) PLJR
799 (Sriram Tiwary Vs. State of Bihar and others). On
perusal of the judgments reported in the case of Hari
Narayan Singh (supra), it appears that the issue was raised
with regard to the entertaining the petition under Section
10B of the Act when no objection was raised under Section
10(2) of the Act, vis-à-vis the power of revision under
Section 35 of the Act. The fact of that case were quite
different to the facts of the case in hand. In the present
case, as noticed earlier, a civil suit was pending from before
the consolidation proceedings till abatement was sought by
36
the respondents and allowed in 1984. As per joint stand of
the parties, jurisdiction over the issues relating to title lay
with the civil court and hence the abatement order, which
was a subsequent event created the required cause of action
for moving the authority under the only available provision,
i.e., Section 10B of the Act. Law favours an interpretation
that will not leave a party without a remedy when he has a
cause of action. In the case noticed above, the entry made
in the revisional survey was never challenged before any
authority or any civil court. In that case, after preparation of
record of rights under Section 10 of the Act, no challenge
was made. Later on an application under Section 10(B) of
the Act was filed. In that context, this Court held that
when there was no objection under Section 10(2) of the Act
and there was unchallenged entry in the revisional record of
rights, the application under Section 10B of the Act was not
maintainable. Thus the facts of that case and the case at
hand are quite different and as such, the issue decided under
that case will not be applicable to the present case.
28. “The other judgment in the case of Sriram
Tiwary (supra) which has been relied upon by the
respondents is a Single Bench judgment relying upon the
37
judgment in the case of Hari Narayan Singh (supra) and
following the same. The facts of Sriram Tiwary‟s case
were also quite different to the present case. In the case of
Sriram Tiwary (supra), there was no title suit filed by the
parties and no abatement. Much later, an application
under Section 10B of the Act was filed, without raising any
objection under Section 10(2) of the Act. There was no
subsequent development providing cause of action. In the
present case, the parties are completely on litigating terms
from before vesting of Zamindari, as noted hereinabove.
Even after vesting, a title suit for declaration of title and
confirmation of possession was filed which was abated later
on at the appellate stage creating a cause of action. Thus,
this case also does not help the respondents.
29. In view of the aforesaid discussion, the
judgment and order under appeal and also the order dated
2nd August 2000 passed in Revision Case No. 26110 of
1986 are set aside and the matter is remanded to the
Revisional authority under the Act for fresh hearing and
decision on merits in accordance with law and our decision
that application under Section 10B is maintainable. It is
made clear that this Court has not gone into merits of the
38
matter in controversy.
30. The appeal is allowed to the aforesaid extent
only. There shall be no order as to costs.
(Shivaji Pandey, J)
Shiva Kirti Singh,J I agree.
(Shiva Kirti Singh,J)
High Court, Patna
Dt. 8th Sept. 2011
A.F.R./Jay/
