1 A.F.R Reserved/Court No. 6 Case : WRIT B No. 6068 of 1992 Petitioner : Smt. Bhagwan Dei Respondent : Board Of Revenue Alld. And Ors. Petitioner Counsel : V.D. Ojha Respondent Counsel : V.B.L. Srivastava,Arun Kumar,B.K. Srivastava,Govind Krishan,R.K. Srivastava,R.K. Tripathi,R.S. Mishra,Radhey Shyam,S.C.,Sushil Jaiswal,Tripathi B.G.Bhai,V.K. Singh,Vinod Krishna Hon'ble Prakash Krishna,J.
This is a second round of litigation in the High Court. The only
point mooted presently is whether the issue sought to be
raised by the plaintiffrespondent herein is barred by section
11 of CPC or not. The background facts may be noticed in
brief:
Bhairon Bux was the recorded tenant of the revenue land
which is subject matter of the present litigation. The
petitioner is the daughter of Bhairon Bux. Bhairon Bux died
long ago before the date of vesting i.e 1.7.1952 leaving behind
him his widow Smt.Samudra Devi who after about two years of
death of Bhairon Bux, remarried with one Ram Nath. Bharat
Lal, respondent No. 4 herein is son of Samudra Devi and Ram
Nath. Smt.Samudra Devi succeeded to the property of
Bhairon Bux and her name it is admitted, was recorded in the
revenue record and continued to be so even after her
remarriage with Ram Nath. The Village wherein the
agricultural land lay was notified under section 4(2) of U.P
Consolidation of Land Holding Act herein after referred to as
the Act. No objection disputing the right, title and interest of
Smt. Samudra Devi over the land in dispute was filed and
accordingly chak was carved out in her name. When the
consolidation proceedings were going on in the Village, Smt.
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Samudra Devi died in the year 1977. After her death a dispute
arose in between the petitioner and Bharat Lal (herein after
referred as plaintiff). Both these persons filed applications for
recording their names in place of Smt.Samudra Devi. These
applications were numbered separately before the Assistant
Consolidation Officer. According to the petitioner, a
compromise was arrived at in between the petitioner and the
plaintiff, wherein the plaintiff agreed that the land in dispute
may be recorded in the name of the petitioner. The said
compromise application is dated 7.12.1977 and signed by the
plaintiff. The signature of plaintiff was verified by his counsel
Shri Ram Bahadur Singh, Advocate on 10.1.1978 and the order
was passed consequently on 18.1.1978 by the Consolidation
Officer.
The plaintiff Bharat lal instituted Suit No. 33/74 of 198687
before the Sub Divisional Magistrate under section 229B/209
of U.P.Z.A & L.R Act for declaration of his rights over the
disputed plots, eleven in numbers, on the pleas inter alia that
the alleged compromise was not signed by him and therefore,
the order was obtained from the Consolidation Officer by
playing fraud and as such it is not binding on him; he being
the son of Smt.Samudra Devi and Ram Nath inherited the
property in dispute and is in occupation thereof; that against
the order dated 18.1.1978 passed by the Consolidation Officer,
he preferred an appeal before the Settlement Officer of
Consolidation which was dismissed as barred by time.
In the written statement, the petitioner, came out with the
case that during the life time of Smt.Samudra, the Village came
under the Consolidation Operation and after death of
Smt.Samudra, a compromise was arrived at in between the
petitioner and plaintiff himself and an order was passed by
the consolidation officer on the basis of the said compromise,
which is binding on the plaintiff. The compromise application
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was signed by the plaintiff and was verified by his counsel Shri
Ram Bahadur Singh. It was further pleaded that suit is barred
by Section 49 of U.P.C.H.Act.
On the basis of the pleading of the parties, number of issues
were struck and one of the issue was whether the suit is barred
by res judicata or not. It was issue No.9. The Trial Court by
the order dated 21.12.1989. without giving any reason, opined
that the suit is not barred by section 11 of CPC and fixed the
next date in the suit for further progress. The said order was
carried in revision being Revision No.20 of 1990 by the present
petitioner before the Additional Commissioner, Allahabad
Division, Allahabad who dismissed it on 16.7.1970 which has
been confirmed further by the Board of Revenue in Revision
No. 82 of 198990 by the impugned judgement dated
14.11.1991.
Shri V.D.Ojha, learned counsel for the petitioner submits that
in view of the earlier decision by the Settlement Officer of
Consolidation dated 11.4.1979 in Appeal No. 588/37 Bharat lal
versus Bhagwan Deen & others) holding that the compromise
application contains the signature of plaintiff (Bharat Lal) and
it was verified by his counsel namely Shri Ram Bhadur Singh,
the suit is barred by Section 11 of the CPC. It was further
submitted that against the order of Settlement officer of
Consolidation, a writ petition No. 2513 of 1981 (Bharat lal
versus Deputy Direction of Consolidation) was preferred
before this Court which too was dismissed on 16.7.1981. The
submission is that in the earlier litigation between the parties,
it was decided that the compromise application contains the
signature of Bharat Lal, plaintiff , it is no longer open to re
agitate the same issue by way of filing the suit giving rise to
the present writ petition. Elaborating the argument, it was
submitted that in view of the judgement of the Apex Court in
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Malkahan Singh versus Sohan Singh, 1985 RD 336, the
decision given by the consolidation authority will operate as
res judicata in view of section 12 of the U.P Consolidation of
Holdings Act.
In contra, the learned counsel for the plaintiff submits that a
judgement or decree based on compromise is not a decision of
a Court and therefore, cannot operate as res judicata. In other
words, there is no adjudication by a Court in the cases of
consent or compromise decree. Reference was made to the
Apex Court decision in Pulavarthi Venkata Subba Rao versus
Valluri Jagannatha Rao 1967 AIR SC 591. It was further
submitted that in view of Section 44 of the Evidence Act, a
judgement obtained by fraud or collusion does not operate as
res adjudicata. Asharfi Lal versus Smt.Koili JT 1995(5) S.C
496 and A.V.Papayya Sastry & Ors. versus Government of
A.P & Ors. JT 2007 (4) SC 186 were relied upon.
Considered the respective submissions of the learned counsel
for the parties and perused the record.
In the present case, the fact that Smt.Samudra Devi was earlier
married to Bhairon Bux and after death of Bhairon Bux re
married with Ram Nath, the petitioner is daughter of Bhairon
Bux and that plaintiff is the son of Samudra Devi and Ram
Nath, are not in dispute. It is not disputed that land in
dispute was recorded in the name of Smt. Samudra Devi at the
time of her death which took place when the Village was under
consolidation operation. It is also not in dispute that the
petitioner as well as the plaintiff had applied for recording of
their names before the Consolidation Authority after the death
of Smt. Samudra Devi which took place in the year 1977. The
Consolidation Officer passed the order in accordance with the
compromise application, ordering the recording of the name
of the petitioner. It is also not in dispute that against the said
order of the Consolidation Officer, a belated appeal was
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preferred by the plaintiff before the Settlement officer of
Consolidation and delay in its filing was not condoned and the
order of the Settlement Officer of Consolidation was
challenged by the plaintiff before this Court in the writ petition
referred to above which has been dismissed.
On these facts which are not in dispute, the question of
applicability of res judicata is in issue.
The only dispute raised by the plaintiff respondent herein is
that he did not sign the compromise application and any order
obtained on the basis of the said compromise is result of fraud
and as such is not binding, on him.
The contention of the petitioner on the other hand is that the
issue as to whether the compromise was signed by the plaintiff
was raised by him and was decided before the Settlement
Officer of Consolidation who held that it was signed by the
plaintiff and it was also verified by his counsel.
Section 12 of the U.P.C.H Act as substituted by U.P Act
VIII 1963 reads as follows:
“12. Decision of matters relating to changes and
transactions affecting rights or interests recorded in
revised records: (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 Section 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.”
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The above section came up for consideration before the Apex
Court in the case of Malkhan Singh (Supra). After noticing the
changes brought by the substituted section, the Apex Court
held that Sections 7 to 11 of the Act deal with the rights and
title of the tenure holder and by the application of these
provisions to the proceedings under section 12 in matters too
for which cause of action had arisen subsequently will make
the decision a decision of title. It has clarified that the position
prior to the amendment of 1963 was different as there was no
provision for the adjudication of rights title of a tenure holder.
On the facts of the present case, it may be noticed that after
death of Smt.Samudra Devi, before the denotification of the
Village under section 52 of the Consolidation of Holdings Act,
a dispute had arisen in between the petitioner (daughter of
Bhairon Bux) and Bharat Lal(Plaintiff) with regard to the
succession and inheritance of the disputed land left by
Smt.Samudra Devi, deceased, under section 12 of the Act.
The matter was referred to the Consolidation Officer for
adjudication, before whom a compromise application
purported to be duly verified and signed by the parties was
filed. The Consolidation Officer ordered the recording of the
name of the petitioner. Consequently, the name of the
petitioner was recorded. In other words, the application filed
by the plaintiff for recording his name met with no success in
view of the fact that under the terms of compromise, he agreed
that the name of the pettioner may be ordered to be recorded.
The plaintiff kept quiet over the matter. Subsequently, he
preferred a belated appeal before the Settlement Officer of
Consolidation Officer disputing his signatures on the said
compromise. The issue thus before the Settlement Officer of
Consolidation was whether the compromise contains the
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signatures of the plaintiff or not. The evidence was led by the
parties and the plaintiff examined himself. His Counsel Ram
Bahadur Singh Advocte was also examined. The Settlement
Officer of Consolidation by his order dated 11.4.1979
considered the evidence on record and reached to a definite
conclusion, after taking note of signatures of Ram Bahadur
Singh, Advocate on the order sheet dated 2.1.1978 and
10.1.1978 that the compromise was signed by the plaintiff
which was verified by his counsel Shri Ram Bahadur Singh,
Advocate. The writ petition was dismissed against the said
order. The order on the writ petition reads as follows:
“It is not a fit case for interference with the impugned
judgment when the petitioner allegedly has entered into a
compromise and a counsel has identified his signature. I do
not see any good ground to interfere.
The writ petition is dismissed.”
It therefore follows that issue as to whether the compromise
was signed by the plaintiff or not was raised earlier before the
consolidation authorities and was decided on merits by them.
The said issue now cannot be permitted to be raised again in
view of Section 11 of CPC. The consolidation authorities were
not only competent but were obliged to decide all the issues
relating to right, title and interest of the parties which had
arisen after the name of Smt.Samudra Devi on account of her
death, but before the date of notification under section 52 of
the Act as provided for under section 12 of the Act. The Apex
Court in the case of Malkhan Singh (Supra) has held that a
decision given in such fact situation will be a decision under
section 12 of the Act and it will be decision on the rights, title
and interest of the parties. On such decision no other Court
can adjudicate upon subsequently, as provided under section
49 of the Act.
Looked from another angle. It was open to the plaintiff to have
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kept the track of his objections/application for recording his
name in place of Smt.Samudra Devi. Even if the compromise
in question is put aside, for the sake of the argument, the fact
remains that during the consolidation operation, the name of
the plaintiff was not ordered to be recorded. In this regard, the
plaintiff could or ought to have taken proceedings under the
Consolidation of Holding Act before the consolidation
authorities but he failed to do so. In view of section 49 of
U.P.C.H Act, the jurisdiction of Civil or Revenue Court to
entertain any such suit or proceeding with respect to rights in
the disputed land is barred. Although issue relating to bar by
Section 49 is a separate issue to be decided in the suit, but the
fact remains that the plaintiff’s claim in the suit will be barred
by constructive res judicata if for a moment, the compromise
in question is put apart. Under section 11 of CPC also, vide
Exp.IV to Section 11, any matter which might and ought to
have been made ground of defence or attack in such former
suit shall be deemed to have a matter directly and
substantially in issue , in such suit. Looked from any angle,
this Court is of the considered opinion that the present suit is
barred by res judicata.
The Trial Court without recording any reason, proceeded with
the case that section 11 of CPC is not applicable. The first
appellate Court proceeded to answer it on wrong footing that
the proceeding before the Consolidation Authorities were in
the nature of mutation proceedings. It overlooked amended
Section 12 of the U.P.C.H.Act and failed to notice that there is
a material difference in between mutation proceedings and
proceeding under section 12 of the Act. Mutation proceeding
as envisaged by Section 34 of U.P Land Revenue Act is subject
to regular suit, which is not so far as decision given under
section 12 of the Act is concerned. The position of under
section 12 of the Act is just reverse. Decision given under
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section 12 of the Act bars subsequent suit before a regular
Court, Civil or Revenue. A decision given under section 12 is
not a mere mutation order but is a final order deciding finally
title of the parties to the proceedings. In other words, a
decision under section 12 of the Act is a decision on the basis
of the title. The above view finds support from Section 12(2)
of the Act which provides that such proceeding shall be
decided in accordance with the provisions of Section 7 to 11 of
the Act. Therefore, the order of the first appellate Court being
contrary to the decision of the Apex Court in the case of
Malkhan Singh (Supra) cannot be approved.
The basis of the judgement of the Board of Revenue is that if a
judgement is obtained by fraud, the said judgment will not
operate as res judicata. It has not even cared to glance at the
very basis which was available on the record i.e the order of
the Settlement of Consolidation and the judgement of the
High Court in the writ petition. It further appears that the
attention of the Court was not brought to the provisions of
Section 12 of the Act.
It may be noticed that the sole contention of the plaintiff is
that the compromise application was not signed by him, a fact
which has not been accepted to be correct by the Settlement
officer of Consolidation. This being so, obviously the plea of
fraud vanishes.
As noticed herein above, there is absolutely no explanation on
the part of the plaintiff to come out of grip of Section 12 of the
U.P.C.H.Act. The fact remains that he was aware about the
death of Samudra Devi as also the fact that the Village was
under consolidation operation at the relevant point of time
and that the petitioner’s name was ordered to be recorded by
the Consolidation Authorities. The order of the Consolidation
Authorities cannot be challenged subsequently by the
plaintiff as he was well aware of the same. In other words he
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was aware about the true state of affairs and in this fact
situation plea of fraud can not be put forward. He should have
taken appropriate steps to get his name recorded by invoking
Section 12 of the Act which he failed to do so.
The decisions relied upon by the learned counsel for the
plaintiff are besides the points and are not applicable to the
facts as obtained herein. They were rendered under a different
factual matrix. A compromise decree may not operate as res
judicata but if the said compromise was sought to be assailed
in appeal, on the ground that it was not signed by one party,
and the Court comes to the conclusion as found herein, that it
was signed by all the parties, the present suit will be barred by
res judicata.
In view of above discussions, I find sufficient force in the
petition and the impugned orders cannot be sustained. The
writ petition therefore succeeds and is allowed. The
impugned orders are hereby set aside and it is held that the
suit is barred by res judicata and it is accordingly dismissed
with costs of Rs.5000/ ( five thousand ) payable by the plaintiff
to the petitioner’s heirs.
(Prakash Krishna,J)
Order Date : 2.7.2010
IB