Baljeet Singh & Others v. Risal Singh & Others

Judgment

217, Appellate Court to commit is not ci.rcumscribed to oases oxclusively triable b5 a court of Session and the High Court was in error in taking a contrary view. We therefore allow this appeal, set aside the order of the High Court and restore that of the Sessions J utlge. Appwl allowed. BALJEET SINGH & OTHERS RISAL SINGH & OTHERS (B. P. SINHA, c. J., P. B. GAJENDR."-GADIUR RAGHUBAR DAY.AL, JJ.) and Civil Procedure-Res judicata-Twelve suits against four sets of defenda .. ts-Decreed by common judgment-Twelve app<als- Appeals by one set of defendants dismissed for default-Whether other appeals barred-Appeals to Supreme Court-Consolidation Operations-If make appeals infructuous-U.P. Consolidation of Holdings Act, 1953, (U.P. V of 1954). K, H and M filed four suits each against four sets of defendants in respect of different sets of plots under s. 175 U. P. ~renancy. Act, 1939.

Since similar points were involved the twelve suits were tried together and were disposed of by a common judgment decreeing them. Twelve decrees wCre prepared and the defendants preferred twelve appeals to the Additional Commissioner. Three appeals by one set of the defendants B were dismissed for default and the remaining nine were dismissed on merits. Against the dismissal of the nine appeals on merits the three sets of defendants preferred nine second appeals before the Board of Revenue but they were dismissed as barred by res judicata on May 7, 1954. In November, 1954, the appellants filed petitions for special leave before the Supreme Court and on April 18, 1~55, special leave was granted. In July 1954, the villages in which the lands in suit were situate came under consolidation operations onder the U. P. Consolidation of Holdings Act, 1953, and the operations were completed by the publication of a notification 19!2 T/,, 81atnf Uttar Pradesh Shonk., K•ftur J. 19C:!

Baljttl ~ingh Uisal Singh . 218 St:l'R_g:\IE COCRT REPOltTS [1962) St:Pl'. under s. 52 of the Act on October 17, 195:). The appdlants did not file any objections before the consolidation authorities. The respondent contended that in vic\v of the consolidation operations the appeals before the Supreme Court had become infructuous. Held, that the appeals had not becon1c infructuous. There , .. •as nothing in the L'. P. Consolidation of Holdings Act, 1953~ as it stou<l <luring the period the \·illage in su.it was under consolidation operations \\·bich could have in any 'vay affected these appeals, during c :r after the consolidation operations. The subsequent 1\1ncnding 1\cts di<l not ;iffcct the appeals as they wr.re prospective in operation and applird only to cases 'vherc the consolidation operations \Vere started after the Amending Acts had come into force. Heid, further that the appeals before the Board of Revenue were not barred by resjudicrtfa.

It was essential for the bar of res judicuta that the previous adjudication must have been bet\veen the same parties. The three suits in which judgments had becorne final \Vere against one B and not against auy of the appellants. The matter in issue in those three suits \\las different from that i11 the other nine suits as each of the suits related to different plots. The common judgment was really t\"Velve judgments in the t\velve suits. Hudri iYarayan Singh v. Kmnrleo Prasad Singh, ( 1962) 3. S. C. R. 759 referred to. CIVIL APPELLAn; JumsnrcTION : Civil Appeals Nos. ()7 to 7 5 of 195!!. Appeals by special leave from the judgment and order dated l\Iay 7, 1954 of the U.P. Board of Rcvenur, in Second Appeals Nos. 53 to 61 of 1945·46. S. P. Sinha, J.P. Goyul and Sadhu Singh, for the appellants. Bislw.n Narain and K. L. Afelita, for the respondents. 1962. February 15.

The Judgment of the Court was delivered by RAGHUBAR DAYAL, J.-Thcse nine appeals, by special leave, are against the orders of the Board of Revenue, Utta.r Pradesh, dismissing nine SUPR:tl]ME COURT'REPORTd second appeals filed by the appellants in circumstances hereinafter mentioned, on the ground that the orders of the First Appellate Court in three other connected first appeals had become final and operated as res judicata. Khub Chand had three sons Karan Singh, Hoshiar Singh arid Mukhtiar Singh. Each of these brothers instituted four suits. Hoshiar Singh instituted suit No. 48 of 1944 under s. l 75 of the U.P. Tenancy Act, 1939 (U.P. XVII of 1939), against one Bhartu, suit No.49 against Har Gyan, Mukhtiar Singh and Data Ram, sons of Sis ltam, brother of Bhartu, suit No.50 against Har Gyan and Mukhtiar Singh, sons of Sis Ram, and suit No. 51 against one Banwari. Karam Singh similarly instituted suits Nos. 63, 61, 60 and 62 against similar defendents respectively.

Mukhtiar Singh's suits against those defendents;respectively, were Nos167, 65, 64 and 66. Each of these suits was for different sets of plots. The allegations of the plaintiffs ineach suit and the contentions of the defendent in each suit were similar and therefore similar issues were framed in each suit and all the suits were tried together and were disposed of by one common judgment. Twelve decrees were, however, prepared. Against the twelve decrees the defendants-judgment debtors in each decree filed twelve first , appeals in the Court of the Additional Commissioner, Meerut Division. The Additional Commissioner dismissed three appe&ls for default, These were the appeals which were filed against Hoshiar Singh, Karam Singh and Mukhtiar Singh by Banwari. The Additional Commissioner heard the remain· ing nine appeals un merits and dismissed them. The defendants-judgment debtors then filed nine second appeals before the Board of Revenue.

They were dismissed as barred by res judicata on May 7' 1954. The applications for special leave were filed in this Court in November 1954. Special leave was Baljeet Bin(Jh Ri1al Singh Raghubar Dayal J. I Baljttl Sinth Risol Singh Jt.,~ar v..,.1·J. 220 SU.l:'Rl:llll: COlJ}{.1' HElOHTS [l!H1~J st:PJ:>. granted on April 18, l9:i5. By the time the appeals came up for hearing, some other events took place and as a result of them the respondents filed an application for adducing additional evidence under O • .XLV, rr.J to 5, Supreme Court gules in ~ovem­ ber 195\!, and also mcluded in their statement of case a narration of those events and their effect. It appears that the villages in "hich the lands in suit were situate, come under Consolidation Operations under the U.l'. Con~olidation of Holdings Act, l!l.'ia( U. P. V of 1954 ), hereinafter callccl the Act, sometime in July 1954, when a declaration was issued by the State Government under s.4 of the Act to the effect that it had been decided to make a Scheme of consolidation fur that area.

In December 1954, a statement of plots and t<1nure holders waa prepared and in J\Iay HJ55 a statement of proposals under s.19 'was prepared; in August 11155 final otatements in chak form 25 were issued. On October 17, J!J55, the State Government publi- 1hod a notification under s.52 of the Act. Section 52 of the Act thon read : "As soon as may be aftu tho tenure-holders have entered into possession of their new holding in pursuance of l:Scction 2ti, the t:itate Government shall issue a notification in the Official Gazette that the Coneolidation operations have been closed in the village and the village shall then c"ase to be under consolidation operation." It is thus seen that this village remained under Consolidation operations from some time in July 1954 to October 1 i, 1955.

The appellants did not file any objection8 before the Consolidation authorities under s.12 of the Act disputing tho correctness or tho nature of the entries in the statement prepared under s.11 or under s.20 against the atate ment of proposals prepared under s.l!I. 3S.C.R. Section 2t provides for the fixing of a date for the enforcement of the consolidation scheme. Section 25 provides for the issuing of the allotment order showing the new fields allotted to each tenure-holder in accordance with the said scheme. Section 26 provides for the tenure-holders to enter into possession of th~ fields allotted to them ·on or after a certain date. Section 27 provides for the pr<'paration of new village maps, khasra and the record-of-rights, in accordance with the provisions of the U. P. Land Revenue Act, 1901. Its sub-s.(2) provides that all entries in the record-of.rights prepared under sub-s.( l) shall be final and conclusive.

Section 30 provides that the rights, title, interest a.nd liabilities of the tenure holder in his original holding shall be extinguished and he will have the same rights, title, interest and liabilities subject to modification, if any, in the plots allotted to him under s.25 with effect from the date on which he enters into possession of the plots allotted to him. It was contended for 'the respondents that in view of these consolidations operation and s.5 of the Act, as amended up to date, these appeals have become infructuous as this Court cannot pass any orders ou the.merits of the controversy. The Act has been amended several times since it was originally enacted. The various amending Acts are: Act XXVI of 1934 which came into force on ·December 13, 1954; Act XIII of 1955 which came into force on June 10, 1955; Act XX of 1955 whfohcame into force on October 21, 1955; Act XXIV of 1956 which came into force on July 3, 1956;

Act XVI of 1957 which came into force on May 25, 1957 and Act XXXVIII of 1958 which came into force on November 19, 1958. During the perio:l the village in suit was under Consolidation Operations. the Act applicable Baljtet Singh Biaal Singh Baghubor Df!1a/ J.' Baljeet 8in.f!h Risa! Singh Raghubo1 Dayal J, SUPREME OOURT REPORTS [1962] SUPP. to the proceedings was the Original Act.as amended by Acts XXVr of l!J54 and XIII of 1955. The other Acts came into force subser1uent to tho issue of the notification under s.;i2 of the Act. It is 11cces~ary to bear this in mind in vi<,"\\' of the contentions raised. Section ii of Act V of 1954 was as follows : "(\)

Upon the publication of the declaration nnder ~ection 4, the district or the local area, as the case may be, shall be deemed to he under consolidation operations from the date of such publication until this publi~ation of the ~oti­ fication under section 52 in the official Gazette to the effect that the consolidation operations hnve been closed. (2) Where a district or any other local arna is under consolirlatfon opnations, the duty of preparing and maintaining the maps, the khasra and the annual register under Chapter III of the U.P. Land Revenue Act, HlO I, shall stand transferred to the Sett lenwnt Officer (Consolidaticm), and thereupon all the powers conferred on the Collector, Assistant Co!leeter and the Tahsildar under the said Chapter shall, AO long a• that district or the area remains 1111(\cr consoliclation operations. he exercised reAfll'ctively by the Settlement Officer (Consolidation), Consolidation Officer ancl the Assist.ant Consolidation Officer.''

Act XXVI of I 9G4 deleted the last port.ion of Aub·R.(21 commeneiug from the words 'and thereupon'. No chn.nge in this Aection was made by the Am0.nding Act XIII of I \lf>ii. There was therefore nothing in thiA sectioi1 which in any way won!? have affecter! th<> hearing of. these appeals, tlurmg or after the consoli<lation operations. Section 12 of Act V of 1954 provided for the pJblication of the statement of plots and tenure holders prepared under s. ll and for filing objections disp!lting tb.e correctness or nature of entries in it. Its sub-sections (4), (5) and (6) were : " ( 4) Where the objection filed under sub-section (l) involves a question of title and suc):i question has not already been determined by a competent court, the Consolidation Officer shall refer the question for determination to the Arbitrator. ( 5) All suits or proceedings in the court of first instance or appeal in which a question of title in relation to same land bas been raised, shall be stayed. (6)

The decision of the Arbitrator under sub-section (4) shall be final." There was nothing in these sub-sections which provided as to how the snits or proceedings stayed been under sub-section (5) would be decided or bow matters in connection of which no objection bad raised under s.12 would be dealt with. These provisions too did not affect the pending Appeals as no objection had been filed under s.12. Act XXVI of 1954 amended sub-s.(4) to the effect that the objection coming under sub-s.( 4) would be referred to the Civil Judge, who will then refer it to the Arbitrator, and substituted another sub-section in the place of original sub-s.(5). The substituted sub-s.(5) read : "( 5) Upon the making of reference under sub-section (4) all suits or proceedings in the Court of first instance, appeal, reference or revision, in which the· question of title in relation to the same land has been raised, shall be stayed."

This amendment in sub-s.(5) stayed the suits and Baljtet Singh Riso.l Singh Ra:hubar Dayal J. Bo/jut SU.gh Risal Singh SUPRE'.\fE OOURT REPORTS (1962] SUPP. proceedings not only in the Courts of the first ins· tance an<l appeal bnt also in the ConrtR of reference and rovision, but did not affect these appeals . Snb-R.(2) of e.27 as originally enacted, wns not amenrfod up to the 17t.h October, l!ln5. Its 1m b-s.(2) mR<le the entries in the record of rights prepared nnder sub-s.(1) fin11.I and concluRive. We arc not concerned wit.h its effect in these appcalR. Section 49 of the Act bars the juriRdiction of Civil Courts. ThiR section, heforn its RmAndment bv Act XTIT of l!l55, which came into force on .Ti.me 10, J 9n!i, did not bar the institution of a suit or procPedings int.he revenue conrt. Tt di<l ~o after the am~ndment. TheR'l appeals hail been filed Jong before the amenilment.

We may st.ate that no objection was raised on behalf of the respondent to the effect that these appeals could not ha vo been instituted, but we have discussed that matter, in view of the fact that the appeals wne filpd after the State Government had made a decll~ration under s.4 of the Act. We have not been referred to any provision in these A~ts. viz.. Act V of 1954, Act XXVI of 1954 and Ad XIII of 1955 which would lead to the nonclusion that these appeals have become infrnc· tuous. Act XX of 1955 made an amendment in s.27 of the Act. The amP.ndment however does not affect the question hofore us. Act XXIV of 1956 which came into force on Julv 3, 1956, Rnbstituted a new section 5 in the pl•ce of the old. The substituted section 5 read : "5. When the <lcelaration under ~e<'tion 4 has been published in the Gazette, the consequences 11.s hereinafter set fort.h eh11ll, :I S.C.R. SUPREME coURT REPokts . from the date specified thereunder till the publication of the notification under section 52 in the Official Gazette to the effect that the consolidation operations have been closed, ensue in the area to which the declaration relates, namely ;

(a) the district or the local area, as the case may be, shall be deemed to be under consolidation operations from the specified da.te, and the duty of preparing and maintaining the khasra and the annual Register under Chapter III of the U.P. Land Revenue Act, 1901, shall stand transferred to the Settlement Officer (Consoiidation), and ( b) all proceedings for the correction of any such records pending before any court or authority shall be stayed but without prejudice to the right of the persons affected to agitate the question before the Assistant Consolidation Officer under sub-section (3) of Section 8, or in proceedings commenced under and in accordance with section 10." Clearly, cl. (b) does not apply to these appeals as they have not arisen out of proceedings for the correction of village records. Act XXIV of 1956 made certain amendments in s. 11 'with which we are not concerned. We are not also concerned with the amendments this Act made in sub-s. (1) of s. 12.

It substituted a new sub-section (5) and added sub-s. (7). These new subsections (5) and (7) are : "(5) Upon the publication of the statement under section 11, all suits or proceedings in the Court of first instance, appeal, reference or revision, in which the question of title in respect of anJ plot mentioned in the statement with reference to clause (c) of sub-section (I) of section II has been raised, shall be 196:/ Ba!Jeet Singh Risal Singh Roghubar Dayal J. 1P62 BaljuJ S in1h Risal ~i11gh R aghubar Da>Jal J. stayed to the extent it relates to such plot and shall thereafter be disposed of in the manner prescribed . (7) A qucBtion of t.itle in respect of a11y plot mentioned in the statement in clause ( c) of sub-section I of section ll, which might and ought to have been raised under subsection (I) but had uot been raised, shall not be raised in any objection filed under subsection ( 2) of section 20, or under sub-seetion (I) of section 34."

It is for the first time that such suits and proceedings in the various Courts had to be stayed iu which a question of title in respect r,f any plot mentioned in the statement with reference to ol. ( c) of 1ub-s. ( 1) of s. 11 had been raised and that these stayed suits or proceedings were to bo decided sub- . sequently in the manner prescribed, i. e., in the manner laid down under rules framed under the Act. Those provisions of aub-s. (5) do not affect the appeals as they were prospective in operation and could apply to those cases only in which statements under s. 11 were filed aftor the amondm.,nt had been ma.de. The amendments rnado by tho other sections of this Act and Act XVI of 1957, do not affect the hearing of the appeals in any way. Thereafter case Act XX XVIII of I 958. This Act again substituted a new s. 5, and the relevant portion of the substituted section reads: 5.

Upon the publication of the notification under section 4 in the Official Gazette, the consequences, as hereinafter sot forth, shall, subject to th11 provisions of this Act., from the date specified thereunder till the publication of notification under section 52 or sub-section (1) of section 6, as the caae may - I 3 s.c.h. •'.'._'1·i~t'~-~ SUPREME OOUR'l' REPOR'l'S be, ensue in the area to which the declaration relates; namelyx x x x x (b) (I) rill proceedings for correcti~n of the records and all suits for declarat10n of rights and interest over land , or f('.r possession of land or for partition, pendmg before any authority or court, whether of first instance, appeal or reference or revision, shall stand stayed, but without prejudice to the right of the persons affected to agit~te the right or interests in dispute in the said proceedings or suits before the consolidation authorities under and in accordance with the provisions of this Act and the Rules made thereunder:

(ii) the findings of consolidation authorities in proceedings under this Act in respect of such right or interest in the land, shall be acceptable to the authority or court before whom the proceeding or suit was pending which may, on communication thereof by the parties concerned, proceed with the proceeding or suit, as the case may be;" These provisions operate prospectively. The consequences mentioned in s. 5 ensue upon the publication of the notification under s. 4 in the Gazette and continue up to the publication of the notification under s. 52. They do not continuii thereafter and could not operate on these cases in which the notification under s. 52 was issued on the 17th October 1955. They do not therefore bar the hearing of these appeals. These appeals have not therefore become infructuous. Sections 7, 8, 9, 10,.

II, II-A, 11-B, 12, 1'2-A, 12-B, 12-C and 12-D have been substituted by new Sflction which apply to proceedings taken in consolidatio11 operations subsequent to the coming into force of the Amending Act XXXVIII of 1858. Sub-s. (l) of 1_962 Baljeet Singh Risal Si~gh Roglwbar Dayal J. iJalju• Sinth Iliaol Singh lia4huja< Dayal J. s. 12 makes it clear that the matters mentioned in that sub-sect~on cannot bo raised subsequent to the date of notification under s. 52 • There has been no material change made in ss. 27 and 30, buts. 49 now reads: "49.

Notwithstanding anything contained iu any other law for the time being in force the declaration and adjudication of rights of tenure holders in respect of land lying in an area, for which a declaration has been issued under section 4, or adjudication of any other right arising out of consolidation proceedings and in regard to which a proceeding could pr 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 pror,ceding 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." This now provides that the adjudication of rights of tenure holders in respect of land lying in an area under consolidation operations shall be done in accordance with the provisions of the Act. This leads practically to the same result to which cl. (ii I of sub-a. (b) of s. 5 leads to.

The provisions of this section are not expressly limited to the period between the declaration under s. ~and the notification under s. 52, hut can be so construed as thev relate back to s. 5 (b) (ii) of the Act as the <leclar~­ tion and adjudication of rights havo to be done in accordance with the provisions of the Act. Further the amended provision would apply to the proceedings regarding rights in land in the area for which R. declaration under s. 4 has been issued after the amendment. We are therefore of opinion that these appeals have not becomo infructuous. On the merits, we are of opinion that the Board of Revenue erred in holding that the appeals before it were barred by res jU!licata. It is essential for any previous adjudication of a point to bar its consideration second time that -the previous adjudication must have been between the same part· ies and that it be with respect to the same matter.

The three suits in which judgments became final were against one Banwari and not against any of the present appellants. The matter in issue in those three suits were also different from that in the suits which have given rise to these appeals. Each of the twelve suits related to different plots. A common judgment on account of similar questions b'eing raised for _decision in the different suits, does not always make that judgment amount to one judgment in those suits. Such a judgment will ordinarily be deemed to be really so many judg· ments as the suits disposed of by it. This Court expressed a similar view in Badri Narayan Singh v. Kamdeo Prasad Singh('). We therefore allow the appeals, set aside the order of the Court below and remand the appeals to it for further hearing and decision according to law.

We m11.y. make it clear that it can take into consideration the effect of the Consolidation Act and proceedings thereunder, after giving an opportunity to ·the parties to submit what they like in regard to them costs to abide the result. Appeals allowed. (I) [1962] 3 S. C.R. 759. BalJ<el Sin11h Rhal Singh Raghuhar Dayal J.