SUPREME COURT OF INDIA
B. N. Kirpal, S. B. Majmudar
RAM HARAKH (DEAD) BY LRS., APPELLANTS
Versus
HAMID AHMED KHAN (DEAD) BY LRS. AND OTHERS, RESPONDENTS.
Civil Appeals Nos. 2041-42 of 1981 with No. 1523 of 1982,
decided on August 28, 1997.
U.P. Zamindari Abolition and Land Reforms Act, 1950 - Section 20 - Restored back possession of these lands - Remaining plots - These three appeals arise out of common judgment of the High Court of Allahabad whereby the learned Single Judge of the High Court disposed of two writ petitions and confirmed the order passed in revision by the Deputy Director of Consolidation functioning PC - Consolidation of Holdings Act hereinafter referred to as the Act - Dispute between the parties round right to remain in possession of disputed plots of lands situated in District in State of Pc - Respondents herein were the of these lands and were admittedly recorded as in personal these lands in relevant records of rights till by Entry No entry related to year beginning from and ending - All authorities functioning under Act concurrently held that such was the factual position - Therefore the respondents were found to be in actual possession and being intermediaries were personally holding these lands in their possession at least till– Held, So far as second contention on plea of res is concerned it is true that a certified copy of judgment of first civil court was produced before the consolidation - However nothing was argued on that basis for getting an order from the consolidation authority in the first instance nor was that judgment pointed out before appellate authority or authority nor even before High - Such contention was also not taken in memo of special leave - Under these circumstances therefore questions whether earlier decree was by competent court or not or whether it was ever taken in appeal or not will raise highly disputed factual - It is also interesting to note that if two suits were filed on the same day for the same lands against the same defendants in two courts and if first suit had already got disposed of on and was in of respondents in respect of plots and for the rest of plots it was in of appellants then when the second suit reached for hearing before trial court after seven long years in it could have been easily pointed out by the appellants before second court that the proceedings before the second court were barred on principle of res in view of the fact that the decision in the first court had been rendered seven years back by another competent civil - But they failed do -–Appeal dismissed
ORDER
1. These three appeals arise out of a common judgment of the High Court of Allahabad whereby the learned Single Judge of the High Court disposed of two writ petitions and confirmed the order passed in revision by the Deputy Director of Consolidation functioning under the U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as "the Act"). The dispute between the parties centres round the right to remain in possession of 109 disputed plots of lands situated in Gonda District in the State of U.P. The respondents herein were the Zamindars of these lands and were admittedly recorded as Khud Kasht (in personal cultivation) of these lands in the relevant records of rights till 1947 by Entry No. 1354 Fasli. The said entry related to the year beginning from 1-7-1946 and ending on 30-6-1947. All authorities functioning under the Act concurrently held that such was the factual position till 30-6-1947. Therefore, the respondents were found to be in actual possession and being Zamindars intermediaries were personally holding these lands in their possession at least till that date. It appears that these respondents during the relevant time, immediately after partition of the country in 1947 were apprehending dispossession by the present appellants and their predecessors-in-interest. They, therefore, are said to have filed two suits under Sections 63 and 189 of the U.P. Tenancy Act, 1939 in two different courts on the same day, i.e., 14-10-1947. In the said suits it was alleged by the respondents that they were in possession and the defendants, who are the present appellants, were trying to disturb their possession. It was prayed in the alternative that during the pendency of the suits if their possession was disturbed they should be restored back the possession of these lands. It is the case of the appellants that one of the two suits which was filed in Tarabganj Court got partly decreed on 10-9-1953 whereunder the respondents suit for 7 plots mentioned in the decree was allowed and the respondents were treated to be entitled to continue in personal cultivation thereof. However, the said suit for the remaining plots of lands was dismissed presumably on the basis of subsequent entry being 1356 Fasli in favour of the appellants in the Khasra and Khatauni in the relevant records of rights concerning these lands. It is the further case of the appellants that the said decree became final. However, so far as the second suit filed before Balrampur Court is concerned, it lingered on the file of the learned trial Judge for a couple of years and ultimately it also resulted in an identical decree on 15-2-1960 whereunder a decree came to be passed partly allowing the respondents suit for the very same 7 plots and dismissing the suit for the rest. The second suit resulted in appeal on the part of the dissatisfied plaintiff-respondents in the District Court so far and the suit was dismissed for the remaining plots by the trial court. That appeal came to be dismissed. The respondents carried the matter in second appeal and at that stage, a declaration came to be issued under Section 4 of the Act and consequently, the second appeal before the High Court stood abated as laid down by Section 5(2) thereof. There is no dispute on this aspect. In view of the aforesaid abatement of the second appeal the plaintiffs grievance remained unredressed in the civil proceedings arising out of the second suit. Under these circumstances, the dispute concerning these lands had to be decided de novo under the Act. The Consolidation Officer in the first instance decided in favour of the appellants by taking the view that the appellants became entitled to remain in possession as per Section 20(b) of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter to be referred to as "the Zamindari Abolition Act") as they were recorded as occupants of these lands pursuant to the entry in the Khasra and/or Khatauni of 1356 Fasli. The aforesaid decision of
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