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IN THE HIGH COURT OF ALLAHABAD
H. N. SETH, J. N. DUBEY
BRAMHANAND RAI - Appellant
Versus
DIRECTOR OF CONSOLIDATION, GHAZIPUR - Respondents
C. M. W. P. 3775 Of 1974
Decided On : 01/29/1986
RES JUDICATA - EX PARTE DECREE - BURDEN OF PROOF - CONSOLIDATION PROCEEDINGS - SIRDARI RIGHTS - TRANSFER OF PROPERTY ACT, SS. 41, 43 - U. P. CONSOLIDATION OF HOLDINGS ACT, S. 9A(2) - U. P. ZAMINDARI ABOLITION AND LAND REFORMS ACT, S. 210 - An ex parte decree operates as res judicata in subsequent proceedings unless it is set aside by the court that passed it. The burden of proving that the ex parte decree was obtained by fraud or collusion lies on the party challenging its validity. In consolidation proceedings, the consolidation authorities are bound by the findings of a court of competent jurisdiction in a previous suit between the same parties or their predecessors-in-interest, and cannot question the validity of a lease or other document that has been the subject of such a suit. The protection of Sections 41 and 43 of the Transfer of Property Act is not available to a person who claims title to property through a forged or invalid document.
Fact of the Case:
Petitioners claimed Sirdari rights in the land in dispute based on a lease executed in their favor by the Zamindar. The objection was contested by the opposite party, who claimed to have purchased the land from the Zamindar's son. The Consolidation Officer, Settlement Officer Consolidation, and Deputy Director of Consolidation all rejected the petitioners' objection.
Finding of the Court:
The court held that the ex parte decree obtained by the petitioners in a previous suit against the Zamindar operated as res judicata in the present proceedings, and that the consolidation authorities were bound by the findings of that decree. The court also held that the Deputy Director of Consolidation erred in granting Sirdari rights to the opposite party under Section 210 of the U. P. Zamindari Abolition and Land Reforms Act without considering the entire evidence of the petitioners.
Issues: 1. Whether an ex parte decree operates as res judicata in subsequent proceedings. 2. Whether the burden of proving that an ex parte decree was obtained by fraud or collusion lies on the party challenging its validity. 3. Whether consolidation authorities are bound by the findings of a court of competent jurisdiction in a previous suit between the same parties or their predecessors-in-interest. 4. Whether the protection of Sections 41 and 43 of the Transfer of Property Act is available to a person who claims title to property through a forged or invalid document.
Ratio Decidendi: 1. An ex parte decree operates as res judicata in subsequent proceedings unless it is set aside by the court that passed it. 2. The burden of proving that the ex parte decree was obtained by fraud or collusion lies on the party challenging its validity. 3. In consolidation proceedings, the consolidation authorities are bound by the findings of a court of competent jurisdiction in a previous suit between the same parties or their predecessors-in-interest, and cannot question the validity of a lease or other document that has been the subject of such a suit. 4. The protection of Sections 41 and 43 of the Transfer of Property Act is not available to a person who claims title to property through a forged or invalid document.
Final Decision: The court allowed the writ petition in part, quashed the order of the Deputy Director of Consolidation, and directed him to decide the revision of the petitioners afresh on merits in accordance with law.
( 1 ) THIS writ petition has come up for hearing before us on a reference made by a learned single Judge of this Court on his doubting the correctness of the two single Judge decisions of this Court in Brij Lal v. Deputy Director of Consolidation Lucknow Camp at Lucknow 1982 All WC 862 and Nathai v. Joint Director of Consolidation, Allahabad 1984 All LJ 324.
( 2 ) THE brief facts of the case are these. In the basic year the land in dispute was recorded in the name of opposite party No. 4 Smt. Madina Bibi. Petitioners Brahmanand Rai and Basudeo Rai filed objection under S. 9a (2) of the U. P. Consolidation of Holdings Act (hereinafter referred to as the Act) claiming Sirdari rights in the land in dispute on the basis of the lease executed in their favour by the Zamindar Sri Mahadeo Rai on 27-5-1950. The objection was contested by the opposite party No. 4 Smt. Madina Bibi on the ground that she had purchased the land in dispute from Lugari Rai son of Mahadeo Rai on 30-9-1954 and since then she has been in possession thereof. The Consolidation Officer who heard the objection rejected it on 9-8-1970. Petitioners filed appeal to the Settlement Officer Consolidation which was dismissed by the Assistant Settlement Officer Consolidation on 15-10-1971. Thereafter, they filed revision to the Deputy Director of Consolidation but it was also dismissed on 27-5-1974. Feeling aggrieved, they have come up to this Court under Art. 226 of the Constitution.
( 3 ) WE have heard the learned counsel for the parties and have perused the record.
( 4 ) THE learned counsel for the petitioners contended that the petitioners filed suit No. 347 of 1951 in the Court of Judicial Officer against Mahadeo Rai claiming tenancy rights in the land in dispute on the basis of lease deed dt. 27-5-1950 which was decreed on 13-2-1951. The judgement of the Judicial Officer not having been challenged by Mahadeo Rai has become final between the parties and would operate as res judicata in the present proceedings and the view to the contrary of the Consolidation authorities is illegal. On the other hand, the learned counsel for the opposite party No. 4 has contended that the decree dt. 13-2-1951 was an ex parte decree and as such unless it was proved by the petitioners that Mahadeo Rai defendant of that suit was duly served with the notice and he did not appear to contest the suit in spite of service that decree could not operate as res judicata in the present proceedings. He has further contended that it was incumbent on the petitioners to file a copy of the plaint of Suit No. 347 of 1951 before the Consolidation Authorities which was admittedly not done and for this reason also the ex parte decree could not operate as res judicata.
( 5 ) ALL the three consolidation authorities have taken the view that ex parte decree dated 13-2-1951 passed in Suit No. 347 of 1951 would not operate as res judicata in the present proceedings but they have given different reasons for holding so. While the Consolidation Officer has hardly assigned any reason for ignoring the aforesaid ex parte decree, the Assistant Settlement Officer Consolidation has decided this point against the petitioners on the ground that opposite party No. 4 Smt. Madina Bibi was not a party in the said suit. On the other hand, the Deputy Director of Consolidation has observed, that as the petitioners did not file a copy of the plaint of Suit No. 347 of 1951 it was not possible to ascertain the nature of rights granted to them under the decree passed in that suit.
( 6 ) WE are unable to agree with the arguments of the learned counsel for the opposite party No. 4 that the burden to establish that the defendants in the suit were served with the notice and they did not appear to contest the said suit in spite of service was upon the petitioners and as they failed to discharge it the ex parte decree dt. 13-2-1951 would not operate as res judicata in the present proceedings. The learned counsel has placed
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