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2023 Supreme(All) 2614
IN THE HIGH COURT OF ALLAHABAD
SAURABH SHYAM SHAMSHERY, J.
Smt. Jagawanti - Petitioner
Versus
Harihar Nath - Respondent
WRIT B NO. 1676 OF 1977.
Decided On : 12-12-2023
For the Petitioner: A.N. Bhargava,Dharam Pal Singh,S. Niranjan.
For the Respondent: S..C, Ajay Kumar Mishra, D.N. Misra, Deo Narain Mishra, J.K. Pandey, L.K. Pandey, S.N. Misra, Satya Narain Singh.
An ex-parte decree in a civil suit does not act as res-judicata when the appeal results in a compromise dismissal, rendering the decree non-est.
Headnote:(A) U.P. Consolidation of Holdings Act, 1953 - Section 9A(2) - Examination of consolidation orders and prior litigation - The court examined the significance of an ex-parte decree in relation to claims of bhumidari rights, emphasizing that a subsequent dismissal on compromise negates res-judicata; relevant rulings were considered. (Paras 6, 10, 14)
(B) The principle of res-judicata - The principle of res-judicata cannot be asserted when a decree is overshadowed by a subsequent compromise dismissal in an appellate proceeding; established that ex-parte decree does not survive such dismissal. (Paras 8, 10, 14)
Facts of the case:
This case arose from claims regarding various plots of land within village records, where the petitioner contested prior rulings against her regarding bhumidari rights through a consolidation process, and multiple appeals were made after an initial consolidation officer's order.
Findings of Court:
The court affirmed the findings of the lower authorities confirming bhumidari rights for specific respondents while dismissing the petitioner's claims; emphasized the effect of a prior compromised dismissal on succession and rights to property.
Issues: The key issue addressed was whether an ex-parte decree in a civil suit acts as res-judicata despite a subsequent compromise dismissal during appeal.
Ratio Decidendi: The court concluded that an ex-parte decree does not hold when the related appeal is dismissed based on a compromise, thereby nullifying its prior authority to statutorily confirm rights.
Result: Petition dismissed.
| Table of Content |
|---|
| 1. background of property dispute under u.p. consolidation of holdings act (Para 1 , 2 , 3 , 4 , 5) |
| 2. overview of relevant lower court decisions and appeals (Para 6) |
| 3. arguments concerning res-judicata involving the civil suit. (Para 7) |
| 4. arguments regarding res-judicata effect of ex-party decree (Para 8 , 9) |
| 5. court's analysis on res-judicata and execution of decree (Para 10 , 11 , 12 , 14) |
| 6. court’s dismissal of the petitioner’s case and order (Para 15 , 16) |
JUDGMENT
Saurabh Shyam Shamshery, J.
This case is arising out of a proceedings under Section 9A(2) of U.P. Consolidation of Holdings Act, 1953.
2. The petitioner has filed objections in respect of various plots in respect of Khata No. 31 situated in village Madanpur, Pargana Bhadohi, Tehsil Gyanpur, District Varanasi, which recorded in basic year khatauni in the name of petitioner and some of original respondents.
3. Consolidation Officer after hearing parties decided the dispute against petitioner by an order dated 19.07.1967 and objection filed by original respondents was allowed in part.
4. Petitioner and others have filed four separate appeals against aforesaid order. The appeal of petitioner was allowed in part and others' appeal were rejected by an order dated 15.03.1969.
5. The petitioner being still aggrieved filed revision petitions, however, both revision petitions were rejected by an order dated 27.11.1976.
6. Before adverting to rival submissions, relevant parts of judgments passed by Appellate as well as Revisional Authorities are mentioned below -:
Appellate Order dated 15.03.1969
"I have heard the learned counsel for the parties and gone through the lower court files.
First I take up the appeal of Smt. Jagwanti. The learned counsel for appellant argued that Jagnarain and others filed a civil suit no. 660 of 1946 for partition against Jagwanti and others claiming ½ share in that suit; Hariharnath was recorded as respondent no.7, Gopinath no. 8 Kedar respondent no. 10, Ramlakhan respondent no.3, that suit was decreed ex-party against them on 5.3.47 and 7.1.48 and Jagnarain and others transferred their ½ share in favour of Jagwanti on 16.1.65 through sale deed so Jagwanti became owner of the entire property, that suit was decreed on 8.2.61 and Amin partitioned plot on spot, that after the decree an application was given on 23.1.65 that the suit should be dismissed, that this ex-party will operate as res-judicata and Hariharnath and others cannot claim these plots in the suit. Learned counsel for appellant referred 1950 Allahabad Pg. 488m 1947 Allahabad pg 147 and 1963 RD pg. 226. The certified copies of the order sheet dated 5.3.47 and 7.1.48 shows that the suit was decided ex-party against the case of Jagnarayan and others regarding partition. Preliminary order was passed by Munsif and on basis of this order, the Amin went in the village on 8.2.61 for partitioning the plot on the spot. The appeal was filed before the Civil Judge, Gyanpur, which was decided on 23.1.65 on basis of compromise and the case filed by Jagnarayan and others in 1946 was dismissed on 23.1.65 and that suit was not decreed so it will not operate as resjudicata. The ruling cited by learned counsel for appellant shows that in all these cases the suit was decreed and was not dismissed. Thus, the rulings are not applicable in this case. I do not agree with learned counsel for appellant shows that in all these cases the suit was decreed and was not dismissed. Thus, these rulings are not applicable in this case. I do not agree with learned counsel for appellant (Smt. Jagwanti) that the order passed in previous suit will operate resjudicata.
As regards plot nos. 79/2 area 1 bigha 12 biswas, the learned C.O. held Ram Kedar and Ram Lakhan as bhumidhar of plot nos. 79/2 area 1 bigha only. Ram Kedar and others filed for the rest area of this plot. Ram Lakhan and others claimed this plot on basis of sale deed executed by Smt. Jagwanti in favour of father of appellant Ram Lakhan in 1933
