1- This writ petition, which arises out of an objection under section 9A(2) of the U.P. Consolidation of Holdings Act (in short, the Act), seeks a writ of certiorari quashing the judgement and order dated 20.6.2006 passed by the Dy. Director of Consolidation, Faizabad (for short, DDC).
2- The dispute in the writ petition pertains to khata no. 11 of village Gangasagar, pargana Birhar, tehsil Alapur, district Ambedkar Nagar, which was recorded in the name of Man Bahal, father of respondent nos. 1 to 4, Rampati and Jagannath, sons of Ram Bharose, in the basic year.
3- The following pedigree is admitted between the parties:
Thakurdeen | | Dwarika Manbahal Badri Ram Swaroop Bhullan | | | | | | | | (DIL) =widow
1. Janardan | = widow Smt. Smt. Mona
2.Ghanshayam | Raghuvanshi (DIL) | (DIL) |
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4- Dwarika, father of the petitioners, filed an objection under section 9A(2) of the Act, claiming co-tenancy to the extent of ½ in the khata in dispute. It was the claim of the objector that Badri, Ram Swaroop and Bhullan, the three sons of Thakurdeen, who are also the real brothers of the objector, had executed a will in his favour in 1924. Thakurdeen had mortgaged the property in dispute, which mortgage was redeemed by the objector alone and, therefore, he became its owner. It was also pleaded that Badri, Ram swaroop and Bhullan died issueless; their widows also died; therefore, their shares would devolve upon the objector and his brother Man Bahal, hence the claim for co-tenancy to the extent of ½ in the disputed khata.
5- The objection was contested by Man Bahal, father of the contesting respondent, on the ground that registered gift-deeds dated 22.3.1960 and 23.3.1960 were executed in his favour by Ram Swaroop and Smt. Raghuvamshi, widow of Badri and Smt. Mona, widow of Bhullan. It was further alleged that on the basis of the said registered gift-deeds he filed a suit under section 229B of the U.P. Zamindari Abolition and Land Reforms Act (in short, the UP ZA & LR Act) which was decreed on 30.6.1967, whereafter he was mutated over the land in dispute.
6- In replication, the petitioner's father denied the gift-deeds and further stated that the decree in the suit under section 229B was fraudulent and collusive and, therefore, void.
7- The Consolidation Officer by the order dated 25.8.1989 rejected the objection. During the pendency of the proceedings before the Consolidation Officer, Dwarika and Man Bahal died and were duly substituted by their heirs. As already noted above, the petitioners are the sons of Dwarika, the objector, and the contesting respondent nos. 1 to 4, are sons of Man Bahal, the opposite party before the Consolidation Officer.
8- Aggrieved by the order of the Consolidation Officer, the petitioners preferred an appeal before the SOC, who by order dated 22.11.2003 allowed the appeal. Consequently, revision was filed by the contesting respondent, which was allowed by the DDC on 20.6.2006 . The DDC set aside the order of the SOC and dismissed the objection.The petitioners, therefore, have filed this writ petition challenging the order passed by the DDC.
9- I have heard Sri I.D. Shukla, holding brief of Sri S.K. Mehrotra, learned counsel for the petitioners and Sri U.P.S. Kushwaha, who represents contesting respondent nos. 1 to 4.
10- Learned counsel for the petitioners has urged that the pedigree is admitted between the parties. The decree of the revenue court in the suit under section 229B of the UP ZA & LR Act, which has been relied upon to non-suit the petitioners, is null and void and the same could and should have been ignored by opposite party no. 1 and the shares of the parties determined as per the admitted pedigree. He has further contended that the judgement of the suit under section 229B was not a judgement in the eyes of law, as it was not supported by reasons and did not discuss the evidence of the parties. It involved no judicial determination and was a judgement passed without any discussion; therefore, the same would not operate as res judicata. Elaborating further, he has submitted that the claim of the opposite parties was based on the registered gift-deeds, which were never proved and, in any case, the observations/reasonings of the DDC in the impugned order that since these gift-deeds were documents more than 20 years old, they required no formal proof, is illegal. No such presumption is available as regards a document which is the basis of a claim or defence in view of the provisions contained in section 90A of the Evidence Act, which is a State Amendment inserted by Act No. 24 of 1924 w.e.f. 30.11.1954.. Thus, the DDC has wrongly relied upon the judgement in the suit under section 229B of the UP ZA & LR Act, which vitiates his order.
11- In rebuttal, learned counsel for the respondents has submitted that the judgement and decree passed in the suit under section 229B of the UP ZA & LR Act has become final and the only remedy available to the petitioners is before the revenue court. The consolidation courts cannot go behind the judgement and decree passed by the revenue courts which has become final between the parties. He has further submitted that the decree, though ex parte, would still operates as estoppel against the petitioners. He has cited the following three authorities in support of this contention:
a) 1983 ACJ 141
b) 1994 RD 282
c) 1997 RD 333 He has further elaborated that the ex parte decree was passed on 30.3.1967. Dwarika filed a restoration application for setting aside this ex parte decree which application was dismissed for default on 3.5.1970. No further proceedings were taken thereafter. The notification under section 4 of the U.P. Consolidation of Holdings Act, bringing the village under consolidation operations, was issued on 23.8.1972. On the strength of the aforesaid dates, he has submitted that Dwarika was fully aware of the ex parte decree against him, but chose not to prosecute proceedings any further and gave up his claim, if any, more than 2 years prior to the start of the consolidation operations and, therefore, the courts below have rightly held and decided the case holding that the judgement and decree in the suit under section 229B of the UP ZA & LR Act is binding and final between the parties.
12- I have given my anxious consideration to the rival submissions and have perused the record.
13- From the submissions and the pleadings of the parties, the following salient facts emerge:
In 1964 Fasli, the land in dispute was recorded in the names of both Dwarika and Man Bahal, even though it is admitted on record that Dwarika had executed a sale-deed of his entire 1/5 share in the khata in dispute in favour of third parties, which he had inherited from Thakurdin, being one of the five sons of Thakurdin. It is only after the the suit under section 229B of the UP ZA & LR Act was decreed that the name of Dwarika was expunged. Thus, the entry in the name of Dwarika appears to have continued in the revenue record for at least more than a year even after the passing of the ex parte decree against him.
14- The claim of the contesting respondents is based on the registered gift-deeds of 1960 and these gift-deeds have been filed before the consolidation courts. A perusal of the judgement dated 30.3.1967 passed by the Sub-Divisional Officer, Tanda, in Case No. 106/361/362 is available on record and the perusal of the same reveals that the suit has been decreed only on the following reasonings:
"..The plaintiff has examined himself and has corroborated the plaint in all material particular. He has also filed gift deed and revenue papers in support of his case. There is nothing on record to rebut the testimony of the plaintiff.
The suit is therefore decreed the cost is made easy. This order shall given the case nos. 107 & 108."
15- The gift-deeds, though filed before the Sub-Divisional Officer, they were never proved in accordance with provisions of Section 68 of the Evidence Act.
16- In the consolidation courts one of the marginal witnesses of this gift-deed, namely, Raj Kumar, has filed an affidavit stating therein that he had no knowledge of any gift-deed executed in favour of Man Bahal.
17- The SOC while allowing the objection and appeal recorded that Man Bahal had only stated that the affidavit of Raj Kumar, denying the gift-deed,s had been filed on account of enmity. He has further taken note of the fact that even though one of the donors, namely, Smt. Raghuvamshi, died in 1984, no attempts were made to produce her to prove the gift-deed.
18- The DDC, on the contrary, has decided the case in favour of the contesting respondent on the reasoning that the registered gift-deeds were never cancelled, and the judgment and decree passed by the revenue court in a regular suit, till set aside, is binding and no rights could be granted contrary to it. Most importantly, the DDC has held that the gift-deeds, being registered documents more than 20 years old, the same required no formal proof and would be presumed to have been duly executed.
19- Thus, from the perusal of the record, as also from the submissions made by the learned counsel for the parties, the following two points arise for determination in this writ petition:
(a) What is the nature and import of the ex parte judgement and decree dated 30.6.1967 passed in the suit under section 229B of the U.P. Z.A. And L.R. Act in favour of Man Bahal; and
(b) whether the registered gift-deed alleged to have been executed by Man Bahal required formal proof or whether the DDC was justified in holding that these documents, being more than 20 years old, required no proof in view of presumption available under he Evidence Act.
20- It would be proper to first consider the contents of the judgement dated 30.3.1967 passed by the Sub-Divisional Officer, Tanda, in Suit No. 106/361/362, which was ex parte. The contents of the judgement have already been produced above. This ex parte judgement has been passed on the ground that the plaintiff had examined himself and corroborated the plaint allegations in all the material particulars, and that there was nothing on record to rebut the testimony of the plaintiff. It is on this reasoning alone that the suit was decreed. The learned counsel for the petitioners has submitted that this judgment was no judgement in the eyes of law and has cited various decisions in support of this contention.
21- The first judgement cited is AIR 1969 SC 1167: Smt. Swaran Lata Ghosh Vs. Harendra Kumar Banerjee and another, wherein the Apex Court has held, in paragraph 6, as under:
"...A judicial determination of a disputed claim where substantial question of law or fact arise is satisfactorily reached, only if it be supported by the most cogent reasons that suggest themselves to the Judge; a mere order deciding the matter in dispute not supported by reasons in support of a decision of a disputed claim serves more purposes than one. It is intended to assume that the decision is not the result of whim or fancy, but of a judicial approach to the matter in contest: it is also intended to ensure adjudication of the matter according to law and the procedure established by law."
22- The second decision cited by the learned counsel for the petitioners is 1993 ACJ 597 (SC): Rameshwar Dayal Vs. Banda (Dead) through his LRs and others. In this judgement it has been held that a judgement and decree which does not determine issues involved between the parties is not a judgement in the eye of law and not binding on the parties. In this case, the Apex Court was considering a decision in a SCC suit, which decision, running in 2 paragraphs, was as follows:
"This suit is for ejectment of the defendant from a Gher (House) as per details given at the foot of the plaint as well as for the recovery of Rs. 1756.50 towards rent at Rs. 50 a month with effect from June 7, 1974 up to date of delivery of possession. The defendant did not turn up to contest the suit on the date fixed for hearing. Hence, the case proceeded ex parte against him. The plaintiff has proved his case by adducing necessary evidence.
The suit is ex parte decreed with costs for the ejectment of the defendants from the suit property as for the recovery of Rs. 1756.50 as prayed. The plaintiff shall further be entitled to recover mesne profits with effect from June 7, 1974 up to the date of delivery of possession as permitted by law at Rs. 50 a month on paying the requisite court fees on the execution side."
After noticing the contents of the judgement, the Apex Court further went on to record as follows:
"...Section 2(2) of Code of Civil Procedure (the Code) defines decree as follows:
"(2) 'Decree' means the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final..."
17.The definition of 'Order' given in Section 2(14) of the Code is as follows:
"14) 'Order' means the formal expression of any decision of a Civil Court which is not a decree."
However, neither the order nor the decree should be confused with 'judgement' which is defined by Section 2(9) of the Code as "the statement given by the judge of the grounds of a decree or order". The definitions of decree, order and judgment given in the Code show that decree or order as the case may be, can come into existence only if there is an adjudication on the relevant issues, which conclusively determines the rights of the parties."
And, thereafter, the following finding was returned:
"The present decision of the Small Cause Court which has not even stated the points for determination and given finding thereon, is obviously not a judgement within the meaning of Section 2 (9) of the code. Since the matters were in controversy between the parties, it is only a judgment which could have given rise to a decree. The so-called decision of the Small Cause Court, therefore, does not amount to a decree within the meaning of Section 2 (2) read with Section 2 (9) and Rules 4(1) and 5 of Order 20 of the code. "
23- Although the aforesaid judgement of the Supreme Court is with regard to a judgement and order rendered by a Small Causes Court, the same principles would be attracted to the ex parte judgement and decree of the revenue court which is a judgement in a regular title suit.
24- The third judgement cited by the learned counsel for the petitioners is reported in AIR 1971: Jammu and Kashmir 67: Aziz Wani Vs. Director Consolidation, Srinagar and others, wherein it has been held that, "... Any judgement without the discussion of the evidence led by the parties is no judgement in the eye of law" (para 9).
25- The next decision relied upon is (2004) 4 Supreme Court Cases 281: Escorts Farms Ltd., previously known as M/s Escorts Farms (Ramgarh) Ltd. Vs. Commissioner, Kumaon Division, Nainital, U.P. and others, wherein the Apex Court has held that:
"a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies, and, as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action". (para 51) This judgment further goes on to hold that:
" Plea of res judicata is also not available where there is no contest on an issue between the parties and there is no conscious adjudication of an issue..." (para 53) 26- The last decision relied upon by the learned counsel for the petitioners is 1978 RD 262: Amanatullah alias Amanullah vs. Mohd. Fariyad and others, wherein this Court has held:
"... A decree which is null and void can be ignored by the consolidation authorities and it is not necessary that the said decree be cancelled. The consolidation authorities can go into the question as to whether the decree is null and void and can also, as such, ignore the same. If it was found by the consolidation courts that the decree was null and void." (page 266) 27- Thus, on the strength of the above-noted authorities, learned counsel for the petitioners has submitted that the ex parte decree relied upon by the DDC to non-suit the petitioner was in a suit filed, claiming on the basis of registered gift-deeds, was in fact no judgement or decree in the eyes of law, as it did not formulate the issues that arose for determination. It did not consider the evidence and the judgement was passed primarily on the reasoning that there was no evidence to rebut the sworn testimony of the plaintiff alone. He, therefore, submits that there was no conscious adjudication and, therefore, the said judgement and decree was not binding upon the parties, especially in view of the ratio of the decision of the Supreme Court in the case of Rameshwar Dayal (supra).
28- Coming to the second issue, which arises for determination in the writ petition it is relevant to note that the respondent, Man Bahal, had filed the suit under section 229 of the U.P. Z.A. & L.R. Act for declaration claiming on the basis of registered gift-deeds said to have been executed in his favour. It is also clear from a perusal of the judgment in the said suit, which has already been quoted hereinbefore, that the gift-deeds were filed in the suit. However, it is also clear that no attempt was made to prove these gift-deeds in accordance with Section 68 of the Evidence act. It is also undisputed that once the suit is filed, claiming on the basis of a document, it is incumbent upon the plaintiff to prove the said document in accordance with law before his claim can be upheld. This, admittedly, was not done in the suit under section 229B. The SOC in his order had noticed this fact. He had also taken note of the fact that one of the executants of the gift-deeds was alive till 1984, but even before the consolidation courts concerned, no attempt was made to prove these gift-deeds. The DDC has reversed the order of the appellate court on the reasoning that these gift-deeds were more than 20 years old and, therefore, the same required no formal proof. This reasoning of the DDC is patently erroneous. The DDC has failed to notice the provisions of section 90A of the Evidence Act, which is a U.P. Amendment, and provides that the presumption available under section 90 for documents more than 20 years old is not available for the documents which are either the basis of a claim or basis of a defence in any proceeding. Thus, it can be held that the gift-deeds, which were the basis of the claim of the respondent, Man Bahal necessarily required to be proved and no presumption as contained in section 90 was available as regards these gift-deeds and, therefore, the order of the DDC in this regard cannot be sustained.
29- At this stage it would be proper to consider the judgements that have been relied upon by the counsel for the respondent, namely [2005 (98) RD 148]: Nand Kishore and others Vs. Dy. Director of Consolidation, Varanasi and others. In paragraph 12 of this judgement it has been held that, "...It is well settled that the Consolidation Authorities are bound by the decree passed by revenue Court and the Deputy Director of Consolidation committed a manifest error of law in ignoring the said decree..."
30- The second decision relied upon by the learned counsel for the respondents is 1983 ACJ 141: Suraj Din Vs. The Deputy Director of Consolidation, wherein this Court has held as follows:
"...In such a circumstance it is proper that the appellate authority should be asked in the present case to decide the claims of the parties in the light of the well-settled principle that exparte decree works as an estoppel against the party against whom the same has been passed. The exparte decree, unless set aside in a competent proceeding, is final between the parties."
In my opinion, the appellate authority and the revisional court have patently erred in ignoring the ex parte decree passed in favour of the petitioners. In such a circumstance it is proper that the appellate authority should be asked in the present case to decide the claims of the parties in the light of the well-settled principle that the ex parte works as an estoppel against the party against whom the same has been passed. The ex parte decree, unless set aside in a competent proceeding is final between the parties.
Learned counsel for the respondent has relied upon (1977) 11 SCC 469: Ajay D. Panalkar vs. Management of Pune Telecom, wherein it has been held that:
"... That decision could be upset only by the Court within that hierarchy and could not have been brushed aside by invoking the jurisdiction of the Central Administrative Tribunal and having the said Tribunal decide that the Department was not an industry may be based on a judgment of this Court."
31- Having considered the authorities cited and the submissions made by the learned counsel for the parties, in my opinion, the judgement of the revenue court in the suit under section 229B of the UP ZA & LR Act was not a judgement or decree in the light of the decision of the Apex Court in the case of Rameshwar Dayal (supra). This judgment holds that a decision, which does not formulate a point for determination and gives no finding thereon, is not a judgment within the meaning of section 2(9) of the Code of Civil Procedure. It further holds that a judgement which considers the controversy between the parties alone can give rise to a decree. The judgement of the Small Causes Court, which was under consideration of the Apex Court in the case of Rameshwar Dayal (supra) was almost identical in wording and in its reasoning to the judgment of the declaratory suit filed by Man Bahal.
32- Under the circumstances, and in view of the finding recorded by the Apex Court in the case of Rameshwar Dayal (supra), I have no hesitation in holding that the ex parte judgement and decree in favour of Man Bahal did not amount to a decree within the meaning of Section 2(2), read with Section 2(9) and Rules 4(1) and (5) of Order XX of the Code of Civil Procedure (CPC) as it did not consider the registered gift-deeds which were the basis of the suit itself and which were not proved in accordance with law in the said suit. Moreover, this Court in the case of Amanatullah (1978 RD 262) (supra) this Court has held that a decree which is null and void can be ignored by the consolidation courts. This view prima facie appears to be contrary to what has been held in the judgements relied upon by the learned counsel for the respondent. However, in my considered opinion, the judgements relied upon by the respondents do not lay down anything contrary to what has been held by me above. All the authorities cited by the learned counsel or the respondent held that a decree, even an ex parte decree, binds the consolidation courts. It, therefore, necessarily follows that the decree/ex parte decree must be a valid decree in the eye of law. The authorities do not lay down the proposition that even if a decree/ex parte decree is not a decree in the eyes of law, it will still bind the consolidation courts. In view of the aforesaid reasoning, the judgements relied upon by the learned counsel for the respondent do not help his cause, especially since I have held hereinabove that the ex parte decree in favour Man Bahal was no decree in the eye of law. It would, therefore, not operate as res judicata or even estoppel. Even, more importantly, the entire claim of the contesting respondent is based on the registered gift-deeds, which deeds, though filed before the courts, yet have never been proved. The DDC wrongly held that the gift-deeds required no formal proof of their execution. The reasoning and finding of the DDC is contrary to the express provision of law as contained in section 90A (U.P. Amendment) of the Evidence Act.
33- In view of the above discussion, I am of the considered opinion and hold that the judgement and decree in the suit under section 229B filed by Man Bahal is not a decree in the eyes of law and that the registered gift-deeds, the basis of the claim of the contesting respondent, were necessarily required to be proved before any benefit accrued to the person claiming on the basis of these gift-deeds.
34- Accordingly, and for reasons contained hereinabove, the order passed by the DDC cannot be sustained and is hereby quashed. The matter is remanded to the DDC for a fresh decision on merits in the light of the observations contained hereinabove. It is further directed that the DDC shall decide the matter expeditiously on the basis of the evidence on record, preferably within a period of 2 months from the date of production of certified copy of this order before him, without granting any unnecessary adjournment to either of the parties.
35. With the aforesaid directions/observations, the writ petition is allowed.
Order Date :- 28.3.2014 sks-grade iv