Balli vs D.D.C. and Others

Sanjay Misra, J.—Heard Sri V.B. Khare, learned Counsel for petitioners, learned Standing Counsel for State-respondents and Sri B.N. Asthana learned Counsel for the respondent Nos. 3, 4 and 5. Learned Counsel for petitioners has submitted that in the objection filed by petitioners u/s 9of the U.P. Consolidation of Holdings Act the Consolidation Officer had allowed the objection on 9.7.1976 but on an appeal filed by the respondents the Settlement Officer, Consolidation has set aside the order of Consolidation Officer and allowed the appeal. The Deputy Director, Consolidation in the revision filed by the petitioners has affirmed the order of the Settlement Officer, Consolidation.

According to Sri Khare, Bhaggu who was ancestor of the respondent Nos. 3 to 6 had filed a suit u/s 49 of the U.P. Tenancy Act for division of the holding being Case No. 482 (Bhaggu v. Bira) in the Court of A.S.D.O., Maharajganj, District Gorakhpur. That suit u/s 49 of the U.P. Tenancy Act was dismissed on 20.11.1952 for the reason that the petitioner therein who was ancestor of the respondents had not filed any evidence with respect to his share in the property in question although he had filed the suit for declaration as contemplated u/s 59 of the U.P. Tenancy Act

According to learned Counsel, the respondents had not been granted relief of division of holding u/s 49 of the Act or declaration of title u/s 59 of the Act. He submits that the respondents thereafter filed an appeal against the said judgment but the appeal abated with the enforcement of U.P. Z.A. & L.R. Act According to learned Counsel the respondents thereafter filed application u/s 176 of the U.P. Z.A. & L.R. Act which proceedings also abated with the enforcement of U.P. Consolidation of Holdings Act. He submits that the Consolidation Officer had rightly allowed the objection of the petitioners claiming the land in question on the ground that the respondents had not succeeded in the proceedings u/s 49/59 of the U.P. Tenancy Act. He states that res judicata would apply and the impugned orders require to be set asie. Hence, the respondents were not co-sharers with the petitioners in the land in question which was coming from the ancestors Bhuri alias Bira. He states that the Settlement Officer, Consolidation has illegally allowed the appeal of the respondents and the Deputy Director, Consolidation has erred in dismissing the revision filed by the petitioners.

Sri Asthana, learned Counsel for the respondent Nos. 3 to 5 has submitted that the proceedings u/s 49/59 of the U.P. Tenancy Act had abated due to enforcement of U.P. Consolidation of Holdings Act and, therefore, the order dated 20.11.1952 could not be res judicata between the parties for the reason that the suit was dismissed due to non-filing of evidence by the respondents regarding their shares in the property in question. He states that the ancestor of the respondents, namely, Bhuri alias Bira were recorded in 1334-F over the land in question and the pedigree submitted before the Consolidation Officer has not been disputed by the petitioners. The said pedigree has reproduced in the order of the Consolidation Officer where Bhuri alias Bira is the common ancestor of the petitioners and the respondents and, therefore, in view of the entry in 1334-F in the name of the common ancestor the respondents were co-sharers with the petitioners. He has also submitted that the proceedings u/s 176 of the U.P. Z.A. & L.R. Act initiated by the respondents had abated due to enforcement of the U.P. Consolidation of Holdings Act and, therefore, they cannot be held to be a bar for the respondents to claim their rights over the land in question in the title proceedings u/s 9 upon enforcement of the U.P. Consolidation of Holdings Act.

Having considered the submissions of the parties and perused the record, it appears from the order dated 20.11.1952 that there was no evidence filed by the ancestor of the respondents regarding their claim for division of holding in the suit u/s 49 of the U.P. Tenancy Act and, therefore, the declaration sought u/s 59 of the U.P. Tenancy Act was not awarded to the ancestor of the respondents. The said judgment dated 20.11.1952 indicates that neither division of holding nor declaration was granted to the respondents but the proceedings ultimately abated and hence, did not attain finality. The proceedings u/s 176 of the U.P. Z.A. & L.R. Act at the instance of the ancestor of the respondents also abated. Therefore, the question of title claimed by the respondents was required to be decided in the consolidation proceedings u/s 9 of the U.P. Consolidation of Holdings Act. When there was no dispute with respect to the common ancestor and the pedigree of the parties then the objection of the petitioners u/s 9 of the U.P. Consolidation of Holdings Act ought to have been considered in that light of the matter and should not have been allowed only for the reason of res-judicata due to the order dated 20.11.1952 passed in proceedings u/s 49/59 of the U.P. Tenancy Act. While perusing the order dated 20.11.1952 it appears that mere was another suit filed u/s 45 of the U.P. Tenancy Act regarding extinguishing of the tenancy of the ancestor of respondent Nos. 3 to 5 but that suit also appears to have abated, therefore, when on one hand there was no declaration in favour of the ancestor of respondent Nos. 3 to 5 there was also no declaration regarding extinguishing of tenancy rights of the ancestor of the respondent Nos. 3 to 5 in the suit u/s 45 of the U.P. Tenancy Act which also had abated upon enforcement of U.P. Consolidation of Holdings Act.

These circumstances indicate that the claim of title as a co-sharer raised by the ancestor of the respondent Nos. 3 to 5 had not been adjudicated nor attained any finality which would not be res judicata and, therefore, the Consolidation Courts were required to decide the same. Particularly, in view of the fact that the parties belong to the common ancestor and the common ancestor was recorded over the land in question in 1334-F.

The Settlement Officer, Consolidation has allowed the appeal filed by the ancestor of the respondent Nos. 3 to 5 and held that there was no bar of res judicata and he has declared the shares to which the parties would be entitled in view of the admitted pedigree and the entry in the revenue record of the common ancestor. The Deputy Director, Consolidation has dismissed the revision of the petitioners and has held that Bhaggu and Nagai both are sons of Jhura and since the petitioners are from the branch of Nagai and the respondent Nos. 3 to 5 are from the branch of Bhaggu, they are entitled to the shares-No error can be found in the impugned order dated 20.11.1952 passed by the Settlement Officer, Consolidation and the order dated 28.9.1977 passed in Revision No. 422/307 by the Deputy Director, Consolidation.

The writ petition is devoid of merits and is accordingly dismissed. No order is passed as to costs.