Janardan Tewari vs Dy. D.C./A.D.M. (F and R)

@DELETEUPPERDATA

Ram Surat Ram (Maurya), J.—Heard Sri S.K. Mehrotra assisted by Sri I.D. Shukla, for the petitioners and Sri R.R. Upadhyay, and Sri P.K. Singh Vats, for respondents-2 to 5. The writ petition has been filed against the order of Deputy Director of Consolidation (respondent-1) dated 16.6.2014, passed in title proceeding, under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act).

The dispute relates to the land of basic consolidation year khata 11 of village Gangasagar, tahsil Alapur, district Ambedkarnagar, which was recorded in the names of Manbahal (father of respondents-2 to 5) and Ramapati and Jagannath sons of Ram Bharose, in basic consolidation record. Admittedly Dwarika (father of the petitioners) executed a sale-deed dated 4.7.1958 of his 1/5th share in the land in dispute in favour of Ramapati and Jagannath sons of Ram Bharose and there is no dispute between the parties in respect of title and 1/5th share of Ramapati and Jagannath, in the khata in dispute. Dwarika (father of the petitioners) filed an objection under section 9 of the Act, claiming his 1/2 share in the khata in dispute. Dwarika stated that the land in dispute was the property of Thakurdeen, who had mortgaged it during his life time but could not get it redeemed. After death of Thakurdeen, land in dispute was redeemed by Dwarika alone. Thakurdeen had five sons namely Dwarika, Manbahal, Badri, Ram Swaroop and Bhullan. Badri, Ram Swaroop and Bhullan, who were issueless, executed a will in the year 1924 in favour Dwarika and Manbahal. After their death, their share was devolved upon Dwarika and Manbahal as such he had 1/2 share in the land in dispute. Manbahal contested the objection of Dwarika and denied the story of mortgage of the land in dispute by Thakurdeen and its redemption by Dwarika as well as execution of Will by Badri, Ram Swaroop and Bhullan. He stated Thakurdeen was inherited by his five sons aforesaid. After death of Badri, his share was inherited by his widow Smt. Raghubanshi and after death of Bhullan, his share was inherited by his widow Smt. Bhona, Smt. Raghubanshi, Smt. Bhona and Ram Swaroop executed two registered gift deeds dated 23.3.1960, in respect of their share in the khata in dispute in his favour and such his share in khata in dispute had become 4/5th while 1/5th share of Dwarika was sold by him to Ramapati and Jagannath sons of Ram Bharose, whose names were mutated and name of Dwarika was deleted from the land in dispute in the revenue records. Dwarika had no interest in the land in dispute. On the basis of the gift deeds dated 23.3.1960, Manbahal filed applications for mutation of his name over the land in dispute and for deleting the names of Smt. Raghubanshi, Smt. Bhona and Ram Swaroop. During pendency of these applications Smt. Bhona and Ram Swaroop died. Dwarika in collusion of revenue authorities got his name mutated as an heir of Smt. Bhona and Ram Swaroop on the basis of PA-11. Then he filed a suit under section 229-B of U.P. Act No. 1 of 1951, on the basis of registered gift deeds dated 23.3.1960, which was decreed by an ex parte order dated 30.3.1967. On the basis of aforesaid decree, names of Smt. Raghubanshi, Smt. Bhona and Ram Swaroop as well as Dwarika were deleted from the land in dispute. Gift deeds dated 23.3.1960 were well within knowledge of Dwarika from very beginning but no objection was ever raised by him, except in consolidation.

The objection was tried by Consolidation Officer, who by order dated 28.12.1974 allowed the objection of Dwarika and held his share as 3/10th in the khata in dispute. Manbahal filed an appeal from the order of Consolidation Officer dated 28.12.1974, which was allowed by Settlement Officer Consolidation by order dated 13.10.1975 and order of Consolidation Officer was set aside and matter was remanded to Consolidation Officer for fresh decision after giving opportunity of evidence/hearing to the parties.

After remand, Manbahal filed gift deeds dated 23.3.1960 and judgment of Sub-Divisional Officer dated 30.3.1967 on 15.1.1980 before Consolidation Officer and examined himself. Consolidation Officer after hearing arguments of the parties, by order dated 25.8.1989, held that Thakurdeen was inherited by his five sons namely Dwarika, Manbahal, Badri, Ram Swaroop and Bhullan. After death of Badri, his share was inherited by his widow Smt. Raghubanshi and after death of Bhullan, his share was inherited by his widow Smt. Bhona. Smt. Raghubanshi, Smt. Bhona and Ram Swaroop executed a registered gift deeds dated 23.3.1960, in respect of their share in favour Manbahal as such his share in khata in dispute was 4/5th while 1/5th share of Dwarika was sold by him to Ramapati and Jagannath sons of Ram Bharose, whose names were mutated over the land in dispute. Dwarika left with no interest in the land in dispute. On these findings, objection of Dwarika was dismissed.

The petitioners filed an appeal (registered as Appeal No. 2001/2108/1043/724) from the aforesaid order. The appeal was heard by Assistant Settlement Officer Consolidation, who by his order dated 22.11.2003 held that Manbahal could have examined Smt. Raghubanshi to prove execution of the gift deeds dated 23.3.1960, who survived up to 1983. Ram Bujharat, one of the attesting witness of the gift, in his affidavit dated 12.12.1986, has stated that he had no knowledge of the execution of the gift deeds dated 23.3.1960. Manbahal could not give any evidence to prove that Ram Bujharat had any reason for giving false affidavit against him nor he dared to challenge the genuineness of the affidavit or thumb impressions of Ram Bujharat on it. Gift deeds dated 22.3.1960 did not see light of the day till 1980 in as much as Manbahal did not file any application under the provisions of U.P. Land Revenue Act, 1901 for mutation of his name on its basis. Acceptance of gifts ought to had been made during life time of donors. Due execution of the gifts were not proved in accordance of law. Badri, Ram Swaroop and Bhullan died issueless as such their share would devolved in his surviving brothers Dwarika and Manbahal, who would have equal share in the khata in dispute. On these findings the appeal was allowed and order of Consolidation Officer dated 25.8.1989 was set aside and it has been held that petitioners would have 3/10th share in khata in dispute.

Respondents-2 to 5 filed a revision (registered as Revision No. 1298/1150) from the aforesaid order. Deputy Director of Consolidation (respondent-1), by order dated 20.6.2006, held that finding that gifts were not disclosed till 1980, was incorrect as on the basis of gifts the suit under section 229-B of U.P. Act No. 1 of 1951 was filed, which was decreed on 30.3.1967 and on its basis names of Raghubanshi, Smt. Bhona and Ram Swaroop were deleted from the revenue record. Dwarika get his name mutated on the basis of PA-11, over the khata in dispute and his name was also deleted on the basis of order dated 30.3.1967. Gift deeds dated 23.3.1960, being more than 20 years old document, were admissible in evidence. On these findings, the revision was allowed and order of Assistant Settlement Officer Consolidation dated 22.11.2003 was set aside and order of Consolidation Officer dated 25.8.1989 was maintained. The petitioners filed a writ petition (registered as Consolidation No. 586 of 2006) from the aforesaid order. The writ petition was heard by this Court and by judgment dated 28.03.2014, it was held that ex parte judgment of Sub-Divisional Officer dated 30.3.1967, passed in suit under section 229-B of U.P. Act No. 1 of 1951 did not refer any evidence nor recorded any findings regarding due execution of gift deeds dated 23.3.1960 and such a judgment is nullity. Manbahal did not adduce any evidence to prove due execution of gift deeds dated 23.3.1960, either in the suit under section 229-B of U.P. Act No. 1 of 1951 or in this proceeding before Consolidation Officer. Gift deeds dated 23.3.1960 was basis of defence/title of Manbahal and in view of section 90-A(2) (as amended in U.P.) of Evidence Act, 1872, no presumption regarding its due execution could have been raised. Due execution of gift deed was necessarily required to be proved. Deputy Director of Consolidation has illegally relied upon the ex-parte judgment and non-suited the petitioners. Further he has illegally raised presumption regarding due execution of gift deeds. On these findings writ petition was allowed and order of Deputy Director of Consolidation dated 20.6.2006 was set aside and the matter was remanded to Deputy Director of Consolidation for fresh decision of the revision.

After remand, Deputy Director of Consolidation, after hearing the arguments of parties, by judgment dated 16.6.2014 held that registered gift deeds were filed before Consolidation Officer and exhibited. Copy of ''goswara'' register has been filed, which proves that at Serial Nos. 122, 123 and 124, mutation cases were registered in the names of Manbahal and were decided in the year 1962, 1963 and 1964 and on its basis gift deeds dated 23.3.1960 were given effect to in the revenue records and in basic consolidation record, name of Manbahal was recorded and name of Dwarika was not recorded. During consolidation, dispute in CH Form-4 was raised by Manbahal on the basis of gift deed, but donors did not raise any objection regarding due execution of gift deed. Although Smt. Raghubanshi was alive up to 1983 and original gift deeds dated 23.3.1960 were filed by Manbahal in the year 1980 but Dwarika could not get it challenged by Smt. Raghubanshi nor she was called to rebut it. Affidavit of Ram Bujharat was not admissible in evidence and no reliance can be placed on it. Dwarika did not take any step for cancellation of gift deeds nor could prove that gift deeds were forged document. Order of Assistant Settlement Officer Consolidation is illegal. On these findings revision was allowed and order of Assistant Settlement Officer Consolidation dated 22.11.2003 was set aside and order of Consolidation Officer dated 25.8.1989 was maintained. Hence this writ petition has been filed.

The Counsel for the petitioners submitted that order of Deputy Director of Consolidation dated 16.6.2014 has been passed in utter disregard of the various findings recorded by this Court in the remand order although those findings were binding upon him and operate as res-judicata between the parties. Section 123 of Transfer of Property Act, 1882 requires the gift deed to be attested by two witnesses. Attestation and execution is required to be proved by at least one such attesting witness under section 68 of the Evidence Act, 1872. No attesting witness was examined to prove attestation and execution of the gift deeds as such it were inadmissible in evidence and no reliance could be placed on it. This Court has specifically held that gift deeds dated 23.3.1960 were basis of defence/title of Manbahal and no presumption regarding its due execution could be raised in view of section 90-A(2) (as amended in U.P.) of Evidence Act, 1872. Due execution of gift deeds were necessarily required to be proved according to the provisions of section 68 of Evidence Act, 1872. Deputy Director of Consolidation has again relied upon the gift deeds overreaching the findings of this Court. Deputy Director of Consolidation has shifted a negative burden upon to the petitioners, saying that although Smt. Raghubanshi was alive up to 1983, and original gift deeds dated 23.3.1960 were filed by Manbahal in the year 1980 but Dwarika could not get it challenged by her nor she was called to rebut it. Neither due execution and attestation of gift deeds dated 23.3.1960 were proved nor acceptance of gifts during life time of donors were proved as such no reliance can be placed upon it. Dwarika was real brother of Badri, Ram Swaroop and Bhullan and survived them and their widows as such inherited their share under section 171 of U.P. Act No. 1 of 1951. Order of Deputy Director of Consolidation is illegal and is liable to be set aside. He relied upon judgments of Chief Court Oudh in Kali Charan v. Suraj Bali, AIR 1941 Oudh 89 in which it has been held that word ''execution'' means and includes whole serious of the acts, necessary to give validity of the document and required to be proved by attesting witness under section 68 of Evidence Act, 1872. Judgment of Supreme Court in New India Assurance Company Ltd. Vs. Nusli Neville Wadia and Another, in which it has been held that burden of proof rest upon the party who substantially asserts affirmative of the issue and right to cross-examine the witness of the parties in indefeasible right of natural justice. Supreme Court in A.R. Antulay Vs. R.S. Nayak and Another, M. Nagab-hushana v. Sate of Karnataka, 2011 (29) LCD 1302 (SC) and Kalinga Mining Corporation Vs. Union of India (UOI) and Others, and judgment of this Court in Saeed Vs. Munnu Khan, in which it has been held that principles of res-judicata is applicable in respect of issue relating to the facts and law both. Judgment of Supreme Court in Rosammal Issetheenammal Fernandez (Dead) By Lrs. and Others Vs. Joosa Mariyan Fernandez and Others, and K. Laxmanan Vs. Thekkayil Padmini and Others, : K. Laxmanan Vs. Thekkayil Padmini and Others, in which it has been held that denial of due execution of document by the parties to the suit amounts to denial by the executant under Proviso to section 68 of Evidence Act, 1872 and validity of gift deed was challenged its due execution is required to be proved in the manner as provided under section 68. Judgment of this Court in Kumari Sushila Saxena Vs. Sub-Registrar and Others and Ramapati Tiwari v. District Registrar, 2009 (27) LCD 879 in which it has been held that registration of a document has nothing to do with legality of transaction. Supreme Court in Union of India (UOI) Vs. Ibrahim Uddin and Another, in which it has been held that presumption under section 90 of Evidence Act, 1872 is in respect of signature, execution and attestation of document and not in respect of correctness of every statement contained in it. Full Bench judgment of this Court in Ram Jas and Others Vs. Surendra Nath and Another, in which it has been held that section 90-A (as amended in U.P.) will not override section 90 of Evidence Act, 1872, if document is more than 20 years old, is the basis of the suit or defence.

I have considered the arguments of the Counsel for the parties and examined the record. The order of remand is not a final order but an interlocutory order as it itself directed Deputy Director of Consolidation to decide afresh. But issues finally decided in the remand order cannot be reopened by sub-ordinate Court as held by Supreme Court in Mrs. Margaret Lalita Samuel Vs. The Indo Commercial Bank Ltd., . This Court in judgment dated 28.3.2014, held that ex-parte judgment of Sub-Divisional Officer dated 30.3.1967, passed in suit under section 229-B of U.P. Act No. 1 of 1951 is nullity. Gift deeds dated 23.3.1960 were basis of defence/title of Manbahal and in view of section 90-A(2) (as amended in U.P.) of Evidence Act, 1872, no presumption regarding its due execution could have been raised and gift deeds were necessarily required to be proved by the person claiming benefits on its basis. So far as first issue that judgment dated 30.3.1967 is nullity is concerned, this issue has been finally decided and is not reopened after remand. However, issue regarding due execution of gift deeds were not finally decided and matter has been remanded for fresh decision. After remand Deputy Director of Consolidation held that registered gift deeds were filed before Consolidation Officer and exhibited. Copy of ''goswara'' register has been filed, which proves that at Serial Nos. 122, 123 and 124, mutation cases were registered in the names of Manbahal on its basis gift deeds dated 23.3.1960 and were decided in the year 1962, 1963 and 1964 thus it were given effect to in the revenue records. During consolidation, dispute in CH Form-4 was raised by Manbahal on the basis of gift deed, but donors did not raise any objection regarding due execution of gift deed. Although Smt. Raghubanshi was alive up to 1983 and original gift deeds dated 23.3.1960 were filed by Manbahal in the year 1980 but Dwarika could not get it challenged by Smt. Raghubanshi nor she was called to rebut it. Thus Deputy Director of Consolidation found that execution of gift deeds were not denied by the donors although one of them namely Smt. Raghubanshi was alive up to 1983. Due execution of gift deed was proved by statement of Manbahal and was exhibited by Consolidation Officer. Gift deeds were given effect to in the revenue records. On its basis he found that due execution of gift deeds were proved and it were acted upon.

Now the question arises as to whether due execution of the gift deeds were proved according to the provisions of Evidence Act, 1872. Section 58 of Evidence Act, 1872 provides that facts admitted need not be proved. Section 61 provides for proof of contents of documents either by primary or secondary evidence. Primary evidence is the original documents. Section 67 requires for proof of signature or hand writing of the person alleged to have signed the document or written by him. Section 68 requires proof of a document requires under the law to be attested. Section 90 raises presumption as to due execution, signature and attestation of document 30 years old (in U.P. 20 years). Relevant provisions are quoted below:--

"58. Facts admitted need not be proved.--No fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings:

Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.

Proof of signature and handwriting of person alleged to have signed or written document produced.--If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person''s handwriting must be proved to be in his handwriting.

Proof of execution of document required by law to be attested.--If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:

Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.

Presumption as to documents thirty years old.--Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person''s handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.

Explanation.--Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable.

This explanation applies also to section 81.

Illustrations

(a) A has been in possession of landed property for a long time. He produces from his custody deeds relating to the land showing his titles to it. The custody is proper.

(b) A produces deed relating to landed property of which he is the mortgagee. The mortgagor is in possession. The custody is proper.

(c) A, a connection of B, produces deeds relating to lands in B''s possession which were deposited with him by B for safe custody. The custody is proper.

STATE AMENDMENTS

Uttar Pradesh.--In its application to the State of Uttar Pradesh, the existing section shall be renumbered as section 90(1), and

(a) For the words "thirty years" the words "twenty years" shall be substituted, and

(b) The following shall be inserted thereafter as a new subsection (2):

"(2) Where any such document as is referred to in sub-section (1) was registered in accordance with the law relating to registration of documents and a duly certified copy thereof is produced, the Court may presume that the signature and every other part of such document which purports to be in the handwriting of any particular person, is in that person''s handwriting, and in the case of a document executed or attested, that it was duly executed by the person by whom it purports to have been executed or attested." [Vide U.P. Act 24 of 1954].

A gift deed requires registration and attestation by two attesting witnesses under section 123 of the Transfer of Property Act, 1882. Its execution has to be proved according to the provisions of section 68 of Evidence Act, 1872. Proviso to section 68 provides that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied. The Counsel for the petitioners submitted that Apex Court in Rosammal Issetheenammal Fernandez (Dead) By Lrs. and Others Vs. Joosa Mariyan Fernandez and Others, and K. Laxmanan Vs. Thekkayil Padmini and Others, held that denial of execution by the litigants in pleading is sufficient denial. In these cases dispute arose after death of executant and it was found denial by predecessors-in-interest is sufficient.

Proviso to section 68 of Evidence Act, 1872 uses phrase "unless its execution by the person by whom it purports to have been executed is specifically denied". Under section 32 of Registration Act, 1908 words "person executing" are used. This phrase came for consideration before Apex Court in Rajni Tandon Vs. Dulal Ranjan Ghosh Dastidar and Another, in which it has been held that the expression "person executing" used in section 32 of the Act, can only refer to the person who actually signs or marks the document in token of execution, whether for himself or on behalf of some other person. Thus, "person executing" as used in section 32(a) of the Act signifies the person actually executing the document and includes a principal who executes by means of an agent. Where a person holds a power of attorney which authorizes him to execute a document as agent for someone else, and he executes a document under the terms of the power of attorney, he is, so far as the registration office is concerned, the actual executant of the document and is entitled under section 32(a) to present it for registration and get it registered.

In this case, Manbahal had raised his claim on the basis of gift deeds dated 23.3.1960 during consolidation in the year 1974 and original gift deeds were filed before Consolidation Officer in the year 1980. One of the donor was alive even up to 1983 but execution of gift deeds were not denied by her. In fact, Dwarika was claiming share of donors on the basis of alleged Will of the year 1924. Thus there was no denial by the person by whom the gift deeds were executed and Proviso to section 68 of Evidence Act, 1982 comes into operation.

So far as affidavit of Ram Bujharat is concerned, this Court relying upon the judgment of Supreme Court in Jagdish Prasad v. D.D.C., 2013 (121) RD 565 held that an affidavit is not an evidence within the meaning of Evidence Act, 1874, as such, it cannot be considered.

Section 3 of the Evidence Act, 1872 defines words "proved", and "disproved" as follows:--

"Proved".--A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

"Disproved".--A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.

Deputy Director of Consolidation, relying upon original gift deeds and statement of Manbahal found that due execution was proved in accordance of law. By making observation that although Smt. Raghubanshi survived up to 1983, but Dwarika had not made any effort to produce her for denial of execution of gift deeds, he has not shifted negative burden of proof upon Dwarika, but merely took a circumstance that Dwarika did not try to disprove a fact which has otherwise been proved. The arguments raised by the Counsel for the petitioner that negative burden of proof has been imposed upon the petitioners is not accepted.

A presumption regarding execution and attestation of 20 years old document can be raised by the Court under section 90 of Evidence Act, 1872. Full Bench of this Court in Ram Jas and Others Vs. Surendra Nath and Another, held that section 90 and 90-A (as amended in U.P.) of the Evidence, 1872 are independent and not an exception to each other. Even if a case falls under section 90-A(1) and (2) will not exclude the Court from drawing the presumption, if the circumstances permit it to be drawn under any other provision of Evidence Act, 1872 including section 90 of the Act. In this case, donors were alive and during their life time mutation cases were filed on the basis of gift deeds and were allowed. Smt. Rajbanshi, one of the donor was alive at the time, when evidence before Consolidation Officer was recorded but they did not deny execution of gift deeds. In such circumstances, Consolidation Officer exhibited the document on the basis of statement of Manbahal. Gift deeds dated 22.3.1960 were twenty years old document and admissible in evidence under section 90 Evidence Act, 1872. But unfortunately provisions of section 68 Proviso and Full Bench decision of Ram Jas''s case (supra) was escaped from notice by learned Single Judge and it was held that document being basis of defence was not admissible under section 90-A(2) as amended in U.P. Admissibility of a document and its due execution has to be examined according tot he provisions of Evidence Act, 1872, which is law of the land after remand by this Court. According to decisions of Apex Court noted herein below, in case of contradiction between law of land and erroneous decision, law of land has to be followed as doctrine of res-judicata is based upon principle of estoppel which has no application against statute. Thus under section 90 of Evidence Act, 1982, Court is competent to raise presumption regarding execution etc. of gift deeds and it is admissible in evidence. Deputy Director of Consolidation has not committed any illegality in relying upon it.

Deputy Director of Consolidation found that documents were exhibited. Its due execution was not denied by donors as such its execution and attestation was proved. Section 167 of the Evidence Act, 1872 provides as follows:--

No new trial for improper admission or rejection of evidence.--The improper admission or rejection of evidence shall not be ground of itself for a new trial or reversal of any decision in any case, if it shall appear to the Court before which such objection is raised that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that, if the rejected evidence had been received, it ought not to have varied the decision.

Privy Council in the case of AIR 1943 83 (Privy Council) and Supreme Court in Smt. Dayamathi Bai Vs. Sri K.M. Shaffi, and Shyam Lal @ Kuldeep Vs. Sanjeev Kumar and Others, held that when the objection to be taken is not that the document is in itself inadmissible but that the mode of proof was irregular, it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. Similarly, in Sarkar on Evidence, 15th Edn., p. 1084, it has been stated that where copies of the documents are admitted without objection in the Trial Court, no objection to their admissibility can be taken afterwards in the Court of appeal. When a party gives in evidence a certified copy, without proving the circumstances entitling him to give secondary evidence, objection must be taken at the time of admission and such objection will not be allowed at a later stage.

Question as to whether the erroneous judgment on the point of law between the parties operates as res-judicata came for consideration before Supreme Court in Mathura Prasad Bajoo Jaiswal and Others Vs. Dossibai N.B. Jeejeebhoy, in which Supreme Court held as follows:--

"11. It is true that in determining the application of the rule of res judicata the Court is not concerned with the correctness or otherwise of the earlier judgment. The matter in issue, if it is one purely of fact, decided in the earlier proceeding by a competent Court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be reopened. A mixed question of law and fact determined in the earlier proceeding between the same parties may not, for the same reason, be questioned in a subsequent proceeding between the same parties. But, where the decision is on a question of law i.e. the interpretation of a statute, it will be res judicata in a subsequent proceeding between the same parties where the cause of action is the same, for the expression "the matter in issue" in section 11 of the Code of Civil Procedure means the right litigated between the parties i.e. the facts on which the right is claimed or denied and the law applicable to the determination of that issue. Where, however, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of that order under the rule of res judicata, for a rule of procedure cannot supersede the law of the land."

This judgment has been again followed in Smt. Isabella Johnson Vs. M.A. Susai, . Same view has been taken by Supreme Court in Union of India (UOI) Vs. Pramod Gupta (D) by L.Rs. and Others, and Bishwanath Prasad Singh Vs. Rajendra Prasad and Another, . House of Lord in Arnold v. National Westminster Bank Plc., (1991) 2 AC 93 noticed the distinction between "cause of action" "estoppel" and "issue estoppel". If a Judge has made a mistake, perhaps a very egregious mistake, as is said of Walton, J.''s judgment here, and a later judgment of a higher Court overrules his decision in another case, due considerations of justice require that the party who suffered from the mistake should be shut out, when the same issue arises in later proceedings with a different subject-matter, from reopening that issue?

"I am satisfied, in agreement with both Courts below, that the instant case presents special circumstances such as to require the plaintiffs to be permitted to reopen the question of construction decided against them by Walton, J., that being a decision which I regard as plainly wrong."

Thus Supreme Court in Mathura Prasad Bajoo Jaiswal, Isabella Johnson, Pratnod Gupta and Viswanath Prasad Singh (supra) specifically held that rule of res-judicata is rule of procedure cannot supersede the law of the land. In case a Court has to choose in between an erroneous judgment and law of the land then it has to follow law of the land and not the erroneous judgment. Judgments cited by the Counsel for the petitioners on this issue has laid down a general proposition of law. In view of the aforesaid discussions, there is no illegality in the judgment of Deputy Director of Consolidation. The writ petition has no merit and is dismissed.