Kali Charan and Another vs Deputy Director of Consolidation and Others

K.B. Asthana, C.J. and J.M.L. Sinha, J.—A learned Single Judge, while dealing with Writ Petition Nos. 1210 of 1972 and 1211 of 1972, arising out of consolidation matter, has referred the following questions to be answered by a Division Bench:

Whether in a suit u/s 229-C of the U.P. Zamindari Abolition and Land Reforms Act instituted before the coming into force of U.P. Act No. 18 of 1956 a declaration that the Defendant was a sirdar could be granted?

If such a declaration could not be granted, but in order to record a finding that the Defendant was not an asami an incidental finding was recorded that he was actually a sirdar, will such a finding operate as res-judicata in a subsequent case where the status of the

said Defendant as sirdar is denied before a court or an authority competent to decide an issue about sirdari rights?

The circumstances under which the two questions arose have been mentioned at length in the referring order. That apart, it is not necessary for us to refer to those facts again also for the reason that questions referred are purely questions of law. We, therefore, proceed to answer the questions straight away.

The answer to question No. 1 rests on the interpretation of Section 229-C which is a corollary to Section 229-B. The two sections as they stood before the 1956 amendment read as follows:

229-B. Suit by An Asami for Declaration of Rights. (1) Any person claiming to be an asami either exclusively or jointly with any other such person may sue the landholder for a declaration that he is an asami or for a declaration of his share as joint asami in the holding as the case may be.

(2) In any suit under this section any person claiming to hold as an asami through the landholder shall be joined as a party.

229-C. SUIT FOR DECLARATION OF RIGHTS OF A PERSON CLAIMING TO BE AN ASAMI. A Gaon Sabha or bhumidhar or sirdar of any land may sue any person claiming to be an asami of such land for a declaration of the rights of such person.

From the above it would appear that Section 229-B confers a right on a person, claiming to be an asami of a holding, to sue the landholder for obtaining a declaration that he is actually the asami of the land in dispute. The words "for a declaration that he is an asami" occurring in the section leave no room for doubt that the only declaration that can be granted under that section is whether the Plaintiff is an asami or not. If the court comes to the conclusion that the Plaintiff is not an asami, the matter ends and the suit has to be dismissed because of the aforesaid expression occurring, in Section 229-B. Section 229-C is converse of Section 229-B, for while Section 229-B confers a right to sue on the person claiming to be an asami, Section 229-G confers a right on the Gaon Sabha or a bhumidhar or a sirdar to sue a person, who claims to be an asami of any land. Section 229-C, therefore, takes its colour from Section 229-B and its scope should be determined in the back ground of that section. It should, therefore, follow that if any person claims himself to be an asami, the Gaon Sabha or the bhumidhar or the sirdar of that land can sue that person for a declaration whether the person is or is not an asami of that land. This interpretation is also consistent with the language used in Section 229-C. The expression "declaration of the rights of such person" occurring at the end of Section 229-C, is clearly referable to the expression "any person claiming to be an asami" occurring in the middle of the section. The two expressions read together clearly point to the conclusion that, while seized of a suit u/s 229-C, the only declaration that can be granted by a court is whether the person claiming to be an asami of the land in dispute is or is not the asami thereof. The moment the court comes to the conclusion that the Defendant is not an asami of the land in dispute, that is the end of the matter and no further investigation is called for to decide the suit.

Learned Counsel for the Respondents urged that it is quite likely that, in a suit filed by a Gaon Sabha or a Bhumidhar or a Sirdar against any person u/s 229-C of the Zamindari Abolition and Land Reforms Act, the Plaintiff alleged that the Defendant claimed himself to be an asami, while the Defendant resisted the suit on the ground that he did not claim himself to be an asami and that he was in fact a sirdar of the land in dispute. Learned Counsel urged that in such a situation it should be open to the revenue court, while deciding the case, to record a rinding that Defendant is not an asami but a sirdar. The argument fails to impress us. In view of the language used in Section 229-C, the only issue that can legitimately be framed in a suit filed thereunder would be whether the Defendant is an asami of the land in dispute, and it is to that issue that the revenue court has to confine itself. In case the court comes to the conclusion that the Defendant is an asami, it may further determine as to which of the various classes of asami specified in Sections 133, 197 and 210 of the Zamindari Abolition and Land Reforms Act does he belong. In case, however, the court comes to the conclusion that the Defendant is not an asami, that is the end of the matter and the suit has to be disposed of without any further investigation about the nature of the Defendant''s right. That is all the more so because, before the commencement of U.P. Act No. 18 of 1956, the revenue court did not have the jurisdiction to adjudicate upon the sirdari rights. Since the court did not have the jurisdiction to adjudicate about the sirdari rights, neither any of the parties could ask for a finding in that regard, nor could the court record any.

Reliance was placed on behalf of the Respondents before the learned Single Judge on a decision of this Court in the case of Smt. Yubraj Kuari v. Kali Charan Pathak 1964 AWR 252. The case was again cited before us on behalf of the Respondents. It is true that while deciding that case it was observed by Gangeshwar Prasad, J. that, in a suit u/s 229-C, the court can decide all the matters in controversy. He observed that if it was positively asserted on behalf of the Plaintiff that the Defendant was neither an asami nor had he any other rights in the land in suit and wanted a declaration to that effect, it was open to the Defendant to establish any such right as he may claim to possess and the court in that case has not only the power but also the duty to decide whether the Defendant has any right and, if so, what the nature of that right is. According to the learned Single Judge, it could, therefore, be held in a suit u/s 229-C whether the Defendant was a sirdar, if not an asami. The observations contained, in the aforesaid case, therefore, do lend support to the contention raised on behalf of the Respondents before us. We, however, regret our inability to agree with the view expressed by the learned Single Judge in that case. It does not appear from the report of the decision that the fact that the revenue court did not, during the year 1955, have any jurisdiction to adjudicate on the sirdari rights, was expressly taken into consideration. The fact that in a suit u/s 229-C it is not open to a revenue court to adjudicate on sirdari rights even after the amendment of 1956, finds support from a Division Bench decision of this Court in the case of Surendra Narain Dubey v. Dy. Director of Consolidation 1973 RD 328. It may be recalled that after 1956, a declaration for sirdari rights could be obtained by filing a suit u/s 229-B of the Zamindari Abolition and Land Reforms Act. In the case of Surendra Narain Dubey (supra) the suit was, however, filed u/s 229-C, Zamindari Abolition and Land Reforms Act on the allegation that the revenue entries, on the basis of which the Respondents claimed adhivasi right, were fictitious and that the Respondents did not have any interest in the land in suit. A compromise was then filed in the suit u/s 229-C in which it was accepted that the Appellants were bhumidhars and the Respondents had no interest in the disputed property. The suits were decreed on the basis of the compromise. The matter was reagitated in the consolidation proceedings and the consolidation authorities held that the suits u/s 229-C were not maintainable because, on the date when the suits were filed, the Respondents had become sirdars. The matter ultimately came up in special appeal before this Court and this Court observed:

Keeping in view the provisions of Sections 229-B and 229-C, it is clear that Section 229-C is not a substitute for a suit u/s 229-B. When the suits were filed in 1960 the Defendant-Respondents, on their own claim, had become sirdars. The Appellants claimed themselves to be Bhumidhars. The dispute whether the Defendant-Respondents were sirdars could be adjudicated only in a suit u/s 229-B. Such a controversy was clearly outside the purview of Section 229-C. The decree obtained in that suit hence could not in law, operate as a declaration of rights of Sirdar claimed by the Defendant-Respondents. On this ground also the decree was a nullity.

Now, if the revenue court, even after the amendment of 1956, when it had jurisdiction, though under a different provision, to make a declaration about sirdari rights, could not make a declaration to that effect in a suit u/s 229-C, Zamindari Abolition and Land Reforms Act, it is not understandable how before the amendment of 1956, when the revenue court did not at all have the jurisdiction to adjudicate on sirdari rights, it could at all give any finding in that regard in a suit u/s 229-C. With respect, therefore, we cannot agree with the view expressed in the case of Smt. Yubraj Kuari v. Kali Charan Pathak (supra).

Our answer, therefore, to question No. 1 is in the negative.

The words used in question No. 2, as framed by learned Single Judge, are ''subsequent case The word ''case'' will include a suit as well as other proceedings. Question No. 2 may, therefore, be answered on both the assumptions, namely, when the ''subsequent case'' is a suit and when the subsequent case is a proceeding other than a suit.

It may first be examined as to what shall be the position if the subsequent proceedings are also a suit. The law is well settled that when both the proceedings are suits, it is Section 11 of the CPC that will apply and that resort cannot be had in such a situation to the general principles of res-judicata--See L. Janakirama Iyer and Others Vs. P.M. Nilakanta Iyer and Others, . A reference may, therefore, be made to Section 11 of the Code of Civil Procedure. The relevant portion thereof reads as under;

No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.

On the language of Section 11, CPC it would appear that for the application thereof it is, inter alia, necessary that:

(i) the matter directly and substantially in issue in the subsequent suit has been directly and substantially in issue in the former suit.

(ii) the Court which decided the previous suit should have been competent to try the subsequent suit, and

(iii) the matter directly and substantially in issue in the subsequent suit, having been also directly and substantially in the former suit, had been heard and finally decided by that Court.

The expression ''the matter directly and substantially in issue'', inter alia, means that the decision on that issue should be material for deciding the suit. While dealing with this point, it was observed by the Supreme Court in Isher Singh Vs. Sarwan Singh and Others,

Undoubtedly, the question whether a matter is "directly and substantially in issue" would depend upon whether a decision on such an issue, would materially affect the decision of the suit.

We have already stated earlier that, in a suit u/s 229-C of the Zamindari Abolition and Land Reforms Act, the only point that can be said to be directly and substantially in issue is whether the Defendant is or is not an asami. The question as to what is the status of the Defendant, if he is not an asami, cannot be said to be directly and substantially in issue, because the decision of the suit shall not rest on that point. The decision of the suit shall rest merely on the point whether the Defendant is an asami or is not an asami. The first ingredient necessary for the application of Section 11, CPC would, therefore be clearly wanting.

Again, further requirement of Section 11, CPC is that the court which decided the previous suit should have been competent to decide the subsequent suit. It was admitted before us on both hands that, on the date on which the suit u/s 229-C was filed, the revenue court was not competent to adjudicate about the sirdari rights In other words, the court which decided suit u/s 229-C of the Zamindari Abolition and Land Reforms Act was not competent, on the date of the institution of that suit, to take cognizance of and decide a suit involving adjudication of sirdari rights. The second ingredient of Section 11, CPC would also thus be wanting.

Learned Counsel for the Respondents urged that even though the revenue court was not competent to adjudicate about the sirdari rights on the date on which the suit u/s 229-C was filed, that court became competent, by virtue of Act No. 18 of 1956, to adjudicate on those rights during the pendency of that suit, and, consequently, it should be held that the second requirement of Section 11, CPC stood satisfied. This poses a question whether the competency of the court deciding the former suit, to decide the subsequent suit, should be on the date on which the previous suit was instituted or at any time during the pen dency thereof. In the case of C.V.C.T. Venkatachelam Chetty v. Ayyamperumal Tevan (1919) LIC 34 (on page 35 col. 2) after making references to some other cases, it was accepted that it is the competency on the date of the institution of the previous suit which is relevant to decide whether Section 11, CPC would or would not apply. In the case of Sahib Nasib Khan and Another Vs. Mt. Kutbunnisa and Others, also it was held that competency of court to entertain subsequent suit must be determined by reference to date on which earlier suit was filed. Learned Counsel for the Respondents could not invite our attention to any case in which a contrary view may have been expressed. That being admitted before us that the revenue court was not competent to adjudicate on the sirdari rights on the date on which the suit u/s 229-C of the Zamindari Abolition and Land Reforms Act was instituted, it should be held that Section 11, CPC cannot be applied and that any finding recorded by the revenue court in any previous suit u/s 229-C of the Zamindari Abolition and Land Reforms Act regarding sirdari rights cannot operate as res-judicata in the subsequent suit.

The fact that the finding of a revenue court on a point which it has no jurisdiction to decide cannot act as res judicata in a subsequent suit would also find some support from a Division Bench decision of this Court in the case of Sarju Parsad v. Mahadeo Parsad Pandey LIV ILR (1932) (All) 786. In that case the suit was first filed in the revenue court under the Agra Tenancy Act for the ejectment of the Defendant who pleaded that he was not a tenant but an usufructuary mortgagee. The suit was deereed against the Defendant. Thereafter the Defendant brougt a suit for money on the allegation that he was an usufructurary mortgagee deprived of possession and therefore entitled to sue for the mortgage money. The question that arose was whether the decision of the revenue court operated as res judicata and barred the suit. It was held by this Court:

A careful reading of Section 11 makes it, in our view, perfectly plain that before a matter can be held to be res judicata it must be found, among other things, that the first court was competent to try the subsequent suit. Whether we take the words "competent to try such subsequent suit", or the words "competent to try the suit in which such issue has been subsequently raised", it must be found that the first court was competent to try not merely a subsequent issue, but the subsequent ''suit''.

Thereafter the Court proceeded to say that the Revenue Court, not being competent to try the subsequent suit, the finding recorded by it in the revenue suit could not act as res judicata in the subsequent suit.

Another case to which reference can be made is Bhagwan Dayal Vs. Mst. Reoti Devi, . In that case, Smt. Reoti Devi filed a suit in the revenue court under the provisions of the Agra Tenancy Act against the other co-sharers for half share in the income from the village property. The revenue court framed an issue raising the question of title to the said properties and sent the same for decision to the civil court as was required under the Act. In one of the suits the Munsif recorded a finding that the Plaintiff was entitled to half share in the income of Mauza Chaoil. The revenue court on the basis of that finding gave a decree in favour of Smt. Reoti Devi in respect of half of the share of the income from the village. One Bhagwan Dayal then filed a suit claiming that the entire property was joint family property and that he was the owner thereof by survivorship. It was also pleaded by him that the finding recorded by the revenue court in favour of Sri Reoti Devi did not operate as res judicata, and that it was open to him to reagitate the matter. Dealing with the question of res judicata, the Supreme Court, after making a reference to Section 11, CPC observed:

In this case the title to properties now put in issue was tried in the revenue Court. But that court is not competent to try the present suit in which the same issue is raised. It follows that in terms of Section 11 of the Code, the decision on the said issue in the revenue court could not operate as res-judicata, for the necessary condition of competency of that Court to try the present suit is lacking.

In view of all that has been stated above, we have no doubt in our minds that any incidental finding recorded by the revenue court in a suit u/s 229-C before the commencement of Act No. 18 of 1956 to the effect that the Defendant was a sirdar, could not operate as res-judicata in a subsequent suit for determination of that right.

This takes us to the question whether the position would be different if the subsequent case is a proceeding other than a suit. It must be conceded that general principles of res-judicata can be invoked if one of the two proceedings is not a suit. For the application of that principle also, however, it is necessary that the matter directly and substantially in issue in the subsequent proceeding was directly and substantially in issue in the previous suit and further that the court deciding the previous suit had the jurisdiction to decide that issue. Unless it is so, the decision in the previous suit cannot operate as res-judicata even on general principles thereof. A fact cannot be directly and substantially in issue in any case, unless the decision in that case rests on that point. In Duches of Kingston''s case, II Smith''s leading cases, (13th Ed.) 644-45, the Privy Council observed:

From the variety of cases relative to judgment being given in evidence in civil suits, these two deductions seem to follow as generally true first, that the judgment of a court of concurrent jurisdiction, directly upon the point is as a plea, a bar, or as evidence, conclusive, between the same parties, upon the same matter, directly in question in another Court; secondly," that the judgment of a court of exclusive jurisdiction, directly upon the point, is in like manner, conclusive upon the same matter, between the same parties, coming incidentally in question in another court for a purpose. But neither the judgment of a concurrent or exclusive "jurisdiction is evidence of any matter "which" came collaterally in question, "though within their jurisdiction nor of any matter incidentally cognizable, nor of any matter to be inferred by argument from the judgment.

(Underlining is by us).

In the case of Khugowiee Singh v. Hossein Bux Khan, XV Weekly Reporter (PC 30) litigation first took place between the parties for arrears of rent and in that litigation the Defendant denied the Plaintiff�s case and alleged that the transaction was a conditional sale. An iqrarnama was also filed by the Defendant in support of his defence. The suit for rent was dismissed by the trial court holding that the iqrarnama was valid. On appeal the dismissal was confirmed on the ground that the Appellant had failed to prove that the Defendant was a cultivator paying rent. It appears that the appellate court did not rely on the iqrarnama. Thereafter a redemption suit was filed by the Defendant of the previous suit for the recovery of the property. A question arose whether the finding recorded in the earlier case was conclusive and operated as res-judicata. It was observed:

From the statement it appears that the ultimate decision of this claim for rent did not turn upon the validity of the ekrarnama. But if the judgment of the Collector had been final in the matter before him, his incidental finding that the ekrarnamah was a valid instrument would not be conclusive between the parties in the present litigation. For the question before him was not the issue now raised between the parties, and his decision was not that of a Court competent to adjudicate on a question of title. He had only a special jurisdiction to try summary suits for the recovery of rent.

(Underlining by us).

As also stated by us earlier, in the case before us the question whether the Defendant was or was not a sirdar was not directly and substantially in issue in the previous suit u/s 229-C of the Zamindari Abolition and Land Reforms Act. Further, the Revenue Court did not even have the jurisdiction to adjudicate on the sirdari rights. Any incidental finding recorded in a previous suit u/s 229-C of the Zamindari Abolition and Land Reforms Act to the effect that the Defendant was a sirdar could not, therefore, act as res-judicata in any subsequent proceeding before a competent authority for determination of Sirdari rights.

Learned Counsel for the Respondents referred us to the case of Lalji Saheb through Bankey Behari Lal Vs. Munshi Lal Babu and Others, in support of his contention that the incidental finding recorded in a suit u/s 229-0 of the Zamindari Abolition and Land Reforms Act can act as res-judicata. We, however, find that the facts of this case are wholly different. In that case the question of title of Bhuteshwar was directly in issue in the previous suit as well and it was on that basis that the decision in the previous case was held to act as res-judicata in the subsequent suit. It will be of use to refer the following observation contained in the report of that case:

From the judgment of the appellate court in Civil Appeal No. 55 of 1922 it appears that Bhuteshwar the Plaintiff to that suit did not clearly set up a relationship of landlord and tenant between himself and the Defendant; he specifically alleged himself to be the owner of the property and this claim was repudiated by the Defendant, who claimed title in himself. In the result it was found that the Defendant was not the tenant of Bhuteshwar, but that Bhuteshwar was entitled to a decree for possession on the ground that he was the owner of the property and the Defendant was a trespasser. This was the whole basis of the decision in the trial Court, and it was this finding which was challenged in appeal, and in the appellate court also the question of Bhuteshwar''s title continued--and had to constitute--the basis of the decision.

In our opinion, therefore, even on general principles, any incidental finding recorded by a revenue court in proceedings u/s 229-C of the Zamindari Abolition and Land Reforms Act to the effect that the Defendant is a sirdar, cannot act as res-judicata in subsequent proceedings before any authority competent to determine the question of sirdari rights.

Both the questions referred to us by the learned Single Judge are thus answered in the negative.

Let the papers of this case be now sent back to the learned Single Judge to enable him to decide the two writ petitions pending before him.