Nand Kishor vs D.D.C. and Others

Krishna Murari, J.—Heard Sri Triveni Shanker, learned Counsel for the Petitioner.

Respondent No. 2 having died issueless his name has already been directed to be deleted from the array of the parties vide order dated 8.12.2010.

Though the case has been taken up in the revised list but no one has put in appearance on behalf of Respondent No. 3 Gaon Sabha.

Facts giving rise to the dispute in the present writ petition is that an objection u/s 9A(2) of U.P. Consolidation of Holdings Act (for short the ''Act'') was filed by the Respondent No. 2 on the allegation that he was in possession over the land in dispute for more than 12 years hence has acquired ''Sirdari'' right. Consolidation Officer vide order dated 31.7.1973 finding that he has failed to produce any evidence in support of the claim that he was in possession for over 12 years, dismissed the objection. The Petitioner went up in appeal. The appellate court affirmed the findings of the Consolidation Officer and vide order dated 21.5.1975 dismissed the appeal. The order was challenged by the Respondent No. 2 by way of revision before the Deputy Director of Consolidation who though dismissed the revision vide order dated 16.5.1975 but held that the land in dispute belongs to Gaon Sabha. Aggrieved by the same, the Petitioner has approached this Court.

It is contended by learned Counsel for the Petitioner that suit No. 20/43 of 1961 filed by the Petitioner u/s 229-B of U.P. Zamindari Abolition & Land Reforms Act against the Gaon Sabha was decreed by the trial court vide judgment and order dated 19.6.1963 and the appeal of the Gaon Sabha challenging the said judgment and decree was also dismissed on 18.6.1964 and the same became final between the parties and would operate as res-judicata. It is further contended that without there being any evidence on record the Deputy Director of Consolidation has wrongly and illegally held that said decree is collusive and not operative against Gaon Sabha. It is next contended that even though the appeal filed by the Gaon Sabha was dismissed by the Commissioner still the Deputy Director of Consolidation has wrongly held that no appeal was filed and the judgment and decree passed by the trial court was ex-parte.

I have considered the argument advanced by learned Counsel for the Petitioner and perused the record.

In so far as the claim of Respondent No. 2 is concerned the same became final with the dismissal of his revision by the Deputy Director of Consolidation as he failed to challenge the same. In so far as the right of the Gaon Sabha is concerned it is well settled that decree passed by the revenue court unless set aside is binding upon the consolidation courts and the consolidation authorities cannot go behind the same. It is not in dispute that suit filed by the Petitioner u/s 229-B of U.P. Zamindari Abolition & Land Reforms Act against the Gaon Sabha was decree vide judgment and decree dated 19.10.1963 after filing of the written statement by the Gaon Sabha and the State of U.P. which fact has been noted by the Deputy Director of Consolidation in its judgment. Equally undisputed facts are that appeal filed by the Gaon Sabha was dismissed by the Additional Commissioner. It is not clear on what basis the Deputy Director of Consolidation has held that the decree is collusive. Deputy Director of Consolidation is also not right in holding that an ex-parte decree would not operate as res-judicata. An ex-parte decree unless set aside is binding between the parties with equal force. Further the decree having been challenged before the appellate court and the appeal having been dismissed the same has attained finality and in view of settled law the Deputy Director of Consolidation could not have gone behind the said decree which was final between the parties.

In view of above facts and discussions, the impugned order passed by the Deputy Director of Consolidation to the extent directing that the name of the Petitioner be deleted and the land in dispute be recorded in the name of Gaon Sabha is not liable to be sustained and is hereby quashed.

The petition stands allowed.

However, in the facts and circumstances, there shall be no order as to costs.