Saeeduddin vs Deputy Director of Consolidation

Sibghat Ullah Khan, J.—Heard Sri A.S. Chaudhary, learned Counsel for petitioner and Pundit Pankaj Shukla holding brief of Sri Sampunanand Shukla, learned Counsel for contesting respondents. This writ petition arises out of consolidation proceedings pertaining to title in respect of plot No. 1275, which is a grove. In the basic year when consolidation started in the area in question, it was recorded in the names of Munshi Raza and others, respondents No. 2 to 5. Original petitioner Saeeduddin since deceased and survived by legal representatives filed objections u/s 9A(2) of U.P. Consolidation of Holdings Act claiming co-tenancy on the ground that the parties were descendants of a common ancestor and the property was joint. Consolidation Officer as well as Deputy Director of Consolidation rejected the claim of original petitioner mainly on the principle of res-judicata, however S.O.C. had decided the matter in favour of the petitioner. The objections before C.O. (Judicial) Pratapgarh were registered as Case Nos. 1765 and 1766 and were rejected on 4.3.1981. The number of the appeal filed against the said order was 477 and it was allowed by S.O.C. Pratapgarh on 30.9.1981. Revision filed against the same was numbered as Revision No. 289/594, Munshi Raza v. Saeeduddin and others and was allowed on 27.11.1982.

The judgment which was held to operate as res-judicata by the C.O. and D.D.C. was given in a suit u/s 229B of U.P.Z.A. & L.R. Act Munshi Raza and others v. Smt. Mulima and others on 3.8.1968 by Judicial Officer/Assistant Collector, First Class, Pratapgarh. The suit was decreed. In the said suit, Saeeduddin, original petitioner of this writ petition was defendant No. 4. Copy of the said judgment is Annexure-2 to the writ petition. It is mentioned in the said judgment that suit was contested only by its defendant No. 1, Mulima.

The argument of learned Counsel for petitioner is that as petitioner who was defendant No. 4 in the suit had not been served hence the judgment of the suit does not operate as res-judicata against him. If all the parties are not served suit is not decided. If even after service whether actual or presumed some one does not appear, the judgment operates as res-judicata against that person. Learned Counsel for petitioner has cited an authority of the Supreme Court in Deva Ram and Another Vs. Ishwar Chand and Another, contending that in order to attract doctrine of res-judicata, issues and cause of action must be same. In the instant case the issues and cause of action in both the cases were same. Copy of the earlier judgment was filed by the contesting respondent before the Consolidation Officer. As the pleadings were clearly mentioned in the judgment of the Judicial Officer hence it was not necessary to file the pleadings. The Constitution Bench authority of the Supreme Court in Gurbux Singh Vs. Bhooralal, deals with Order II, Rule 2, C.P.C. and not section 11, C.P.C. Relevant portion of para-7 of the said authority is quoted below:

"Just as in the case of a plea of res-judicata, which cannot be established in the absence on the record of the judgment and decree, which is pleased as estoppel, we consider that a plea under Order II, Rule 2, C.P.C. cannot be made but except of proof of the plaint in the previous suit the filing of which is said to create the bar."

From the above portion, it is clear that the Supreme Court held that for raising the plea under Order II, Rule 2 C.P.C, filing of plaint was essential and for raising the plea of res-judicata filing of the judgment and decree was essential.

Learned Counsel for petitioner has cited an authority reported in Bullarey v. D.D.C. 1984 RD 35. In the said case, it was held that if earlier suit was dismissed in default, it would not operate as res-judicata in the proceedings before consolidation authorities. However, in the instant case, bar of section 11 was pleaded as suit had earlier been decreed and not the bar of Order IX, Rule 9, C.P.C. the authority of Ramesh Chand and Others Vs. Board of Revenue and Others, (Full Bench) cited by learned Counsel for petitioner himself, it has been held that for raising the plea of res-judicata, copy of the judgment and decree must be filed. There is no such requirement that copy of the pleadings (in the instant case, plaint of the earlier suit) should also be filed. In view of this, I am unable to agree with the view taken by the Madras High Court in A.M.K. Mariam Bibi v. M.A. Abdul Rahim AIR 2000 NOC 21, cited by learned Counsel for petitioner holding that for raising plea of section 11, C.P.C. pleading in previous suit between same parties should be filed.

Learned Counsel for petitioner has also cited the authority of Brij Lal and Others Vs. Deputy Director of Consolidation and Others, , holding that for an ex parte decree to operate as res judicata between the parties it has to be established that the defendants had or must be deemed to have notice of the suit and the burden to prove this fact would be on the person, who pleads the bar of res-judicata. A contrary view has been taken by Division Bench of this Court in the judgment in Bramha Nand v. D.D.C., Ghazipur 1986 RD 230 (HC), overruling the above authority of Brij Lal and another in Nathai v. J.D.C. 1984 RD 250 (HC). In the Division Bench authority, it has been held that if party places reliance upon an ex parte decree for raising plea of res-judicata he is under no obligation to prove service of summons on defendant. The burden to establish that summon was not served upon him was on defendant of that suit which could not be shifted on the plaintiff while determining as to whether an ex parte decree would operate as res-judicata against him or not. In this division bench authority, it has also been held that it is not necessary to file copy of plaint of earlier suit for establishing plea of res-judicata. In this regard, Supreme Court authority reported in Isher Singh Vs. Sarwan Singh and Others, was also considered by the Division Bench.

More than 100 years before Privy Council in ILR (1902) 24 All. 429 (437) held that an ex parte decree would operate as res-judicata on all points which might and ought to have been raised by the defendant. Section 11, C.P.C. 1908 also uses the same words "might'' and "ought'' in its explanation-iv. Same view has been taken by the Supreme Court in Raj Lakshmi Dasi and Others Vs. Banamali Sen and Others,

Accordingly, the Courts below rightly held that earlier ex parte judgment declaring Munshi Raza and others to be bhoomidhars in possession of the disputed land operated as res-judicata. Petitioner did not file any application for setting aside the said judgment and decree of 1968. Accordingly, I do not find any error in the impugned order. Writ petition is therefore dismissed.