Suraj Din and Ors. vs Joint Director of Consolidation,Allahabad & Ors.

Krishna Murari, J.—Heard Sri Anil Bhushan learned Counsel for the petitioners, learned Standing Counsel appearing for respondent Nos. 1 to 4.

Though the case has been taken up in revised list no one has appeared on behalf of Gaon Sabha.

The dispute relates to the plot Nos. 319, 318/1, 456/1, 456/2, 496, 503, 603/2 and 719/2 situate in village Raghunathpur, Paragana Sikandara, District Allahabad. In the basic year the said plots were recorded as sirdari of the petitioners. During the consolidation operation an objection under Section 9A (2) of the U.P. Consolidation of Holdings Act (for short the Act) was filed by the respondent to delete the name the petitioner on the ground that the plots in dispute were Usar and Banjar, belonging to the Gaon Sabha and were wrongly recorded in the name of petitioners. The said objection was contested by the petitioners by filing counter objection pleading therein that the petitioners had filed Suit No. 275 of 1965 under Section 229B U.P.Z.A. and L.R. Act impleading both the State of U.P. as well as Gaon Sabha as defendants which was decreed by the trial Court by means of exparte order dated 6121965. Subsequently, after a lapse of about 7 years an application was moved on behalf of State of U.P. to recall the exparte order which was allowed by the trial Court vide order dated 2041972 and the exparte judgment and decree dated 6121965 was set aside. Against the said order the petitioner filed a revision before Additional Commissioner Allahabad Division Allahabad who vide order dated 10101972 made a recommendation to Board of Revenue for allowing the revision. The Board of Revenue vide order dated 521974 accepted the reference made by Additional Commissioner and set aside the order of the trial Court dated 2041972. The Board of Revenue remanded the case back to the trial Court for a fresh decision on the restoration application filed by the State. It has not come on record of the Consolidation Authorities as well as before this Court as to what happened to the restoration application after remand made by the Board of Revenue.

The Consolidation Officer vide order dated 2811975 partly allowed the objection of the State of U.P. against the said order four appeals were preferred. Two appeals were filed by Gaon Sabha and two others were filed by the petitioners. The Settlement Officer Consolidation vide order dated 491975 allowed the appeal filed by Gaon Sabha whereas appeal filed by the petitioners were dismissed. Feeling aggrieved the petitioner approached the Revisional Court. The Revisional Court vide impugned order dated 1551975 dismissed the revision and confirmed the judgment of Settlement Officer Consolidation.

It has been urged by the learned Counsel for the petitioners that the judgment and decree passed in suit filed under Section 229B operated as resjudicata inasmuch as decree was never set aside. It has further been urged that though the restoration application was remanded back for fresh decision but there is nothing on record to indicate that the restoration application was finally decided and unless it is finally decided and the judgment dated 6121965 set aside the same will continue to operate as resjudicata, and all the three Courts, below have wrongly and illegally allowed the objection without considering the effect of the said judgment and decree.

I have considered the arguments advanced by the learned Counsel for the petitioners and perused the record. All the three Consolidation Courts have not accepted the judgment and decree dated 6121965 passed in suit of the petitioners as final and resjudicata only on the ground that the Board of Revenue remanded the restoration application to be decided fresh on merits.

The view taken by the three Courts is patently erroneous. The remand was made by the Board of Revenue vide order dated 52 1974. The Consolidation Officer decided the objection in 1975. The appeal came to be decided by the Settlement Officer Consolidation in the year 1975. The revision was decided in 1979. Even before this Court the writ petition has remained pending since 1979 but the State and Gaon Sabha have failed to bring on record the fate of the restoration application. In these circumstances, there is no alternative but to draw an adverse inference that the restoration application must have been dismissed. It cannot be presumed that application can remain pending for such a long time. The Board of Revenue only directed the trial Court to decide the restoration application afresh. However, the exparte, decree dated 6121965 was not touched. Unless the said decree is set aside it shall remain operative and will have binding effect and will operate as resjudicata. Findings to the contrary recorded by Consolidation Courts are erroneous and cannot be sustained.

In view of the aforesaid discussions, this writ petition stands allowed. The impugned orders dated 2811975, 491975 and 1551979 passed by Consolidation Officer, Assistant Consolidation Officer and Deputy Director Consolidation respectively, are here by set aside. The objection filed by the Gaon Sabha under Section 9A (2) of the Act stands dismissed. However, there shall be no order as to costs.