PHOOL CHAND SHARMA Vs. CHANDRA SHANKER PATHAK

JUDGEMENT

(1.) This is an appeal by special leave against an order of the Board of Revenue, Uttar Pradesh which declined to order restitution under S. 144, Civil Procedure Code in the following circumstances. The father of the 1st respondent was the Zamindar who filed a suit in the court of Sub-Divisional Officer; Tehsil Iglas at Aligarh for the eviction of Ram Prasad-father of the appellants from certain plots of land situated in village Kanchiraoli in the district of Aligarh. The suit was decreed and in execution of that decree the Zamindar took possession. Thereafter Ram Prasad filed an appeal to the Additional Commissioner but this was dismissed in November, 1944. He then preferred a further appeal to the Board of Revenue but before it came on for hearing the dispute was settled and on March 28, 1948 an application was filed for recording this compromise. The term of the compromise which is of relevance to the present appeal is that Ram Prasad was to be recognised as tenant of the land in dispute; in other words, the order for eviction was nullified. The compromise was recorded and a decree in terms thereof was passed. Some attempt was made by the Zamindar to have the compromise set aside on grounds which it is not necessary to mention, but these attempts failed with the result that it left the compromise decree passed by the Board in full force. It might however, be mentioned that the Zamindar immediately obtained possession in execution of the decree of the Sub-Divisional Officer, admitted one Data Ram and certain others as tenants and put them in possession of the property and this has led to all the subsequent complications in this case.

(2.) On the strength of the compromise decree Ram Prasad applied for restitution of possession under S. 144 of the Civil Procedure Code. This application was resisted particularly by Data Ram and others who had been inducted as tenants on the land, while the eviction proceedings were pending before the Additional Commissioner on appeal. The trial court allowed the application on the ground that Data Ram and others were bound by the rule of lis pendens and were not, therefore, entitled to retain the possession which they obtained during the proceedings for ejectment. Form this order an appeal was taken by Data Ram and others to the Additional Commissioner who, for reasons which it is not necessary now to canvass, held that the newly inducted tenants could not be dispossessed and that Ram Prasad was entitled only to symbolical possession as against the Zamindar. This order was taken to the Board in revision where, however, it was dismissed. It is to challenge the correctness of this order that this Appeal has been filed.

(3.) Learned Counsel for the respondent raised two preliminary objections to the hearing of this appeal. The first objection was that this appeal was barred by res judicata. To understand this objection it is necessary to state a few more facts. When the Board of 'Revenue upheld the order of the Additional Commissioner declining one prayer of the appellants for restitution they filed an application for review and when this was dismissed they brought the matter before the High Court by an application made to it under At. 226 of the Constitution. The actual judgment rendered by the High Court is not on record but it was admitted before us by learned Counsel for the appellant that the High Court dismissed the petition after elaborately discussing the merits of the contentions raised and on that ground Data Ram and others who had been let into possession by the Zamindar obtained a statutory right to possession under the U.P. Zamindari and Land Reforms Act. 1950 and could not therefore be evicted by the application of the rule of lis pendens. No attempt was made by the appellant to prefer any appeal against this judgment by either applying to that court and obtaining a certificate of fitness or by moving this Court for the grant of special leave. The result is that there is now a decision of the High Court which has become final and binding on the parties. Learned Counsel for the respondent therefore contends that without the correctness of the decision of the High Court being challenged before us and the finality of that judgment impaired, the appellant is not entitled to by-pass that decision and seek to practically obtain a reversal of it by attacking the correctness of the decision of the Board of Revenue.