FAQIR DEAD Vs. KISHORI ALIAS LALLOO

JUDGEMENT

(1.) The correctness of the decision of this Court in Chandrika Misir v. Bhaiya Lal, AIR 1973 SC 2391, is questioned in this appeal on the ground that an important statutory provision relating to the jurisdiction of Civil or Revenue Court, as contained in the U.P. Zamindari Abolition and Land Reforms Act, 1951 (hereinafter referred to as ZA and LR Act) was not brought to the notice of the Court and, therefore, the decision was rendered per incuriam. It is also questioned on the ground that decision was based on a wrong concession made on a question of law by the counsel appearing on behalf of one of the parties to the appeal.

(2.) This question has arisen in the circumstances set out hereinbelow. On the initiation of proceedings under the U.P. Consolidation of Holdings Act plots of khatas Nos.156 and 266 situate in Village Coilbio Pargana Mahaier District Varanasi, were found recorded in the name of Faquir, who died during the pendency of proceedings in the High Court, and has since been substituted by his legal repesentatives. There were othe Khatas also in dispute but for the purpose of the present appeal we need not look to the respective claims concerning those Khatas.

(3.) Kishori alias Lalloo, who is respondent No.1 in this appeal, filed objections under Section 9A(2) of the U.P. Consolidation of Holdings Act (hereinafter referred to as the 'Consolidation Act") setting out therein that the land of the said two khatas was his Sir and Khudkhast land even before the enforecement of the ZA and LR Act and, therefore, on the date of vesting, he became its Bhumidhar. It was also set out therein that since Faqir, who was respondent No.4 before the High Court, was trying to interfere with his possession, he filed Regular Suit No.5 of 1954 in the Court of Munsif on 5-1-54 for a decree for permanent injunction to restrain Faqir from interfering with his possession and in the alternative for possession over the plots in question but the suit was dismissed by the trial Court viz, the Munsif, on 10th October, 1956. He, viz., Kishori, then filed an apeal which was allowed by the Civil Judge on 29th October, 1958 and a decree was passed against Faqir and "Dakhal Dehani" was obtained by him on 14th November, 1957. Faqir then filed Second Appeal No.2326 of 1957 in the High Court at Allahabad but it was dismissed on 12th July, 1961.The Special Appeal No, 323 of 1961 filed thereafter by Faqir before a Division Bench of the High Court was also dismised on 9th July, 1965. These decrees, it was claimed, operated as res judicata. It was indicated in the objections that in spite of the aforesaid decree and "Dakhal Dehani", the revenue entries continued in the name of Faqir and, therefore, he had to file a suit for declaration of his bhumidhari rights and for expunction of the entries existing in favour of Faqir. This suit was filed under Section 229-B of the ZA and LR Act, but the suit abated as the village in the meantime, was notified for consolidation operations under Section 4 of the Consolidtion Act on 15th May, 1971. It was prayed by him before the Consolidation officer that the entries existing in the revenue record, in favour of Faqir may be expunged.