ASHARFI LAL Vs. KOILI DEADBYLRS

JUDGEMENT

(1.) This appeal, by special leave, is directed against the judgment of the Allahabad High Court dated February 23, 1982 in Writ Petition No. 8876 of 1971.

(2.) The facts, in brief, are as follows: One Raja Ram was a tenant of agricultural lands in village Usrapur, Tehsil Sadar, District Pratapgarh in the State of Uttar Pradesh. Raja Ram died leaving behind his wife Smt. Nanki and sister Smt. Koili, respondent No. 1 The appellant, Asharfi Lal, claims to be the so of Raja Ram through Smt. Nanki. After the death of Raja Ram, Smt. Nanki applied for mutation of the name of the appellant, who was a minor at that time, in the revenue records. The said mutation was allowed by the Nyaya Panchayat on August 16, 1953, as well as the Tehsildar by order dated December 4, 1956. Smt. Nanki, the mother of the appellant, it was said, had remarried. On October 14, 1958, Smt. Budhna, the mother of Nanki, filed a suit, as a next friend of the appellant who was a minor, under Section 229-B, of the U.P. Zamindari Abolition and Land Reforms Act, 1950 for a declaration and the appellant is the son and the only heir of Raja Ram, deceased, and for possession of the agricultural lands of Raja Ram. The said suit was contested by Smt. Koili who denied that the appellant is the son of Raja Ram. By judgment dated January 2, 1961, the Judicial Officer, Sadar, Pratapgarh, dismissed the said suit after finding that the plaintiff-appellant had failed to establish that he is the son of Raja Ram. The appeal filed against the said decision was dismissed by the Addl. Commissioner, Faizabad Division, Faizabad on May 25, 1962. Subsequently, consolidation proceedings, were initiated in the village under the provisions of the U.P. Consolidation of Hodlings Act, 1953 hereinafter referred to as 'the Act'. In those proceedings the appellant filed an objection under Section 9, of the Act claiming that he his the son of Raja Ram and is in possession of the plots in question since long. The said proceedings was contested by Smt. Koili on the ground that she is the sister of Raja Ram and is in possession of the lands and that her name should be recorded in the records. She asserted that the appellant is not son of Raja Ram. The Consolidation Officer, Sadar, Pratapgarh, by order dated July 8, 1967, rejected the objection filed by the appellant on the view that the issue involved in the case has been finally decided by the Addl. Commissioner and that there is no appeal pending against the said order and that the consolidation Court is not competent to set aside the order of the competent Court. As regards, the submission urged on behalf of the appellant that he was a minor and in contesting the previous litigation his guardian did not perform the responsibility of the guardian properly, the Consolidation Officer held that the said submission of the appellant appeared to be correct and reasonable in view of the evidence on the file but since the decrees were obtained through competent Courts and even if these decrees had been obtained by fraud and mis-representation and may be avoidable, he was not competent to set aside the orders which have become final unless the decrees are got out of the way. It was also held that proper forum for cancellation of a decree is the Civil Court and that the consolidation Court was not competent to grant any relief to the appellant against the decree which operates as res judicata. The said order of the Consolidation Officer was set aside in appeal by the Assistant Settlement Officer (Consolidation) by his order dated September 15, 1970. Smt. Koili filed a revision under Section 48, of the Act against the said order of the Assistant Settlement Officer and the same was dismissed by the Deputy Director of Consolidation, Pratapgarh (hereinafter referred to as the Deputy Director (Consolidation) by order dated June 8, 1971. The Deputy Director (Consolidation) held that minor has a right to file a suit to set aside a decree which was obtained against him on the ground of gross negligence on the part of the guardian and that the said rule would apply whether the guardian was a guardian ad litem appointed by the Court or a friend or even the Hindu law guardian, i. e., his father. The Deputy Director (Consolidation) further observed that gross negligence means culpable neglect of the interest of a minor which leads to the loss of right which if a suit has been conducted or resisted with due care must have been successfully asserted. The Deputy Director (Consolidation) further found that the declaratory suit filed by Smt. Budhna, as the next friend of the minor appellant. was dismissed for the reason that Smt. Nanki was not examined as a witness and important documentary evidence such as rent receipts, extract of kutumb register and admission register were not filed. The Deputy Director (Consolidation), therefore, found that Smt. Budhna did not conduct the suit in the Court of Judicial Officer, Sadar, Paratabgarh, with due care and did not produce evidence that was available and that she was guilty of gross negligence. On the basis of the evidence on record produced in the consolidation proceedings the Deputy Director (Consolidation) has found that the appellant is the son of Raja Ram and is his sole heir.

(3.) Feelings aggrieved by the said order of the Deputy Director (Consolidation), Smt. Koili filed the Writ Petition, giving rise to this appeal. The said writ petition was allowed by the High Court by its judgment dated February 23, 1982 on the view that a decree obtained against a minor due to negligence of guardian is not void but voidable and that the decree passed in the declaratory suit was binding unless it was avoided by filing a suit in the proper Court. The High Court was of the view that the consolidation authorities, having limited jurisdiction, could not declare the decree passed by competent Court as nullity.