RAM HARAKH Vs. HAMID AHMED KHAN

JUDGEMENT

(1.) These three appeals arise out of a common judgment of the High court of Allahabad whereby the learned Single Judge of the High court disposed of two writ petitions and confirmed the order passed in revision by the Deputy Director of Consolidation functioning under the U. P. Consolidation of Holdings Act, 1953 (hereinafter referred to as "the Act"). The dispute between the parties centres round the right to remain in possession of 109 disputed plots of lands situated in Gonda District in the State of U. P. The respondents herein were the Zamindars of these lands and were admittedly recorded as Khud Kasht (in personal cultivation) of these lands in the relevant records of rights till 1947 by Entry No. 1354 Fasli. The said entry related to the year beginning from 1/7/1946 and ending on 30/6/1947. All authorities functioning under the Act concurrently held that such was the factual position till 30/6/1947. Therefore, the respondents were found to be in actual possession and being Zamindars intermediaries were personally holding these lands in their possession at least till that date. It appears that these respondents during the relevant time, immediately after partition of the country in 1947 were apprehending dispossession by the present appellants and their predecessors-in-interest. They, therefore, aresaid to have filed two suits under S. 63 and 180 of the U. P. ' Tenancy Act, 1939 in two different courts on the same day, i. e. , 14/10/1947. In the said suits it was alleged by the respondents that they were in possession and the defendants, who are the present appellants, were trying to disturb their possession. It was prayed in the alternative that during the pendency of the suits if their possession was disturbed they should be restored back the possession of these lands. It is the case of the appellants that one of the two suits which was filed in Tarabganj court got partly decreed on 10/9/1953 whereunder the respondents' suit for 7 plots mentioned in the decree was allowed and the respondents were treated to be entitled to continue in personal cultivation thereof. However, the said suit for the remaining plots of lands was dismissed presumably on the basis of subsequent entry being 1356 Fasli in favour of the appellants in the Khasra and Khatauni in the relevant records of rights concerning these lands. It is the further case of the appellants that the said decree became final. However, so far as the second suit filed before Balrampur court is concerned, it lingered on the file of the learned trial Judge for a couple of years and ultimately it also resulted in an identical decree on 15/2/1960 whereunder a decree came to be passed partly allowing the respondents' suit for the very same 7 plots and dismissing the suit for the rest. The second suit resulted in appeal on the part of the dissatisfied plaintiff-respondents in the District court so far and the suit was dismissed for the remaining plots by the trial court. That appeal came to be dismissed. The respondents carried the matter in second appeal and at that stage, a declaration came to be issued under Section 4 of the Act and consequently, the second appeal before the High court stood abated as laid down by Section 5 (2 thereof. There is no dispute on this aspect. In view of the aforesaid abatement of the second appeal the plaintiffs' grievance remained unredressed in the civil proceedings arising out of the second suit. Under these circumstances, the dispute concerning these lands had to be decided de novo under the Act. The Consolidation Officer in the first instance decided in favour of the appellants by taking the view that the appellants became entitled to remain in possession as per Section 20 (b) of the U. P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter to be referred to as "the Zamindari Abolition Act") as they were recorded as occupants of these lands pursuant to the entry in the Khasra and/or Khatauni of 1356 Fasli. The aforesaid decision of the Consolidation Officer resulted in appeals by the respondents before the appellate authority under the Act. The said appeals came to be dismissed by the appellate authority on 23/8/1974. The appellate authority observed that copy of Entry 1354 Fasli, which was available to the respondents did not mention about any endorsement in the remarks column said to have been made by the Naib Tahsildar showing the appellants to be in cultivation. According to the appellate authority, therefore, it was not possible to express any opinion about this entry. But the appellate authority curiously thereafter observed that it was necessary for the respondents who were appellants before him to file a copy of Khasra regarding Entry 1354 Fasli in which the endorsement of the authority wasrecorded. In the absence of any other evidence before him the appellate authority came to the conclusion that the name of the opposite parties (the appellants herein) continued over the disputed land after 1356 Fasli till date and, therefore, the appeal of the respondents was dismissed. That resulted in revision applications before the Deputy Director of Consolidation under Section 48 of the Act. The Deputy Director by his order dated 17/4/1976 observed that Entry 1356 Fasli was made during the pendency of the proceedings before the civil court wherein the respondents were claiming that the appellants were trying to disturb their possession and had no interest in the land. The revisional authority, therefore, held that Entry 1356 Fasli was of no evidentiary value and could not be relied upon, meaning thereby, the entry was not a legally valid one. Consequently, it was held by the revisional authority that the names of the appellants (the opposite parties before him) were wrongly recorded as "sirdar" in the basic years' records and, therefore, the names of the appellants were liable to be expunged. The revisional authority also took the view that it was a settled position of law that the pendente lite entries have no value. Consequently, the orders passed by the authorities below were set aside and the claim of the appellants for being treated as Adhivasi was rejected. The revision petitions of the respondents were accordingly allowed.

(2.) The appellants carried the matter before the High court by filing two writ petitions arising from the very same judgment of the revisional authority. The High court agreeing with the revisional authority dismissed the writ petitions and that is how the appellants are before us in these appeals on the grant of special leave.

(3.) Learned counsel for the appellants raised two contentions for the appellants. Firstly, it was contended that for the applicability of Section 20 (b) of the Zamindari Abolition Act all that is necessary is to see whether in the Khasra or Khatauni or both, there was an entry in favour of any occupant for the year 1356 Fasli. If such an entry was there, whether it was supported by actual possession or not or whether the possession was legal or not would be totally irrelevant. Only the existence of such entry in favour of the person concerned would be sufficient to clothe him with the right to be treated as Adhivasi and would make him entitled to continue in possession of the lands covered by this entry. He submitted that rightly or wrongly, Entry 1356 Fasli was in the names of the appellants and, therefore, that entry gave them sufficient right to get the benefit of the statutory protection of Section 20 (b) of the Zamindari Abolition Act and hence according to the learned counsel for the appellants the decisions rendered by the Settlement Officer and the appellate authority were correct and required no interference in revision by the Deputy Director of Consolidation. The second contention raised by him for our consideration was to the effect that years back in 1953 in the first suit filed by the respondents excepting 7 plots for which the respondents succeeded and for which the appellants have no grievance for the rest of the plots the respondents suffered a decree of dismissal. The said decree had become final. Thus for the remaining plots the decision renderedby the competent civil court years back in 1953 remained final, binding and operative between the parties. Hence on the principle of res judicata the said decision had to be given effect to in the consolidation proceedings and even on that ground the decision rendered by the Settlement Officer cannot be found fault with.