RAJENDRA PRATAP Vs. DEPUTY DIRECTOR OF CONSOLIDATION

JUDGEMENT

(1.) The present petition under Article 226 of the consti tution is directed against the order of the Deputy Director of Consolidation dated 22nd February, 1971. The dispute between the parties relates to plot No. 10 area 420 links and plot No. 11 area 158 links pertaining to khata No. 48 situate in village Dharacha, pargana Kauria Tehsil, Phulpur, district Azamgarh. In the basic year the disputed plots were shown as sirdari of opposite party No. 4, Ram Dhani. The petitioners filed an objection under Section 9-A (2) of the U. P. Consolidation of Holdings Act for expunging the name of respondent No. 4 and for recording them as bhumidhar on the allegation that the petitioners were grove holders of the disputed plots and they were in posses sion and as such they were bhumidhar of the disputed land and there had been a civil litigation between the parties which has become final and conclusive between the parties, and Ram Dhani, respondent No. 4 was not found to be the sirdar of the disputed plots. The Consolidation Officer by his order dated 30th March, 1970 dismissed the petitioner's objection. The petitioners feeling aggrieved went up in appeal which was dismissed by the Settlement Officer (Consolidation) on 15th September, 1970. The petitioners preferred a revision before the Deputy Director of Consolidation which was also dismissed by his order dated 22nd February 1971. All these authorities found Ram Dhani, respondent No. 4 to be the sirdar of the disputed plots in view of the proceedings under Section 240-G of the U. P. Zamindari Abolition and Land Reforms Act. The petitioners have come to challenge the order of the Deputy Director of Consolidation by filing the present petition. Before dealing with the points raised on behalf of the petitioners, it would be proper at this stage to refer to the earlier litigation between the parties. To start with, a suit under Section 229-B of the U. P. Zamindari Abolition and Land Reforms Act was filed on behalf of the petitioners against Ram Dhani, respondent No. 4 in respect of the disputed plots which was decreed 011 15th January, 1962. Ram Dhani, respondent No. 4 preferred an appeal against that judgment and decree which was allowed by the appellate authority on 18th November, 1964 and the case was remanded to the trial Court. After the remand that suit was, however, withdrawn and a fresh suit under Section 229-B was filed but that stood abated under Section 5 of the U. P. Consolidation of Holdings Act as the village was brought under Consolidation proceedings. There was yet another suit No. 580 of 1954 by Ram Dhani, respondent No. 4, against Manroop and others including the petitioners for a mandatory injunction against the defendants directing them to demolish and remove the cons tructions which they had raised in the plots in suit after the filing of the suit and to deliver possession of the land to the plaintiff after restoring the same to UK original condition. This suit was dismissed with regard to the disputed plots and the appeal against the decree was also dismissed by the Additional Com missioner by his order dated 17th September, 1958. Sri U. K. Misra appearing for the petitioners has contended that the Deputy Director of Consolidation and as a matter of fact, all the authorities below have committed a manifest error of law in rejecting the claim of the petitioners in spite of the Civil Court decree in suit No. 580 of 1954 wherein it was defi nitely held that Ram Dhani, respondent No. 4 was not sirdar of the disputed plots, although he had taken a specific ground that the Civil Court judgment would operate as res judicata and the Deputy Director of Consolidation could not hold contrary to what had been held by the competent Civil Court. There is no denying the fact that if there has been an adjudication of the rights of the parties by a competent Civil Court then the judgment should normally operate as res judicata. But in certain circumstances, the impact of the Civil Court judgment and decree may be nullified by the subsequent events, for example, if the contesting respondents remained in possession for a petty long time despite decree of the Civil Court he could mature title by the adverse possession. Likewise, if he gets a new right under any statute, the impact of the Civil Court decree may be nullified even in that case. In the instant case respondent No. 4, Ram Dhani, claims to have been acquired rights of an Adhivasi- cum-sirdar and therefore, the decree of the Civil Court should not stand in the way of respondent No. 4. The Deputy Director of Consolidation has accepted the claim of respondent No. 4 on the basis of the proceedings under Section 240-G of the U. P. Zamindari Abolition and Land Reforms Act. Sri U. K. Misra, however, contended that unless it was established that the proceedings under Section 240-G of the U. P. Zamindari Abolition and Land Reforms Act took place after the decision of the Civil Suit filed by respondent No. 4, the effect of the Civil Court decree cannot be wiped out and would operate as res judicata. If the proceedings under Section 240-G of the Act were started during the pendency of the suit or if it had terminated before the institution of the civil suit it was open to respondent No. 4 to have taken the plea of Adhivasi-cum-sirdar inasmuch as the Court could taken into conside ration the subsequent events either in fact or law and if respondent No. 4 did not raise any objection with regard to his Adhivasi-cum-sirdari rights, construc tive res-judicata would come in the way of respondent No. 4. In support of his contention Sri Misra has relied upon the case of Chunbadi and others v. Rameshwar Singh and another, (A. I. R. 1965 A. L. J. 714 ). I have perused the case referred to above. The facts of that case were materially different from the facts of the present case and, therefore, it has got no bearing on the instant case. Sri R. N. Singh, learned counsel for respondent No. 4, on the other hand, contends that in the civil suit the Court was called upon to decide and adjudi cate the rights of the parties as it obtained on the date of the suit and if on the date of the suit there has been no proceedings under Section 240-G respondent No. 4 could not have filed compensation statement. Therefore, the validity of the compensation statement in proceedings under Section 240-G of the U. P. Zamindari Abolition and Land Reforms Act after the decision of the Civil Court would take away the efficiency of the decree passed by the civil suit. In support of his contention he has relied upon Rameshwar and others v. Jot Ram and others (A. I. R. 1976 S. C. 49 ). Dealing with this point the Supreme Court observed in para 8 of the Judgment as follows: "in P. Venkateshwarlu v. Motor and General Traders (A. I. R, 1975 S. C, 1409, 1410), this Court dealt with the adjectival activism relating to post-institution cireumstances. Two propositions were laid down. Firstly, it was held that it is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceedings. This is an emphatic state ment that the rights of a party is determined by the facts as they exist on the date the action is instituted. Granting the presence of such facts, then he is entitled to its enforcement. Later developments cannot defeat his right because, as explained earlier, had the Court found his facts to be true the day he sued he would have got his decree. The Court's procedural delays cannot deprive him of legal justice or rights crystalised in the initial cause of action. This position finds support in Bhajan Lal v. State of Punjab, ( (1971) 1 S. C. C. 34 ). " The legal position is quite clear. The Court is to adjudicate the rights of the parties as it obtained on the date of the suit and in exceptional cases the Court may take into consideration the subsequent events either in fact or law but the Court is not bound to accept it nor is a party bound to adduce evidence regarding the changed circumstances which took place after the filing of the suit. Sri U. K. Misra, however, contended that it has not been established in the instant case whether Section 240-G proceedings started after the filing of the suit, and the Court should have recorded a clear finding about this aspect of the matter, One thing is quite certain that the compensation amount has been received by the petitioners in the year 1961 when the civil suit was filed in the year 1954. Obviously, therefore, the receipt of the amount of the compensation took place much after the filing of the civil suit. An objection regarding the receipt of the compensation by the petitioners could not possibly have been taken by the petitioners in the year 1954 when the suit was filed. Besides, the peti tioner nowhere has alleged in the ground of appeal that Section 240-G proceed ings had taken place before the filing of the suit, and in the absence of any such ground in the memo of appeal the petitioners cannot have any grievance against the authorities for not deciding the plea which was never taken by them. Sri U. K. Misra, however, emphatically pressed that it was for the con-testing respondent to prove that the affect of the Civil Court decree came to an end on account of the subsequent proceedings under Section 240-G which they have failed to discharge and it was none of the responsibility of the petitioners to produce the evidence that the proceedings under Section 240-G had taken prior to the suit. It may be pointed out that respondent No. 4 was recorded in the basic year as Sirdar, therefore, the petitioners-objectors had to prove their better title and they could do so only by showing that the finality of the compensation statement would not effect the rights of the petitioners. As a second limb of the argument it was contended for the petitioners that Bindeshwari Singh, father of petitioner No. 1, has already died in the year 1952 and, therefore, it does not stand to reason how could be accept the compensation in the year 1960. He supported his contention on the basis of the extract of death from the death register. The Deputy Director of Consoli dation, however, did not accept the extract of death to be a genuine document, and he preferred to rely on the C. H. Form showing that the payment of the compensation have been made to Bindeshwari Singh, father of petitioner No. 1, and Muneshwari Devi petitioner No. 2 the other co-sharers. It is for the Court to choose as to which document is to be relied upon. This Court cannot make a fresh appraisal of evidence and come to a different conclusion. Lastly it was contended that no notice has been served on the petitioner of the proceedings under Section 240-G required by Section 240-F. Counsel for the respondents however, relied upon the Full Bench decision of this Court in Avdesh Singh and another v. Bhikaram Ahir and others, (A. I. R. 1975 Alld. 324 ). A reference was made to paragraph 7 of the judgment of the Full Bench decision and it was contended by Sri R. N. Singh that it was open to the petitioners to have challenged the compensation statement on any ground which the petitioners thought fit, but it can be challenged not before the consolidation authorities but only before the Court where proceedings under Section 240-G took place. Normally, the proceedings of a Court or tribunal are presumed to be in accord ance with law unless the contrary is shown. Sri U. K. Misra has further argued that the observations made by the Full Bench that the publication of the notice in the Gazette was a notice to the whole world, and even if no fresh notice was sent to the tenure holder or the land-holder there is no defect. This observation, according to Sri Misra, was obiter, and could not be taken to be a decision of the Full Bench. He referred to the five points which were referred to the Full Bench and the reply of the Full Bench on these points. While deciding the points referred to the Full Bench, it was open to the Full Bench to give reasons and it is that reason which matters. Thus it cannot be said that the observations made by the Full Bench was obiter. In view of the decision of the Full Bench in Avdesh Singh and another v. Bikram Ahir and others (supra), there is no escape from the conclusion that if the petitioners did not raise any objection before the Compensation Officer or raised an objection but tailed, in either case, the compensation statement which has become final could, be taken into Consideration while adjudicating on the rights of the parties and the affect of the Civil Court decree would be nullified. Sri U. K. Misra has further argued that the Deputy Director of Consoli dation has not given effect to the Civil Court judgment and decree because he wrongly assumed that the petitioners had taken up a different stand in that proceedings from the one that they are taking up in these proceedings. The expression by the Deputy Director of Consolidation may not be happy one, but the main basis of his decision is the compensation statement, and there is no deying the fact that if subsequent to the civil suit there has been a compensation proceeding and that the compensation statement has become final, it will create rights in favour of respondent No. 4 despite the Civil Court decree. For the reasons given above, the writ petition cannot succeed and it is, accordingly, dismissed. In the circumstances of the case, parties will bear their own costs. .