BUCHUN Vs. DEPUTY DIRECTOR OF CONSOLIDATION AND OTHERS

JUDGEMENT

(1.) Being aggrieved by order of Deputy Director of Consolidation passed under Sec. 48 of U.P. Consolidation of Holdings by which he set aside the orders passed by two consolidation authorities and allowed objection under Sec. 9-A (2) of opposite parties and held them to be co-tenants as the civil court in an earlier litigation between parties had held that lease of land was taken from Government at a time when family was joint, petitioner has filed this petition.

(2.) For orders of Munsif and Civil Judge in the civil suit for partition filed as annexures 1 and 2 it is apparent that opposite parties had filed suit for partition of agricultural and non-agricultural property claiming that the family was joint. Both courts did not accept this plea and dismissed the suit. The appellate court held "I think that the lower court was correct that appellant and respondent no. 1 are not members of joint family and probably except for the cultivatory land taken no lease from the Government no other property is proved joint. As regards that land the appellant must seek relief from the revenue court". How could this finding be binding or to use the language of revising authority, respected and without adjudication if the lease was acquired jointly. If the family was not joint as was found by civil court it could not be deemed to be joint for obtaining lease. It is another thing that two members of family even after separation may obtain property jointly. But this could not be held from the observation quoted above. It is firmly established that an observation or even finding recorded against plaintiff or defendant in a suit in which the decree is in his favour does not operate as res judicata for the cannot appeal against it in higher court. Therefore any observation made by civil court was not effective so as to preclude petitioner from claiming that it has no effect on his rights. Moreover the last sentence of the appellate court from extract quoted above dispels any doubt that the controversy in respect of agricultural land was left open for decision by revenue court.

(3.) Having failed to satisfy on merits learned counsel for opposite party argued that revisional authority had decided the revision ex-parte in absence of petitioner and the application for restoration having been dismissed for default and the second application as not maintainable and those orders being in accordance with law the petitioner is not entitled to any relief. In fact the petitioner had filed restoration application on ground that as his father was ill he could not appear on date of hearing. But it is not necessary to go into this controversy as the principal order having been found to be erroneous these orders fall automatically.