BRIJ LAL Vs. DEPUTY DIRECTOR OF CONSOLIDATION LUCKNOW

JUDGEMENT

(1.) THIS petition under Article 226 of the Constitution is directed against the order dated 8th March, 1973 passed by the Deputy Director of Consolidation allowing the revision filed by opposite party no. 2 Smt. Umedi, who died during the pendency of the writ petition and her heirs Jagdish and others have been substituted in her place.

(2.) BRIEFLY stated the facts of the case are as follows :- The dispute in the present case relates to land of Khata no. 311 situate in village Grant no. 14, Pargana Kukra district Lakhimpur Kheri, which, was recorded in the basic year Khatauni in the names of the petitioners. Opposite party no. 2 Smt. Umedi filed an objection claiming half share in the land in dispute with the allegation that she is daughter of Devi, son of Damber, who was co-tenure holder along with the petitioners in the disputed holding. The case was contested by the petitioners with the allegations that Devi was not the son of Dambar and that he had no share in the land in dispute.

(3.) FOR an ex-parte decree to operate as res judicata between the parties it has to be established that the defendants had or must be deemed to have notice of the suit which was decided ex-parte against them. The burden of proving this fact would be on the person who pleaded the bar of res-judicata. It is no doubt correct to say that the doctrine of res-judicata may apply even though the party against whom it is sought to be enforced, did not in the previous suit thought fit to enter appearance and contest the suit. But for an ex-parte decree to operate as res-judicata it must be established that in, the suit the defendants were served with the notice and inspite of service they did not appear to contest the case. In the present case the Deputy Director of Consolidation has recorded a finding to the effect that the petitioners had suppressed material facts while obtaining the ex-parte decree against Devi. It was observed that in the said suit the petitioners had not mentioned Devi's parentage as 'not known'. Secondly the petitioners had also concealed a material fact to the effect that in an earlier suit filed under section 59 of the U. P. Tenancy Act by Brij Lal and Pooran opposite parties nos. 2 and 3 against Devi a compromise decree was passed on 8-12-1950 wherein Devi was given half share in the holding in dispute and the remaining half share was received by Brij Lal and Pooran. The fact with regard to the said compromise was not mentioned by the petitioners in the subsequent suit filed by them on 24th June, 1958. It is thus clear that the aforesaid ex-parte decree dated 8-10-1958 was obtained by the petitioners concealing material facts and it has also not been proved by the petitioners that Devi in fact was alive at the time of passing of the said decree. The Deputy Director of Consolidation has recorded a finding to the effect that Devi had died earlier prior to the passing of the said decree, hence the aforesaid ex-parte decree was a nullity. The Deputy Director of Consolidation has, after taking into consideration, the material evidence on record, held that Devi had died somewhere in the year 1957. This is a finding on a question of fact and cannot be said to be erroneous or perverse and calls for no interference by this Court in exercise of powers under Article 226 of the Constitution. In this view of the matter I am unable to agree with the argument of the learned counsel for the petitioners that the ex-parte decree dated 8-10-1958 operates as res-judicata and that it was not passed against a dead person.