SOBARAN SINGH Vs. DEPUTY DIRECTOR OF CONSOLIDATION AGRA

JUDGEMENT

(1.) IN this writ petition, dispute is regarding share in khata no. 92 of village Korai, Pargana and Tahsil Kirawali, district Agra. IN basic year, petitioners and respondents no 4 to 10 were recorded. Respondent no. 9 Net Ram and respondent no. 7 Kishan Lal have died during the pendency of this writ petition and their heirs and legal representative have been brought on the record. It would be appropriate to mention a pedigree of the parties to appreciate the dispute :- <IMG>JUDGEMENT_1033_AWC2_1992Image1.jpg</IMG> During the consolidation the dispute arose between the parties regarding share on Ganeshi. Petitioners filed an objection under section 9 claiming share of Ganeshi on the basis of the sale deed dated 9th June, 1965 executed in favour of Sobaran Singh, Badan Singh, Babu and Ram Saran. On the basis of this sale deed, their mutation was also granted in their favour in the year 1966. They also claimed in possession of the share and in view of this sale deed they claimed 1/12 share in the khata in dispute and they disputed their share shown in C. H. Form-5. IN their objection, they also pleaded that Smt. Kalawati widow of Ganeshi filed a suit No. 533 of 1957 in the court of II Additional Munsif, Agra, Smt. Kalawati v. Parsadi and others, in which a decree was passed in her favour on 20th April, 1959 and she was found entitled for l/4th share in the khata in depute. This judgment has been filed along with the writ petition as Annexure 2. Another document relied on by the petitioners was preliminary decree dated 16th July, 1968 passed in a suit under section 176 for petition of the khata. This suit was filed by Beni now represented by petitioners no. 3 and 4. Another objection was filed by Net Ram, Dal Dhand, Udai Ram, Hatam Singh and Kishan Lal, contesting the claim of petitioners, on the ground that Smt. Kalawati was not wife of Ganeshi and she had no right, title or interest in the khata in dispute and on the basis of the alleged sale deed executed, the petitioners are not entitled for the share claimed by them.

(2.) BOTH the parties adduced oral and documentary evidence. Consolidation Officer, Agra vide his order dated 31st August, 1981 accepted the claim of petitioners and held that Smt. Kalawati was widow of Ganeshi and petitioners were entitled for the share claimed by them. The order of the Consolidation Officer was challenged in appeal before the Settlement Officer Consolidation, Agra. The Appellate authority allowed the appeal and set aside order of the consolidation officer by order dated 6th August, 1982, (Annexure- 5 to the writ petition) This order was. however, set aside by the revisional authority by order dated 15th July, 1983 and the case was remanded to the appellate authority for determining the question as to whether the decree of the Munsif dated 20th April, 1959 operated as res-judicata, whether the preliminary decree dated 16th July, 1968 passed by Assistant Collector 1st Class in a partition suit was res-judicata and whether Mst. Kalawati was widow of Ganeshi.

(3.) I have thoroughly considered the submissions made by the learned counsel for the parties and have also considered the cases relied on by them. A perusal of the judgment dated 20th April, 1959, Annexure-2 to the writ petition, will show that the learned Munsif passed the judgment after discussing the oral and documentary evidence adduced by the parties. The issue as to whether Smt Kalwati is wife of Ganeshi was seriously involved as issue no. 1 in Suit No. 533 of 1957. The learned Munsif though proceeded ex parte against defendants no. 1 to 4 and 7 to 9 of that suit as they did not file any written statement, there is no averment on the part of the respondents that they had no notice or knowledge of the suit. In my opinion, the ex-parte decree is as good and effective and binding on the parties as the decree passed after contest and though the decree may be ex-parte against some of the respondents, it shall be res-judicata for the subsequent proceeding. The Deputy Director of Consolidation has found that the civil court had jurisdiction in 1957 to entertain the suit filed by Smt Kalawati. However relying on the case of Brij Lal and others v. Deputy Director of Consolidation and others referred to above, decided by this Court, he took the view that the decree will not operate as res judicata as it was ex-parte. as against respondents. The Division Bench while overruling the view of the learned Single Judge has expressed the legal position in the following words :