SHIV NARAIN Vs. DEPUTY DIRECTOR OF CONSOLIDATION BAHRAICH

JUDGEMENT

(1.) HEARD Sri Rama Kant Dixit, learned counsel for the petitioner and Sri B.L.Mishra, learned counsel appearing for respondent no.4. Under challenge in the instant writ petition is an order dated 31.07.2013, passed by Deputy Director of Consolidation, Bahraich/Shravasti whereby revision petition filed by petitioner Shiv Narayan, namely, Revision Petition No. 692 was dismissed and Revision Petition No. 630 filed by respondent no.4 Khushi Ram was allowed. The facts of the case which are not in dispute are that petitioner and respondent no.4 are real brothers. When the consolidation operations in the village concerned started, it was found that basic year entry in the khatauni was in the name of petitioner alone, accordingly, respondent no.4 preferred his objections under Section 9A (2) of U.P. Consolidation of Holdings Act (hereinafter referred to as 'C.H.Act') stating therein inter alia that the land in dispute was initially recorded in the name of Ram Shanker, father of the petitioner as well as respondent no.4 both. However, on the death of Ram Shanker, the property was got recorded erroneously and fraudulently only in the name of Shiv Narayan i.e. the petitioner and as such since respondent no.4 is a co sharer, hence property in dispute be recorded in the respondent no.4 as well as the petitioner as co sharers.

(2.) BEFORE the Consolidation Officer, an objection was raised by the petitioner stating therein that in a declaratory suit filed earlier under Section 229 B of Uttar Pradesh Zamindari Abolition and Land Reforms Act, a judgement was delivered by the court of competent jurisdiction on 31.03.1995 and as such the said judgement will operate as res judicata on the proceedings instituted under Section 9A (2) of C.H.Act by the respondent no.4. Accordingly, prayer was made to reject the claim put fourth by respondent no.4 before the Consolidation Officer. Opposing the aforesaid plea based on the principle of res judicata, it was submitted by learned counsel for the respondent no.4 that judgement dated 31.03.1995 cannot be termed to be a judgement which finally decides the point in issue, as such the said judgement will not operate as res judicata and hence, the proceedings initiated by the respondent no.4 before the Consolidation Officer ought to be continued. The Consolidation Officer on the basis of pleadings of respective parties framed several issues including an issue as to whether the proceedings instituted on the objection filed by the respondent no.4 before him are barred by the principle of res judicata on account of the earlier judgement dated 31.03.1995 passed by the Sub Divisional Officer in a declaratory suit filed by respondent no.4 where petitioner was defendant. The said issue was decided in negative by the Consolidation Officer by means of order dated 15.02.2007 and the matter was posted further for disposal of other issues.

(3.) CHALLENGING the aforesaid order dated 24.04.2013 passed by the Consolidation Officer, two revision petitions were preferred. Revision petition no.630 was preferred by respondent no.4 whereas revision petition no. 692 was preferred by the petitioner. By means of common judgement and order dated 31.07.2013, revision Petition preferred by the petitioner has been dismissed whereas revision petition preferred by respondent no.4 has been allowed and for decision on other issues by the Consolidation Officer, parties have been required to be present before the trial court i.e. the court of Consolidation Officer. It is this judgement and order dated 31.07.2013 which is under challenge in the instant writ petition.