SMT. KANIZAN Vs. GHULAM NABI AND OTHERS

JUDGEMENT

(1.) THIS is a petition for a writ of certiorari quashing the order dated 20-2-1964 passed by the Deputy Director of Consolidation. On the death of one Habib Ullah a dispute over his succession, arose between his nephew and Srimati Kanizen alias Haidari Begam who claimed to be his widow, having been his wedded wife, in the Consolidation proceedings in village Bawan, Ghulam Nabi filed objections under Sec. 9(1) of the U.P. Consolidation of Holdings Act claiming to be entitled to certain plots of land as a legal heir, of Habibullah. Srimati Kanizen alias Haidari Begam contested the objection. The main issue that arose for consideration before the Consolidation Officer was whether the deceased Habibullah was succeeded by his alleged nephew Ghulam Nabi of his alleged widow Srimati Kanizan alias Haidari Begam. The Consolidation Officer took into consideration the fact that this question had already been decided in another proceeding under the U.P. Consolidation of Holdings Act between the same parties relating to another village in which it was decided that Srimati Kanizan alias Haidari Begam was not the legally wedded wife of the deceased and that Gulam Nabi being the nephew of the deceased, was entitled to inherit his property. The Consolidation Officer held that the question has become res Judicata and could not be reagitated in the proceedings before him. Consequently he allowed the objection of Ghulam Nabi and ordered that the land in dispute of village Bawan be recorded in the name of Ghulam Nabi by expunging the name of Srimati Kanizan alias Haidari Begam. This lady went to appeal before the Settlement Officer Consolidation and then in revision before the Deputy Director of Consolidation but without success. Thereupon, she has filed this writ petition contending that the Consolidation Courts acted illegally in holding that the matter in dispute was barred by the principle of res judicata, that the Consolidation Courts had acted without Jurisdiction and with material irregularity in not deciding the issue as to who was the legal heir of Habibullah deceased and that the Consolidation Courts should have held that the petitioner was the widow and legal heir of Habibullah. The final order of the Deputy Director of Consolidation dated 20-2-1964 is sought to be quashed by a writ of certiorari.

(2.) I have heard Sri H. Banerjl, learned counsel for the petitioner. He has contended that the Consolidation authorities who decided the matter cannot be deemed to be Courts and so the rules of res judicata do not apply to these proceedings. This contention has been urged, before me even though in the writ petition itself the Consolidation authorities have been described as"Consolidation Courts". The learned counsel has taken me through the provisions of the U.P. Consolidation of Holdings Act and has pointed out that under the provision of the Act the Consolidation authorities have been deemed to be courts. He has pointed out that only for the limited purpose of the application of Secs. 193, 223 and 196 of the Indian Penal Code Sec. 40 of the U.P. Consolidation of Holdings Act lays down that the proceedings before the Deputy Director etc. shall be deemed to be judicial proceedings. From this he has attempted to infer that for no other purpose whatsoever any authority acting under the U.P. Consolidation of Holdings Act shall be deemed to, be a civil Court or a court at all and that no proceedings under the Act would for any other purpose be deemed to be judicial proceedings. I am unable to agree with the learned counsel.

(3.) IT is not necessary that the principle of res judicata should apply to a certain proceeding only when the provisions of Sec. 11 of the Code of Civil Procedure have been specifically made applicable. It was held by a learned Judge of this Court in Raghubir Singh v. The Deputy Director Consolidation, 1960 R. D. 323 that whether is not Section 11 of the Code of Civil Procedure applies to proceedings under the U.P. Consolidation of Holdings Act, the principles of res Judicata apply. In that case the Board of Revenue had held in. a dispute between the parties under Sec. 27 of U.P. Act 10 of 1947 a person to be khudkasht holder of the plots and had also directed that his name should be recorded as bhumidar over those plots but subsequently during the Consolidation proceedings a dispute arose about the same subject-matter. It was held that the question of res judicata was clearly raised in the case. No doubt, the matter had previously been decided by the Board of Revenue which according to the learned counsel is a Revenue Court but the question of applicability of the principles of res judicata arose in the Consolidation proceedings. If the Consolidation authorities did not hold that character of a Court there would have been no question of applicability of the principle of res judicata in a matter decided by a Revenue Court.