SUKHU Vs. DEPUTY DIRECTOR OF CONSOLIDATION JAUNPUR

JUDGEMENT

(1.) PETITIONERS are aggrieved by the order of the Deputy Director of Consolidation dated 28-5-1976, by means of which in proceedings under section 9 of the U. P. Consolidation of Holdings Act (from hereinafter referred to as the Act) the petitioners who were held to be Bhumidhar/tenure holders of the plot no. 156, area 2.28 dismal, by the orders of Consolidation Officer and Settlement Officer (Consolidation) mainly on the ground that the earlier claim of the Gaon Sabha having agitated in proceedings under section 229-B of the Act which has become final, the Deputy Director of Consolidation allowed the revision at the instance of the Gaon Sabha, hence this writ petition.

(2.) THE brief facts given rise to this writ petition are that in the basic year the petitioners were recorded as bhumidhar over the plot no. 156/1, area 2.28 dismal situated in village Muradganj Pargana Haveli Tahsil and District Jaunpur. In proceedings under section 9 of the Act, Gaoa Sabha filed an objection through the Pradhan on the ground that the land in dispute was a property of the Gaon Sabha and it was of public utility. Petitioners contested the case and filed written statement on the ground. that they have obtained the plot in dispute from zamindar for cultivation and they having their possession over the land in dispute for more than 50 years they have become sirdars and subsequently become bhumidhars. THE land in dispute was never the property of Gaon Sabha and the objection by the Gaon Sabha was not maintainable as prior to the commencement of consolidation proceedings, in a suit no. 519/227 under section 229-B of the Act, in between the petitioners and Gaon Sabha, it was held that the petitioners were bhumidhars. That order has become final and the principle of res-judicata will be applicable. Once the Consolidation Officer and Settlement Officer (Consolidation) after consideration of oral and documentary evidence on the record found that the petitioners are in possession over the land in dispute and have become bhumidhars, the claim of the Gaon Sabha is barred by the principle of res-judicata. Thus the appeal of Gaon Sabha was dismissed on the aforesaid ground.

(3.) I am satisfied that the Deputy Director of Consolidation has committed a clear error in exercise of his jurisdiction in allowing the revision and setting aside the judgments of the Consolidation Officer and Settlement Officer (Consolidation) in respect of res judicata. Once the matter in suit under section 229-B had become final and the claim of the Gaon Sabha was negative and the petitioners were held to be bhumidhar and that order become final the Deputy Director of Consolidation has erroneously observed in the following words :- "Gram Sabha ke pas kewal aek hi bikalp tha ki wah regular suit dayar karta aur isi bich chakbandi prakriyaeh suru ho gaye is prakar gaon sabha ke upar resjudicata aarij hone ka prashna hi nehi uthta," This is a erroneous approach in the matter of res-judicata. It is well settled that once a decision has become final between the parties, no party to the said suit can agitate the matter in consolidation proceedings and the mere fact that the Gaon Sabha could have filed a regular suit for setting aside the ; earlier decree under Section 229-B of the Act and on that assumption too the Deputy Director of Consolidation has allowed the revision is misconceived on the face of it. It was not a case at Gaon Sabha that some fraud was played in obtaining the possession under section 229 B of the Act so the question of filling regular suit for setting aside a decree of a competant court does not arise. It was open for the Gaon Sabha to have filed an appeal before the Commissioner or before the Board of Revenue or to approach this court in the writ jurisdiction. But once a decision under section 229-B has become final and it has to attain finality and the error committed by the Deputy Director of Consolidation in holding otherwise is liable to be set aside.