STATE OF U P Vs. BANIA

JUDGEMENT

(1.) N. L. Ganguly, J. All the above appeals arise out of the Land Acquisi tion References No. 51 of 1982, Bania and others v. State of U. P. , LAR No. 41 of 1982 Raghunath and another v. State, LAR No. LAR No. 52 of 1982, Babu Lal and others v. State, LAR No. 63 of 1982, Sheo Shanker Singh and another v. State, LAR No. 45 of 1982, Raja Ram and another v. State ; LAR No. 44 of 1982, Ram Dayal v. State of U. P. , LAR No. 47 of 1982, Badloo and another v. State, LAR No. 69 of 1982, Sheo Narain Singh v. State and LAR No. 43 of 1982, Lallu v. State. All these Land Acquisition References were decided by the Presiding officer, Nagar Mahapalika Tribunal, Kanpur under Section 18 of Land Acquisition Act on reference and by a common judgment dated 21-12-1984 all the References were decided. The present appeals are directed against the said judgment of the Tribunal. The learned counsel for the respondent Sri L, P. Singh pointed out that FA No. 466 of 1985, State v. Ganga Deen arising out of LAR No. 42 of 1982, FA No. 474 of 1985, State v. Raj Narain arising out of LAR No. 39 of 1982 and FA No. 467 of 1985, State v. Brambha Singh arising out of LAR No. 54 of 1982 were taken up and dismissed by the following orders : "having complied with the provisions of Chapter XIII, Rule 3 of High Court Rules and informing the learned counsel appearing for the State for his default regarding non-filing- of the paper books despite that no paper book baa been filed as yet. Therefore, this Court has no option except to dismiss this appeal under Chapter XIII, Rule 3 of the Rules of the Court. The Appeal is, therefore, dismissed. Interim stay order, if any, shall stand vacated. Sd/- 8-4-1992. " The order, quoted above, was passed in F. A. No. 474 of 1985 and same order was passed in F. A. No. 467 of 1985. The order passed in F. A. No. 466 of 1985 by the I Division Bench on 8-4-1992 is quoted as under: "this is 1985 appeal. Despite the order dated 12-12-1991 and 4-4-1992, as yet, no paper book has been filed. If within IS days paper book is not filed, the appeal shall stand dismissed automatically without making reference to this court. Sd/-8-12-1992. "

(2.) THE learned counsel for the respondents submitted that the present First Appeals are liable to be dismissed on the ground that the earlier judge ment passed by this Court shall operate as res judicata. Sri L. P. Singh relied on a decision AIR 1966 SG 1312 - Sheodan Singh v. Daryao Kunwar. THE Apex Court was pleased to hold that the order of the High Court itself may not be on merits. THE decision of the High Court dismissing the appeal arising out of the suits was upheld by the decision on merits as an issue of title and therefore, it must be held that by dismissing the appeal arising out of the suits, the High Court heard and finally decided the matter for it and confirmed the judgment of the trial court on issue. THE Hon'ble Supreme Court quoted in para 20 as under: "a consideration of the cases cited on behalf of the appellant there fore shows that most of them are not exactly in point so far as the facts of the present case are concerned. Our conclusion on the question of res judicata raised in the present appeals is this. Where the trial court has decided two suits having common issues on the merits and there are two appeals therefrom and one of them is dismissed on some preliminary ground, like limi tation or default in printing with the result that the trial court's decision stands confirmed, the decision of the appeal court will be res judicata and the appeal Court must be deemed to have heard and finally decided the matter. In such a case the result of the decision of the appeal court is to confirm the decision of the trial court given on merits, and if that is so the decision of the appeal court will be res judicata whatever may be the reason for the dismissal. " Since the matter stands concluded by the decision of the Hon'ble Supreme Court that the dismissal of the appeal by the High Court after the judgment of the Tribunal even on the ground of non-printing of paper book shall operate as res judicata. It was held that the consequences of the decision of those issues become res judicata under Section 11 of the C. P. C. to bar the hear ing of those common issues here and again Sri L. P. Singh cited another decision reported in Land Acquisition and Compensation Cases 1995 page 59 - State of U. P. v. Babu Ram (Deceased by LRs) and others. THE Division Bench of this Court held that five References decided by the common judgment in proceedings under Land Acquisition Act, Section 23/18, the State filed appeals only for four References. THE award given in the reference which was decided by the common judgment remained unchallenged. It was held that: "when in respect of one of the land owners, compensation has been awarded at a rate which is same as in respect of other owners of the land acquired under the same notification in the village, it can be presumed that acquired lands of the various owners have similar advantages. Accordingly, when market value as deter mined in one reference which have become final in absence of any appeal, the same rate would also govern the land of other owners. " This decision is on a different point and is not directly effecting the present controversy but the decision of the Hon'ble Supreme Court (supra) fully covers find applies to the present