JODHAN Vs. BOARD OF REVENUE

JUDGEMENT

(1.) 1. This writ petition filed by Jodhan, which has been referred to us for decision at the instance of S.N. Singh J., chal lenges a decision given by the Board of Revenue on 30-5-1961 in a second appeal arising out of a suit under Section 176 of the Zamindari Abolition and Land Reforms Act, confirming the appellate decision of the Ad ditional Commissioner. Gorakhpur, dated 2-12-1960.

(2.) THE plots in suit were originally held by one Ghulaman, who left two sons, Salik (father of the petitioner Jodhan and O. P. 6 Natha) and Lochan (father of O. P. 4 Ramdhari). On Ghulaman's death the property was recorded in the name of Lochan alone; and when Lochan and Salik died a dispute arose between their sons, Ramdhari (son of Lochan) claiming to be the sole tenant, while Jodhan and Natha (sons of Salik) claimed that they were entitled to half share in the plots in question. On 20-3-1957 Jodhan and Natha filed this suit for partition under, Section 17ft of the Zamindari Abolition and Land Reforms Act, which was decided in their favour by the Assistant Collector First Class on 16-8-1960. Meanwhile Ramdhari on 18-7-1957 had filed a suit in the Civil Court for a permanent injunction to restrain Jodhan and Natha from interfering with his possession of the disputed plots (and in the alternative for possession of the plots) and that suit was dismissed, in respect of the plots with which we are at present concerned, by the First Additional Munsif of Deoria on 11-1-1960, with the finding that the plaintiff Ramdhari was not the exclusive sirdar of these plots. Ramdhari filed no appeal against the Munsif's decision, which therefore, became final between the parties. He did however, appeal against the decision of the Assistant Collector in the partition suit and that appeal was allowed on 2-12-1960, in respect of the plots now in dispute, by the Additional Commissioner, who held that the plots in question belonged exclusively to Ramdhari and that Jodhan and Natha had no share therein. The suit for partition filed by Jodhan and Natha thus stood dismissed; and this decision was confirmed by the Board of Revenue by means of the impugned second appeal order dated 30-5-1961.

(3.) THE fundamental question that calls for determination in this case therefore is whether a decision given by a Civil Court in a civil suit can operate as res judicata in a revenue suit subsequently decided by a Revenue Court, in which the same matter is directly and substantially in issue. Section 11 C. P. C. is couched in the following terms: