RAMESHWAR DAYAL Vs. BOARD OF REVENUE

JUDGEMENT

(1.) THIS is a petition under Article 227 of the Constitution by the ultimate winning party in a revenue litigation who was, however, frustrated in execution by the view taken by the Board of Revenue that though another party, namely, the non-petitioner No. 3 Nasirkhan had taken part at different stages of the litigation still he was not bound by the decree of the lowest Court because he had not been originally a party there. The question for decision is really one but it can be set out in two different aspects; first, whether a party getting itself impleaded at his own instance on the off-chance of a favourable decision, can at a later stage finding the decision adverse be heard to plead that it is not bound by the decision because it was not originally a party, in other words, whether it can be allowed to approbate and reprobate in regard to the same matter at different times; secondly, when a M. P. No. 7 of 1965 decided on 25-4-1966. (Indore Bench.) superior Court revives the decision of an inferior Court in appeal or revision, whether the restored decree is that of the lower Courts as it originally stood or whether it is that decree plus the imprimatur or seal of the superior Court. The difference can be very material where during this interval another party has come on record at his own instance claiming to be interested even at the stage at which the original cause of action arose.

(2.) THOUGH the questions are formulated somewhat theoretically their practical application becomes clear and vivid when the facts of this case are set out. In the village Shoukatganj in tehsil Jaora there is a holding about the extent and identity of which there is no dispute. It has been originally even during the rule of the Nawab of Jaora part of his private land with the present petitioner as the shikmi. After 1947 it became the property of the ex-ruler of which he claimed to be the pakka tenant with the petitioner continuing as the shikmi or sub-tenant. Sometime in the beginning of 1953 the Nawab dispossessed him whereupon the petitioner sued for reinstatment under section 92 of the Madhya Bharat Land Revenue and Tenancy Act before the Naib-Tehsildar. The Nawab who is the non-petitioner No. 2 here contested it alleging different grounds which were all rejected with the result the Naib-Tehsildar finally made an order on 26-6-1961 ordering reinstatement of the petitioner and restoration of possession and grant of damages payable by the Nawab.

(3.) AFTER this the petitioner as the original plaintiff went up in second appeal to the Commissioner impleading the Nawab and Nasirkhan as respondents. Now this appeal was also allowed and the order of the Naib-Tehsildar restoring possession and granting damages was revived by the Commissioner with the difference that this revival -was with Nasirkhari as a party and in rejection of Nasirkhan's plea regarding a state of affairs which according to him existed even during the proceedings before the Naib-Tehsildar. AFTER this the Nawab and Nasirkhan together went up in revision before the Board of Revenue praying that the Commissioner's second appellate order should be set aside and the Sub-Divisional Officer's first appellate order should be revived. This, however was refused and the Board in exerciss of revisional powers refused to interfere. The result was that the original order of the Naib-Tehsildar directing the restoration of possession and the payment of compensation by the Nawab stood with the imprimatur of the Commissioner and the Board made in the proceedings to which Nasirkhan was also a party.