Full Judgment Text
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PETITIONER:
BALJEET SINGH & OTHERS
Vs.
RESPONDENT:
RISAL SINGH & OTHERS
DATE OF JUDGMENT:
15/02/1962
BENCH:
ACT:
Civil Procedure-Res judicata-Twelve suits against of
defendants--Decreed by common judgment-Twelve
appeals--Appeals by one set of defendants dismissed for
default-Whether other appeals barred-Appeals to Supreme
Court-consolidation Operations-If make appeals infructuous-
U.P. Consolidation of Holdings Act, 1953, (U.P. V of 1954).
HEADNOTE:
K, H and M filed four suits each against four sets of
defendants in respect of different sets of plots under s.
175 U. P. Tenancy Act, 1939. Since similar points were
involved the twelve suits were tried together and were
disposed of by a common judgment decreeing them. Twelve
decrees were prepared and the defendants preferred twelve
appeals to the Additional Commissioner. Three appeals by
one set of the defendants B were dismissed for default and
the remaining nine were dismissed on merits. Against the
dismissal of the nine appeals on merits the three sets of
defendants preferred nine second appeals before the Board of
Revenue but they were dismissed as barred by res judicata on
May 7, 1954. In November, 1954, the appellants filed
petitions for special leave before the Supreme Court and on
April 18, 1955, special leave was granted. In July 1954,
the villages in Which the lands in suit were situate came
under consolidation operations under the U. P. Consolidation
of Holdings Act, 1953, and the operations were completed by
the publication of a notification
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under s. 52 of the Act on October 17, 1953. The appellants
did not file any objections before the consolidation
authorities. The respondent contended that in view of the
consolidation operations the appeals before the Supreme
Court had become infructuous.
Held, that the appeals had not become infructuous. There
was nothing in the U. P. Consolidation of Holdings Act,
1953, as it stood during the period the village in suit was
under consolidation operations which could have in any way
affected these appeals, during or after the consolidation
operations. The subsequent Amending Acts did not affect the
appeals as they were prospective in operation and applied
only to cases where -the consolidation operations were
started after the Amending Acts had come into force.
Held, further that the appeals before the Board of Revenue
were not barred by resjudicata. It was essential for the
bar of res judicata that the previous and judication must
have been between the same parties. The three -suits in
which judgments had become final were against one B and not
against any of the appellants . The matter in issue in those
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three suits was different from that in the other nine suits
as each of the suits related to different plots. The common
judgment was really twelve judgments in the twelve suits.
Badri Narayan Singh v. Kamdeo Prasad Singh, (1962) 3. S. C.
R. 759 referred to.
JUDGMENT:
CIVIL APPELLATE, JURISDICTION: Civil Appeals Nos. 67 to 75
of 1959.
Appeals by special leave from the judgment and order dated
May 7, 1954 of the U.P. Board of Revenue, in Second Appeals
Nos. 53 to 61 of 1945-46.
S. P. sinha, J. P. Goyal and Sadhu Singh, for the
appellants.
Bishan Narain and E. L. Mehta, for the respondents.
1960. February 15. The Judgment of the Court was delivered
by
RAGHUBAR DAYAL, J.-These nine. appeals, by special leave,
are against the orders of the Board of Revenue, Uttar
Pradesh, dismissing nine
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second appeals filed by the appellants in circumstances
hereinafter, mentioned, on the ground that the orders of the
First Appellate Court in three other connected first appeals
had become final and operated as res judicata.
Khub Chand had three sons Karan Singh, Hoshiar Singh and
Mukhtiar Singh. Each of these brothers instituted four
suits. Hoshiar Singh instituted suit No. 48 of 1944 under
s. 175 of the U.P. Tenancy Act, 1939 (U.P. XVII of 1939),
against one Bhartu, suit No.49 against Har Gyan, Mukhtiar
Singh and Data Ram, sons of Sis Ram, brother of Bhartu, suit
No.50 against Har Gyan and Mukhtiar Singh, sons of Sis Ram,
and suit No. 51 against one Banwari. Karam Singh similarly
instituted suits Nos. 63, 61, 60 and 62 against similar
defendents respectively. Mukhtiar Singh’s suits against
those defendants, respectively. were Nos.67, 65, 64 and 66.
Each of these suits was for different sets of plots. The
allegations of the plaintiffs in each suit and the
contentions of the defendent in each suit were similar and
therefore similar issues were framed in each suit and all
the suits were tried together and were disposed of by one
common judgment. Twelve decrees were, however, prepared.
Against the twelve decrees the defendants-judgment debtors
in each decree filed twelve first appeals in the Court of
the Additional Commissioner, Meerut Division. The
Additional Commissioner dismissed three appeals for default,
These -were the appeals which were filed against Hoshiar
Singh, Karam Singh and Mukhtiar Singh by Banwari. The
Additional Commissioner heard the remainmg nine appeals on
merits and dismissed them. The defendants-judgment debtors
then filed nine second appeals before the Board of Revenue.
They were dismissed as barred by res judicata on May 7,
1954.
The applications for special leave were filed in this Court
in November 1954. Special leave was
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granted on April 18, 1955. By the time the appeals came up
for hearing, some other events took place and as a result of
them the respondents filed an application for adducing
additional evidence under O.XLV, rr. 1 to 5, Supreme Court
Rules in November 1959, and also included in their statement
of case a narration of those events and their effect.
It appeals that the villages in which-the lands in suit were
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situate, come under Consolidation Operations under the U.P.
Consolidation of Holding.s Act, 1953(U. P. V of 1954),
hereinafter called the Act, sometime in July 1954, when a
declaration was issued by the State Government under s.4 of
the Act to the effect that it had been decided to make a
Scheme of consolidation for that area. In December 1954, a
statement of plots and tenure holders was prepared and in
May 1955 a statement of proposals under s.19 was prepared;
in August 1955 final statements in chak form 25 were issued.
On October 17, 1955, the State Government published a
notification under s.52 of the Act.
section 52 of the Act then read:
"As soon as may be after the tenure-holders
have entered into possession of their new
holding in pursuance of ;Section 26, the State
Government shall issue a notification in the
Official Gazette that the Consolidation opera-
tions have been closed in the village and the
village shall then cease to be under
consolidation operation."
It is thus seen that this village remained under
Consolidation operations from some time in July 1954 to
October 17, 1955.
The appellants did not file any objections before the
Consolidation authorities under s.12 of the Act disputing
the correctness or the nature of the entries in the
statement prepared under s.11 or under s.20 against -the
statement of proposals prepared under s.19
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Section 21 provides for the fixing of a date for the
enforcement or the consolidation scheme. Section 25
provides for the issuing of the allotment order showing the
new fields allotted to each tenure-holder in accordance with
the said scheme. Section 26 provides for the tenure-holders
to enter into possession of the fields allotted to them on
or after a certain date. Section 27 provides for the
preparation of new village maps, khasra and the record-of-
rights, in accordance with the Provisions of the U. P. Land
Revenue Act, 1901. Its sub-s (2) provides that all entries
in the record-of-rights prepared under sub-s.(1) small be
final and conclusive,
Section 30 provides that the rights, title, interest and
liabilities of the tenure holder in his original holding
shall be extinguished and he will have the same rights,
title, interest and liabilities subject to modification, if
any, in the plots allotted to him under s.25 with effect
from the date on which he enters into possession of the
plots allotted to him.
It was contended for the respondents that in view of these
consolidations operation and s.5 of the Act, as amended up
to date, these appeals have become infructuous as this Court
cannot pass any orders on the merits of the controversy.
The Act has been amended several times since it was origi-
nally enacted. The various amendina Acts are: Act XXVI of
1954 which came into force on December 13, 1954; Act XIII of
1955 which me into force on June 10, 1955; Act XX of 1955
whcih came into force on October 21, 1955; Act XXIV of 1956
which came into force on July 3, 1956; Act XVI of 1957 which
came into force on May 25, 1957 and Act XXXVIII of 1958
which came into force on November 19, 1958.
During the period the village in suit was under
Consolidation Operations, the Act applicable
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to the proceedings was the Original Act as amended by Acts
XXVI of 1954 and XIII of 1955. The other Acts came into
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force subsequent to the issue of the notification under s.52
of the Act. It is necessary to bear this in mind in view of
the contentions raised.
Section 5 of Act V of 1954 was as follows
(1) Upon the publication of the declaration
under section 4, the district or the local
area; as the case may be, shall be deemed to
be under consolidation operations from the
date of such publication until this
publication of the Notification under section
52 in the official Gazette to the effect that
the consolidation operations have been closed.
(2) Where a district or any other local area
is under consolidation operations, the duty
of preparing and maintaining the maps the
khasra and the annual register under Chapter
ITI of the U.P. Land Revenue Act, 1901, shall
stand transferred to the Settlement Officer
(Consolidation), and thereupon all the powers
conferred on the Collector, Assistant
Collecter and the Tahsildar under the said
Chapter shall, so long as that district or the
area remains under consolidation operations be
exercised respectively by the Settlement
Officer (Consolidation), Consolidation Officer
and the Assistant Consolidation Officer."
Act XXVI of 1954 deleted the last portion of sub-s.(2)
commencing from the words "and there. upon. No change in
this section was made by the Amending Act XIII of 1955.
There was therefore nothing in this section which in any way
would have affected the hearing of these appeals, during or
after the consolidation operations.
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Section 12 of Act V of 1954 provided for the publication of
the statement of plots and tenure holders prepared under s.
II and for filing objections disputing the correctness or
nature of entries in it. Its subsections (4), (5) and (6)
were :
" (4) Where the objection filed under sub-
section (1) involves a question of title and
such question has not already been determined
by a competent court, the Consolidation
Officer shall refer the question for
determination to the Arbitrator.
(5) All suits or proceedings in the court of
first instance or appeal in which a question
of title in relation to same land has been
raised, shall be stayed.
(6) The decision of the Arbitrator under
sub- section (4) shall be final."
There was nothing in these sub-sections -which provided as
to how the suits or proceedings stayed been under sub-
section (5) would be decided or how matters in connection of
which no objection bad raised under s.12 would be dealt
with. These provisions too did not affect the pending
Appeals as no objection had been filed under s.12.
Act XXVI of 1954 amended sub-s.(4) to the effect that the
objection coming under sub-s.(4) would be referred to the
Civil Judge, who will then refer it to the Arbitrator, and
substituted another sub-section in the place of original
sub-s.(5). The substituted sub-s.(5) read :
"(5) Upon the making of reference under sub-
section (4) all suits or proceedings in the
Court of first instance, appeal, reference or
revision in which the question of title in
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relation to the same land has been raised,
shall be stayed."
This amendment in sub-s.(5) stayed the suits and
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proceedings not only in the Courts of the first instance and
appeal but also in the Courts of reference and revision, but
did not affect these appeals.
Sub-s.(2) of s.27 as originally enacted, was not amended up
to the 17th October, 1955. Its sub-s.(2) made the entries
in the record of rights Prepared under sub-s.(1) final and
conclusive. ’We are not concerned with its effect in these
appeals.
Section 49 of the Act bars the jurisdiction of Civil Courts.
This section, before its amendment by Act XTTT of 1955,
-which came into force on June 10, 1955, did not bar the
institution of a suit or proceedings in the, revenue court.
It did so after the amendment. The,.;,) appeals had been
filed long before the amendment.
We may state that no objection was raised on behalf of the
respondent to the effect that these appeals could not have
been instituted, but we have discussed that matter, in view
of the fact that the appeals were filed after the State
Government had made a declaration under s.4 of the Act.
We have not been referred to any provision in these, Acts,
viz.. Act V of 1954, Act xxvr of 1954 and Act XIII of 1955
which would lead to the conclusion that these appeals have
become infructuous.
Act XX of 1955 made an amendment in s.27 of the Act. The
amendment however does not affect the question before us.
Act XXIV of 1956 which came into force on July 3, 1956,
substituted a new section 5 in the place of the old. The
substituted section 5 read :
"5. When the declaration under section 4 has
been published in the Gazette, the
consequences as hereinafter set forth shall,
225
from the date specified thereunder till the
publication of the notification under section
52 in the Official Gazette to the effect that
the consolidation operations have been closed,
ensue in the area to which the declaration
relates, namely ;
(a) the district or the local area, as the
case may be, shall be deemed to be under
consolidation operations from the specified
date, and the duty of preparing and
maintaining the khasra and the annual Register
under Chapter III of the U.P. Land Revenue
Act, 1901, shall stand transferred to the
Settlement Officer (Consolidation), and
(b) all proceedings for the correction of
any such records pending before any court or
authority shall be stayed but without pre-
judice to the right of the persons affected to
agitate the question before the Assistant
Consolidation Officer under sub-section (3) of
Section 8, or in proceedings commenced under
and in accordance with section 10"
Clearly, cl. (b) does not apply to these appeals as they
have not arisen out of proceedings for the correction of
village records.
Act XXIV of 1956 made certain amendments in s. 11 with which
we are not concerned. We are not also concerned with the
amendments this Act made in subs. (1) of s. 12. It
substituted a new sub-section (5) and added sub-s. (7).
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These new subsections (5) and (7)are:
"(5) Upon the publication of the statement
under section 11, all suits or proceedings in
the Court of first instance, appeal, reference
or revision, in which the question of title in
respect of any plot mentioned in the statement
with reference to clause (c) of sub-section
(1) of section II has been raised, shall be
226
stayed to the extent it relates to such plot
and shall thereafter be disposed of in the
manner prescribed.
(7) A question of title in respect of any
plot mentioned in the statement in clause (c)
Of sub-section 1 of section 11, which might
and ought to have been raised under subsection
(1) but had not been raised, shall not be
raised in any objection filed under subsection
(2) of section 20, or under sub-section (1) of
section 34."
It is for the first time that such suits and proceedings in
the various Courts had to be stayed in which a question of
title in respect of any plot mentioned in the statement with
reference to el. (c) of sub-s. (1) of s. 11 had been raised
and that these stayed suits or proceedings were to be
decided subsequently in the manner prescribed, i. e., in the
manner laid down under rules framed under the Act.These
provisions of sub-s. (5) do not affect the appeals as they
were prospective in operation and could apply to those cases
only in which at atements under s. 11 were filed after the
amendment had been made.
The amendments made by the other sections of this Act and
Act XVI of 1957, do not affect the hearing of the appeals in
any way.
Thereafter case Act XXXVIII of 1958. This Act again
substituted a new s. 5, and the relevant portion of the
substituted section reads:
5.Upon the publication of the notification
under section 4 in the Official Gazette, the
consequences, as hereinafter set forth, shall,
subject to the provisions of this Act, from
the date specified thereunder till the
publication of notification under section 52
or sub-section (1) of section 6, as. the case
may
227
be, ensue in the area to which . the
declaration relates; namely-
x x x x x
(b) (1) all proceedings for correction of the
records and all suits for declaration of
rights and interest over land , or for posses-
sion of land or for partition, pending before
any authority or court, whether of first ins-
tance, appeal or reference or revision, shall
stand stayed, but without prejudice to the
right of the persons affected to agitate the
right or interests in dispute in the said pro-
ceedings or suits before the consolidation au-
thorities under and in accordance with the
provisions of this Act and the Rules made
thereunder:
(ii) the findings of consolidation autho-
rities in proceedings under this Act in
respect of such right or interest in the land,
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-shall be acceptable to -the authority or
court before whom the proceeding or suit was
pending which may, on communication thereof by
the parties concerned. proceed with the
proceeding or suit, as the case may be;
These provisions operate prospectively. The consequences
mentioned in s. 5 ensue upon the publication of the
notification under S. 4 in the Gazette and continue up to
the publication of the notification under s. 52. They do
not continue thereafter and could not operate on these cases
in which the notification under s. 52 was issued on the 17th
October 1955. They do not therefore bar the hearing of
these appeals. These a peals have not. therefore become
infructuous.
Sections 7, 8, 9, 10, 11, 11-A, 11-B, 12, 12-A, 12-B, 12-C
and 12-D have been substituted by new section which apply to
proceedings taken in consolidation operations subsequent to
the coming into force of ’the Amending Act XXXVIII of 1858.
Sub-s. (1) of
228
is. 12 makes it clear that the matters mentioned in that
sub-section cannot be raised subsequent to the date of
notification under s. 52.
There has been no material change made in as. 27 and 30, but
s. 49 now reads:
"49. Notwithstanding anything contained in
any other law, for the time being in force the
declaration and adjudication of rights of
tenure holders in respect of land lying in an
area, for which a declaration has been issued
under section 4, or adjudication of any other
right arising out of consolidation proceedings
and in regard to which a proceeding could or
ought to have been taken under this Act, shall
be done in accordance with the provisions of
this Act and no civil or revenue court shall
entertain any suit or proceeding with respect
to rights in such land or with respect to any
other matters for which a proceeding could or
ought to have been taken under this Act."
This now provides that the adjudication of’ rights of tenure
holders in respect of land lying in an area under
consolidation operations shall be done in accordance with
the provisions of the Act. This leads practically to the
same result to which cl. (ii) of sub-s. (b) of s. 5 leads
to. The provisions of this section are not expressly
limited to the period between the declaration under s. 4 and
the notification under s. 52, but can be so construed as
they relate back to s. 5 (b) (ii) of the Act as the declara-
tion and adjudication of rights have to be done in
accordance with the provisions of the Act. Further the
amended provision would apply to the proceedings regarding
rights in land in the area for which a declaration under s.
4 has been issued after the amendment.
We are therefore of opinion that these appeals have not
become infructuous.
229
On the merits, we are of opinion that the Board of Revenue
erred in holding that the appeals before it were barred by
res judicata. It- is essential for any previous
Adjudication of a point to bar its consideration second time
that, the previous adjudication must have been between the
same parties and that it be with respect to the same matter.
The three suits in which judgments became final were against
one Banwari and’, not against any of the present appellants.
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The matter in issue in those three suits were also different
’from that in the suits which have given rise to these
appeals. Each of the twelve suits related to different
plots. A common judgment on account of similar questions
being raised for decision in the different suits, does not
always make that judgment amount to one judgment in those
suits. Such a judgment will ordinarily be deemed to be
really so many judgments as the suits disposed of by it.
This Court expressed a similar view in Badri Narayan Singh
v. Kamdeo Prasad Singh(1).
We therefore allow the appeals, set aside the order of the
Court below and remand the appeals to it for further hearing
and decision according to law.’ We may make it clear that it
can take into consideration the effect of the Consolidation
Act and proceedings thereunder, after giving an opportunity
to the parties to submit what, they like in regard to them
costs to abide the result.
Appeals. allowed,
(1) [1962] 3 S. C. R. 759.
230