N. D. Ojha, J. - (1.) THESE four special appeals have been filed against a common judgment rendered by a learned Single Judge in two connected writ petitions.
(2.) VILLAGE Karothi, Pergana Siana, district Bulandshahr was brought under con solidation operations under the U. P. Conso lidation of Holdings Act. In the basic yeas Jamshed Ali and Mukarram Ali appellants in Special Appeal No. 1071 of 1967 were re corded as bhumidhars of plot Nos. 30 and 34/1 M whereas Mushtaq Ali father of Nawazish Ali and Kallu appellants in Spe cial Appeal No. 1070 of 1967 were recorded as bhumidhars of plots Nos. 31 and 34/1 M. Dhan Singh appellant in Special Appeals Nos. 1056 and 1058 of 1967 filed objections claim ing to be a grove-holder of the plots in dis pute and in the alternative to have become sirdar by virtue of his long continuous posession. This was, however, not the first liti gation between the parties. Jamshed Ali and Mukarram Ali had filed a suit on June 28, 1949 for the ejectment of Dhan Singh from plot Nos. 30 and 34/1 under Section 180 of the U. P. Tenancy Act. The said suit was stayed on September 23, 1949 in pursuance of an order passed by the State Government. Subsequently proceedings were initiated under Section 145, Criminal Procedure Code by Jamshed Ali and Mushtaq Ali in respect of plot Nos. 30 and 31. These proceedings were also decided in favour of Dhan Singh. The two plots aforesaid stood attached during the pendency of the proceedings and a Sapurdar was appointed thereof. On the proceedings culminating in favour of Dhan Singh possession was delivered to him by the Sapurdar of January 7, 1951. Mushtaq Ali thereafter filed suit No. 303 of 1951 in the court of Munsif, Bulandshahr on May 30, 1951 against Dhan Singh and impleaded Jamshed Ali and Mukarram Ali as pro forma defendants. As would appear from the Judgment of the learned Single Judge the case set up in the plaint of this suit by Mushtaq Ali was that Jamshed Ali and Mukarram Ali were co-khudkasht holders With him but since they were not present in the locality they were being impleaded as pro forma defendants. This suit as originally filed was for permanent injunction restrain ing Dhan Singh from interfering in the pos session of the plaintiff Mushtaq Ali and de fendants 2 and 3 Jamshed Ali and Mukar ram Ali over all the three plots Nos. 30, 31 and 34/1. The suit was filed on the allegation that the plaintiff and defendants 2 and 3 were in possession of these plots as Khudkasht holdei and that the sugarcane and mango crops of these plots belonged to them and that defen dant No. 1 Dhan Singh wanted to take them away forcibly and also wanted to take for cible possession over these plots. The sugar cane and mango crops were, however, taken away by Dhan Singh during the pendency of the suit whereupon Mushtaq Ali amend ed his plaint and claimed a decree for dama ges in the sum of Rs. 800/-. The suit was contested by Dhan Singh inter alia on the ground that he was a hereditary tenant of the plots in dispute and that neither the plain tiff nor the defendants 2 and 3 were eithes khudkhast-holders of these plots or were in possession thereof. An issue about the tenancy right of Dhan Singh was specifical ly framed being issue No. 3 on the pleadings of the parties and was referred to the reve nue Court. The Revenue Court recorded a finding that Dhan Singh had been in posses sion at any rate from 1355 F. and on May 30, 1951 when the suit was filed he had ac quired rights of hereditary tenant under Sec tion 18 (2) of the U. P. Tenancy Act. Ac cepting this finding the Munsif dismissed the suit which decree was upheld even on appeal by the Civil Judge on January 31, 1956. During the pendency of Suit No. 303 of 1951 aforesaid Jamshed Ali and Mukarram Ali filed suit No. 224 of 1953 in the court of Munsif, Bulandshahr for the re lief of permanent injunction restraining Dhan Singh from interfering with their possession over plot Nos. 30 and 34/1 and in the alter native for the relief of possession. A similar suit was filed by Mushtaq Ali being suit No. 227 of 1953 in respect of plot No. 31 and remaining part of plot No. 34/1. Both these suits were contested by Dhan Singh and were dismissed. On appeal, however, the suits were remanded to be decided afresh but before they could so be decided the consolidation proceedings intervened and the suits were stayed.
(3.) THE claim of Dhan Singh before the Consolidation Officer was contested by Jamshed Ali and Mukarram Ali as well as by Mushtaq Ali. The Consolidation Officer did not accept the claim of Dhan Singh that he was grove-holder of the plots in dispute. He, however, held him to be sirdar thereof on the basis of his long possession and di rected his name to be recorded as such over all the three plots. On appeal the Settle ment Officer (Consolidation) rejected the claim of Mushtaq Ali but allowed that of Jamshed Ali and Mukarram Ali. In second appeal the claims of Mushtaq Ali as well as of Jamshed Ali and Kallu were accepted and both the objections of Dhan Singh were dis missed. Dhan Singh filed two revisions both of which were dismissed by the Joint Director of Consolidation. He thereupon instituted two writ petitions in this Court. A learned Single Judge held that claim of Mawazish All and Kallu who were sons and heirs of Mush taq Ali that Dhan Singh was not hereditary tenant of the plots in dispute was barred by res judicata on account of the decision in Suit No. 303 of 1951. He, however, reject ed the contention of Dhan Singh that the claim of Jamshed Ali and Mukarram Ali also was barred by res judicata on account of the said decision. The learned Single Judge also took the view that it was neces sary to determine as to whether any portion of plots in dispute was grove in order to determine the effect of Section 30 of the U. P. Tenancy Act. On these findings he quashed the orders of the Joint Director of Consolidation and the Deputy Director of Consolidation and issued a direction to the Deputy Director of Consolidation to decide the rights of the parties afresh. Against the said judgment Dhan Singh has filed Special Appeals Nos. 1056 of 1967 and 1058 of 1967, Nawazish Ali and Kallu have filed Special Appeal No. 1070 of 1967 and Jam-shed Ali and Mukarram Ali Special Appeal No. 1071 of 1967.;