S. K. Singh, J. - (1.) -This writ petition has been filed with the prayer for quashing the orders passed by the Consolidation Officer dated 30.9.1976, Settlement Officer, Consolidation dated 18.6.1977 and Deputy Director of Consolidation dated 10.8.1979 (Annexures-4 to 7 respectively).
(2.) THE facts for disposal of the writ petition, in brief, can be summarised as thus : "Respondent Nos. 2 to 6 and the father of the respondent Nos. 7 to 9 were recorded in the basic year record over the land in dispute. Several objections appears to have been filed before the Consolidation Officer in proceedings under Section 9A (2) of the U.P.C.H. Act, hereinafter referred to as the Act. Ram Narayan Singh, father of respondent Nos. 7 to 9 filed objection claiming himself to be sole tenant of the land to the exclusion of the other recorded tenure holders. Other objections were filed by the vendees of a portion of the land on the basis of the sale deed which was said to be executed on behalf of the respondent Nos. 2 to 6. In the same manner one objection was filed by Budhiram predecessor of the petitioner also for entry of their name over 3/8 share on the basis of the sale deed dated 27.6.1967 executed by respondent Nos. 2 to 6. All the objections, referred above were rejected by the Consolidation Officer by his judgment dated 21.8.1969, against which several appeals were filed before the Settlement Officer Consolidation, who also dismissed the same by judgment dated 24.11.1969, against which matter was taken to the revisional court, who dismissed the revision by his judgment dated 23.11.1970. THEre appears to be no dispute that against the judgment of the Deputy Director of Consolidation dated 23.11.1970, referred above only Ram Narayan Singh filed writ petition before this Court which was ultimately got dismissed as not pressed. Nobody else including the predecessor of the petitioners came to this Court challenging the order of the consolidation authorities rejecting their objection in proceedings under Section 9A (2) of the U.P.C.H. Act, appeal and revision. After judgment of the Deputy Director of Consolidation dated 23.11.1970, rejecting the objection under Section 9A (2) of the Act filed by the petitioner's predecessor Budhi Ram having become final it appears that petitioner filed objection under Section 12 of the U.P.C.H. Act in the year 1976 which appears to be clear in view of the mention of the case number in the judgment of the Consolidation Officer i.e., Case No. 509 C.O. of 1976. Petitioners claim their right over 3/8 share in the land on the basis of the same sale deed dated 27.6.1967. Objection was filed to the claim of the petitioners by respondents mainly on the ground that their claim on the basis of the sale deed dated 27.6.1967, has already became final and now it cannot be re-agitated and objection in this respect is not maintainable. THE objection to the claim of the petitioner succeeded and the Consolidation Officer rejected petitioner's claim by order dated 30.9.1976, against which appeal was filed which was also dismissed on 18.6.1977 and revision also failed vide judgment dated 10.9.1979. It is these three judgments of the consolidation authorities which are under question before this Court. Learned counsel for the petitioner submits that all three Courts have erred in rejecting petitioners' objection/claim by taking view that it is barred by principle of res-judicata. It is argued that filing of the objection by the petitioners under Section 12 of the U.P.C.H. Act was always available to them and, therefore, the courts below in not examining the claim of the petitioners on merits have erred in law. It is also submitted that although sale deed is dated 27.6.1967 and bhumidhari sanad was issued on 10.5.1971 but as on 15.4.1967, vendees have deposited the required deposit for getting bhumidhari sanad it has to relate back on the date of deposit in view of the Full Bench decision of our own Court as was given in case of Banshidhar v. Smt. Dhirajadhari and others, 1971 RD 371. In support of the submission that in the proceedings under Section 12 of the U.P.C.H. Act all the matters related to title is to be examined and on the facts consolidation authorities have erred in rejecting petitioner's claim, reliance has been placed on the decisions given in case of Vishwanath Pandey and others v. 1st Additional District Judge, Ghazipur and others, 1982 ALJ 175 ; Shanker Lal Jakodia v. M/s. Ram Krishna Baldeo Prasad and another, AIR 1971 All 250 and in the case of Malkhan Singh v. Sohan Singh and others, AIR 1986 SC 500. In response to the aforesaid submission learned counsel for the respondent submits that the objection which was filed in proceedings under Section 9A (2) of the Act by the predecessor of the petitioner was finally rejected by the consolidation courts on the merits and therefore, it was open for the petitioners to have challenged those orders before this Court but the same having been permitted to become final, now filing of objection under Section 12 of the U.P.C.H. Act and prayer to re-examine the petitioner's claim clearly amounts to re-adjudication on the same cause of action which cannot be said to be legally permissible and otherwise also, it is clearly barred under Section 11A of the U.P.C.H. Act. It is submitted that merely there is change in law and it has been held that sanad is to be effective from the date of deposit, on grant of sanad seerdar is to be treated as bhumidhar if the dispute has already been decided and matter has become final the parties cannot be permitted to claim any change by filing fresh application/ objection and therefore, it is argued that Courts have rightly rejected petitioner's claim. In support of the submission that by change of law or by a decision by which earlier law has been overruled no review in respect to the rights of the parties can be permitted, reliance has been placed on decision as has been given in case of Shanti Devi v. State of Haryana and others, JT 1999 (10) SC 285. Another decision has been referred as has been given by this Court in case of Babu Lal v. Smt. Janaki and others, 1966 RD 65, for the submission that orders passed in the proceedings under Section 9A (2) of the U.P.C.H. Act will operate as res-judicata.
(3.) IN view of the aforesaid factual matrix, arguments as has come on the record the question which requires attention of this Court is that whether after dismissal of the objection in respect to the claim of the petitioners in proceedings under Section 9A (2) of the U.P.C.H. Act whether objection under Section 12 of the Act can be said to be maintainable. There appears to be no dispute about the fact that petitioner's predecessor filed objection under Section 9A (2) of the Act claiming 3/8 share in the land on the basis of same sale deed dated 27.6.1967, but the claim was rejected by the Consolidation Officer on the ground that the land in dispute being seerdari in nature, he cannot be given any valid right over the land in dispute. There also appears to be no dispute about the fact that at that point of time that was legal position which was prevailing and thus, the appeal and revision filed against the judgment of the Consolidation Officer also failed. Petitioner's predecessor have not chosen to challenge the judgment of the consolidation courts rejecting their claim by taking recourse to the writ jurisdiction of this Court and he permitted the rejection of his claim to be final. One Ram Narayan Singh, father of the respondent Nos. 7 to 9 claiming exclusive right in the land, who was held to be co-tenure holder came to this Court against the judgment of the consolidation authorities, referred above, but he also could not succeed. IN view of the aforesaid, it is clear that that petitioner's predecessor laid his claim under Section 9A (2) of the U.P.C.H. Act on the basis of the sale deed dated 27.6.1967, but he could not succeed. Now it is after several years, the present objection under Section 12 of the U.P.C.H. Act on behalf of the petitioners came to be filed, which again generated the dispute ending the same this time, not on the merits but on the ground that the adjudication of the petitioner's claim on the merits will amount to re-opening of the finality as attached to the earlier decision, and thus it is clearly barred. On examination of Section 11A of the U.P.C.H. Act the contention of the petitioner deserves rejection. At this stage, it will be useful to quote the provisions of Section 11A of the U.P.C.H. Act. Section 11A. Bar on objection.-No question in respect of : (i) claims to land ; (ii) partition of joint holdings, and (iii) valuation of plots, trees, wells and other improvements, where the question is sought to be raised by a tenure-holder of the plot or the owner of the tree, well or other improvements recorded in the annual register under Section 10. Relating to the consolidation area, (which has been raised under Section 9 or which might or ought to have been raised under that section), but has not been so raised, shall be raised or heard at any subsequent stage of the consolidation proceedings). Provisions of Section 11A, quoted above clearly speaks that question in respect to claim of land, which has been raised under Section 9 or which might or ought to have been raised under that section, but has not been so raised shall not be raised or heard at any subsequent stage of the consolidation proceedings.;