- (1.) S. N. Srivastava, J. Both the petitions have their origin in reference under Section 48 (3) of the U. P. Consolidation of Holdings Act. The Petition No. 13487 of 2003 has been preferred by Smt. Gulabi Devi impugning order dated 31-1-2003 passed by the Deputy Director Consolidation and the order dated 4-12-2002 passed by the Settlement Officer Consolidation in reference Case No. 39. The other petition namely Writ Petition No. 17170 of 2003 has been filed by Ram Charittar impugning the order dated 9-4- 2003 passed by the Settlement Officer Consolidation by which the stay of proceeding for restitution by way of reference under Section 48 (3) of the U. P. Consolidation of Holdings Act sought by the petitioner Charittar Singh was declined by the Consolidation authority afore stated.
(2.) THE facts forming background to the present petition are that Smt. Gulabi Devi and Ram Charittar were recorded in Khata No. 29 in the basic year Khatauni which comprised Plot Nos. 31/1, 93, 94 and 282. By means of order dated 11-12-1989 passed in Case Nos. 1496 and 1497 by the Consolidation Officer Rambagh Mirzapur, Smt. Gulabi Devi widow of Krishna Prasad was pronounced entitled to 2/3rd share. Subsequently, Case No. 378 came to be instituted in which the Consolidation Officer passed order dated 25-7-1990 thereby directing deletion of the name of Smt. Gulabi Devi. This order proceeded on the assumption that Smt. Gulabi Devi entered into some compromise hereby relinquishing her share to the above extent. An appeal was preferred by Smt. Gulabi Devi against the said order before the Settlement Officer Consolidation which culminated in being allowed vide order dated 15-2-1997. This order aggrieved Charittar Singh who preferred revision. THE decision rendered in revision culminated in setting aside of the orders passed by the Settlement Officer Consolidation and Consolidation Officer and the matter was relegated to the Consolidation Officer for decision afresh on merits. THE Consolidation Officer in turn rendered decision leaning in favour of Smt. Gulabi Devi according to which basic year entry was maintained. An appeal came to be filed against the said decision, which it is alleged, is pending decision, before the Settlement Officer Consolidation. In the meanwhile, reference was processed by the Consolidation Officer for maintaining basic year entry and for restitution of possession to the petitioner but Consolidation declined reference to Deputy Director of Consolidation by means of order dated 4-12-2002 against which Smt. Gulabi Devi preferred revision. THE order rendered in revision was one of affirmance thereby revision was dismissed vide order dated 3-1-2003. It is in the above backdrop that Smt. Gulabi Devi preferred the present petition. On the other hand, as stated supra, the subject matter of impugnment in the petition preferred by Charittar Singh is the order dated 9-4-2003 by which the Settlement Officer Consolidation rejected the application for stay of Reference proceeding. I have heard the learned Counsel representing the respective parties and perused the record. The learned Counsel appearing for Smt. Gulabi Devi canvassed that both the parties were recorded as tenure holders in the basic year. Subsequently, Ram Charittar maneuvered and succeeded in obtaining deletion of the name of Smt. Gulabi Devi on the basis of concocted compromise. Since the order from which stemmed the action of deletion of the name of Smt. Gulabi Devi has been rendered nugatory, basic year entry should be maintained and Smt. Gulabi Devi, proceeds the submission, ought to be restituted in possession over the property from which she was ingeniously ousted on the basis of a forged decree. The learned Counsel further submitted that the order passed by the Settlement Officer Consolidation thereby declining to make reference to the Deputy Director Consolidation for maintaining basic year entry and for restitution of the petitioner in possession is without any valid justification and therefore it is vitiated and is liable to be quashed. Per contra, Sri K. K. Chaurasiya Counsel representing Ram Charittar and others, contended that since appeal is still subsisting before the Settlement Officer Consolidation, the proceedings for restitution by way of reference under Section 48 (3) of the U. P. Consolidation of Holdings Act should be put on hold. He further contended that the U. P. Consolidation of Holdings Act is conspicuous by absence of any provision for restitution and further that since village has been notified under Section 52 of the U. P. Consolidation of Holdings Act, reference as sought to be made is not permissible in law. The neat question that emerges for consideration is whether reference under Section 48 (3) of the U. P. Consolidation of Holdings Act for restitution could be acted upon particularly having regard to the fact that both the parties were recorded in the basic year and subsequently, expunction of the name of Smt. Gulabi Devi was induced by forged compromise notwithstanding the fact that the village has notified under Section 52 of the U. P. Consolidation of Holdings Act.
(3.) IN connection with the proposition that the U. P. Consolidation of Holdings Act does not contemplate provision of restitution, I feel called to refer to the decision of this Court in Uma Shanker v. Dy. Dir. of Consolidation, 1982 RD 172, in which learned Single Judge was seized of similar question relating to doctrine of restitution on reversal of judgment. The quintessence that flows from the said decision is that the reference under Section 48 (3) of the U. P. Consolidation of Holdings Act for restitution on reversal of judgment is maintainable in law. The learned Single Judge converged to the conclusion by reason of reliance being placed on Full Bench decision reported in AIR 1975 Alld. 102 (FB), and also on a decision reported in AIR 1954 Cal. 13. The relevant paragraph elucidating on the vexed question is abstracted below for ready reference: ". . . . . . . The doctrine of restitution, which Section 144, CPC incorporates, is based on the principle that the acts of Court should not be allowed to work injury on the suitors; According to doctrine of restitution the reversal of judgment of Court raises an obligation on the party who receive, the benefit of erroneous judgment to make restitution to the other party for what he had lost and it is the duty of the Court to enforce that obligation. The obligation arises automatically on the reversal for modification of the decree or order and necessarily carries with it the right of restitution of all that has been done under the erroneous decree or order passed in any suit, or proceedings or in appeal or revision and the Court in making restitution is bound to restore the parties to the same position they were in at the time when the Court by its erroneous action had displaced them. Broadly speaking, it is the right of a party to be placed in the same position which he occupied before the decree or order, which has subsequently been varied or reversed. The successful party in restoration proceedings is entitled to be restored to property free from all encumbrances and restitution should be enforced not only against the party but also against persons deriving title from him. " The learned Judge in taking the aforestated view was reinforced by the ratio flowing from authoritative decisions in Ganga Dhar and others v. Raghubar Dayal and others, AIR 1975 All 102 (FB); Puvvada Changayya v. Sub-collector, AIR 1966 Andhra Pradesh 4; Ram Prasad Rajghari v. British INsulated Calender's Cables Ltd. , AIR 1954 Cal. 13; Dr. Mart and Ramchandra, Potdar v. Dr. Dattatarya Ram Chandra Potdar, AIR 1957 Bom 237, and in the ultimate analysis, observed that "even if it be held in the instant case that an application under Section 144 C. P. C. would not lie, still such powers could be exercised by the Court on the same principles enshrined in Section 144 CPC. " In the facts and circumstances, I feel inclined to notice the substance of what has been observed in Ganga Dhar and others (supra ). In the case, Full Bench held that Section 144 is not exhaustive and restitution can be granted by the Court under its inherent powers. It was observed by the Full Bench that on the authority of established principle and on the principle contained in the maxim 'actus curia neminem gravabit', it is really the duty of the Court to grant restitution under its inherent powers when a person has been deprived of his property due to an order of Court which has subsequently been varied or reversed as being erroneous even if such party could not invoke the powers of the Court under Section 144. Similar view was echoed by the Division Bench of Andhra Pradesh High Court in Puvvada Changayya v. Sub-Collector, wherein it was held that there is an inherent power in every Court to grant restitution when justice of the case demands, because Court would not be allowed to work injury on the suitors where its order which granted a relies to a person has been varied or reversed. It was observed that where certain actions are taken as a consequence of orders passed which are subject to appeal or are liable to be quashed, the very object of reversing or setting aside these orders is to restore the parties to status quo ante existing at the time when the proceedings commenced. It is worthy of notice that the above observations stemmed from the contention raised on behalf of the Opp. parties that the writ petition became infructuous as there was no provision in the Andhra Tenancy Act for restoration of the possession to the tenant even where the order of eviction is quashed by a writ petition. In Ram Prasad Rajghari (supra), it was held by the Division Bench of Calcutta High Court that though the Rent Controller was not a Court within the meaning of the Civil Procedure Code and hence Section 144, CPC could not in terms apply to the case, it was manifestly just and proper that the provisions of restitution that are incorporated in Section 144 should apply to the Rent Controller and the amount should be refunded to the tenant. Likewise in Dr. Martand Ramchandra Potdar (supra), learned Single Judge of the Bombay High Court observed that the word 'restitution' in Section 144, connotes restoration to a party on the variation or reversal of decree, what has been lost to him in execution of the decree or directly in consequence of that decree, though not through proceedings under it. It was further observed that the right arises automatically on the reversal or modification of a decree on appeal and necessarily carries with it the right to restitution of all that has been done under the erroneous decree.;