- (1.) THESE are five connected petitions, under Art. 226 of the Constitution.
(2.) THE relevant facts, shortly stated, are as follows: Bhaiya Durga Prasad Singh, the Zamindar of village Harbaspur, gave the village on theka to Ram Awadh, father of op posite party No. 4, Yatindra Nath. The Thekadar continued in possession after the expiry of theka; Bhaiya Durga Prasad Singh filed a suit for ejectment under Section 180 of the U. P. Tenancy Act against opposite party No. 4, his mother, Ram Kali; and his uncle, Teerath Ram, which was decreed by the Court of Civil Judge, Gonda on 30th September, 1947. In execution of the decree possession was obtained by the decree-holder over specific plots (which are in dispute), on 27th June, 1948. Against the judgment and decree dated 30th September, 1947 an appeal filed in the High Court was pending on the date of vesting. Under Rule 4 (2) (v) of the U. P. Zamindari Abolition and Land Reform Rules, 1952 the proceedings in the High Court remained stayed and on 10th February, 1959, the proceedings abated by an order of the Court under Rule 5 (1) of the aforesaid Rules. During the interval between the decree passed by the Civil Judge, Gonda and the order of abatement made by the High Court, the Zamindar had settled the plots in dispute with the petitioners conferring upon them hereditary rights; the settlement made before the date of vesting law, according to the petitioners, commenced from 1359 Fasli. On 3rd June, 1959 opposite party No. 4, filed an application in the Court of the Civil Judge. Gonda under Section 144 of the Code of Civil Procedure for re-delivery of possession to him over the plots in dispute. A warrant for delivery of possession was issued by the Civil Judge, Gonda under Order XLI, Rule 35, Civil P. C. on 21st September, 1960, fixing 5th November, 1960 for report and compli ance. On 5th November, 1960 the Civil Judge, Gonda made the order on the applica tion : "Delivery of possession has been made. Let record be consigned." To these proceedings under Section 144, Civil P. C. the petitioners or their predecessors were not par ties and there is also no evidence to show that actual possession was obtained by op posite party No. 4 against the petitioners in the proceedings under Section 144, Civil P. C. Consolidation operations commenced in village Harbaspur by a notification made under Section 4, on 26th February, 1966. In the basic year the names of the petitioners were found recorded in the khatauni as sirdars. Objections were filed under Sec. 9 of the U. P. Consolidation of Holdings Act by opposite party No. 4 contending that he had been in possession of the plots in dispute for a long time, that he was the recorded oc cupant in 1356 Fasli and that he had acquir ed sirdari rights. On the contrary, the con tention on behalf of the petitioners was that they being in continuous possession from the year 1359 Fasli when the erstwhile Zamindar created leases in their favour, they acquired rights of sirdar under Section 19 of the U. P. Zamindari Abolition and Land Reforms Act with effect from the date of vesting and that, at any rate, the opposite party having not filed the suit for their ejectment under Sec tion 209 of the Act within the prescribud period, the petitioners became sirdars of the land in dispute by the application of Sec tion 210 of the Act. The Consolidation Officer, to whom the dispute was referred, held that the Zamin dar could not in law create leases in favour of the petitioners during the pendency of the appeal against the decree in suit under Sec tion 180 of the U. P. Tenancy Act and that the possession of the peti tioners was discontinued from 5th Novem ber, 1960 on which date opposite party No. 4 had obtained possession in the proceeding under Section 144, Civil P. C. Having reached these findings he directed that the name of opposite party No. 4 be entered as sirdar and the names of the petitioners expunged from the khatauni. The Asistant Settlement Officei1 (Consolidation) took a similar view. The Deputy Director of Consolidation, before whom the petitioners preferred revisions under Section 48 of the U. P. Consolidation of Holdings Act, upholding the decision of both the courts below, held that the peti tioners had not acquired sirdari rights over the land in dispute.
(3.) FEELING aggrieved against that order, the petitioners have invoked the juris diction of this Court under Art. 226 of the Constitution and have assailed the legality of the findings on the grounds taken by them before the consolidation authorities. At the very threshold it would be necessary for me to consider the nature and scope of a pro ceeding under Section 144 of the Code of Civil Procedure. The principle of the doc trine of restitution is that on the reversal of a. decree in appeal the law imposes an obli gation on the party to the suit who received the benefit of the erroneous decree to make restitution to the other party for what he had lost and that it is the duty of the Court to enforce that obligation unless it is shown that restitution would be clearly contrary to the interest or justice of the case (vide Bhagwant Singh v. Sri Kishen Das, (AIR 1953 SC 136)). The decree of reversal carried with it a right of restitution of all that had been taken under the erroneous decree in the same manner as an ordinary decree carried with it a right to have it executed. The application for restitution, as ob served by their Lordships of the Supreme Court in Mahijibhai y. Manibhai, (AIR 1965 SC 1477). is an application for execution of a decree. When a party, who loses his pro perty in execution of a decree, seeks to re cover the same by reason of the appellate decree in his favour, he has only to recover the fruits of the appellate decree. In fact, the application flows from the appellate decree and it is filed to implement or enforce the same. The transferee pendente lite is a re- presentative-in-interest of the party from whom he got the transfer. Such a transferee is not entitled to raise any claim against the decree or the order of restitution utlimately passed on the reversal of the decree. Under Order XXII, Rule 10 of the Code of Civil Procedure a transferee pendente lite may be joined as a party, but the plaintiff is not bound to make him a 'party nor has the transferee an absolute right to be joined as a party. After the decree, the transferee pen dente lite, even if not joined as a party, is tander Section 47 of the Code, a representa tive of the judgment-debtor (ie. the party against whom restitution is obtained) in all matters relating to the execution, discharge or satisfaction of the decree. This principle is recognised in Order XXI, Rule 102, Civil P. C. which does not allow a transferee pen dente lite of the judgment-debtor to make a claim in execution proceedings. In that view, it cannot be said that it was necessary for opposite party No. 4 to have brought the transferees on the record or to implead them in the application for restitution. They are thus bound by the order of restitution even in suite of the fact that they were not impleaded. The delivery of possession to the opposite party No. 4 as against the erstwhile Zamindar on 5th November, 1960, operates as actual possession against the latter which caused a break in the possession which he had obtain ed in the result of the decree which was sub sequently reversed in appeal. As a con sequence of the reversal of the decree a ten ant put into possession pendente lite is liable to be removed. There is nothing in the pro visions of the U. P. Zamindari Abolition and Land Reforms Act, 1961 (to be hereinafter referred to as the Act) which could enable the tenants, with whom the lands were settled during the pendency of the suit or proceed ing, by the erstwhile Zamindar, to assert their rights overriding the provisions of Sec. 144 and Order XXI, Rule 102, Civil P. C. This view appears to be concluded by authority.;