S.R.Singh - (1.) THIS writ petition arises out of proceedings under section 9-A (2) of the U. P. Consolidation of Holdings Act in respect of land comprising basic khatauni khata no. 156 area 86 bighas and 9 biswas situate in village Tudihar, Pargana Khairagarh, district Allahababad and is directed against' the concurrent judgments and orders dated 18-10-1979. 2-2-1980 and 28-8-1980 passed by Consolidation Officer, Koraon, Assistant Settlement Officer Consolidation, Meja and the Joint Director of Consolidation, Allahabad respectively.
(2.) RELEVANT and material facts being necessary to appreciate the question involved in the case and raised a) the Bar, may be unfolded as below : (A) Shiv Narain, the common ancestor of the petitioners and respondents no. 4 to 9 had six sons, namely, Ramdin, Sampati, Harchand, Krishna, Ram Chandra and Dhanuk. There is none in the branches of the last three amongst the sons of Shiv Narain. Ranndin had four sons Madha, Parmeshwar, Basudeo and Gokul. There is none in the branches of Madhav and Gokul. Chhote Lal respondent no. 9 (since dead and now represented by L.Rs Mohan Lal and Sone Lal) was the son of Parmeshwar. Hinch Lal, Jagannath and Hira Lal, the petitioners, are the sons of Basudeo. Sampat, the second son of Shiv Narain had a son Kunj Behari whose son is Chauharja Prasad, the 4th respondent. Harchand son of Shiv Narain had two sons Gomti and Jayanti. Raj Narain, Lalji, Ram Kishore and Ram Sukh (the respondents no. 5 to 8) are (he sons of Gomti, There is none in the branch of Jay anti; (B) The property in dispute was admittedly acquired by Shiv Narain and was recorded as his 'Maurusse' tenancy on 1282-F. In fact Shiv Narain was the tenant of land admeasuring 100 bighas and 15 biswas including the land comprising the khata in dispute. Ramdin son of Shiv Narain was recorded as occupancy tenant of 83 plots in 1308-F admeasuring 85 bighas and 5 biswas out of the 96 plots admeasuring 100 bighas and 15 biswas of the land of which Shiv Narain was recorded as occupancy tenant in 1282-F. Parmeshwar son of Ramdin and Jagannath, Hinch Lal and Hira Lal sons of Basudeo were recorded as hereiditary tenants in 1356-F of the same land; (C) Gomti son of Harchand instituted a suit under section 59 of the U. P. Tenancy Act, 1939 against Basudeo and Parmeshwar sons of Ramdin, Jayanti son of Harchand and Chauharia son of Kunj Behari impleading 20 others who were the Zamindars. Gomti, the father of contesting respondents no. 5 to 8 claimed to be co-tenant of the land in dispute along with defendants no 1 to 4 in the said suit under section 59 of the U. P. Tenancy Act, 1939. The suit was contested by Parmeshwar and Basudeo, who filed joint written statement pleading therein that the common ancestor Shiv Narain had 100 bighas and 15 biswas of the land in his holding out of which a large area was 'parti'. It was alleged by them that some 40 years ago Harachand the father of Gomti separated from the family after taking 10 bighas of land which was of good quality leaving the remaining land with the remaining sons of Shiv Narain. The suit was dismissed by the Revenue Officer vide judgment and decree dated 14-2-1944 with the following finding : "Harchand the father of the plaintiff separated from the family about 40 or 41 years ago taking plots nos. 382, 386, 387, 388, 389 and 514 as his share of the holding of Shiv Narain, his father. Later on he appears to have acquired some more land which are included in the khata of his son Gomti. He took only 9 bighas and 110 biswas less than his proper share, because these plots consisted of a good quality of land". (D) It was also held by the Revenue Officer that the plaintiff was not in possession of any portion of the suit land. The matter was, however, taken up in appeal and during the pendency of the appeal an agreement signed by Gomti, Parmeshwar and Jagannath was entered into to refer the matter to arbitration. By the 'arbitration agreement' dated 8-6-1944 they voluntarily appointed Ram Sunder anfli Ram Kumar sons Chhatradhari, Bindeshwari son of Sadhu and Ram Partial son of Shiv Jatan as Punches and Brij Kishore Lal son of Kamta Prasad for settlement of their dispute. The relevant portion of the 'arbitration agreement' is quoted below : "........PANCH VA SARPANCH HAM ARE MUKADMAt COMMISSIONARY ME DAYAR HAI PAIROKARI KARE WAH FANSLA KAR DAYEE WAH HAM LOGON KO MANZUR HAI IS WASTE KARARNAMA LIKHA DIHAI WAETA PER RAM AWE..." The arbitrators gave an award the same day i.e. 8-6-1944. The award reads as below : Nishani Angutha Jagannath Sd- Parmesh Ram. "Hum Panchan ko dono Pharakccn ne Panoh apnl Zamin ke ghagrhe ke phaisley ke liye mukarrar kiya hal jiska ekrarnama bhi kiya hai, lihaza hum Panchan Sab sun Samajh kar ek raay bo kar Phaisla karte hain ki jo aaroji ka Dawa Dafa 59 me Gomti ne kiya hai us mein uska Tihawa htssa hat- Appeal ki Gomti Palravi na karen wah khariz ho Maal Guzari ka htsaab Cbukta wa Bebah ho gaya hai Gamti apna naam kagaz mein Charwa ley, Mukadmein ka kharcha apna apna bardasta karen. Phaisla sunaya gaya. Sd-Ram Kumar, Sd-Ram Sunder Sd-Bindesbwari, Sd- Ram Partal Sd- Brij Kishore. Dated 8-6-44 (E) In 1955 an application was moved by Gomti under section 33/39 of the U. P. Land Revenue Act In the Court of Tehsildar. Meja, Allahabad. There in that case a compromise application was filed on 24-1-1956. The compromise application was jointly signed by Gomti, Parmeshwar, Jagannath, Hinch Lal and Hira Lal. The contents: of the compromise application being relevant for the purposes of discussion of the submission made at the Bar, are quoted below ( Mukadma haza me gujaris hai ke arajiyat sehat talab paida Karwa Shlv Naraln maris ala ka hai Aur ferikan unhe ke waris hai. Arajiyat sehat talab me se Aarajl numbari 610-3 bigha 18 biswa par tanaha kabza dakhal Parmeshwar wa Jagannath ke bai, (Gomti Sayal ka nehi hai). Aur na is number se Gomti se koi taluk kai. Bakia numbaron me se 29 bigha 3 biswa par alag ajrua batoara khangi kabja wa dakhal Gomti Sayal ka hai aur kisi ka nahi hai. Lihaja sulahnama dakhll kar ke umidwar hal ke Gomti Sayal ka nam bhi Parmeshwar wagaira ke sath darj kiya jaje Farikon ko manjoor hai. (F) On the basis of the aforesaid application filed under section 33/39 of the U. P. Land Revenue Act, Tehsildar appears to have passed an order on 30-3-1956 on the basis whereof the name of Gomti was entered in the revenue papers along with Parmeshwar, Jagannath, Hira Lal and Hinch Lal ; (G) On 30-5-1956 the petitioner Hira Lal filed a suit under section 229-B of the VP ZA and LR Act for a declaration of his rights challenging the correctness of the revenue entry in favour of the respondents no. 5 to 8. The suit was dismissed by the trial court. The decree of the trial court was maintained by the Additional Commissioner. But the suit abated under section 5 of the U. P. Consolidation of Holdings Act at the second appellate stage before the Board of Revenue due to commencement of consolidation operation in the village as a result of Notification issued under section 4 (2) of the U. P. Consolidation of Holdings Act; (H) On the publication of statement of principles two sets of objections were filed; one by Chauharja Prasad sou of Kunj Behari claiming 1 /3rd share in the khata in dispute and the other by Chhote Lal, Jagannath, Hinch Lal and Hira Lal challenging the right, title and interest of the respondents no. 5 to 8 in the land in dispute on the same very ground on which their predecessors had contested the suit filed by Gomti under section 59 of the U. P. Tenancy Act. They also opposed the claim of Chauharja Prasad on the ground that he had become 'Sadhu' and abandoned his right, title and interest in the property; (I) The respondents no. 5 to 8 fled a written statement contesting the objections filed against them by the petitioners and respondent no. 9 claiming l/3rd share in the land in dispute on the ground that it was ancestral. The Consolidation Officer allowed the objection filed by Chauharja Prasad and dismissed the one filed by the petitioners and respondent no. 9 and upheld the claim of the respondents no). 5 to 8 in the land in dispute. The petitioners as also the respondent Chhote Lal went up in appeal separately. Both the appeals were dismissed by Assistant Settlement Officer Consolidation vide order dated 2-2-1980. Chhote Lal respondent no. 9 preferred no revision and acquiesced to the order passed by the Assistant Settlement Officer Consolidation Petitioners went up in revision which was dismissed by the Joint Director of Consolidation vide order dated 28-8-1980. Aggrieved the petitioners have come to this Court under Article 226 of the Constitution However, during the course of argument, the petitioners' learned counsel accepted the impugned judgments in so far as these are in favour of respondent Chauharja Prasad and advanced no argument as against him. I have heard Sri R. N. Singh, learned counsel appearing for the petitioners and Sri Sankatha Rai, learned counsel appearing for the respondents.
(3.) SRI R. N. Singh urged that the judgment and decree dated 12-2- 1944 would operate as res-judicata and that neither the arbitration award dated 8-6-1944 nor the order dated 3-3-1956 passed by the Tehsildar on the basis of compromise dated 24-1-19.56 in proceeding under Section 33/39 of the U. P. Land Revenue Act. 1901, could obliterate the binding efficacy of the judgment and decree dated 14-2-1944 passed in respect of the land in dispute in the suit under section 59 of the U. P. Tenancy Act, 1939. According to SRI R. N. Singh arbitration award dated 8-6-1944 purport and operates to create and declare right title and interest in immovable property of the value exceeding one hundred rupees and as such proceeds the argument, it was compulsorily registrable under Section 17 (1) (b) of the Registration Act and being unregistered it was inadmissible in evidence and the consolidation authorities erred in law in placing reliance upon it being inadmissible in evidence. Learned counsel for the petitioners further urged that the document, viz arbitration award dated 8-6-1944 is a waste paper due to the reasons of the fact that it was never made the rule of the Court and the fact that the arbitration agreement was not signed by Hinch Lal and Hira Lal. As regards the compromise dated 24 1-1956 on the basis whereof the order dated 3-3-1956 was passed by the Tehsildar, the learned counsel urged that the compromise application too was inadmissible in evidence as it was compulsorily registrable within the meaning of Section 17 (1) (b) of the Registration Act in that it operates to extinguish the petitioner's interest in 29 bighas and 3 bigwas of the land and created interest therein in favour of Gomti. the father of the contesting respondents. It was urged by the learned counsel for the petitioners that the compromise and the admission made therein as to as central nature of the land in dispute were irrelevant and inadmissible in title proceeding under section 9-A (2) of the U. P. Consolidation of Holdings Act. SRI Sankatha Rai, learned counsel appearing for the contesting respondents refuted the above submissions and urged that the impugned judgments do not call for any interference by this Court under Article 226 of the Constitution.;