- (1.) S. N. Srivastava, J. This petition having been instituted in the year 1975, praying for the relief of quashing the judgment and orders dated 7-2-1975 and 30-10-1974 passed by Deputy Director Consolidation and Settlement Officer Consolidation respectively, has matured for hearing in the year 2004. On its institution in this Court, the learned Single Judge while issuing notice was pleased to grant interim order to the effect that the petitioners' Chak may not be disturbed. The aforestated interim order still holds good.
(2.) THE dispute in the instant petition relates to Gata No. 178. In the basic year entry, the names of petitioners were recorded to which Gulab Chand who was then arrayed as respondent No. 3 preferred objection before the Consolidation Officer. THE matter pending before consolidation officer culminated in decision in favour of petitioners. It would appear that the decision was founded mainly on the ground that ex parte decree earlier granted in favour of the petitioners operated as res judicata and consequently, held the petitioners Sirdar. Aggrieved by the decision of the Consolidation Officer, Gulab Chand respondent went up in appeal before the Settlement Officer Consolidation who reversed the decision of the Consolidation Officer and directed name of Gulab Chand to be recorded in the revenue record. This led to filing of revision by petitioners before the Deputy Director Consolidation who affirmed the decision by the Settlement Officer Consolidation. It is in the above perspective that the present petition came to be filed. THE facts anterior to it were that petitioners instituted suit No. 316 of 1968 under Section 229-B of the U. P. Z. A. & L. R. Act in relation to aforestated plots on 17-6-1968. THE suit aforestated culminated in ex parte decree on 15-10-68. On the part of Gulab Chand respondent, a suit was instituted in relation to plot No. 178 under Section 229-B of the U. P. Z. A. & L. R. Act and in this suit, the petitioners entered appearance with the plea that they had instituted suit and had already obtained an ex parte decree. On being made aware by the plea, the respondent Gulab Chand preferred application for annulling ex parte decree on 7-3-1970 and thereafter, filed restoration application on 27- 8-1972 seeking restoration of proceeding. THE suit instituted by Gulab Chand ultimately abated under Section 5 (a) of the U. P. Consolidation of Holdings Act. The learned counsel for the petitioners premised his submission by stating that ex parte decree passed in the suits instituted under Section 229-B of the U. P. Z. A. & L. R. Act had attained finality and in proceeding under the Consolidation Act, those decrees were fraught with the consequence of operating as res judicata. He further submitted that the names of the petitioners were recorded in the revenue record in the basic year as Sirdar and by this reckoning, the opposite parties were not entitled to any claim over the land nor they had acquired any right in relation to the land in dispute. It was further canvassed that the Consolidation Officer rightly held that the ex parte decree operated as res judicata and dismissed the objection of respondent Gulab Chand while the Settlement Officer Consolidation and Deputy Director Consolidation concurrently took erroneous view upturning the decision of the Consolidation Officer. He also canvassed that restoration application was filed quite belatedly and the respondent had acted tardily and therefore, he could not given any advantage on this score. In support of their case, the learned counsel also adverted to irrigation receipts etc. The learned counsel also tried to put strength into his case by relying upon various decisions on the point, which shall be dealt with in the latter part of the decision. Per contra, learned counsel representing the respondents counteracted the submissions by submitting that entire action of obtaining ex parte decree was pursued clandestinely and the respondent Gulab Chand gained knowledge of ex parte decree while he instituted suit under Section 229-B of the U. P. Z. A. & L. R. Act in relation to Gata No. 178 and initially he preferred application for recalling the ex parte decree and when he could not succeed, he preferred restoration application and by this reckoning, delay was not inordinate as claimed by the learned counsel for the petitioners. It was further submitted that the petitioners could not establish that their possession was not in accordance with law and by any reckoning, they had perfected their right. It was further canvassed that the entries were fraudulent and had stemmed from mischief and fraud practiced in collusion with the revenue officials. The attention of the Court was also drawn to the fact that neither P. A. 10 was prepared nor was it served to the respondent and ex parte decree was obtained by playing fraud. Judicial precedents have been copiously cited on both sides in vindication of their respective contentions. Before scanning the various decisions cited across the bar, it would be appropriate to traverse upon the aspect whether the possession of the petitioners was otherwise than in accordance with law. The entire claim of the petitioners hinges on adverse possession. The law is well enunciated that if the procedure is prescribed for doing a thing, that thing must be done in the manner prescribed. The khasra entries have to be made in due compliance of the requirements of the Land Record Manual. It bears no repudiation that Land Record Manual exacts issuance of P. A. 10. It is also the requirement of Land Record Manual that entries of possession be made in Khasra with notice to the tenure holder. In case the requirements of Land Record Manual are not complied with, the entries of possession made in Khasra would be fraught with the consequence of vitiating the order if passed in antagonism of the provisions of the Land Record Manual. The test of Khasra entries having been made in observance of related provisions of the Land Record Manual lies in the fact that it must be seen that extracts of P. A. 10 have been issued and served and that Khasra entries have been made with notice to the tenure holder. In this connection observation of the Court in Ram Sakal v. State of U. P. , 1987 RD 254, is noteworthy which may be quoted with approval : "a provision has been rightly incorporated in Land Record Manual that extract of P. A. 10 be issued and served on the recorded tenure holder in respect of the entry recording possession made in favour of a trespasser. If there is no sufficient evidence on record with regard to the notice to the tenure holder about existence of trespass over his land through service of extract of P. A. 10 upon him as required under the provisions of Land Record Manual, there should be every reason to suspect entries in the record to have been manipulated and fictitiously got recorded. " In the instant case, it would appear that the Khasra entries came to be recorded without compliance with the related provisions of Land Record Manual inasmuch as there is nothing on the record to indicate that extracts of P. A. 10 were served to the respondent or that entries of possession were made in Khasra by serving notice to the tenure holder and by this reckoning, the conclusion is irresistible that the entries were procured by the petitioners surreptitiously and fictitiously without knowledge thereof to the respondent No. 3.
(3.) COMING to the next submission advanced across the bar by the learned counsel for the petitioners, it is worthy of notice that finding recorded by the Deputy Director Consolidation that the petitioner did not mature his rights by completing a span of six years as exacted under amendment to Schedule (1) by notification dated 27-3-1959 on the date of institution of suit, is a finding of fact. It is also explicit from the record that there is no mention or reference to P. A. 10 in the years 1370 and 1372 Fasli and the suit itself was filed on 17-6-1968 which corresponds to 1375 Fasli. By this reckoning, on that date the petitioner had not completed six years of possession. The argument that the petitioner endured in possession even thereafter also and therefore, his possession shall be deemed to be continuous and petitioner shall be deemed to have perfected his title by adverse possession does not commend to me for acceptance. In this regard, I feel called to refer to a decision of learned Single Judge of this Court in Smt. Muradan v. Board of Revenue U. P. , 1973 RD 415, the quintessence of what has been ruled is that period of limitation remains suspended during consolidation proceedings. In another decision in Ragho Prasad v. Pratap Narain Agarwal, 1969 ALJ 975, a Division Bench of this Court held the view that adverse possession does not continue to run and will be arrested in time after institution of suit so as to prescribe title in favour of defendant. It was also observed that if defendant remained in possession even after institution of the suit that period cannot be counted for the purpose of adverse possession. Similar is the position relating to consolidation. The finding recorded by the Deputy Director Consolidation is a finding of fact and as held by the Apex Court in Rena Drego v. Lal Chand Soni, AIR 1998 SC 1990, the High Court cannot disturb finding of fact recorded by the lower Court. Yet another point urged by the learned counsel for the petitioner that ex parte decree rendered under Section 229-B of the U. P. Z. A. & L. R. Act operates as res judicata and is of binding effect between the parties and further it inhibits the consolidation authorities to go behind the ex parte decree in the consolidation proceeding. In reply to the above submissions, Sri Triveni Shanker contended that ex parte decree in the facts and circumstances, is neither binding on the Court nor respondents are shackled by the principles of estoppel and the Deputy Director consolidation has rightly eschewed from consideration that on the date of ex parte decree, mandatory requirements of completion of six years period for maturing rights by reason of being in adverse possession i. e. otherwise than in accordance with law, were not satisfied. In connection with the above contentions, it is necessary to scan the necessary ingredients for applying the principles of resjudicata to a particular situation. 'resjudicata' is founded upon two maxims of the law, one of which is that a man should not be twice vexed for the same cause and the other that it is for the public good that there be an end of litigation. In this connection, the principle is that the decision of a Court of competent jurisdiction upon a point, which is or should have been construed as necessarily involved is final and conclusive. In Section11 of the C. P. C. , following ingredients are postulated as necessary ingredients for applying the principles of res-judicata; (i) a matter which has been directly and substantially in issue in a suit has been a matter directly and substantially in issue in a former suit (ii) between the same parties and (iii) in a Court competent to decide the subsequent suit. Explanation III to Section 11 of the C. P. C. envisages that matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. Reverting to the facts of the instant case, the cause of action for ex parte decree was the possession otherwise than in accordance with law. As held above, the petitioner had not matured his title by completing six years' statutory period as required by Amended Schedule I on the date of filing of the suit. There is not a vestige of evidence on record to show that notices were served to the defendant. Even from a perusal of the order rejecting application to recall ex parte decree, it would be eloquent that the Authority did not record any finding about service of notice and it was simply rejected on the ground that they had knowledge of the ex parte decree and made amendments in their own suit challenging that ex parte decree under Section 229-B of the Act which ultimately abated. Hence application for setting aside ex parte decree was rejected only on the ground of limitation. It cannot be said that there was a cause of action on the date of filing of the suit due to non- completion of the period of six years, which was a requirement for maturing the rights as sirdar. As there is no finding that notices were served personally or in accordance with law and there was no contest at all. As there was no service of notice, the question of denial or admission expressly or impliedly by the defendant as required under Explanation III to Section 11 did not arise. The opposite party has not produced copy of judgment and decree to show whether decree was passed after considering the merits of the claims of the plaintiff on the basis of evidence on record in accordance with law. In the circumstances, it follows that mandatory requirement of possession for a period of six years must be established adverse to the main tenure holder. As discussed above, there was no entry for six years and further that on the date of filing of the suit there was no cause of action to get adjudication on Sirdari rights on the basis of adverse possession and therefore the ex parte decree being in antagonism of the statute and cannot be considered to be final decision on the cause of action of Sirdari right for which no cause of action arose for having not completed six years and suit was instituted without any cause of action, does not furnish foundation for conferring any right. So far as estoppel is concerned in the present case, there is no evidence on record to show that by remaining absent, implied consent of defendant in the suit under Section229-B was there and ex parte decree was passed. There is also no evidence to show that defendant acted on ex parte decree and his action is bound by principles of estoppel. In the facts and circumstances of the case, neither there is any estoppel nor res judicata of the aforesaid ex parte decree.;