N. D. Ojha, J. - (1.) THE dispute giving rise to this special appeal was in respect of three plots being No. 874, 875 and 878 situate in village Bambirpur, Pargana Atrauli, district Aligarh. One Shyam Lal, who was the servant of respondents 7 to 10, made an application under Section 145 of the Code of Criminal Procedure on 26th July, 1950, in respect of the aforesaid plots. The appellants were the opposite parties in those proceedings. The Magistrate concerned on 29th Oct., 1951, passed an order under S. 146 of the Code of Criminal Procedure as it stood at that time directing the properties to remain attached till a competent Court determined the rights of the parties. These plots were to remain in possession of a supurdar appointed by the Magistrate in those proceedings during this period. Subsequently, the appellants filed a suit for declaration that they were sirdars of the plots in dispute. This suit was numbered 377 of 1953 and only respondents 1 to 6 were arrayed as defendants to this suit. On 14th July, 1954, the suit was decreed ex parte and on the basis of the declaration granted by the aforesaid decree in their favour the appellants took possession from the Criminal Court over the plots in dispute on 8th October, 1954. Subsequently, an application was made for setting aside the ex parte decree which was allowed on 6th October, 1956, and the ex parte decree was set aside. The appellants thereafter made an application for impleadment of respondents 7 to 10 as defendants to the suit whereupon these respondents were impleaded in the suit on 2nd April, 1957. Respondents 1 to 10 thereafter made an application on 4th June, 1957, before the Munsif in whose Court the aforesaid suit was pending with a prayer to deliver back possession over the plots in dispute to the supurdar who had been appointed by the Criminal Court or in the alternative, to appoint a receiver. This application was, however, dismissed on 14th July, 1957. The suit was contested by respondents 1 to 10 and was dismissed on merits on 22nd May, 1958. Respondents 1 to 10 thereafter made an application on 4th June, 1959, under Section 144 of the Code of Civil Procedure for restitution. The appellants had in the meantime filed an appeal against the decree dated 22nd May, 1958, dismissing their suit which was allowed by the Civil Judge on 17th August, 1959, whereby the decree dated 22nd May, 1958, was set aside and the suit was remanded for being decided afresh. The application under Section 144, Civil P. C. made on 4th June, 1959, was subsequently dismissed on the ground that the decree dated 22nd May, 1958, on the basis of which the said application had been made had itself been set aside. The Munsif decided the suit afresh after remand and again dismissed it on 30th January, 1960. Respondents 1 to 10 thereupon made an application on 5th February, 1960, for restitution under Section 144, Civil P. C. The prayer made in this application was for delivery of possession to them and for mesne profits. This application was allowed by the Munsif on 28th May, 1960, but was dismissed on appeal by the Civil Judge on 18th August, 1960. Respondents 1 to 10 filed second appeal No. 5185 of 1960 against the aforesaid order. Before the appeal could finally be decided the village where the plots in dispute are situate was brought under consolidation operations. Before the consolidation authorities respondents 1 to 6 claimed to be bhumidhars of plot No. 878 and respondents 7 to 10 claimed to be sirdars of plots Nos. 874 and 875. The appellants, on the other hand, claimed to be sirdars of all the three plots on the basis of adverse possession. The claim of the appellants found favour with the consolidation authorities and they were held to have acquired sirdari rights by adverse possession. The Deputy Director of Consolidation found that the respondents were in possession in 1356 and 1357 Fasli and that had the plots in dispute not been attached in proceedings under Section 145 of the Code of Criminal Procedure the respondents would have continued in possession in 1358 and 1359 Falsi and would have matured title under the U. P. Tenancy Act. He held that since the respondents 1 to 10 had failed to prove their possession from 1358 Fasli onwards, the appellants had become sirdars. Aggrieved against the orders passed by the consolidation authorities respondents 1 to 10 instituted Civil Miscellaneous Writ No. 428 of 1967 in this Court. Second Appeal No. 5185 of 1960 which had been filed by respondents 1 to 10 against the order of the Civil Judge dated 18th August, 1960, dismissing their application under Section 144, Civil P. C. came up for hearing on 30th January, 1967, and was disposed of by the following order : "This appeal arises out of proceedings under Section 144, Civil P. C. It appears that during the pendency of this appeal the village in suit came under consolidation operations and title to the land has been decided finally between the parties. In view of the final decision by the consolidation authorities, no useful purpose will be served in deciding this case on merits. The person who ultimately succeeds in proceedings for consolidation is to get the land in dispute. The rights of the parties are subject to the final decision which may be arrived at in the writ filed by the appellants in this Court. In view of the decision by the consolidation authorities this appeal has become infructuous. Accordingly it is hereby dismissed but without any order as to costs." At this very place it may also be pointed out that the appellants had also filed an appeal against the decree passed by the Munsif dismissing their suit No. 377 of 1953 after remand and the said appeal, as would appear from paragraph 8 of the counter affidavit to Civil Miscellaneous Writ No. 428 of 1967, was stayed under Section 5 of the U. P. Consolidation of Holdings Act as it stood at that time. Civil Miscellaneous Writ No. 428 of 1967 came up for hearing before a learned Single Judge who allowed it on 8th December, 1967, and directed that respondents 1 to 10 will be recorded Lover the land in dispute as claimed by them. He held that the Deputy Director of Consolidation was in error in tacking on the period of 1358 and 1359 Fasli in favour of the respondents. After the commencement of the proceedings under Section 145. Criminal P. C. the plots were in custodia legis. That possession would not automatically enure for the benefit of the person who was in possession prior to the attachment. The respondents could not mature any title by tacking on to their pre-existing period of possession the time during which the land was under attachment. Since the attachment the land was under litigation, the respondents could not validly acquire any title as sirdars.
(2.) AGAINST the judgment of the learned Single Judge the present special appeal has been filed by the persons who were plaintiffs in suit No. 377 of 1953 and in whose favour the matter had been decided by the consolidation authorities. This special appeal was referred to a Full Bench by an order dated 24th January, 1974, passed by a Bench of this Court and it is thus that this special appeal has come up before us. When the special appeal came up for hearing before a Bench of this Court learned counsel for the appellants made two submissions in its support (1) that the application made by respondents 1 to 10 on 4th June, 1957, was really an application for restitution under Sec. 144, Civil P. C. and it having been dismissed by the Munsif the subsequent applications dated 4th June, 1959, and 5th February, 1960, were not maintainable, being barred by the general doctrine of res judicata and the right of respondents 1 to 10 to claim restitution had been permanently lost; and (2) that at all events, when suit No. 377 of 1953 was decreed ex parte on 14-7-1954 and possession was taken by the appellants on 8-10-1954 from the Criminal Court it was incumbent upon respondents 1 to 10 to have filed a suit for possession under Section 209 of the U. P. Zamindari Abolition and Land Reforms Act and since no such suit was filed the appellants acquired sirdari rights under Section 210 of the said Act on the expiry of the period of limitation prescribed for filing a suit under Section 209 which was at that time three years from the next of July following the date of occupation.
(3.) IN regard to the ground on which the learned single Judge had allowed the writ petition, as would appear from the referring order dated 24th January, 1974, the learned counsel for both the parties were agreed before the Division Bench that the fact of possession anterior to the proceedings under Section 145, Criminal P. C. will have no bearing on the question whether the appellants perfected their title to the plots in dispute by adverse possession and that the learned counsel for the appellants did not dispute the view of the learned single Judge on the said aspect of the matter namely that the fact that during 1356 and 1357 Fasli the appellants were in possession did not in any manner help them in the instant proceedings.;