T.S. Misra, J. - (1.) THIS appeal is directed against the judgment and order of a learned single Judge allowing the writ petition and quashing the orders of Respondents Nos. 7, 8 and 9. The facts giving rise to this appeal are these.
(2.) RAM Karan, Kedar Rai, Tirath Raj Rai, Onkar Rai Petitioners as well as Smt. Sampati Respondent No. 1 and Smt. Jamuni were recorded jointly in the basic year in khata No. 22 of village Badha Buzurg, Khata No. 21 of village Bnaorwa and khata Nos. 24 and 35 of village Baraut. On 22nd July 1957 Smt. Sampati Respondent No. 1 instituted a Civil suit in the court of Munsif, Decria, seeking partition of the land in dispute claiming half share therein. The present Respondents contested that suit contending that Smt. Sampati had only 1/4 share and not 1/2 share in the property. The learned Munsif accepted the contention of Sampati, held her entitled to 1/2 share in the property and decreed the suit. The present Respondents then filed an appeal from that decree. On the request of both the parties the learned Civil Judge, before whom the appeal was pending, referred the dispute for arbitration to an arbitrator. The arbitrator entered upon the reference and made his award dated 1st June 1963 allowing 1/4th share to Smt. Sampati in the said land as also some additional land in one of the three villages in question. The share of the present Respondents was held to be 3/4th in the said property. As no objection was filed against the said award the learned Civil Judge made the said award a rule of the court and passed a decree in terms thereof. The decree became final as no appeal was preferred against the same. While the said civil suit was pending, the U.P. Imposition of Ceiling on Land Holdings Act, 1960 was enforced. Hence, the Prescribed Authority issued notice to Smt. Sampati under the said Act and ultimately by an order dated 8th June 1962 declared an area of 34 -64 acres as surplus land out of the land included in the aforesaid three khatas. The said order was, however, recalled on the motion of the present Respondents on the ground that they had not been heard in the matter. The present Respondents filed their objection alleging that no land should have been declared surplus land. This objection was, however, rejected by the Prescribed Authority on 9th February, 1966. The appeal preferred against that order was dismissed by the Additional Civil Judge, Deoria on 30th July 1966. The matter was then carried to this Court in revision but that too was dismissed on 5th October 1968 on the ground that no revision lay against that order. The present Respondents then challenged the order of the Prescribed Authority and the Civil Judge by a writ petition which was dismissed on 30th April 1969. The orders passed by the Prescribed Authority and the appellate authority under the U.P. Imposition of Ceiling on Land Holdings Act 1960 declaring an area of 34 -64 acres as surplus land thus became final. The claim of the present Respondents before the Prescribed Authority was that they had 3/4th share in the property hence no surplus land could declared. In support of their contention reliance was placed on the afore said decree passed by the civil court in the partition suit, The Prescribed Authority as also the Additional Civil Judge, however, did not rely on that decree and held that Smt. Sampati had half share in the property in dispute and on that basis the area of surplus land was determined. It may be noticed that during the pendency of the proceedings under the U.P. Imposition of Ceiling on Land Holdings Act, 1960, the aforesaid three villages, where the land in dispute is situate, were brought under the consolidation operations under the U.P. Consolidation of Holdings Act 1963 vide notification dated 14th November 1964 issued under Section 4 of the said Act. Smt. Sampati filed objections before the Consolidation Officer claiming half share in the remaining land which had not been declared surplus. The present Respondents contested her claim alleging that she had only 1/4th share in the said land and that they were entitled to 3/4th share on the basis of the aforesaid decree passed by the civil court in terms of the award. Hans Nath, Raj Nath and Kamla, who were arrayed as opposite parties in the writ petition sought mutation of their names on the 1/2 share of Smt. Sampati on the basis of a gift deed executed by her in their favour. The Consolidation Officer held that Smt. Sampati had half share in the said land and the other half share belonged to the present Respondents and entries were ordered to be made accordingly. The appeal against that order was dismissed by the Settlement Officer Consolidation on 19th January, 1968. Similarly, a revision preferred against that order was dismissed by the Deputy Director of Consolidation on 10th March, 1969. The claim of Hans Nath, Raj Nath and Kamla was, however, not accepted. The present Respondents then challenged the order of the consolidation authorities by means of a writ petition. The learned single Judge allowed the writ petition and quashed the aforesaid orders of the consolidation authorities. Against that decision the present Appellants have preferred this appeal. Before the learned single Judge it was urged by the present Respondents that the decree passed in the aforesaid partition suit by the Civil Judge on the basis of the award had become final prior to the issue of the notification under Section 4 of the U.P. Consolidation of Holdings Act hence the determination of share of the parties in the property in dispute had become final and that decree operated as res judicata and could not be ignored by the consolidation authorities. It was further urged that even if the decree as passed by the Civil Judge did not operate as res judicata Smt. Sampati was estopped from claiming half share in the property in dispute. On behalf of Smt. Sampati it was urged before the learned single Judge that the decree passed by the learned Civil Judge in the partition suit did not operate as res judicata inasmuch as the authorities under the U.P. Imposition of Ceiling on Land Holdings Act 1960 had held that Smt. Sampati had half share in the land in dispute and that order being subsequent in point of time operated as res judicata and the consolidation authorities, therefore, rightly held that Smt. Sampati was entitled to half share. The learned single Judge held that the Prescribed Authority and the appellate authority under the provisions of the U.P. Imposition of Ceiling on Land Holdings Act 1960 had a limited jurisdiction in as much as the proceedings under the provisions of the U.P. Imposition of Ceiling on Land Holdings Act 1960 were not for the purposes of determining the title of the parties to the land but for determining as to whether any surplus land could be declared, hence the observation made by the Prescribed Authority and the appellate authority with regard to the share of the parties could not over, rule the decision given by the competent civil court. In support of this proposition the learned single Judge placed reliance on two decisions of this Court in Agricultural and Industrial Syndicate v. State of U.P., 1970 AWR 753 and Raja Yuberaj Datt Singh v. Prescribed Authority, Tehsil Lakhimpur, 1968 ALJ 292. The learned Counsel for the Appellants urged that against the decision in Agricultural and Syndicate's case (supra) an appeal was preferred before the Supreme Court. The Supreme Court allowed that appeal and set aside the judgment of this Court. That judgment of the Supreme Court is reported in A. & I. Syndicate v. State of U.P. : AIR 1974 SC 1920. In view of this decision of the Supreme Court it was submitted on behalf of the Appellants that the Prescribed Authority under the U.P, Imposition of Ceiling on Land Holdings Act 1960 had the jurisdiction to go into the question of title, determine the shares of the parties before it and then determine the ceiling area and the surplus land. The learned Counsel for the Respondents urged that as the aforesaid three villages where the land in dispute is situate were brought under consolidation operations while the proceedings under the U.P. Imposition of Ceiling on Land Holdings Act 1960 were pending those proceedings could not have continued as long as the consolidation operations were going on and, therefore, the Prescribed Authority under the U.P. Imposition of Ceiling on Land Holdings Act 1960 had no jurisdiction to determine the share of the present Appellant as half in the land in dispute. The consolidation authorities were, therefore, not justified in relying upon the decision of the Prescribed Authority under the U.P. Imposition of Ceiling on Land Holdings Act while determining the share of the respective parties in the said land. He further submitted that in these circumstances the decree passed by the civil court operated as res judicata and was binding on the parties and the consolidation authorities. We find ourselves unable to accept this contention.
(3.) IT is true that the villages where the khatas of land in dispute are situate were brought under consolidation operations during the pendency of the proceedings under the U.P. Imposition of Ceiling on Land Holdings Act 1960. These proceedings under the U.P. Imposition of Ceiling on Land Holdings Act 1960 should, therefore, have not continued but the fact remains that the proceedings did continue and the Prescribed Authority did pass an order holding that Smt. Sampati had half share in the land in question. That order was confirmed in appeal. A revision preferred against the appellate order was rejected by this Court on the ground that it was not maintainable. Thereafter the orders of the Prescribed Authority and the appellate authority were challenged by means of a writ petition which too was dismissed. Thus, the order passed by the Prescribed Authority and confirmed by the appellate authority under the U.P. Imposition of Ceiling on Land Holdings Act 1960 came to acquire finality. It appears that the consolidation authorities did not pass any order during the pendency of the proceedings under the U.P. Imposition of Ceiling on Land Holdings Act 1960. On the other hand, they placed reliance on the order passed by the authorities under the U.P. Imposition of Ceiling on Land Holdings Act 1960 in holding that the share of Smt. Sampati in the land in question was half. The submission of the learned Counsel that the order passed by the Prescribed Authority and the appellate authority under the U.P. Imposition of Ceiling on Land Holdings Act 1960 was without jurisdiction and, therefore, a nullity is not tenable. It was held in U.G. Sugar Mills v. Civil Judge Bijnor : AIR 1970 All. 130 that: Section 12 does not empower and require the Prescribed Authority merely to determine the surplus land but also to decide the objections. Determination of the surplus land is certainly the ultimate thing to be done, but that determination is inseparably connected with and entirely dependent on the fixation of the ceiling area. The entire land held by a tenure -holder is naturally involved in the process of determination of his surplus land. Objection to any land being treated as his in the statement prepared by the Prescribed Authority under Section 10 has, therefore, to be decided if surplus land is to be determined. Plainly, Section 12(1) requires both decision of objections and determination of the surplus land. This is also the ratio of the decision of the Supreme Court in A. & I. Syndicate's case (supra). Again in Tribeni v. State of U.P., 1968 AWR 425 the question as to when a decree becomes a nullity came to be examined. It was held that this question would depend upon the answer to the question whether the court which passed that decree had jurisdiction to pass it or not. Examining the provisions of Section 5(b)(i) of the U.P. Consolidation of Holdings Act and Section 5(2)(a) of the Act, as it stood after the amendment, it was laid down that merely because a village came under consolidation operations, the court seized of a suit or an appeal was not divested of the jurisdiction to hear and decide it. All that the law required was that the proceedings before it should be stayed and after the matter had been decided by the consolidation authorities the decree was to be communicated to the court who shall 'proceed with the proceedings or suit, as the case may be'. It was, therefore, clear that the effect of Section 5(b)(i) of the Act was not to destroy or take away the jurisdiction of the court before whom a suit or an appeal was pending. It remained seized of the case throughout and ultimately it had to pass a judgment or order or decree in the case. It was that court and that court alone which had the jurisdiction to and could finally dispose of the matter. Therefore, it could not be said that a decree or order or judgment passed by such a court would be nulltiy even though it alone had the jurisdiction to pass the order or the decree or the judgment. This decision of the Division Bench was relied on with approval by a Full Bench of this Court in Bikarma Singh v. State, 1969 AWR 410 wherein it was laid down: Where a Civil Court in its appellate jurisdiction had given a decision that the provisions of Section 5 of the U.P. Consolidation of Holdings Act did not apply to the facts of the case and that decision had been allowed to become final between the parties, the decree passed by the Civil Court after the publication of the notification under Section 4 of that Act and after that fact had been brought to the notice of the Court is not a nullity.;