K. B. Asthana, C. J. - (1.) (for self and for J. M. L. Sinha, J.) :-Proceedings under the U. P. Imposition of Ceiling on Land Holdings Act, 1960 (U. P. Act no. 1 of 1961), here-in-after referred to as the "Act", against Hariraj Swarup, Gopal Raj Swarup and Bra-ham Swarup, who are real brothers, were taken for determining the surplus land owned and possessed by them. The surplus land in question was situated in two villages-Jaroda and Baghrajpur. The Prescribed Authority in due course determined the surplus land and a Notification was issued in the official Gazette declaring the said surplus land as standing transferred to and vesting in the State Government. Eight persons consisting of sons and wives of the above said three brothers filed objections under sub-Section (3) of Section 14 of the Act before the Prescribed Authority. Two separate objections were filed- one with regard to the land of village Jaroda and the other with respect to the land in village Baghrajpur. The objection was grounded on the allegation that the objectors were co-tenure-holders of the plots and were the owners thereof in their own right. They relied on two separate decree passed by the Revenue Court in regard to the land in each of the village. Before the Prescribed Authority in support of their claim each objector had filed copies of the plaints in the two suits and copies of orders passed in the two suits by the Judicial Officer. The objections were contested on behalf of the State mainly on the ground that the decrees of the Revenue Court having been made in proceedings which started after 20-8-1959 were liable to be ignored and the whole family, consisting of the three brothers their wives and sons was one unit. The Prescribed Authority holding that the decrees in the two suits being of a date subsequent to 20-8-1959 could not be taken into consideration in support of the plea of the objectors that they were co-tenure holders of the lands in their own right dismissed the objections. The objectors being aggrieved filed two appeals before the District Judge, who consolidated the same for hearing and delivered a common judgment allowing the appeals and upholding the objections. The State being aggrieved filed a petition under Article 226 of the Constitution attacking the validity of the appellate order on various grounds and praying for a writ of certiorari for quashing the appellate order. The learned Single Judge who heard the writ petition rejected all the pleas raised on behalf of the State and dismissed the petition. This Special Appeal before us has been preferred by the State against the judgment and order of the learned Single Judge.
(2.) FOR appreciating the contentions raised by the learned Standing Counsel for the appellant we may refer to certain facts. Before the Prescribed Authority no other plea seems to have been taken in opposing the objections except the one indicated above, i.e. that the decrees passed by the Revenue Court being subsequent to 20-8-1959 could not be relied upon in determining the rights of the objectors. In the appeal the following new grounds were taken raising the pleas which were not before the Prescribed Authority : - 1.That the decrees in the two revenue suits were collusive and not holding on the State : 2.That the proceedings before the Revenue Court in the two suits were barred by Section 49 of the U. P. Consolidation of Holdings Act j and 3.That no opportunity was afforded to the State for rebutting the claim of the objectors. Time was taken by the learned counsel appearing for the State before the appellate court more than once but no documents filed in support of the new grounds raised. However before the appellate court the objectors, who were appellants in the appeal, filed an application in the appeal for admitting on record the terms of compromise which formed part of the decrees of the Revenue Court in the two suits. This application was allowed. The learned counsel for the State after the time granted by the appellate court had expired filed an application along with a list of documents and prayed that they be admitted on the record. This application was rejected by the appellate court. The appeals were decided on merits on the material on record. The learned appellate court held that the decrees passed by the Revenue Court, though they were compromise decreess were binding on the State and the Gaon Sabha, who were already parties to those suits and the objector-respondents having put up a claim to be the owners of the land in dispute in their own right in accordance with those decrees, the court was bound to take these decrees into consideration under sub-Section (6) of Section 14 of the Act even though the decrees were passed on 18-4-1967 much after 20-8-1959. Having taken this view, the learned Judge allowed the appeals. The first contention of the learned Standing Counsel in support of the appeal was that the appellate court erred in the exercise of its discretion in rejecting the prayer of the State to admit evidence on the record in order to rebut the claim of the objectors. Two of the documents sought to be placed on the record were the final statement of tenure-holders under Section 27 of the U. P. Consolidation of Holdings Act and C. H. Form No. 23 relating to consolidation proceedings in village Jaroda. The appellate court had ordered that the documents filed along with the application be returned to the learned Counsel for the State. When we heard the appeal earlier, we were informed by the learned Standing Counsel that the documents were still on the record of the appellate court as they were not taken back. We deferred the hearing of this appeal and directed the learned Standing Counsel to procure the original record and place it before the Court at the next hearing. The contention of the learned Standing Counsel was that once the final statement of tenure-holders under Section 27 of the U. P. Consolidation of Holdings Act had been made and Form 23 issued under that Act no Civil or Revenue Court can adjudicate upon the right and claim put forward by any other person who had set up such a right of claim before the Consolidation Courts during the proceedings under the U. P. C. H. Act. Reliance was placed on Section 49 of that Act. There appears to us some force in this contention. The learned counsel for the respondent, however, urged that once the discretion had been excrecised by the appellate court refusing to admit fresh evidence and to entertain a fresh ground not raised in the court of first instance, this Court in the exercise of its jurisdiction under Article 226 of the Constitution cannot and ought not to interfere unless it was established that the discretion was exercised capriciously, arbitrarily and in disregard of the principles of law. It was vehemently submitted that a learned Single Judge, who first heard the petition, having endorsed the option of the Court in refusing to exercise the jurisdiction, the Division Bench hearing the Special Appeal ought not to interfere lightly with that verdict. It was emphasised that the appellate court was justified in refusing to admit fresh evidence as the State had been negligent in not filing those documents within the time granted by the appellate court.
(3.) HAVING given our serious consideration to the arguments raised at the bar before us by the learned counsel for the respective parties, we think it was a fit case in which the appellate court ought to have admitted the documents and entertained the plea as it was purely a legal plea, affecting the jurisdiction of the Court. No doubt, the plea raised, based on Section 49 of the U. P. C.H. Act, before it could be accepted, required filing of documents or adducing of evidence but when the evidence in support of the plea is furnised purely by documents prepared under the Authority of law to which presumption attaches as being valid documents and which could be admitted without any proof, the appellate court ought not to have been so much obsessed by the rule that a new ground has been raised which was not raised in the court of first instance and fresh evidence in support of that ground could not be admitted. On behalf of the respondents it was submitted that admission of fresh evidence in support of the plea, which may affect jurisdiction, would have entailed prolonged proceedings before the appellate court as the objector-respondents had a right to file evidence in rebuttal. It was within the discretion of the appellate court to refuse to admit the said documents and to entertain the new plea. As pointed out above, we think that since the policy of the law is that a matter or a question which could have been determined in the consolidation proceedings could never again be determined by any civil or revenue court after the final statement of tenure-holders had been issued and the entries on the basis of the determination of the rights recorded by the consolidation authorities and any plea based on Section 49 being a plea of jurisdiction, ought to be entertained by a court as it would be carrying out the policy of the law. We think, in the circumstances of the instant case the State ought to be afforded an opportunity to raise a plea that, in so far as the lands in village Jaroda were concerned, which had undergone consolidation operations neither the Prescribed Authority nor the appellate court had any jurisdiction to go behind the entries in the revenue records prepared on the basis of the determination of the rights under the U. P. G. H. Act. We refrain from making any further observation on this part of the case as to how far the statement prepared under Section 27 of the U. P. Consolidation of Holdings Act and Form 23 issued would affect the jurisdiction of the Court under Section 49 of that Act and the rights of the objector-respondents and in what manner will the objector-respondents rebut the presumption raised on the basis of the documents prepared in the consolidation proceedings which are official documents as we propose to remand the matter in regard to the lands in village Jaroda to the appellate court. We need not, therefore, further consider with regard to the land in village Jaroda the other questions which have been raised before us. However, since it is not the case of any party that the lands in village Baghrajpur had undergone consolidation operations, what we have observed above will not apply to those lands and we proceed now to consider the other grounds raised in regard to the land in village Baghrajpur, as nothing in Section 49 of the U. P. C. H. Act will affect the determination of rights in regard to those rights. It was contended by the learned Standing Counsel for the State that so-called compromise decrees passed by the Revenue Court in the two suits in the year 1967 were a nullity inasmuch as they were passed without notice to the State and the Gaon Sabha and were collusive in nature to defeat the provisions of law and that they were passed by an incompetent court. As regards the incompetency of the court, we may point out that if this plea with regard to the land in village Jaroda, which was the subject matter of suit No. 46 of 1967 in the court of the Judicial Officer, Muzaffarnagar, prevails then that court had no jurisdiction to record a compromise with regard to the rights of the parties and the decree may be a nullity but to hold that decree to be a nullity on the ground that it was passed behind the back of the State and the Gaon Sabha or without notice to them and was collusive in nature for defeating the provisions of law will not be possible as at best such a decree would be voidable and till it is avoided by a regular process of law, its validity could not be questioned collaterally in the proceedings under the Act. These observations will apply to the land in village Baghrajpur, which were the subject matter of suit no. 16 of 1967 in the court of the Judicial Officer. The compromise decree in the said suit was passed on 18-4-1967. We have perused the original record of the Revenue Court and we find that on 1-4-1967 in the said suit an order was passed by the court that service having been deemed sufficient on the State and the Gaon Sabha and they having not filed any written statement or having appeared, the suit will proceed exparte against them. The record does not show that this order was ever got set aside at the instance of the State or the Gaon Sabha. The suit proceeded exparte against them. If on 18-4-1967 a compromise decree was passed between the plaintiffs and other defendants in that suit without notice to the State and the Gaon Sabha this no invalidity would attach to the compromise decree on that score. The State and Gaon Sabha did not make any effort to have the compromise decree and the order for proceedings exparte set aside in accordance with the law. The appellate court took the correct view in repelling the plea that the compromise decree in suit no. 16 of 1967 of the court of Judicial Officer was a nullity. Like-wise, a collusive decree even for defeating the provisions of law would not be a nullity. It would be at best a voidable decree and so long as it is not avoided by due process of law, it will remain binding on the parties to the suit. We agree with the learned Single Judge that the decree passed by the Revenue Court in regard to the land in village Baghrajpur would remain binding on the State and its validity on the ground that it was collusive could not be questioned collaterally in the proceedings before the Prescribed Authority under the Act.;