Ashok Bhushan - (1.) -Heard Sri R. N. Singh, senior advocate, assisted by Sri A. K. Rai for the petitioner and Sri Vinod Sinha, counsel appearing for respondents No. 3 to 6.
(2.) COUNTER and rejoinder-affidavits have been exchanged between the parities and with the consent of the parties, the writ petition is being finally decided. By this writ petition, the petitioner has prayed for quashing the judgment and order dated 28.11.2005, passed by Deputy Director of Consolidation in the revision filed by respondents No. 3 to 6 and the order dated 22.11.2004, passed by Settlement Officer of Consolidation. Brief facts of the case are; Plot No. 1189 area 1.080 hectare was recorded in the names of Kalu and Shabbir sons of Bashir each having half share. Kalu executed a sale deed of his half share of plot No. 1189 by registered sale deed dated 15.4.1998 in favour of respondents No. 3 to 6. The names of respondents No. 3 to 6 were recorded in the revenue records on the basis of the sale deed. The sale deed recited that vendor had given possession on the western side with two Mango trees, two Sheesham trees and one Sahtoot tree to the vendees. The dispute between the vendors and Shabbir arose after the sale deed. A suit being Suit No. 316 of 1998 was filed by Shabbir for injunction against the vendees claiming injunction to the land in suit. The plaint case was that in plot No. 1189 the plaintiff is in possession of northern half area, which was described with words "o, ', ?�, ?"" in the plaint. The plaintiff's case was that there was private partition between the plaintiff and his brother Kalu in which the northern half area was given to Shabbir and southern half area was given to Kalu and both the parties adjoined the road and had been cultivating accordingly. It was stated in the plaint that vendees forcibly wanted to take possession of the land described as "o, ', ?�, ?"" saying that they had purchased the entire area towards road. The vendees appeared in the suit and issues were framed as to whether plaintiff is in possession of northern half portion of plot No. 1189, as to whether the suit is barred by Order VII, Rule 11 of C.P.C. and the third issue was as to whether the suit is barred under Section 331 of U. P. Zamindari Abolition and Land Reforms Act, 1950. In the suit Shabbir appeared as P.W. 1. Two witnesses Sahdeo and Rajpal appeared for defendant. While deciding issue No. 1 whether plaintiff is in possession of northern half share it was found by the Court that in private partition eastern half was given to plaintiff and western half was given to Kalu, who has sold it to the vendees. While deciding the issue whether the suit was barred under Order VII, rule 11 of C.P.C., it was held that there was no cause of action in the plaint. While deciding issue No. 3, it as held that suit was barred by Section 331 of U. P. Zamindari Abolition and Land Reforms Act, 1950. The suit was dismissed with the aforesaid findings. Against the order dismissing the suit an appeal was filed, which was dismissed in default. Shabbir executed a sale deed in favour of petitioner on 26.10.2004 of his half share in plot No. 1189. The sale deed recited that in plot in dispute two Sheesham trees are existing. The sale deed also recited that land is situate on the road, hence 15% increased stamp duty was paid on the sale deed. An application under Section 5 (1) (c) of U. P. Consolidation of Holdings Act, 1953 was filed by respondents No. 3 to 6 seeking permission to construct abadi on 1000 square metres area adjacent to the road on 11.11.2004. An order was passed on 22.11.2004 by Settlement Officer of Consolidation granting permission to the respondents to make construction over 1000 square metres land adjacent to the road. The petitioner after coming to know about the order filed an application on 2.12.2004 for modifying the order praying that permission for construction be also granted to him. The objection was contested by the respondents as well as by the petitioner before the Settlement Officer of Consolidation and the Settlement Officer of Consolidation by order dated 15.12.2004 recalled his earlier order dated 22.11.2004 with the finding that petitioner being co-sharer of the plot in dispute and the earlier order having been passed without notice to the petitioner, the order is liable to be recalled. The petitioner is said to have filed an objection dated 31.12.2004 praying for division of plot No. 1189 of Khata No. 381, which is claimed to be pending. The Settlement Officer of Consolidation after the order dated 15.12.2004, passed a fresh order dated 3.1.2005 permitting the petitioner as well as the respondents to raise construction over half portion of the plot in question respectively, i.e., 1000 square metres each in plot in dispute. Aggrieved against the order dated 3.1.2005, a revision was filed before the Deputy Director of Consolidation by respondents No. 3 to 6. During pendency of revision, petitioner filed an application for spot inspection on 28.3.2005. The Deputy Director of Consolidation called for a report, which was submitted by Assistant Consolidation Officer on 29.4.2005. The Deputy Director of Consolidation vide his order dated 28.11.2005 allowed the revision filed by the respondents, set aside the order of Settlement Officer of Consolidation dated 3.1.2005 and the order of Settlement Officer of Consolidation dated 22.11.2004 was restored. This writ petition has been filed challenging the aforesaid order of Deputy Director of Consolidation.
(3.) SRI R. N. Singh, learned counsel for the petitioner, challenging the order, contended that Deputy Director of Consolidation committed error in holding that petitioner was not entitled for any permission for construction on the western side towards road. It was contended that dismissal of suit filed by Shabbir for injunction, had no effect on the application of petitioner for permission under Section 5 (1) (c). He contended that suit having been dismissed as barred by Section 331 of U. P. Zamindari Abolition and Land Reforms Act, 1950, any finding recorded in the judgment has no effect. Learned counsel for the petitioner further submitted that petitioner who became co-sharer after purchase of the half share of Shabbir and there being no division of holding under Section 176 of U. P. Zamindari Abolition and Land Reforms Act, 1950, every co-sharer had right on every inch of land. Learned counsel for the petitioner in support of his submission that judgment of the civil court, specially the finding with regard to private partition, has no bearing, has relied on the judgment of the Apex Court in Athmanathaswami Devasthanam v. K. Gopalaswami Ayyangar, AIR 1965 SC 338; Richpal Singh and others v. Dalip, AIR 1987 SC 2205 and Syyed Ali and others v. Andhra Pradesh Waqf Board, Hyderabad and others, AIR 1998 SC 972. Sri Vinod Sinha, learned counsel for the contesting respon?ents, refuting the submissions of learned counsel for the petitioner, contended that private partition between Shabbir and Kalu was fully proved and finding to that effect had been recorded by civil court in the judgment and order dated 24.7.2004, hence it was proved that half portion of plot in question towards road, i.e., western side, was purchased by the contesting respondents and the petitioner's share was in the east of the plot and no error had been committed by the Settlement Officer of Consolidation in his order dated 22.11.2004 granting permission to the respondents over 1000 square metres of the disputed land. Learned counsel for the respondent submits that when more than one issue is decided in the suit the principle of res judicata will apply on each finding recorded by the Court. Reliance has been placed on the judgments in Vithal Yeshwant Jathar v. Shikandarkhan Makhtumkhan Sardesai, AIR 1963 SC 385; Gangappa Gurupadappa Gugwad v. Rachawwa and others, AIR 1971 SC 442 and Raghumal v. Banmali Sahu, AIR 1974 Pat 221. It is further submitted that a suit has also been filed by the petitioner in which notices were issued on injunction application against which revision was filed, which was subsequently withdrawn but these facts have not been mentioned in the writ petition.;