- (1.) BY the Court:-A learned Judge of this Court has referred this writ petition for decision to a larger Bench as he felt that the single Judge pronouncement made in Trivent Singh v. State of U. P., 1961 RD 58, might require reconsideration and as he also felt that the controversy involved in this petition 'is of considerable importance and is likely to occur frequently.'
(2.) THE facts, in brief, are these. In the basic year the land in dispute stood recorded in the names of the petitioners. It may be stated that the basic year was 1969 as the notification Trivent Singh v. State of U. P., 1961 RD 58 58 of Holdings Act (hereinafter referred to as the said Act) was issued on May 17, 1969. THE petitioners were recorded as Bhumidhars of the plot in question. An objection was filed by the Gaon Sabha, respondent no. 4, before us, claiming that the land constituted Gaon Sabha property and the petitioners' names were wrongly recorded as the Bhumidhars of the land. Contest was joined by the petitioners who claimed to have purchased the land in dispute by a sale deed which was executed in their favour on 1-5-1956 by Gur Bux Singh and Har Bhajan Singh who were alleged to have acquired sirdari rights by adverse possession and who, after having acquired sirdari rights, deposited ten times rental and became Bhumidhars of the land in dispute and thereafter executed the aforesaid sale deed dated 1-5-1959. THE Consolidation Officer allowed the objection of the Gaon Sabha on 21-2-70. An appeal was filed against the said order by the petitioners before the Settlement Officer (Consolidation). THE said appellate authority came to the conclusion by order dated 22-8-70 that the land had vested in the Gaon Sabha as the recorded tenants had abandoned the same as was evident from the extract of 1359F. He, however, remanded the case in order to give the petitioners a further opportunity for producing evidence to prove that their vendors, Gur Bux Singh and Bhajan Singh, had acquired sirdari rights on account of their adverse possession. In the order of remand the Settlement Officer (Consolidation) not only recorded a categorical finding that the recorded tenants had abandoned the land in dispute and that it had vested in the Gaon Sabha, but also made a direction to the Consolipation Officer to decide the case after remand strictly in the light of the observations made by him. THE observations made by him were that in case the petitioners failed to prove that their vendors had acquired sirdari rights before they deposited ten times rent, their claim would be liable to be dismissed inasmuch as in that event no title would accrue to them on the basis of the afore-mentioned sale deed. THE petitioners did not file any revision before the Deputy Director of Consolidation against the said remand order dated 22-8-70 passed by the appellate authority. After remand the Consolidation Officer re-heard the matter. He held by his order dated 30-1-71 that Gur Bux Singh and Har Bhajan Singh had been in possession over the land in dispute only for two years i. e. for 1365F. and 1366F. and that they had not acquired sirdarf rights. The Consolidation Officer did not permit the petitioners to question the finding earlier recorded by the Settlement Officer, Consolidation, as the appellate authority to the effect that the recorded tenants had abandoned the land in dispute and due to such abandonment, the said land stood vested in the Gaon Sabha. The petitioners filed an appeal against the said order passed by the Consolidation Officer after remand. The appeal was dismissed and thereafter the petitioners went in revision before the Deputy Director of Consolidation but the revision was also dismissed. Before the revisional authority it was urged on behalf of the .petitioners that there was no evidence as to how the land vested in the Gaon Sabha and further there was no evidence regarding the abandonment of the land by the recorded tenants. With reference to this plea the Assistant Director of Consolidation, Lucknow, who disposed of the said revision observed : "The earlier recorded tenants are not contesting the case and the learned lower courts have held that they have since abandoned the land in dispute. The possession of Gur Bux Singh and Bhajan Singh was only that of trespassers but they did not complete their adverse possession of more than twelve years..................At the most the possession of Gur Bux Singh and Bhajan. Singh started in 1365F". It may be stated here that there are certain Annexures to the writ petition. Their details are these. Annexure I is a true copy of the objections which were filed by the Gaon Sabha to the land being recorded in the names of the petitioners. Annexure If is a true copy of the order dated 30th January, 1971 which was passed by the Consolidation Officer when he re-heard the case after the same was remanded to him by the Settlement Officer (Consolidation) in appeal. Annexure HI is the true copy of the order dated 20th March, 1971 which was passed by the Settlement Officer (Consolidation) in the appeal against the said order dated 30th January, 1971 passed by the Consolidation Officer. Annexure IV is the true copy of the order dated 23rd December, 1971 passed in revision against the said order of the Settlement Officer (Consolidation) dated 30-3-1971. There is no other Annexure to the writ petition and it will be seen that the petitioners have not placed Before the court a true copy of the earlier order dated 21-2-70 which was passed by the Consolidation Officer allowing the objection of the Gaon Sabha. They also have not filed a true copy of the earlier order dated 22-8-70 passed by the Settlement Officer (Consolidation) in the appeal wherein he remanded the case to the Consolidation Officer. Further, nothing has been brought on record to show as to what evidence was led by the parties on the question of abandonment of the land by the recorded tenants. One gets some in pling about the aforesaid orders passed by the Consolidation Officer and the Settlerrent Officer (Consolidation) and about the nature of evidence from an allusion to these made in the subsequent orders passed by the consolidation authorities after the remand of the case.
(3.) ON behalf of the petitioners the orders passed by the consolidation authorities have been attacked before us on two main grounds: (1) It is contended that as there were no pleadings regarding abandonment and no issue was struck on the said question, therefore, the finding recorded by the consolidation authorities that the land in dispute was abandoned by the recorded tenants should be held to be a nullity. (2) It is contended that the consolidation authorities were wrong in holding that the petitioners could not question the finding regarding abandonment on the ground that they had not earlier filed a revision against the remand order dated 22-8-70 which was passed by the Settlement Officer (Consolidation) when he heard the appeal against the first order dated 21-2-70 passed by the Consolidation Officer. Counsel's contention is that even though no revision had been filed earlier against the said remand order, still, the petitioners were not debarred from questioning the finding regarding abandonment recorded by the Settlement Officer (Consolidation) in his remand order. It was claimed that it was open to the petitioners to question the said findings before the Consolidation Officer when he re-heard the case after remand and, in any case, the petitioners could question the said finding in the revision which was ultimately filed by them before the Deputy Director of Consolidation. The said authorities erred in law in not entertaining the said objection. Sri K. B. Garg, learned counsel for the respondent no. 4, contended that the petitioners were bound to file a revision against the remand order passed by the Settlement Officer (Consolidation). Such a revision would have been competent. Counsel emphasised the use of the expression 'decision' in Section 11 of the U. P. Consolidation of Holdings Act and submitted that the order of remand amounted to a "decision" under the said section and was, therefore, revisable. In view of the failure of the petitioner to file such a revision, the appellate order became final under Section 11 of the said Act and the same could not be questioned at any later stage of the proceedings. Thus even though Section 105, sub-section (2 , CPC does not apply to the consolidation proceedings, still, the result was the same in the said proceedings also in view of the provision about finality contai ed in Section 11 of the said Act. Counsel further argued that the general doctrine of res judicata applied to the subsequent stages of the litigation and in view of the said principle, the petitioners could not question the remand order in the subsequent stages of the consolidation proceedings. *;