- (1.) SHITLA Pd. Srivastava, J. This writ petition under Article 226 of the Constitu tion of India has been filed by the petitioners for quashing the order dated 29-7-1988 passed by the Asstt. Director of Consolidation.
(2.) BRIEF facts giving rise to the present writ petition are that the petitioner No. 8, Dharam Deo Rai and respondent Nos. 2 to 4, namely, Indra Deo Rai, Kalap Nath Rai, and Kedar Rai and the real brothers. The petitioner No. 8 was allotted three chaks. His first chak was at Plot No. 238, second chak was at plot No. 52 and his third chak was at Plot No. 380. All these three chaks were on the original holding of the petitioner No. 8 but he was not satisfied, therefore, he filed objection against the chaks allotted to him. The Consolidation Officer on 7-3-88 dismissed the objection filed by the petitioner No. 8, therefore, he filed an appeal which was also dismissed on 13-4-87. He also filed a revision against the order of the Settlement Officer Con solidation. The petitioner No. 8 got chak on plot No. 52 which is adjacent to land belonging to the petitioners as well as respondents Nos. 6 to 10. These respon dents after obtaining the permission from the Settlement Officer Consolidation pur chased the chak of the petitioner No. 8 which was on plot No. 52 on 12- 6-87. The sale-deed was executed during the penden cy of the revision. In this sale-deed, half share in chak was of petitioner Nos. 1 to 6 along with the respondent Nos. 7 to 10 and half share belong to the petitioner No. 7 along with the respondent Nos. 5 and 6. It is further stated that during the pendency of the revision, the respondents also ob tained a sale-deed in respect of the two remaining chaks of the petitioner No. 8. This sale-deed was executed on 28-10-1987. It is stated that after the sale-deed was executed in favour of the petitioners by the petitioner No. 8, he had left no interest in the land and petitioner No. 8 also gave assurance to the petitioners that he will have his revision dismissed for non-prosecution and the petitioners were con vinced and had no reason to disbelieve the statement of the petitioner No. 8. It is stated that some forged compromise was executed on 7-1-1988 and before the Assis tant Director of Consolidation, an ap plication was filed by the petitioners against the compromise that the respon dent No. 8 had already executed a sale deed in favour of the petitioners. The Court passed an order, put up with the filed concerned but no order was passed on the application and the revision was al lowed on 30-1-1988 on the basis of the forged and farzi compromise. It is stated that the petitioners were not heard by the Asstt. Director of Consolidation, there after the petitioners filed an application for setting aside the order dated 30-1-88 and they were also advised to file the writ petition against the same order/the writ petition was dismissed in the month of March, 1988. The petitioner No. 8 was not in the village and when he came to know about the fraud committed by the respon dents before the Asstt. Director of Con solidation, he filed an application before the Asstt. Director of Consolidation on 11 -3-1988, alleging that there was no com promise and the order has been obtained by the contesting respondents by commit ting fraud on the Court. It is stated that both the applications, one filed by the petitioners for recalling of the order dated 30-1-1988 and other filed by the petitioner No. 8 were taken together and both were rejected on 29-7-88. The order dated 29-7-1988 has been challenged by the petitioners in the present writ petition. The ground of attack is that a fraud was played on the Court by filing a forged compromise, which was illegal, therefore, the Asstt. Director of Consolidation should have considered this aspect of the case, but he has dismissed the revision on the ground that the earlier order has been challenged by the petitioner in the High Court by filing writ petition which has been dismissed summarily, therefore, the resjudicata will apply. The submission of the petitioners is that when the High Court has dismissed the writ petition in limine then that order will not be binding on the petitioners, and the principles of res judicata will not apply. The petitioners contention is that both the applications could not have been dismissed on the ground of res judicata. The applications were to decide the order dated 30-1-1988, against which the writ petition was filed, therefore, the subject matter before the Asstt. Director of Con solidation was two applications and the prayer made therein and if the writ peti tion was dismissed against the same order, therefore, there was no bar on the Asstt. Director of Consolidation to consider the applications on merits, he should not have rejected the same on the principle of res judicata.
(3.) THE parties have exchanged counter and rejoinder-affidavits. From a perusal of the judgment of the Asstt. Director of Consolidation, impugned in the present case, it is apparent that he had rejected the applications for restoration on the principle of res judicata, therefore, the question for determination in this case is as to whether the order passed by the High Court dismissing the writ petition in limine against the order dated 30-1-1988 will operate as resjudicata, while deciding the two applications filed for recalling and restoration of the same order. Learned Counsel for the petitioners has urged that the principle of res judicata will not apply in the present case as before the High Court in the earlier petition the order dated 30-1-1988 was challenged on merit whereas in two applications aforesaid, the question was as to whether the application for recall should be allowed and the matter may be heard or not. It is further submitted that in the application filed by Bhrigu Nath on 11-2-88 it was stated that the petitioner had sold the property and he had not filed any compromise, therefore, the order dated 30-1- 1988 is ex pane order and it should be recalled as the petitioners, Bhrigu Nath and others were not heard at the time of hearing of the revision. It is further submitted that the application which was filed by Dharam Deo Rai for recalling the order dated 30-1-1988 on 11-5-88 was also to the same effect that the compromise is a forged document, there fore, these compromise is illegal and the order dated 30-1- 1988 is ex pane. THE petitioners have filed these two applica tions along with the writ petition. Learned Counsel for the petitioners has urged that the matter in issue before the Deputy Director of Con solidation while disposing of these two application was not merit of the order of the Asstt. Director of Consolidation rather it was as to whether there was any proper compromise or not and before the High Court in the earlier writ petition the order dated 30-1-1988 was challenged on merit, therefore, if that petition has been dismissed, it shall be deemed to have con sidered the matter of fraud and forgery committed by the respondents. It was sub mitted that the order dated 30-1-1988 was passed on the basis of the alleged com promise which the petitioners has chal lenged by way of the application for recall.;