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PETITIONER: BALJEET SINGH & OTHERS

       Vs.

RESPONDENT: RISAL SINGH & OTHERS

DATE OF JUDGMENT: 15/02/1962

BENCH:

ACT: Civil   Procedure-Res  judicata-Twelve  suits   against   of defendants--Decreed      by      common      judgment-Twelve appeals--Appeals  by  one set of  defendants  dismissed  for default-Whether  other  appeals  barred-Appeals  to  Supreme Court-consolidation Operations-If make appeals  infructuous- U.P. Consolidation of Holdings Act, 1953, (U.P. V of 1954).

HEADNOTE: K,  H  and  M filed four suits each  against  four  sets  of defendants  in respect of different sets of plots  under  s. 175  U.  P. Tenancy Act, 1939.  Since  similar  points  were involved  the  twelve  suits were tried  together  and  were disposed  of  by a common judgment decreeing  them.   Twelve decrees  were prepared and the defendants  preferred  twelve appeals  to the Additional Commissioner.  Three  appeals  by one  set of the defendants B were dismissed for default  and the  remaining nine were dismissed on merits.   Against  the dismissal  of the nine appeals on merits the three  sets  of defendants preferred nine second appeals before the Board of Revenue but they were dismissed as barred by res judicata on May  7,  1954.   In November,  1954,  the  appellants  filed petitions for special leave before the Supreme Court and  on April  18, 1955, special leave was granted.  In  July  1954, the  villages in Which the lands in suit were  situate  came under consolidation operations under the U. P. Consolidation of Holdings Act, 1953, and the operations were completed  by the publication of a notification 218 under s. 52 of the Act on October 17, 1953.  The  appellants did  not  file  any  objections  before  the   consolidation authorities.   The respondent contended that in view of  the consolidation  operations  the appeals  before  the  Supreme Court had become infructuous. Held,  that the appeals had not become  infructuous.   There was  nothing  in the U. P. Consolidation  of  Holdings  Act, 1953, as it stood during the period the village in suit  was under  consolidation operations which could have in any  way affected  these appeals, during or after  the  consolidation operations.  The subsequent Amending Acts did not affect the appeals  as they were prospective in operation  and  applied only  to  cases  where -the  consolidation  operations  were started after the Amending Acts had come into force. Held,  further that the appeals before the Board of  Revenue were  not barred by resjudicata.  It was essential  for  the bar  of res judicata that the previous and  judication  must have  been  between the same parties.  The three  -suits  in which judgments had become final were against one B and  not against any of the appellants . The matter in issue in those

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three suits was different from that in the other nine  suits as each of the suits related to different plots.  The common judgment was really twelve judgments in the twelve suits. Badri Narayan Singh v. Kamdeo Prasad Singh, (1962) 3.  S. C. R. 759 referred to.

JUDGMENT: CIVIL  APPELLATE, JURISDICTION: Civil Appeals Nos. 67 to  75 of 1959. Appeals  by special leave from the judgment and order  dated May 7, 1954 of the U.P. Board of Revenue, in Second  Appeals Nos. 53 to 61 of 1945-46. S.   P.  sinha,  J.  P.  Goyal  and  Sadhu  Singh,  for  the appellants. Bishan Narain and E. L. Mehta, for the respondents. 1960.  February 15.  The Judgment of the Court was delivered by RAGHUBAR  DAYAL, J.-These nine. appeals, by  special  leave, are  against  the  orders of the  Board  of  Revenue,  Uttar Pradesh, dismissing nine  219 second  appeals  filed by the  appellants  in  circumstances hereinafter, mentioned, on the ground that the orders of the First Appellate Court in three other connected first appeals had become final and operated as res judicata. Khub  Chand  had three sons Karan Singh, Hoshiar  Singh  and Mukhtiar  Singh.   Each of these  brothers  instituted  four suits.   Hoshiar Singh instituted suit No. 48 of 1944  under s.  175 of the U.P. Tenancy Act, 1939 (U.P. XVII  of  1939), against  one Bhartu, suit No.49 against Har  Gyan,  Mukhtiar Singh and Data Ram, sons of Sis Ram, brother of Bhartu, suit No.50 against Har Gyan and Mukhtiar Singh, sons of Sis  Ram, and suit No. 51 against one Banwari.  Karam Singh  similarly instituted  suits  Nos. 63, 61, 60 and  62  against  similar defendents  respectively.   Mukhtiar Singh’s  suits  against those defendants, respectively. were Nos.67, 65, 64 and  66. Each  of these suits was for different sets of  plots.   The allegations   of  the  plaintiffs  in  each  suit  and   the contentions  of the defendent in each suit were similar  and therefore  similar issues were framed in each suit  and  all the  suits were tried together and were disposed of  by  one common  judgment.  Twelve decrees were,  however,  prepared. Against  the twelve decrees the defendants-judgment  debtors in  each decree filed twelve first appeals in the  Court  of the   Additional   Commissioner,   Meerut   Division.    The Additional Commissioner dismissed three appeals for default, These  -were  the appeals which were filed  against  Hoshiar Singh,  Karam  Singh  and Mukhtiar Singh  by  Banwari.   The Additional  Commissioner heard the remainmg nine appeals  on merits and dismissed them.  The defendants-judgment  debtors then filed nine second appeals before the Board of  Revenue. They  were  dismissed as barred by res judicata  on  May  7, 1954. The applications for special leave were filed in this  Court in November 1954.  Special leave was 220 granted on April 18, 1955.  By the time the appeals came  up for hearing, some other events took place and as a result of them  the  respondents  filed an  application  for  adducing additional  evidence under O.XLV, rr. 1 to 5, Supreme  Court Rules in November 1959, and also included in their statement of case a narration of those events and their effect. It appeals that the villages in which-the lands in suit were

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situate, come under Consolidation Operations under the  U.P. Consolidation  of  Holding.s Act, 1953(U.  P.  V  of  1954), hereinafter  called the Act, sometime in July 1954,  when  a declaration was issued by the State Government under s.4  of the  Act  to the effect that it had been decided to  make  a Scheme of consolidation for that area.  In December 1954,  a statement  of plots and tenure holders was prepared  and  in May  1955 a statement of proposals under s.19 was  prepared; in August 1955 final statements in chak form 25 were issued. On  October  17,  1955, the  State  Government  published  a notification under s.52 of the Act.               section 52 of the Act then read:               "As  soon as may be after  the  tenure-holders               have  entered  into possession  of  their  new               holding in pursuance of ;Section 26, the State               Government  shall issue a notification in  the               Official Gazette that the Consolidation opera-               tions have been closed in the village and  the               village   shall   then  cease  to   be   under               consolidation operation." It   is   thus  seen  that  this  village   remained   under Consolidation  operations  from some time in  July  1954  to October 17, 1955. The  appellants  did  not file  any  objections  before  the Consolidation  authorities under s.12 of the  Act  disputing the  correctness  or  the  nature  of  the  entries  in  the statement  prepared  under s.11 or under s.20  against  -the statement of proposals prepared under s.19 221 Section  21  provides  for  the fixing of  a  date  for  the enforcement   or  the  consolidation  scheme.   Section   25 provides for the issuing of the allotment order showing  the new fields allotted to each tenure-holder in accordance with the said scheme.  Section 26 provides for the tenure-holders to  enter into possession of the fields allotted to them  on or  after  a  certain date.  Section  27  provides  for  the preparation  of new village maps, khasra and the  record-of- rights, in accordance with the Provisions of the U. P.  Land Revenue Act, 1901.  Its sub-s (2) provides that all  entries in  the record-of-rights prepared under sub-s.(1)  small  be final and conclusive, Section  30  provides that the rights, title,  interest  and liabilities  of  the tenure holder in his  original  holding shall  be  extinguished and he will have  the  same  rights, title, interest and liabilities subject to modification,  if any,  in  the plots allotted to him under s.25  with  effect from  the  date on which he enters into  possession  of  the plots allotted to him. It  was contended for the respondents that in view of  these consolidations  operation and s.5 of the Act, as amended  up to date, these appeals have become infructuous as this Court cannot  pass  any orders on the merits of  the  controversy. The  Act has been amended several times since it was  origi- nally  enacted.  The various amendina Acts are: Act XXVI  of 1954 which came into force on December 13, 1954; Act XIII of 1955  which me into force on June 10, 1955; Act XX  of  1955 whcih came into force on October 21, 1955; Act XXIV of  1956 which came into force on July 3, 1956; Act XVI of 1957 which came  into  force on May 25, 1957 and Act  XXXVIII  of  1958 which came into force on November 19, 1958. During   the   period  the  village  in   suit   was   under Consolidation Operations, the Act applicable 222 to  the proceedings was the Original Act as amended by  Acts XXVI  of  1954 and XIII of 1955.  The other Acts  came  into

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force subsequent to the issue of the notification under s.52 of the Act.  It is necessary to bear this in mind in view of the contentions raised.               Section 5 of Act V of 1954 was as follows               (1)  Upon the publication of  the  declaration               under  section  4, the district or  the  local               area;  as the case may be, shall be deemed  to               be  under  consolidation operations  from  the               date   of   such   publication   until    this               publication of the Notification under  section               52 in the official Gazette to the effect  that               the consolidation operations have been closed.                (2)  Where a district or any other local area               is    under consolidation operations, the duty               of    preparing  and maintaining the maps  the               khasra  and the annual register under  Chapter               ITI of the U.P. Land Revenue Act, 1901,  shall               stand  transferred to the  Settlement  Officer               (Consolidation), and thereupon all the  powers               conferred   on   the   Collector,    Assistant               Collecter  and  the Tahsildar under  the  said               Chapter shall, so long as that district or the               area remains under consolidation operations be               exercised   respectively  by  the   Settlement               Officer (Consolidation), Consolidation Officer               and the Assistant Consolidation Officer." Act  XXVI  of  1954 deleted the last  portion  of  sub-s.(2) commencing  from the words "and there. upon.  No  change  in this  section  was made by the Amending Act  XIII  of  1955. There was therefore nothing in this section which in any way would have affected the hearing of these appeals, during  or after the consolidation operations.  223 Section 12 of Act V of 1954 provided for the publication  of the statement of plots and tenure holders prepared under  s. II  and for filing objections disputing the  correctness  or nature  of entries in it.  Its subsections (4), (5) and  (6) were :               "  (4)  Where the objection filed  under  sub-               section  (1) involves a question of title  and               such question has not already been  determined               by   a  competent  court,  the   Consolidation               Officer   shall   refer   the   question   for               determination to the Arbitrator.               (5)   All suits or proceedings in the court of               first  instance or appeal in which a  question               of  title  in relation to same land  has  been               raised, shall be stayed.               (6)   The  decision  of the  Arbitrator  under               sub- section (4) shall be final." There  was nothing in these sub-sections -which provided  as to  how  the  suits or proceedings stayed  been  under  sub- section (5) would be decided or how matters in connection of which  no  objection bad raised under s.12  would  be  dealt with.   These  provisions  too did not  affect  the  pending Appeals as no objection had been filed under s.12. Act  XXVI of 1954 amended sub-s.(4) to the effect  that  the objection  coming under sub-s.(4) would be referred  to  the Civil  Judge, who will then refer it to the Arbitrator,  and substituted  another  sub-section in the place  of  original sub-s.(5). The substituted sub-s.(5) read :               "(5)  Upon the making of reference under  sub-               section  (4) all suits or proceedings  in  the               Court of first instance, appeal, reference  or               revision  in  which the question of  title  in

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             relation  to  the same land has  been  raised,               shall be stayed." This amendment in sub-s.(5) stayed the suits and 224 proceedings not only in the Courts of the first instance and appeal but also in the Courts of reference and revision, but did not affect these appeals. Sub-s.(2) of s.27 as originally enacted, was not amended  up to  the 17th October, 1955.  Its sub-s.(2) made the  entries in  the record of rights Prepared under sub-s.(1) final  and conclusive.  ’We are not concerned with its effect in  these appeals. Section 49 of the Act bars the jurisdiction of Civil Courts. This  section,  before its amendment by Act  XTTT  of  1955, -which  came  into force on June 10, 1955, did not  bar  the institution of a suit or proceedings in the, revenue  court. It  did so after the amendment.  The,.;,) appeals  had  been filed long before the amendment. We  may state that no objection was raised on behalf of  the respondent  to the effect that these appeals could not  have been instituted, but we have discussed that matter, in  view of  the  fact that the appeals were filed  after  the  State Government had made a declaration under s.4 of the Act. We  have not been referred to any provision in these,  Acts, viz..  Act V of 1954, Act xxvr of 1954 and Act XIII of  1955 which  would lead to the conclusion that these appeals  have become infructuous. Act  XX of 1955 made an amendment in s.27 of the  Act.   The amendment however does not affect the question before us. Act  XXIV  of 1956 which came into force on  July  3,  1956, substituted  a new section 5 in the place of the  old.   The substituted section 5 read :               "5.  When the declaration under section 4  has               been    published   in   the   Gazette,    the               consequences as hereinafter set forth shall,               225               from  the date specified thereunder  till  the               publication of the notification under  section               52 in the Official Gazette to the effect  that               the consolidation operations have been closed,               ensue  in  the area to which  the  declaration               relates, namely ;               (a)   the  district or the local area, as  the               case  may  be,  shall be deemed  to  be  under               consolidation  operations from  the  specified               date,   and   the  duty   of   preparing   and               maintaining the khasra and the annual Register               under  Chapter  III of the U.P.  Land  Revenue               Act,  1901,  shall stand  transferred  to  the               Settlement Officer (Consolidation), and               (b)   all  proceedings for the  correction  of               any  such records pending before any court  or               authority  shall  be stayed but  without  pre-               judice to the right of the persons affected to               agitate  the  question  before  the  Assistant               Consolidation Officer under sub-section (3) of               Section  8, or in proceedings commenced  under               and in accordance with section 10" Clearly,  cl.  (b) does not apply to these appeals  as  they have  not  arisen out of proceedings for the  correction  of village records. Act XXIV of 1956 made certain amendments in s. 11 with which we  are not concerned.  We are not also concerned  with  the amendments  this  Act  made  in subs.  (1)  of  s.  12.   It substituted  a  new sub-section (5) and  added  sub-s.  (7).

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These new subsections (5) and (7)are:               "(5)  Upon  the publication of  the  statement               under section 11, all suits or proceedings  in               the Court of first instance, appeal, reference               or revision, in which the question of title in               respect of any plot mentioned in the statement               with  reference to clause (c)  of  sub-section               (1) of section II has been raised, shall be               226               stayed  to the extent it relates to such  plot               and  shall  thereafter be disposed of  in  the               manner prescribed.               (7)   A  question of title in respect  of  any               plot mentioned in the statement in clause  (c)               Of  sub-section 1 of section 11,  which  might               and ought to have been raised under subsection               (1)  but  had not been raised,  shall  not  be               raised in any objection filed under subsection               (2) of section 20, or under sub-section (1) of               section 34." It is for the first time that such suits and proceedings  in the  various Courts had to be stayed in which a question  of title in respect of any plot mentioned in the statement with reference to el. (c) of sub-s. (1) of s. 11 had been  raised and  that  these  stayed suits or  proceedings  were  to  be decided subsequently in the manner prescribed, i. e., in the manner  laid  down under rules framed  under  the  Act.These provisions  of sub-s. (5) do not affect the appeals as  they were prospective in operation and could apply to those cases only  in which at atements under s. 11 were filed after  the amendment had been made. The  amendments made by the other sections of this  Act  and Act XVI of 1957, do not affect the hearing of the appeals in any way. Thereafter  case  Act  XXXVIII  of  1958.   This  Act  again substituted  a  new s. 5, and the relevant  portion  of  the substituted section reads:               5.Upon  the  publication of  the  notification               under  section 4 in the Official Gazette,  the               consequences, as hereinafter set forth, shall,               subject  to the provisions of this  Act,  from               the   date  specified  thereunder   till   the               publication  of notification under section  52               or sub-section (1) of section 6, as. the  case               may                                    227               be,   ensue  in  the  area  to  which  .   the               declaration relates; namely-                      x x x x x               (b) (1) all proceedings for correction of  the               records  and  all  suits  for  declaration  of               rights and interest over land , or for posses-               sion of land or for partition, pending  before               any authority or court, whether of first  ins-               tance, appeal or reference or revision,  shall               stand  stayed,  but without prejudice  to  the               right  of the persons affected to agitate  the               right or interests in dispute in the said pro-               ceedings or suits before the consolidation au-               thorities  under  and in accordance  with  the               provisions  of  this Act and  the  Rules  made               thereunder:               (ii)  the  findings  of  consolidation  autho-               rities  in  proceedings  under  this  Act   in               respect of such right or interest in the land,

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             -shall  be  acceptable to  -the  authority  or               court  before whom the proceeding or suit  was               pending which may, on communication thereof by               the   parties  concerned.  proceed  with   the               proceeding or suit, as the case may be; These  provisions operate prospectively.   The  consequences mentioned  in  s.  5  ensue  upon  the  publication  of  the notification  under S. 4 in the Gazette and continue  up  to the  publication of the notification under s. 52.   They  do not continue thereafter and could not operate on these cases in which the notification under s. 52 was issued on the 17th October  1955.   They do not therefore bar  the  hearing  of these  appeals.   These a peals have not.  therefore  become infructuous. Sections  7, 8, 9, 10, 11, 11-A, 11-B, 12, 12-A, 12-B,  12-C and 12-D have been substituted by new section which apply to proceedings taken in consolidation operations subsequent  to the coming into force of ’the Amending Act XXXVIII of  1858. Sub-s. (1) of 228 is.  12  makes it clear that the matters mentioned  in  that sub-section  cannot  be  raised subsequent to  the  date  of notification under s. 52. There has been no material change made in as. 27 and 30, but s. 49 now reads:               "49.   Notwithstanding anything  contained  in               any other law, for the time being in force the               declaration  and  adjudication  of  rights  of               tenure holders in respect of land lying in  an               area, for which a declaration has been  issued               under section 4, or adjudication of any  other               right arising out of consolidation proceedings               and  in regard to which a proceeding could  or               ought to have been taken under this Act, shall               be  done in accordance with the provisions  of               this  Act and no civil or revenue court  shall               entertain any suit or proceeding with  respect               to rights in such land or with respect to  any               other matters for which a proceeding could  or               ought to have been taken under this Act." This now provides that the adjudication of’ rights of tenure holders   in  respect  of  land  lying  in  an  area   under consolidation  operations shall be done in  accordance  with the  provisions of the Act.  This leads practically  to  the same  result to which cl. (ii) of sub-s. (b) of s.  5  leads to.   The  provisions  of this  section  are  not  expressly limited to the period between the declaration under s. 4 and the  notification  under s. 52, but can be so  construed  as they relate back to s. 5 (b) (ii) of the Act as the declara- tion  and  adjudication  of  rights  have  to  be  done   in accordance  with  the provisions of the  Act.   Further  the amended  provision would apply to the proceedings  regarding rights in land in the area for which a declaration under  s. 4 has been issued after the amendment. We  are  therefore of opinion that these  appeals  have  not become infructuous.  229 On  the merits, we are of opinion that the Board of  Revenue erred  in holding that the appeals before it were barred  by res   judicata.    It-  is  essential   for   any   previous Adjudication of a point to bar its consideration second time that,  the previous adjudication must have been between  the same parties and that it be with respect to the same matter. The three suits in which judgments became final were against one Banwari and’, not against any of the present appellants.

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The matter in issue in those three suits were also different ’from  that  in  the suits which have given  rise  to  these appeals.   Each  of the twelve suits  related  to  different plots.   A common judgment on account of  similar  questions being  raised for decision in the different suits, does  not always  make that judgment amount to one judgment  in  those suits.   Such  a judgment will ordinarily be  deemed  to  be really  so  many judgments as the suits disposed of  by  it. This  Court expressed a similar view in Badri Narayan  Singh v. Kamdeo Prasad Singh(1). We  therefore allow the appeals, set aside the order of  the Court below and remand the appeals to it for further hearing and decision according to law.’ We may make it clear that it can take into consideration the effect of the  Consolidation Act and proceedings thereunder, after giving an  opportunity to  the parties to submit what, they like in regard to  them costs to abide the result. Appeals. allowed, (1)  [1962] 3 S. C. R. 759. 230