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PETITIONER: MALKHAN SINGH

       Vs.

RESPONDENT: SOHAN SINGH & ORS.

DATE OF JUDGMENT02/09/1985

BENCH: MISRA, R.B. (J) BENCH: MISRA, R.B. (J) VENKATARAMIAH, E.S. (J)

CITATION:  1986 AIR  500            1985 SCR  Supl. (2) 747  1985 SCC  (4) 469        1985 SCALE  (2)614

ACT:      Uttar Pradesh  Consolidation of  Holdings  Act  (as  it stood before  the Amendment Act of 1963) section 49 - Bar to civil jurisdiction  and/or applicability of the principle of res  Judicata,   when  there   is  no   provision  for   the adjudication of  rights and  title after  the statements  of proposals had  become final  under section 23 of the Act and if in  the mutation  proceedings the  issue of  adoptions is found against.

HEADNOTE:      Kishan Singh, Natha Singh and Guman Singh were three I- brothers. Kishan  Singh had  no issue  while Natha Singh had three sons:  Chajju, Rambir  and Malkhan  Singh; Guman Singh hat two  sons: Sohan Singh and Rohan Singh. Gishan Singh was possessed of  some agricultural  land and  also a house. The village, where  the agricultural  plots of Gishan Singh were situate was brought under Consolidation of holdings Act, the rights and  title of  gishan Singh  were determined in these proceedings and  eventually chak No- 14 was allotted to him. Although the  notification under  section 52  had  not  been issued bringing to an end the consolidation proceedings, the statement  of   proposals  (allotment   of  chak)  had  been confirmed under section 23 of the Act.      1. At  this stage Kishan Singh died and a dispute arose about his  heirship. There  were  two  sets  of  competitive claimants. Malkhan  Singh son  of Natha  Singh claimed to be adopted son  of Gishan  Singh while  the two  other sons  of Natha Singh and the sons of Guman Singh formed the other set and claimed  to succeed  ; gishan  Singh  alongwith  Malkhan Singh jointly  as nephew  denying the  factum of adoption of Malkhan Singh by Gishan Singh. The consolidation authorities found that Malkhan Singh was not the adopted son.      2. When  the village was denotified under section 52 of the Act  and the  consolidation proceedings  came to an end, Malkhan Singh filed a suit claiming to be the adopted son of the deceased. The claim was resisted by the defendants. They denied the  factum of  adoption set  up by the plaintiff and they also 748 pleaded the bar of section 42 of the Specific Relief Act ant section 49  of the  Consolidation Act. The bar of section 49

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set up  in the written statement was, however, given up. The trial Court  dismissed the  suit holding  that Malkhan Singh was not  the adopted  son. On  appeal the civil and Sessions Judge reversed  the finding  of the  trial court and decreed the suit  holding that  Malkhan Singh was the adopted son of Kissing Singh  and that  he was  given in  adoption  by  his mother after  the death  of her  husband. Feeling aggrieved, the respondents  took up  the matter  to the  High Court  in second appeal  and the  High Court  in its  turn allowed the appeal and  dismissed the  suit on  a short  ground that the suit giving  rise to  appeal was barred by the principles of res judicata  as the  question of  adoption had already been determined   by   the   consolidation   authorities   during consolidation proceedings  and that  decision could  not  be upset by  any other  court as  provided by section 49 of the said Act  and the  earlier  decision  of  the  consolidation authorities  would   operate  as  res  judicata  on  general principles. In  the view that the High Court took it did not decide the question of adoption. Hence the appeal by special leave.      Allowing the appeal, the Court, ^      HELD: 1.1 The decision of the consolidation authorities may operate  as a  bar on  the principles of res judicata as correctly laid  down in  Raj Lakshmi  Dasi’s case    in  the instant case  there has  been no  adjudication of the rights and title  of Malkhan  Singh. Under the Consolidation Act as prevailing at  that time  there was  no  provision  for  the adjudication of  rights and  title after  the  statement  of proposals had  become final.  The consolidation authorities, thereafter, were  only required  to  maintain the record and in 80  doing they  could also  entertain an  application for mutation. The  application filed by Malkhan Singh to succeed Kishan Singh  was virtually  an application for mutation and the decision  of the  consolidation authorities that Malkhan Singh was  not  an adopted  son of  Kishan Singh  would  not amount to  a decision  of the  title and interest of Malkhan Singh. [751 G-H, 752 A-C]      1.2 It is well settled that the mutation proceedings do not  decide the  rights and  title of  the parties and it is always  open   to  a  party  aggrieved  to  get  its  rights adjudicated upon  by a  competent court despite the order in mutation proceedings.  If the  consolidation authorities had decided  the   title  of   Malkhan  Singh  in  consolidation proceedings then  certainly a  subsequent suit  for the same would be barred by the principles of res judicata. [752 C-D 749      1.3 Whether the bar is created by the principles of res judicata or by section 49 of the Act the results REDDENS the same. If  once it  is accepted  that  the  decision  of  the consolidation authorities  after the final allotment of chak to Kishan  Singh that  the appellant was not the adopted son of  Kishan   Singh  amounts   to  an  order  under  mutation proceedings and  there was  no adjudication  of  rights  and title of  the appellant in the earlier proceedings, there is question of  the suit being barred by res judicata or by the principles of res judicata. The position after the amendment of  the  Consolidation  Act  in  1963,  however,  materially changed. Section  12 of  the Act brought in by the amendment gives power  to  the  consolidation  authorities  to  decide matters  relating  to  changes  ant  transactions  affecting rights or  interest recorded  in the  revised  records  even after the  statement of  proposals had became final provided that the ¯ notification under section 52 had not been slued, the provisions  of section 7 to 11 have been made applicable

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to the proceedings under section 12. The adjudicating of the fresh  cause   of  action   will  therefore  amount  to  the adjudication of right and title.[755 A-D,G-H,756 A ]      Smt. Natho & Anr. v. Board of Revenue, U.P. Aallhabad & Ore., 1966 A.L.J. 563 approved.      Suba Singh  v. Mahendra  Singh & Ors., A.I.R. 1974 S.C. 1657 followed.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION : Civil Appeal No. 650 of 1972.      from the  Judgment and  Order dated  the 28th  October, 1971 of  the Allahabad High Court in Second Appeal No. 94 of 1965.      J.P. Goyal and S.K. Jain for the Appellant.      M.V. Goswami for the Respondent.      The Judgment of the Court was delivered by      MISRA, J.  The  present  appeal  by  special  leave  is directed against the judgment of the High Court of Allahabad dated 28th October, 1971.      One Ganga  Singh had  three sons,  Kishan Singh,  Natha Singh and Guman Singh. Kishan Singh had no issue while Natha Singh had  three sons,  Chajju, Rambir  and  Malkhan  Singh. Guman Singh 750 had two  sons, Sohan Singh and Rohan Singh. Kishan Singh was possessed of  some agricultural  land and  also a  house. It appears that  the village  where the  agricultural plots  of Kishan Singh  were situate  was brought  under Consolidation operations and  the rights  and title  of Kishan  Singh were determined in  those proceedings  and eventually chak No. 14 was allotted  to him.  The consolidation  proceedings  start with a  notification under s. 4 of the U.P. Consolidation of Holdings Act and comes to an end with a denotification under s. 52  of the Act. Although the notification under s. 52 had not been issued but the statement of proposals (allotment of chak) had been confirmed under s. 23 of the Act      Kishan Singh  at this  stage died  without leaving  any issue and  a dispute arose about his heirship. Malkhan Singh son of  Natha Singh  claimed to  be an adopted son of Kishan Singh and  on that  basis claimed to inherit the interest of Kishan Singh  while Sohan  Singh and  Rohan Singh claimed to inherit the  interest of  Kishan Singh  along  with  Chajju, Rambir and  Malkhan  Singh.  The  consolidation  authorities after taking evidence, both oral and documentary came to the conclusion that Malkhan Singh was not the adopted son.      When the  village was denotified under s. 52 of the Act and the  consolidation operations  came to  an end,  Malkhan Singh filed  a suit  in respect of the agricultural plots as well as  the house left by Kishan Singh alleging that he was given in  adoption by  his mother,  wife of  Nathu Singh  to Kishan Singh  and Kishan  Singh took  him in adoption on 9th June 1946  with all the formalities of given and taking and’ datta-homa. He  also executed  a deed  of adoption  on  29th November, 1948  in proof of adoption. The suit was contested only by  defendants Nos.  1 and  2, Sohan  Singh  and  Rohan Singh. The other defendants Rambir Singh and Chajju, sons of Nathu Singh  did not  contest. Their defence in the main was that the  plaintiff was not the adopted son of Kishan Singh, that the  court had no jurisdiction to try the suit and that the suit was barred by s. 49 of the Act and also by s. 42 of the Specific Relief Act. The plea of jurisdiction and bar of s. 49  of the  Consolidation Act  were not  pressed  by  the

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defendants. The  issue of  adoption was  decided against the plaintiff. The  bar of  s. 42 of the Specific Relief Act was also negatived.  On these  findings the plaintiff’s suit was dismissed by  the trial  Court. On  an appeal  the Civil and Sessions Judge  reversed the  finding of the trial court and decreed the suit holding that Malkhan Singh  was the adopted son of Kishan Singh and that he was given in adoption BY his mother after the death of her husband. Feeling 751 aggrieved the  defendants took  up the  matter to  the  High Court in  second appeal  and the  High  Court  in  its  turn allowed the  appeal and dismissed the suit on a short ground that the  suit giving  rise to  appeal  was  barred  by  the principles of  res Judicata  us the question of adoption had already been  determined by  the  consolidation  authorities during consolidation proceedings and that decision could not be upset by any other court as provided by s. 49 of the said Act  and   the  earlier   decision  of   the   consolidation authorities  would   operate  as  res  judicata  on  general principles. In  the view that the High Court took it did not decide the  question of adoption. The plaintiff has now come to this Court by special leave as stated earlier.      Shri J.P.  Goyal appearing  for the appellant contended that the  High Court  had carved  out a  new  case  for  the defendants  which   was  not   their  case  in  the  written statement. Elaborating  the argument  the counsel urged that the plea  of Jurisdiction and bar of s. 49 had been taken at one stage  but at  a later stage the two pleas were given up and were  not pressed,  and that the bar of res judicata had never been  set up.  This contention  was raised even before the High  Court but the same was repelled on the ground that the application of the general principles of res judicata as a bar to the suit did not require much evidence and all that was necessary  to  prove  was  that  the  earlier  court  or authority had  the jurisdiction  to decide  the question  of title.      Shri M.V.  Goswami appearing  for the  respondents  has tried to  support the  judgment on  the ground that the suit may not  ’be barred  by s. 11 of the Code of Civil Procedure as the  consolidation authorities  had  no  jurisdiction  to decide  the  rights  and  title  in  respect  of  the  house property, but  all the  same the  principles of res judicata would be  applicable if  the question  of adoption  had been decided by  the  consolidation  authorities  which  had  the exclusive jurisdiction.  to  decide  the  rights  and  title during  the   pendently  of   the   consolidation   libation proceedings. In support of his contention he relied upon Raj Lakshmi Dasi & Ors. Banamali Sen & Ors. [1953] S.C.R. 154.      There is  no quarrel  with the  proposition of law laid down in Raj Lakshmi Dasi’s case (supra) that the decision of the consolidation  authorities may  operate as  a bar on the principles of  res judicata. But the question in the instant case is whether there has been an adjudication of the rights and title of Malkhan Singh. As stated earlier the rights and title of  Kissing Singh had already been determined Ind that is no more in dispute. It was 752 only when  Kishan Singh  died before  denotification of  the village under  s. 52  of the  Act and after the statement of proposals had  become final  that the  question  cropped  up about the  heirship of  Kishan  Singh  deceased.  Under  the Consolidation Act  as prevailing  at that  time there was no provision for the adjudication of rights and title after the statement of  proposals had  become final. The consolidation authorities thereafter  were only  required to  maintain the

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record  and  in  so  doing  they  could  also  entertain  an application for  mutation. The  application filed by Malkhan Singh to  succeed Kishan  Singh was virtually an application for  mutation   and  the   decision  of   the  consolidation authorities that  Malkhan Singh  was not  an adopted  son of Kishan Singh would not amount to a decision of the title and interest of  Malkhan Singh.  It is  well  settled  that  the mutation proceedings  do not  decide the rights and title of the parties  and it  is always  open to a party aggrieved to get its rights adjudicated upon by a competent court despite the order  in mutation  proceedings.  If  the  consolidation authorities had  decided  the  title  of  Malkhan  Singh  in consolidation proceedings  then certainly  a subsequent suit for the  same would  be barred  by  the  principles  of  res judicata.      The contention  of Shri J.P. Goyal is that the decision By the  consolidation authorities that Malkhan Singh was not the adopted  son of  Kishan Singh amounts to an order passed by the mutation court in mutation proceedings. In support of his contention  he has relied upon two decisions: Smt. Natho Anr. v. Board of Revenue, U.P. Allahabad & Ors., 1966 A.L.J. 563 and  Suba Singh  v. Mahendra  Singh &  Ors., A.I.R. 1974 S.C. 1657.  In both these cases the bar of s. 49 of the U.P. Consolidation of  Holdings Act  had been pleaded. It will be pertinent to read s. 49:           "49. Bar  to civil  jurisdiction.  Notwithstanding           any thing  contained in any other law for the time           Being in  force, the  declaration and adjudication           of rights   of  tenure holders  in respect or Land           lying in  an area,  for which  a notification  has           been issued  under sub-section (2) of Section 4 or           adjudication of  any other  right arising  out  of           consolidation proceedings are 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 proceedings 753           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." In the  instant case  as stated  in the  earlier part of the judgement  the   defendants  had   given  up   the  plea  of Jurisdiction and  bar of  s. 49  of the  Act. They, however, banked upon  the bar  of principles of res judicata although no such  specific plea had been taken by them in the written statement. As  the High  Court has allowed the defendants to take up  this plea, we propose to decide the question of bar of principles of res judicata. Whether the bar is created by the principles  of res  judicata or  by s. 49 of the Act the result remains the same. While considering the applicability of s. 49 of the Act the Allahabad High Court in Smt. Natho’s case (supra) observed:           "Consequently, Sec. 49 will only come into play if           either there  had  been  proceedings  relating  to           declaration and  adjudication of rights of tenure-           holders in  respect of  the disputed  land or if a           proceeding for such declaration or adjudication of           rights of  tenure holders  in respect  of the land           could or  ought  to  have  been  taken  under  the           Consolidation of  Holdings  Act.  In  the  present           case, the  proceedings that  were taken before the           consolidation  authorities   on   the   death   of           Bakhtawar were admittedly for mutation of names in

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         the revenue  records. We  need not cite any ruling           for the  well settled  principle that  proceedings           for mutation  of names  in revenue’  courts do not           decide any  rights or  title of tenure-holders, so           that   those   mutation   proceedings   were   not           proceedings  in   which   there   could   be   any           declaration or  adjudication of  rights  of  these           parties by the consolidation authorities. All that           the consolidation  authorities  could  do  was  to           enter the  name of  the person  found entitled  in           place of  Bakhtawar without  adjudicating upon  or           declaring the  rights of any of the parties to the           land  to   which  the   proceedings  for  mutation           related. At  the stage at which Bakhtawar died, no           proceeding  could   have  been  taken  before  the           consolidation  authorities  for  the  purposes  of           having the  rights declared  or adjudicated  upon.           The  powers   of  consolidation   authorities   to           adjudicate  upon   rights  of  tenure-holders  are           confined to  proceedings taken  under section 9 or           section 20 of 754           the Consolidation  of Holdings  Act or  subsequent           proceedings  arising   out  of  those  proceedings           itself, such  as appeals  or revisions.  Once  the           proceedings up  to the  stage of  Sec. 23  of  the           Consolidation of  Holdings Act have been completed           and the  statement of proposals under Sec. 23 have           been confirmed, the statement of proposals becomes           final and  the effect  of  finality  is  that  all           adjudications already  made upto  that date became           final. The  further  effect  is  that,  thereafter           there is no provision empowering the consolidation           authorities to  go into  new questions of title or           rights, which  may arise as a result of new causes           of action  which may  arise after the statement of           proposals have been confirmed."      In Suba Singh’s case (supra) a had been allotted to the original tenure  holder and  the same had become final under s.23. The tenure holder thereafter died but before his death the possession  over the  had allotted to him had been given to him  and nothing  substantial remained  to be done in the shape of  consolidation operations  so far  as his parcel of land was  concerned. Title,  conglomeration,  allotment  and occupation practically  the  whole  gamut  of  consolidation stages was  thus covered.  This Court  held that the present case was  neither covered  by the  first clause  or  by  the second clause of s.49 of the Act inasmuch as after the death of the  chak holder the question of his heirship arose which could not  be decided by the consolidation authorities after the statement of proposals had become final. It observed:           "Section   27(1)    requires   the   Director   of           Consolidation   to    cause   soon    after    the           consolidation scheme  has  come  into  force,  the           preparation of  the record  of  rights  and  other           revenue records,  but this,  in terms of that sub-           section, is  to be  done in  accordance  with  the           provisions of  the U.P.  Land Revenue  Act,  1901.           According to  sub-section 27(3), after the records           have been  so prepared,  their further maintenance           will be  the responsibility  of the Collector, and           this, too,  is to  be done under Section 33 of the           U.P.  Land   Revenue  Act,   1901.  It   was  thus           abundantly clear  that an application for mutation           on the  basis of  inheritance when  the  cause  of

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         action   arose,   after   the   finalisation   and           publication of the scheme under Section 23, is not           a 755           matter in  regard to which an application could be           filed under  the provisions of this Act within the           meaning of clause 2 of Section 49."      If once  it  is  accepted  that  the  decision  of  the consolidation authorities  after the final allotment of chak to Kishan  Singh that  the appellant was not the adopted son of  Kishan   Singh  amounts   to  an  order  under  mutation proceedings and  there was  no adjudication  of  rights  and title of  the appellant in the earlier proceedings, there is no question  of the  suit being barred by res judicata or by the principles  of res  judicata.  The  High  Court  in  our opinion had  committed a  manifest error in holding that the suit giving  rise to  the present  appeal was  barred by the principles of  res judicata or by s. 49 of the Consolidation of Holdings Act.      Before we  close the  judgment we would like to make it clear that  after the amendment of the U.P. Consolidation of Holdings Act  in 1963  the position  has materially changed. Section 12 of the Act brought in by the amendment deals with the decision of matters relating to changes and transactions affecting rights  or interests  recorded in revised records. It reads:           "12.(1)  All   matters  relating  to  changes  and           transfers affecting any of the rights or interests           recorded in  the revised  records published  under           sub-section (1) of Section 10 for which a cause of           action  had  not  arisen  when  proceedings  under           Section 7  to 9  were started or were in progress,           may be  raised before  the Assistant Consolidation           Officer as and when they arise, but not later than           the date  of notification  under  Section  52,  or           under sub-section (1) of Section 6.           (2) The  provisions of  Sections  7  to  11  shall           mutatis  mutandis,   apply  to   the  hearing  and           decision of  any matter  raised under  sub-section           (1) as  if it  were  a  matter  raised  under  the           aforesaid sections."      Sections 7  to 11  of the  Act deal with the rights and title of  the tenure  holder and by the application of those provisions to  the proceedings  under s.  12 in  matters for which cause  of action had arisen subsequently will make the decision a  decision of title. But the position prior to the amendment of  1963 was  different and there was no provision for the adjudication of the H 756 right and  title of  a tenure  holder  once  the  title  and interest   of the  original tenure  holder had  been finally determined and had been allotted.      The inevitable result is that the judgment and order of the High Court cannot be sustained and it must be set aside. The appeal is accordingly allowed, the impugned judgment and order of  the High  Court are set aside and the case is sent back to  it for  deciding the question of adoption according to law. There is, however. no order as to cost. S.R.                                         Appeal allowed. 757