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PETITIONER: PREETAM SINGH (DEAD) BY LRS. & ORS.

       Vs.

RESPONDENT: ASSISTANT DIRECTOR OF CO

DATE OF JUDGMENT:       09/01/1996

BENCH: PUNCHHI, M.M. BENCH: PUNCHHI, M.M. MANOHAR SUJATA V. (J)

CITATION:  1996 SCC  (2) 270        JT 1996 (1)   471  1996 SCALE  (1)496

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      This appeal  is by certificate granted by the Allahabad High Court.  A division  Bench of  the High Court vide order dated  2-1-1978   dismissed  the   writ  petition   of   the appellants. The  question of  law arising therein related to the finality  of an  order of  remand  containing  findings, recorded  by  an  intermediate  court  during  consolidation proceedings. The  principles of  Section 11  of the  Code of Civil Procedure  and those  contained in Section 105 thereof were found attracted in the case.      Regretfully we  do  not  have  the  assistance  of  the respondents,  who   even  though  served  have  not  put  in appearance. They are therefore proceeded against ex-parte.      On May  17, 1969, a Notification under Section 4 of the U.P. Consolidation of Holdings Act was published in the U.P. Gazette for  bringing about consolidation of holdings in the village where the land in dispute is situate. In the year in which the  village came  under consolidation  (known as  the basic year), the appellants were recorded as Bhoomidars over a holding  measuring 38.25  acres  and  also  being  in  its possession. The Gaon Sabha of the village filed an objection under the  provisions of  the Act  before the  Consolidation Officer alleging  that the  appellants were wrongly recorded as Bhoomidars over the disputed land and prayed that entries be corrected  in favour  of the  Gaon Sabha.  The appellants contested the  objections before  the Consolidation Officer. Their case  was that  the land  in  dispute  was  under  the tenancy of some people when the U.P. Zamindari Abolition Act was in  force. The  same did  not vest  in the Gaon Sabha as unoccupied land. The Ashudhi Tehsildar during the correction of the  records operation  found Gurbux  Singh and Harbhajan Singh in  possession of the land in dispute and ordered them to be  recorded as Seerdars by order dated 25-7-1957. On the basis of  such corrected  records Gurbux Singh and Harbhajan Singh obtained Bhoomidari rights under the provisions of the

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U.P. Zamindari  Abolition  Act,  1952.  On  1-6-1959,  those Bhoomidars sold  the land  to the  appellants and thereafter the names  of the  appellants as Bhoomidars were recorded in the  revenue   records,  continuously   till   consolidation operations commenced.      The Consolidation  Officer sustained  the objection  of the  Gaon  Sabha  by  his  order  dated  21-2-1970  ordering expansion of  the names  of the  appellants from the revenue records. The appellants appeal before the Settlement Officer (Consolidation) was  allowed  on  22-8-1970.  A  remand  was effected to  the Consolidation Officer for a fresh decision, after giving  an opportunity to the appellants to prove that they  had   even  acquired   ownership  rights   by  adverse possession. On  the ground of the appellants being owners by purchase the  Settlement  Officer  (Consolidation)  observed that the  disputed land  had vested  in the  Gaon Sabha,  as apparently  the  tenants  had  abandoned  the  land  without creating any  rights in  favour of the predecessors-in-title of the  appellants  and  sequally  none  in  favour  of  the appellants.  On   remand  the  Consolidation  Officer  again allowed the  objection of  the Gaon  Sabha on 31-1-1971. The Settlement Officer (Consolidation) dismissed their appeal on 20-3-1976. The  appellants filed  a revision  petition under Section  48   of  the  Act  before  the  Assistant  Director (Consolidation). The  appellants raised  the plea before the Assistant  Director   (Consolidation)  that   there  was  no evidence on  record  to  hold  that  the  previous  recorded tenants had  abandoned the land in dispute and such findings recorded  by   the  Settlement  Officer  was  passed  on  no evidence. The  Assistant Director  (Consolidation)  did  not entertain the  plea and  dismissed  the  revision  petition, whereupon the  appellants were  constrained to move the High Court in  writ jurisdiction.  A learned Single Judge, before whom the writ petition was placed referred the writ petition to a  division bench  as in his opinion the law needed to be straightened as  to whether  the findings  recorded  by  the Settlement Officer  (Consolidation) in  its remand order was open  to   correction  in  revisional  jurisdiction  of  the Assistant Director  (Consolidation) as  instantly attempted, since  that   remand  order   of  the   Settlement   Officer (Consolidation)  had   not  been   directly  challenged   in revision. The High Court took the view that the remand order of the  Settlement Officer  became final,  since it  was not independently challenged  and what  was challenged  was  the subsequent order  of the Settlement Officer (Consolidation), which came  about after remand and which stood challenged in revision before the Assistant Director (Consolidation).      We have  heard learned  counsel for  the appellants. We can safely say on the strength of the two precedents of this Court in  Jasraj Inder Singh vs. Hemraj Multanchand [1977(2) SCC 155] and Smt. Sukhrani (dead) by LRs and others vs. Hari Shanker and  others [1979(2)  SCC 463]  that the  appellants should succeed.  In the former case this Court expressed its view that  "the remand  order by the High Court is a finding at an  intermediate stage of the same litigation. The appeal before the  Supreme Court  is from  the suit as a whole and, therefore,  the  entire  subject  matter  is  available  for adjudication before  it....... Otherwise  the whole  lis for the first  time came  to the  Supreme  Court  and  the  High Court’s finding  at an  intermediate stage  does not prevent examination of  the position  of law  by the  Supreme Court. Intermediate stages  of the  litigation and orders passed at those  stages   have  a   provisional  finality.......   The contention barred  before the  High Court is still available to be canvassed before this Court when it seeks to pronounce

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finally on  the entirety  of the  suit......." In  the later case this  Court expressed  the view "that though a decision given at  an earlier stage of the suit will bind the parties at a  later stage  of the  same suit,  it  is  equally  well settled that because a matter has been decided at an earlier stage by an interlocutory order and no appeal has been taken therefrom or  no appeal  did lie,  a  higher  court  is  not precluded from considering the matter again at a later stage of the same litigation."      When the  matter was  in revision  before the Assistant director (Consolidation),  he had  the entire  matter before him and  his jurisdiction was unfettered. While in seisin of the  matter  in  his  revisional  jurisdiction,  he  was  in complete control  and in position to test the correctness of the order  made by  the Settlement  Officer  (Consolidation) effecting remand.  In other words, in exercise of revisional jurisdiction the  Assistant Director  (Consolidation)  could examine the finding recorded by the Settlement Officer as to the abandonment  of the land in dispute by those tenants who had been  recorded at the crucial time in the Khasra of 1359 Fasli. That power as a superior court the Assistant Director (Consolidation)  had,  even  if  the  remand  order  of  the Settlement  Officer   had  not   been  specifically  put  to challenge in  separate and  independent proceedings.  It  is noteworthy  that   the  Court   of  the  Assistant  Director (Consolidation)  is   a  court  of  revisional  jurisdiction otherwise having  suo moto power to correct any order of the subordinate  officer.   In  this   situation  the  Assistant Director (Consolidation)  should not  have felt  fettered in doing complete  justice between  the parties when the entire matter was  before him. The war of legalistics fought in the High Court  was of  no material benefit to the appellants. A decision on  merit covering  the entire  controversy was due from the Assistant Director (Consolidation).      Thus for  the above  reasons we  allow this appeal, set aside the impugned orders of the High Court without dilating upon the  abstract question  of law,  except in pointing out the aforesaid  two decisions of this Court and remitting the matter back  to the  Assistant Director  (Consolidation) for fresh decision  of the  entire matter in accordance with the law. No costs.