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Rama Shankar v. Mst. Hubraji & Others
Factual and Procedural Background
This special appeal arises from competing claims to certain plots in village Hansrajpur, district Allahabad, which came under consolidation operations. Prior to notification under Section 4 of the U.P. Consolidation of Holdings Act, Smt. Hubraji (respondent) filed a revenue suit in the Court of the Assistant Collector 1st class alleging she was the bhumidhar of the disputed plots. The Assistant Collector remitted the specific issue of bhumidhari to the Munsif (East), Allahabad, who recorded a finding on July 24, 1957 that Smt. Hubraji was the bhumidhar.
Before the Assistant Collector could decide the suit, the village was notified for consolidation operations and the hearing of the suit was stayed under Section 5 of the U.P. Consolidation of Holdings Act. Before the Consolidation Officer, Smt. Hubraji objected under Section 12(4) of the Act claiming bhumidhari. The Consolidation Officer referred the matter to the Civil Judge, who in turn referred it to an Arbitrator. The Arbitrator issued an award in favour of the appellant, Ram Shahkar, and against Smt. Hubraji. The Civil Judge upheld the Arbitrator’s award on objection by Smt. Hubraji.
Smt. Hubraji filed writ petition No. 3564 of 1958, which was allowed by V.G. Oak, J., on the stated ground that the Munsif (East) had already recorded a decision holding Smt. Hubraji to be the bhumidhar and therefore the Consolidation Officer and the Civil Judge were incompetent to refer the matter further. This special appeal challenges the judgment of Oak, J.; the opinion identifies the impugned judgment variously as dated April 20, 1962 and later refers to setting aside a judgment dated April 30, 1962.
Legal Issues Presented
- Whether the finding recorded by the Munsif (East) under Section 332 of the U.P. Zamindari Abolition and Land Reforms Act amounted to a final decision or determination of title such that the Consolidation Officer was incompetent to refer the question under Section 12(4) of the U.P. Consolidation of Holdings Act.
- Whether a finding recorded by a civil court under the remittal procedure (Section 332) can operate as res judicata or otherwise preclude subsequent reference and determination under the consolidation proceedings.
Arguments of the Parties
Arguments underlying Oak, J.'s decision (as recorded)
- Oak, J. treated the Munsif (East)'s recorded finding (dated July 24, 1957) as a decision by a competent civil court that Smt. Hubraji was the bhumidhar, which, in his view, rendered the Consolidation Officer incompetent to refer the matter to the Civil Judge and for the Civil Judge to refer the matter to an Arbitrator.
- Oak, J.'s reasoning proceeded on the basis that a prior decision on title by a competent civil court prevents subsequent reference under the consolidation machinery.
Submission on behalf of the appellant (Sri Gauri Shanker Srivastava) (as recorded)
- Sri Gauri Shanker Srivastava submitted that Oak, J.'s view was incorrect because the remittal provision (Section 332 U.P. Z.A. & L.R. Act) contemplates the civil court deciding only the framed issue and returning a finding to the revenue court, and that such a finding is not a final decision or decree which could preclude further action under the consolidation provisions.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Sasi Sekhareshwar Ray v. Lalit Mohan Maitra (1) | Principle that the bar of res judicata arises from an executable judgment/decision (a decree), not from a mere finding. | Used to support the conclusion that the Munsif (East)'s recorded finding was not a decision capable of creating a res judicata bar; a finding without a decree does not operate as an executable judgment. |
Court's Reasoning and Analysis
The court examined Section 332 of the U.P. Zamindari Abolition and Land Reforms Act and the related subsections to determine the legal effect of the Munsif (East)'s recorded finding. It noted that:
- Section 332(1) requires that where a question as to title is directly and substantially in issue in specified suits or proceedings, the revenue court shall frame the issue and submit the record to the competent civil court for decision of that issue only, unless the question has already been decided by a competent court.
- Section 332(2) states that the civil court, after reframing the issue if necessary, shall decide such issue only and return the record together with its finding to the revenue court which submitted it.
- Section 332(3) provides that the revenue court shall then proceed to decide the suit, accepting the finding of the civil court on the issue referred to it.
- Section 332(4) prescribes the appellate route from a decree of the revenue court in a suit in which an issue regarding title has been decided by a civil court under subsection (2).
From these provisions the court derived three principal conclusions:
- The civil court's role under Section 332 is limited to deciding the specific issue referred to it and returning a finding to the revenue court; the civil court does not itself try and finally decide the entire suit.
- The Munsif (East)'s action on July 24, 1957, was therefore a recorded finding on the referred issue, not a final decision or decree that would be operative by itself or immediately enforceable.
- Because the finding was not a final decision, it was not appealable on its own, could not give rise to res judicata, and did not amount to a "determination" by a competent court within the meaning of Section 12(4) of the Consolidation Act; only a final decision or decree would have that effect.
Applying these principles, the court concluded that Oak, J. erred in treating the Munsif (East)'s recorded finding as a bar to the Consolidation Officer's reference and to the subsequent proceedings which culminated in the Arbitrator's award.
Holding and Implications
Holding: The appeal is allowed; the court set aside the judgment of Oak, J. (the opinion refers to the impugned judgment as dated April 20, 1962 in one place and April 30, 1962 in another) and dismissed writ petition No. 3564 of 1958 with costs. The court directed that the Consolidation Officer shall give effect to the Arbitrator’s award.
Implications:
- The decision holds that a finding recorded by a civil court under Section 332 is not a final decision or decree and therefore does not of itself operate as a bar (res judicata) to subsequent proceedings under the consolidation statute.
- The immediate effect on the parties is that the writ allowing the challenge to the consolidation proceedings is set aside, the writ petition is dismissed, and the Consolidation Officer must implement the Arbitrator’s award. The opinion does not purport to establish broader novel precedent beyond the statutory interpretation applied to Section 332 and the limited holding described above.
Jagdish Sahai, J.:— This special appeal is directed against the judgment of V.G Oak, J. (as he then was) dated April 20, 1962, allowing writ petition No. 3564 of 1958.
2. The plots in dispute in this case are situate in village Hansrajpur, district Allahabad. It is under consolidation operations. Before the village was notified for consolidation operations under Section 4 of the U.P Consolidation of Holdings Act (hereinafter referred to as the Act), a revenue suit had been filed in the court of the Assistant Collector 1st class by Smt. Hubraji, the respondent to this special appeal and the petitioner in the writ petition mentioned above. One of the allegations of Smt. Hubraji was that she was the bhu-midhar of the disputed plots. The learned Assistant Collector, therefore, remitted an issue to that effect to the court of the Munsif (East), Allahabad for decision. The Munsif recorded his finding on that issue on July 24, 1957 holding that Smt. Hubraji was the bhumidhar of the plots in dispute.
3. However, before the revenue suit mentioned above could be decided by the Assistent Collector 1st class, the village came under consolidation operations and the hearing of that suit was stayed under the provisions of Section 5 of the Act. Before the Consolidation Officer an objection was made by Smt. Hubraji under Section 12(4) of the Act that she was the Bhumidhar of the plots in dispute. The Consolidation Officer, referred the matter to the learned Civil Judge who referred it to the Arbitrator. The Arbitrator gave his award, but against Smt. Hubraji and in favour of the appellant, Ram Shahkar. Thereupon Smt. Hubraji filed an objection against the award of the Arbitrator before the learned Civil Judge, who upheld the award.
4. Smt. Hubraji filed writ petition No. 3564 of 1958. The writ petition was allowed by Oak, J. on the ground that there was already a decision of a competent civil court, that is, the Munsif (East) Allahabad, to the effect that Smt. Hubraji was the Bhumidhar of the land in dispute with the result that the Consolidation Officer was incompetent to refer that matter to the learned Civil Judge, who, in his turn, was incompetent to refer that matter for decision to an Arbitrator. Oak, J. held that a reference by the Consolidation Officer to the Civil Judge and by the latter to an Arbitrator could be made only if the question of title had not already been decided and inasmuch as the Munsif (East) had recorded his finding on July 24, 1957 holding that Smt. Hubraji was the Bhumidhar of the plots in dispute, no reference could have been made.
5. We find merits in the submission of Sri Gauri Shanker Srivastava that the view taken by Oak, J. is not correct. The issue was remitted in this case by the learned Assistant Collector 1st class to the learned Munsif (East) Allahabad, under Section 332 of the U.P Zamindari Abolition and Land Reforms Act (hereinafter referred to as the U.P.Z.A and Land Reforms Act). That provision reads:—
“332. (1) Notwithstanding anything contained in Section 331, if in any suit or proceedings mentioned in column 3 of Schedule II, a question is raised regarding the title of any party to the land which is the subject-matter of the suit or proceedings and such question is directly and substantially in issue the court shall, unless the question has already been decided by a competent court, (frame an issue on the question of the title and submit the record to the competent civil court for the decision of that issue only).
Explanation—A plea regarding the title to the land which is clearly untenable and intended solely to oust the jurisdiction of the revenue court shall not be deemed to raise a question regarding the title to the land within the meaning of this section.
(2) The civil court, after retraining the issue, if necessary, shall decide such issue only and return the record together with its finding therein to the revenue court which submitted it.
(3) The revenue court shall then proceed to decide the suit, accepting the finding of the civil court on the issue referred to it.
(4) An appeal from a decree of a revenue court in a suit or proceeding in which an issue regarding title has been decided by a civil court under subsection (2) shall lie to the civil court which having regard to the valuation of the suit has jurisdiction to hear appeal from the court to which the issue of title has been referred.”
6. Sub-section (2) of this provision is clear that the civil court after reframing the issue, if necessary, shall decide such issue only and return the record toger ther with its finding thereon to the revenue court which submitted it. This provision clearly shows that the finding of the learned Munsif (East), Allahabad, was not a decision, but only a finding. Sub-section (3) of Section 332 of the U.P.Z.A and Land Reforms Act provides that “the revenue court shall then proceed to decide the suit, accepting the finding of the civil court on the issue referred to it.” This re-enforces the conclusion that the civil court only records a finding and the suit is to be decided by the revenue court alone though it has to accept the finding of the civil court on the issue referred to it. Sub-section (4) of this provision provides that “a decree of a revenue court in a suit or proceeding in which an issue regarding title has been decided by a civil court under subsection (2) shall lie to the civil court which having regard to the valuation of the suit has jurisdiction to hear appeal from the court to which the issue of title has been referred”.
7. These provisions, therefore, clearly show that what the learned Munsif (East) had done on July 24, 1957 was to record a finding in respect of one particular issue and the suit had yet to be tried by the learned Assistant Collector 1st class.
8. The suit was never tried because of the village being notified for consolidation operations. That being the legal position, we are, with great respect, of the opinion that Oak, J. was in error when he thought that the effect of the finding of the Munsif (East) Allahabad dated July 24, 1957 was to record a decision on the question of title.
9. A clear distinction has to be maintained, and in fact has been maintained by the U.P.Z.A and L.R Act between a finding and a decision or a decree. The finding of the learned Munsif by itself was not operative. It was not even appealable by itself. It cannot also operate as res judicata because the case in which the finding has been recorded has not been finally decided within the meaning of Section 11 C.P.C Actually it is not decided at all. It is well settled that there can be a bar of res-judi-cata only if there is an executable judgment. (See Sasi Sekhareshwar Ray v. Lalit Mohan Maitra (1). It is trite that the bar of res judicata flows not from a finding, but from a decision. In the present case the learned Munsif (East) Allahabad, had only recorded a finding and had not given a decision. The words used in Section 12(4) of the Act are “and such question has not already been determined by a competent court”. Determination connotes the idea of final determination and not a mere opinion or finding. The finding of the learned Munsif (East) could receive a binding effect only if the Assistant Collector decided the suit and passed a decree. Without the decision or the decree in the case, the finding remained a mere opinion. It is neither an order nor a decree. It can bind none nor can it be treated as a judicial and enforceable determination of a matter.
10. That being the position, we allow this appeal, set aside the judgment of Oak, J. dated April 30, 1962 and dismiss writ petition No. 3564 of 1958 with costs. We further direct that the Consolidation Officer shall give effect to the award given by the Arbitrator.
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