Bishambhar v. Deputy Director Of Consolidation And Others

K.P Singh, J.:— By means of this writ petition the petitioner has prayed for quashing the judgment of the revisional Court dated 23.3.1977 whereby the claim of the contesting Opposite Party No. 3, Mst. Laungi in the present writ petition has been accepted.

2. The only dispute in the present writ petition is as to whether the petitioner Bishambhar succeeded to the property of Ramdeo or the interest of Ramdeo devolved upon his mother, Mst. Laungi (opposite party No. 3 in the present writ petition) who had re-married. It is note-worthy that the parties were at variance on the question whether Mst. Laungi had remarried Buddhu or not.

3. The Consolidation Officer, through his judgment dated 22.1.1973, held that opposite party No. 3 Mst. Laungi had not re-married, hence he allotted 1/5 share to Mst. Laungi and 1/5 share to the petitioner (see Annexure ‘1’ attached with the writ petition). Aggrieved by the judgment of the Consolidation Officer the petitioner, Bishambhar, had preferred an appeal and the appellate Court recorded a finding to the effect that Mst. Laungi had re-married Buddhu, hence she was not an heir of Ramdeo, and the interest of Ramdeo also devolved upon the present petitioner Bishambhar. Thus the share of the present petitioner was fixed as 2/5 share by the appellate authority (see Annexure ‘2’ attached with the writ petition). Thereafter the contesting opposite party Mst. Laungi preferred revision petition which has been allowed by the revisional Court through its judgment dated 23.3.1977 Relying upon the ruling reported in Smt. Kasturi Devi v. Deputy Director of Consolidation,1 the revisional Court has held that the contesting opposite party Mst. Laungi, even having re-married, was entitled to the property of Ramdeo. Aggrieved by the judgment of the revisional Court the petitioner has approached this Court under Article 226 of the Constitution.

4. The learned counsel for the petitioner has contended before me that the revisional Court has patently erred in holding that Mst. Laungi is entitled to the interest of Ramdeo. Since Mst. Laungi had remarried before the death of Ramdeo, she could not inherit the interest of Ramdeo in view of the provisions of Section 171 of the U.P.Z.A and L.R Act Section 171(b) of the U.P.Z.A and L.R Act reads as below:

“Subject to the provisions of Section 169, when a bhumidhar, sirdar or asami being a male dies, his interest in his holding shall devolve in accordance with the order of succession given below:

(a) ……………

(b) Widow and widowed mother, and widow of pre-deceased male lineal descendant in the line of descent, who have not remarried.”

5. (The emphasis is mine).

6. The learned counsel for the contesting opposite party has tried to support the impugned judgment and has contended before me that in view of the judgment of their Lordships of the Supreme Court relied upon by the revisional Court, this Court has no option but to dismiss the present writ petition. He has placed reliance upon the ruling reported in Ballabhdas Mathuradas Labhani v. Municipal Commissioner, Malkapur,2 and has emphasised the following observation made in paragraph 4 of the judgment:

“…………The decision was binding on the High Court and the High Court could not ignore it because they thought that the relevant provisions were not brought to the notice of the Court.”

7. He also placed reliance upon the ruling reported in Dejapada Das v. Union of India,3 and has also drawn my attention to the following observation contained in paragraph 8 of the judgment:

“……………If a large Bench of this Court has already upheld the vires of a statute, the discovery of a new argument cannot invalidate that decision. That proposition will make the binding effect of precedents read in the light of Article 141, a vanishing cream once a novel thought strikes a legal brain. (The emphasis is mine).

8. Another ruling relied upon by the learned counsel for the contesting opposite party is in Ambika Prasad Misra v. State of U.P . 1980 3 SCC 719. and the following observation contained in paragraph 5 of the judgment has been stressed:

“………Every new discovery of argumentative novelty cannot undo or compel reconsideration of binding precedent.”

9. He has also placed reliance upon the ruling reported in, Gopal Krishna Indley v. V. Addl. District Judge, Kanpur . A.I.R 1981 All. 300. and emphasised the following observation in paragraphs 15 and 16 of the judgment:

Paragraph 15. “Article 141 of the Constitution provides that;

“The law declared by the Supreme Court shall be binding on all Courts Within the territory of India.”

Para 16. “This article gives a constitutional status to the theory of the precedent in respect of the law declared by the Supreme Court which is essential for a proper administration of justice. It is a basic principle of administration of justice that the like case should be decided alike. For this reason a Judge tends to decide a cases in the same way in which a similar case had been decided by another Judge. Every Court is bound to follow any case decided by a Court above it in the hierarchy and appellate Courts are bound by the previous decisions.”

10. Relying upon the above quoted observations the learned counsel for the contesting opposite party has contended before me that I have no option but to dismiss the present writ petition.

11. It is note-worthy that the learned counsel for the contesting opposite party could not contend on merits that the provisions of U.P.Z.A and L.R Act contained in Section 171 were not applicable to the facts and circumstances of the present case when the aforesaid provisions of Section 171 of the U.P.Z.A and L.R Act are applied to the facts and circumstances of the present case, the conclusion is irresistible that contesting opposite party No. 3 Smt. Laungi cannot inherit the interest of her son Ramdeo when she had already remarried. To my mind the provisions of Section 171 of the U.P.Z.A and L.R Act are applicable and the contesting opposite party Smt. Laungi cannot inherit the interest of her son Ramdeo due to remarriage and the revisional Court has arrived at patently erroneous conclusion.

12. The real difficulty before me in the present case is that the revisional Court has placed reliance upon a ruling of their Lordships of the Supreme Court reported in. Smt. Kasturi Devi v. Deputy Director of Consolidation (supra). The facts involved in that case were quite similar to the facts involved in the present writ petition before me. In view of these circumstances the learned counsel for the contesting opposite parties has contended that there is no option to me but to dismiss the present writ petition.

13. The perusal of the ruling relied upon by the revisional Court indicates that their Lordships of the Supreme Court came to the conclusion that inheritance would be governed by the provisions of Hindu Succession Act. The whole discussion in the aforesaid ruling points out that their Lordships were concerned with the provisions of Hindu Law.

14. Before me it has not been seriously contended that the provisions of U.P.Z.A and L.R Act are inapplicable to the facts and circumstances of the present case. The learned counsel for the contesting opposite party only suggested that in similar circumstances their Lordships of the Supreme Court have applied the provisions of Hindu Succession Act and the provisions of Hindu Law, hence I cannot go behind that decision. I have gone through the ruling of their Lordships of the Supreme Court referred to in the judgment of the revisional Court and I have also gone through the judgment of the consolidation authorities and the judgment of this Court concerning the case of Smt. Kasturi Devi v. Deputy Director of Consolidation, and I do not find that any of the decisions had considered the provisions of Section 171(b) of the U.P.Z.A and L.R Act which, in my humble opinion, should have governed the facts and circumstances of that case. Since the provisions of Section 171(b) of the U.P.Z.A and L.R Act govern the facts and circumstances of the case giving rise to the present writ petition before me I think that the ruling relied upon by the learned counsel for the contesting opposite party and also referred to in the impugned judgment is distinguishable.

15. I must confess that I am experiencing difficulty in deciding this case in favour of the petitioner in view of the above quotations cited by the learned counsel for the contesting opposite party and in view of the ruling referred to in the impugned judgment and discussed by me above, but I derive help from the following observation of their Lordships of the Supreme Court reported in Raval and Co. v. K.G Ramchandran . 1974 1 SCC 424 at page 821 in paragraph 15:

“…………Any general observation cannot apply in interpreting the provisions of an Act unless this Court has applied its mind to and analysed the provisions of that particular Act………”.

16. Since their Lordships of the Supreme Court has not considered the provisions of U.P Zamindari Abolition and Land Reforms Act and in my opinion the provisions of Section 171(b) of the U.P Zamindari Abolition and Land Reforms Act apply to the facts and circumstances of the case giving rise to the present writ petition, the ruling is distinguishable and inapplicable. The provisions of Hindu Succession Act and the provisions of Hindu Law do not govern the devolution with regard to bhumidhari, sirdari etc. contemplated by the provisions of U.P Zamindari Abolition and Land Reforms Act.

17. In Additional District Magistrate, Jabalpur v. Shivakant Shukla,7 (Head note ‘3’) and page 1378, his Lordships Mr. Justice Bhagwati has observed as below:

“………We are considering the observations of a high judicial authority like this Court, the greatest possible care must be taken to relate the observations of a Judge to the precise issues before him and confine such observations, even though express in broad terms in the general compass of the question before him, unless he makes it clear that he intended his remarks to have a wider ambit.”

18. Relying upon the above observations I think that their Lordships of the Supreme Court in the ruling reported in. Smt. Kdsturi Devi v. D.O.C (supra) did not hold that a married mother would inherit the interest of her son from her former husband with regard to bhumidhari, sirdari etc. contemplated by the provisions of U.P.Z.A and L.R Act. Since the rights of the parties in the present case under my consideration, would be covered by the provisions of U.P.Z.A and L.R Act, I have no hesitation in holding that the revisional Court has patently erred in recognising the claim of contesting opposite party Smt. Laungi with regard to the interest of her son Ramdeo from her former husband. The suggestion of the learned counsel for the contesting opposite party that due to the similarity of the facts involved in the present case as well as in the reported ruling it must be held that their Lordships of the Supreme Court laid down that under the provisions of Section 171 of the U.P.Z.A and L.R Act the married mother would inherit the interest of her son from her former husband is not acceptable to me. The discussion in the ruling of their lordships of the Supreme Court do not throw any light on the question how far the provisions of U.P.Z.A and L.R Act are applicable in similar circumstances.

19. No doubt the decision of their Lordships of the Supreme Court is binding upon every Court in the country but where their Lordships of the Supreme Court have not at all considered the provisions of the Act, it would be hazardous to hold that their Lordships of the Supreme Court construed the provisions of the Act in a particular manner due to the similarity of the facts involved before them. In the ruling referred by the revisional Court and relied upon by the learned Counsel for the contesting opposite party their Lordships have addressed themselves to the provisions of Hindu Succession Act and Hindu Law and they have not at all considered the provisions of U.P.Z.A and L.R Act, hence I am not at all prepared to hold that they have held that a remarried mother can inherit the interest of her son from her former husband under the provisions of Section 171(b) of U.P.Z.A and L.R Act.

20. In Smt. Bimla Devi v. Shri Chaturvedi . 1953 A.L.J 273. a Division Bench of this Court has construed the scope of Article 141 of the Constitution and has observed as below at page 277:

“It is true that where a point has not been argued and certain general observations have been made which may seem to cover points not argued before the Court, they may not be considered to be binding, and in such case the binding nature of the observation of the Court may be limited to the points specfically raised and decided by the Court………”.

21. In Flying Officer S. Sundarajan…Petitioner v. Union Of India & Another…S . A.I.R 1970 Del. 29. a Full Bench of that Court has observed regarding the scope of Article 141 of the Constitution as below at page 33 para 21:

“It is true that under Article 141 of the Constitution the law declared by the Supreme Court is binding on all the Courts and therefore, even the principles enunciated by the Supreme Court including its obiter dicta when they are stated in clear terms have a binding force. But when a question is neither raised nor discussed in a judgment rendered by the Supreme Court it is difficult to deduce any principle of a binding nature from it by implication……..”.

22. In Lakshmi Shanker Srivastava v. State (Delhi Administration) of the Supreme Court have observed as below in para 11:

“…………The judgment proceeds on concession and not on any analysis or examination of the relevant provisions. Therefore, it in noway helps the appellant in this case.”

23. In view of the above quoted extracts I think that the learned counsel for the opposite party was not right in contending that I had no option, but to dismiss the present writ petition. In my opinion due to similarity of the facts dealt with by their Lordships of the Supreme Court in. Smt. Kasturi Devi v. Deputy Director of Consolidation (supra) it cannot be correctly contended that their Lordships held that a married mother would succeed her son by her former husband with regard to bhumidhari or sirdari rights under the provisions of U.P.Z.A and L.R Act. The theory of implied finding cannot be stressed so far. No doubt the like cases should be decided alike, but this principle is also not an absolute rule nor of universal application. It does admit exceptions. The case under my consideration is one of the exceptions. Though the facts under my consideration are similar to the facts involved in the ruling reported in Smt. Kasturi Devi v. D.D.C (supra) but that judgment is not binding upon this Court in other similar cases under Article 141 of the Constitution as their Lordships did not consider the provisions of Section 171(b) of the U.P.Z.A and L.R Act altogether. Had the aforesaid provisions been considered and some facts might have escaped or not emphasised the result would have been otherwise and the decision would have been binding upon this Court, but where there is no discussion regarding applicability of the relevant local law on the subject, the rendered judgment cannot be treated as a declaration of law under Article 141 of the Constitution due to similarity of the facts involved in the case.

24. In the result, the writ petition succeeds and the impugned judgment of the revisional Court is hereby quashed and the revisional Court is directed to decide the claims of the parties afresh in the light of the observations made above. Parties are directed to bear their own costs.