1. This petition is directed against an order dated 4-12-1970 passed by the Deputy Director of Consolidation, Kanpur under Section 48 of the U.P Consolidation of Holdings Act, allowing a revision filed by respondent No. 2 (who died during the pendency of this writ petition and is represented by his heirs who are arrayed as respondents Nos. 2/1 to 2/3) and setting aside an order which had been passed by the Settlement Officer (Consolidation, Kanpur) in favour of the petitioners declaring that the petitioners along with the said respondent No. 2 had each 1/5 share in the Khata in dispute, namely, Khata No. 60.
2. These are the facts: In the basic year's record prepared under the aforesaid Act by the consolidation authorities, the four petitioners along with deceased respondent No. 2 Bansidhar as well as one Raghubir Prasad were recorded as the co-tenure-holders of the aforesaid Khata. An objection was filed by Bansidhar claiming that he was the sole tenure-holder of the land in dispute and that the names of the others were liable to be expunged. It was alleged by him that the Khata had been exclusively acquired by him from its erstwhile Zamindar. Shankar Saran son of Bansidhar filed another objection claiming that he had acquired sirdari rights over the plots in dispute by virtue of having been in adverse possession thereof. The two objections were consolidated and have been disposed of by the consolidation authorities by a common judgment. The objections were contested by the petitioners, who asserted that the Khata in dispute had been acquired by Kesri Prasad, Bansidhar, Mohan Lal (petitioner No. 1) Ved Bhushan (petitioner No. 2), Jagannath (husband of Surendra Bala petitioner No. 3), and Girdhari (father of Ram Kumar petitioner No. 4), and that their names had since been continuing without any interruption right from the beginning i.e 1340 Fasli up to the present day. Each of the six sons or their successor-in-interest had thus 1/6th share and that they were in possession over the same. The allegation that either Bansidhar or his son Shanker Saran were in adverse possession over the land in dispute was wrong and baseless.
3. The petitioners further asserted in their objections that Ved Bhusan and Ram Kumar, petitioners Nos. 2 and 4, had filed a suit for partition against the other sons of Kesri Prasad, including Bansidhar under Sec. 176 of U.P Zamindari Abolition and Land Reforms Act claiming the relief of partition of their ⅓ share in the land in dispute. This suit was contested only by Bansidhar. The other sons of Kesri Prasad filed a written statement and admitted the claim of the petitioners on the assertion that the land in dispute belonged to all the six sons of Kesri Prasad in equal shares. The defence of Bansidhar was that the Khata in dispute had been acquired solely by him from the erstwhile Zamindari and not by Kesri Prasad. By a decree dated 23-1-1959, the Assistant Collector I Class decreed that suit on the finding that each of the six sons of Kesri Prasad had 1/6 share in the land in dispute which had been acquired by Kesri Prasad and not by Bansidhar. On these findings, the suit for partition filed by the said petitioners was decreed. Bansidhar challenged the said decree by way of an appeal and a second appeal but without any success. This preliminary decree had become final before the commencement of the consolidation operations, and consequently, the claim of Bansidhar was barred by this preliminary decree in any view.
4. The Consolidation Officer allowed the objection of Bansidhar to the extent of half share on the basis of an agreement set up by him. The remaining half share was held by the Consolidation Officer to belong in equal shares to Mohan Lal, Jagnnath Ved Bhusan and Ram Kumar. The objection of Shanker Saran was however, dismissed in toto.
5. Three appeals were thereafter filed, one by Bansidhar, another by Shanker Saran and a third by the petitioners. Whereas the appeals of Bansidhar and Shankar Saran were dismissed that filed by the petitioners was allowed. The Settlement Officer (Consolidation) held that the preliminary decree had become final between the parties and that each of the sons of Kesri Prasad was entitled to equal share in the land in dispute. As however Raghubir Prasad had not filed any appeal, the Settlement Officer (Consolidation) gave to the remaining five sons or their successors 1/5 share each. The revisions were thereafter filed, one by Bansidhar and another by Shankar Saran. These appeals (revisions) have been disposed of by the impugned order. Whereas, the revision of Bansidhar has been allowed that of Shankar Saran, dismissed. The Deputy Director of Consolidation has held that in view of the fact that proceedings for preparation of final decree were pending when the Notification under Sec. 4 of U.P Consolidation of Holdings Act was issued in regard to the village in question, the suit for partition filed by petitioners Nos. 2 and 4 must be deemed to have abated under Section 5 of U.P Consolidation of Holdings Act, and that consequently, the preliminary decree though passed before the issue of the said Notification was of no avail to the petitioners. Relying on the agreement dated 27-4-1949 set up by Bansidhar as a plea in the alternative, the Deputy Director of Consolidation restored the order passed by the Consolidation Officer.
6. Learned Counsel for the petitioners assailing the legality of the order passed by the Deputy Director of Consolidation submitted that the Deputy Director of Consolidation committed a patent error of law in taking the view that the preliminary decree passed in the partition suit filed by the petitioners Nos. 2 and 4 had not become final and binding on Bansidhar in view of the fact that proceedings for preparation of final decree were still pending when the Notification under Section 4 of U.P Consolidation of Holdings Act was issued in respect of the village in question.
7. Learned Counsel for Bansidhar on the other hand contended that in view of certain facts and circumstances which shall be referred to hereinafter, the preliminary decree passed in the partition suit could not be said to have become final and binding by the time the Notification under Section 4 was issued. He also contended that in any view, the suit for partition was liable to abate in its entirety under S. 5 of the U.P Consolidation of Holdings Act irrespective of the legal position which may be obtaining in regard to the decree of finality attaching to preliminary decrees in suits for partition.
8. Having heard learned Counsel for the parties, I am clearly of the view that the contentions raised by the learned Counsel for the petitioners are well founded and are fully supported by the authorities not only of this Court but of the Supreme Court.
9. So far as the question whether it is permissible to the consolidation authorities to reopen matters which had become final by the passing of preliminary decree in a suit for partition before the issue of a Notification under Sec. 4 of the U.P Consolidation of Holdings Act, even though proceedings for preparation of final decree may be pending on the date of the issue of the said Notification, is concerned, the same stands concluded by a decision of this Court in Rudra Pal Singh v. Ram Pal Singh (1971 Rev Dec 479 : (AIR 1972 All 67)). This decision was followed by another learned Judge in the case of Satish Kumar v. Lalta Tewari (1974 Rev Dec. 379). In Rudra Pal Singh's case (supra), R.B Misra, J. dealt with this controversy in considerable depth and after an exhaustive analysis of the various decisions cited at the bar, held that even though a suit for partition might in one sense be said to be continuing till the final decree is passed, in so far as matters covered by it are concerned, a preliminary decree assumes finality and if a preliminary decree had been passed declaring the rights and shares of the parties in the land in dispute before the issuance of the Notification under Section 4 of the U.P Consolidation of Holdings Act, it would not be open to the consolidation authorities to reopen that adjudication. It was further held in Rudra Pal Singh's case (supra) that the effect of Section 5 of the U.P Consolidation of Holdings Act would be to abate the suit for partition only partially, that is, so far as proceedings for preparation of final decree are concerned, the same would abate. But as regards the declaration of the rights of the parties by the preliminary decree, the same shall remain intact and be not liable to be questioned by the consolidation authorities.
10. I am in respectful agreement With all that has been said in Rudra Pal Singh's case (supra). R.B Misra, J. was right, if I may say so with respect, in taking the view that notwithstanding the provisions of Section 5 of U.P Consolidation of Holdings Act, the rights declared by a preliminary decree in a suit for partition could not be called in question by the consolidation authorities even though proceedings for preparation of the final decree might have been pending on the date on which the Notification under S. 4 of the aforesaid Act was issued. The view taken by R.B Misra, J. finds support from the provisions of the Code of Civil Procedure as well as the various authorities referred to above in his judgment. I am also in agreement with the view expressed by Prem Prakash, J. in Satish Kumar's case (supra), in which the learned judge following the decision of Rudra Pal Singh's case (supra) as well as the decision of the Supreme Court in Venkata Reddy v. Pethi Reddy (AIR 1963 SC 992) observed thus:
“In view of the above Supreme Court decision although a case may not terminate unless a final decree was passed, yet there may be finality to the various stages of that case and in those proceedings there may be a stage where the parties have already obtained a declaration in respect of their rights or interests in any land which is the subject-matter of consolidation proceedings and if that declaration has become final and is no longer pending for its finality, the declaration of rights so obtained in a preliminary decree cannot be affected by a Notification made under the Consolidation of Holdings Act.”
11. The aforesaid two decisions of this Court completely cover the controversy before me.
12. Learned Counsel for Bansidhar, however, sought to distinguish the aforesaid two decisions on grounds, which I shall deal with seriatim.
13. The first ground urged was that inasmuch as Bansidhar moved an application for amendment of his written statement in the aforesaid partition suit filed by petitioners Nos. 2 and 4 on 6-2-1963, and the court seized of the suit had issued notices thereon to the plaintiffs and further as an objection had been filed by the plaintiffs to that application, it must be assumed that the preliminary decrees had not attained any finality until the issue of Notification under Section 4 of U.P Consolidation of Holdings Act which was done on 29-8-1964.
14. The argument has no substance. It was not disputed by the learned Counsel for the respondents that all the attempts to challenge the correctness of the preliminary decree by way of an appeal, and a second appeal, made by Bansidhar had failed prior to making of the said amendment application. The preliminary decree had become final and it was only in the course of proceedings for preparation of the final decree that it dawned on Bansidhar to apply for amendment of the preliminary decree which was obviously incompetent and misconceived in law. It is extremely doubtful whether it is permissible to a party to apply for amendment of the written statement after the preliminary decree in a suit for partition has become final in regard to matters covered by the preliminary decree. At any rate, even if a party could apply for amendment of the pleadings after the preliminary decree has become final, seeking to raise controversy touching on matters which have been finally adjudicated under the preliminary decree, I have not the least doubt that by the mere filing of an application for amendment or even issuance of notice thereon, the finality of the preliminary decree is not destroyed or even put in jeopardy. The amendment application could not make the suit pending even as regards matters adjudicated by the preliminary decree. The argument, therefore, fails.
15. Learned Counsel next contended that even R.B Misra, J. has conceded in Rudra Pal Singh's case (AIR 1972 All 67) while distinguishing the case of Jadunath Roy v. Parmeshwar Mullick (AIR 1940 PC 11) that contingencies might arise necessitating readjustment of the share of the parties even after passing of the preliminary decree. That being so, it was submitted, the fact that there existed an agreement dated 27-4-1949 between the parties, whereunder Bansidhar was to get half share in the land in dispute while the remaining half was to be shared between the petitioners, was a matter which could be taken into consideration even after the passing of the preliminary decree and on its basis, the shares of the parties could be altered.
16. I cannot agree. There is a clear distinction between re-adjustment of shares consequent upon the death or transfers inter se taking place subsequent to the passing of the preliminary decree necessitating re-adjustment of shares consistently with the rights of the parties as adjudicated by the preliminary decree and a case where a claim is made on the basis of facts which were pre-existing, that is, which were in existence before the institution of the suit for partition or passing of the preliminary decree on the basis of which rights are claimed in derogation of or conflict with the preliminary decree. In the former case, in my view, adjustments may be made at the time of the preparation of the final decree, but not in the latter case. Learned Counsel for respondents was able to cite no case which might have taken the view that in the name of readjustment of shares after the passing of the preliminary decree in a suit for partition controversies which have been finally adjudicated as regards rights and shares of the parties, could be reopened subsequent to the passing of the preliminary decree. I am clearly of the view that there is no sanction in law for reopening a controversy which has become final with the passing of the preliminary decree. It may be that readjustments may be done at the time of the passing of the final decree as a result of deaths, transfers or devolution of interest which took place subsequent to the passing of the preliminary decree. But that readjustment must necessarily be consistently determined by the preliminary decree. The so-called agreement is said to have been executed by the parties long long before the institution of the suit for partition. Bansidhar did not set up that agreement as an answer to the suit. The agreement, therefore, could not be a contingency of the character which was being considered by the Privy Council in the case of Jadunath Roy (supra). Apart from such contingencies to my mind, it is not permissible to the court concerned with the preparation of final decree to enter into controversies as regards the shares of the parties which have been determined finally under the preliminary decree. The existence of the agreement, therefore, could not afford a ground for ignoring the finality attaching to the preliminary decree.
17. Learned Counsel for the respondents also made an attempt to question the correctness of the proposition that even though a suit continues till the final decree is passed in a suit for partition, once the preliminary decree has become final between the parties, its finality cannot be reopened subsequently. This argument was specifically dealt with by R.B Misra, J. in the case of Rudra Pal Singh (AIR 1972 All 67) (supra). At any rate, the observations of the Supreme Court in the case of Venkata Reddy v. Pethi (AIR 1963 SC 992) put a final seal on any such argument. Their Lordships of the Supreme Court have held that Section 97 of the Code of Civil Procedure clearly indicated that as regards matters covered by it, a preliminary decree has to be regarded as embodying the final decision of the court passing that decree, and that the fact that in a suit for partition, it is the final decree which is capable of execution is no ground for holding that the preliminary decree is not final as to the matters covered by it.
18. The Deputy Director of Consolidation has observed that in view of the fact that Raghubir Prasad had taken no interest in the proceedings during the consolidation operations, and that he had not felt aggrieved by the expunction of his name and non-allotment of any share to him proved that the partition decree had not been accepted by the parties. He has also observed that unless final decree was prepared and Qurras allotted to the parties, the partition suit could not be said to have concluded. The Deputy Director of Consolidation is clearly wrong there. The mere fact that Raghubir Prasad did not file an appeal against the order of the Consolidation Officer could not affect either the finality of the preliminary decree or even the rights of the other parties. The grounds upon which the Deputy Director of Consolidation ignored the preliminary decree are, therefore, clearly wrong and unsustainable in law.
19. Relying on the provisions of Sec. 5 of the U.P Consolidation of Holdings Act as they stood prior to its amendment by U.P Act No. XII of 1965, learned Counsel for the respondents submitted that there was an indication in the statute that the suits for partition were liable to be stayed. I find no substance in this argument. In Rudra Pal Singh's case (AIR 1972 All 67) (supra), R.B Misra, J. has held that it is permissible under Section 5 of the U.P Consolidation of Holdings Act to abate proceedings partially in a suit for partition. The learned Judge held that so far as the proceedings for preparation for final decree are concerned, the same are liable to abate but the proceedings for preliminary decree which had become final prior to the issue of Notification under S. 4 of the Act, cannot be said to be pending and are, therefore, not liable to be abated. I am in respectful agreement with the view expressed in Rudra Pal Singh's case (supra) which provided a complete answer to this argument. The same view has been taken in Satish Kumar's case (1974 Rev Dec 379) (supra) also. R.B Misra, J. has fully considered the effect of Section 5 of the aforesaid Act on the controversy raised by the learned counsel for the petitioners and I do not consider it necessary to repeat the grounds which had persuaded the learned Judge for holding that the finality of the preliminary decree for partition is not affected by S. 5 of the aforesaid Act. I, therefore, find no substance in this argument either.
20. The result of the aforesaid observation is that the Settlement Officer (Consolidation) was right in construing the effect of the preliminary decree and the Deputy Director of Consolidation has committed a manifest error in holding that the preliminary decree was not binding between the parties.
21. The court passing the preliminary decree categorically held that each of the six sons of Kesri Prasad bad equal share in the Khata in dispute. This decree was affirmed in appeal and second appeal and it became final before the consolidation operation started. According to the preliminary decree, therefore, each of the petitioners would have been entitled to 1/6 share in the Khata in dispute while Raghubir Prasad and Bansidhar would also have been entitled to 1/6 share each. The Settlement Officer (Consolidation), however, held that in view of the fact that Raghubir Prasad had not questioned the correctness of the order passed by the Consolidation Officer, he must be held to have impliedly relinquished his rights in the Khata in dispute, and that, therefore, each of the remaining sons of Kesri Prasad or their successors-in-interest must be deemed to have 1/5 share. As, however, Raghubir Prasad had not challenged this order passed by the Settlement Officer (Consolidation), it would not be possible to vary the shares of the parties as determined by the Settlement Officer (Consolidation).
22. As the preliminary decree passed in the aforesaid partition suit filed by the petitioners Nos. 2 and 4 is final and binding between the parties, any alleged prior agreement of settlement dated 27-4-1949 would be of no avail to the respondents. In the result, the petition succeeds and is allowed. The order passed by the Deputy Director of Consolidation Kanpur dated 4-12-1970 is quashed. The order passed by the Settlement Officer (Consolidation) dated 13-1-1969 is restored. The parties shall bear their own costs.
23. Petition allowed.