Civil Appeal No 310 of 1960
Appeal by special leave from the judgment and decree dated July 24 1954 of the Board of Revenue Uttar Pradesh Allahabad in Revision No 20A of 195253
section P Sinha and J P Goyal for the appellants N N Keswani for respondent No 2 1962
December 7
The Judgment of the Court was delivered by AYYANGAR J
This is an appeal by special leave against an order of the Board of Revenue Uttar Pradesh which declined to order restitution under section 144 Civil Procedure Code in the following circumstances
The father of the 1st respondent was the Zamindar who filed a suit in the court of SubDivisional Officer Tehsil Iglas at Aligarh for the eviction of Ram Prasad father of the appellants from certain plots of land situated in village Kanchiraoli in The district of Aligarh
The suit was decreed and in execution of that decree the Zamindar took possession
Thereafter Ram Prasad filed an appeal to the Additional Commissioner but this was dismissed in November 1944
He then preferred a further appeal to the Board of Revenue but before it came on for hearing the dispute was settled and on March 28 1948 an application was filed for recording this compromise
The term of the compromise which is of relevance to the present appeal is that Ram Prasad was to be recognised as tenant of the land in dispute in other words the order for evicton 830 was nullified
The compromise was recorded and a decree in terms thereof was passed
Some attempt was made by the Zamindar to have the compromise set aside on grounds which it is not necessary to mention but these attempts failed with the result that it left the compromise decree passed by the Board in full force
It might however be mentioned that the Zamindar immediately obtained possession in execution of the decree of the Sub Divisional officer admitted one Data Ram and certain others as tenants and put them in possession of the property and this has led to all the subsequent complications in this case
On the strength of the compromise decree Ram Prasad applied for restitution of possession under section 144 of the Civil Procedure Code
This application was resisted particularly by Data Ram and others who had been inducted as tenants on the land while the eviction proceedings were pending before the Additional Commissioner on appeal
The trial court allowed the application on the ground that Data Ram and others were bound by the rule of lis pendens and were not therefore entitled to retain the possession which they obtained during the proceedings for ejectment
From this order an  appeal was taken by Data Ram and others to the additional commissioner who for reasons which it is not necessary now to canvass held that the newly inducted tenants could not be dispossessed and that Ram Prasad was entitled only to Symbolical possession as against the Zamindar
This order was taken to the Board in revision where however it was dismissed
It is to challenge the correctness of this order that this appeal has been filed
Learned Counsel for the respondent raised two preliminary objections to the hearing of this appeal The first objection was that this appeal was barred by res judicate
To understand this objection it is 831 necessary to state a few more facts
When the Board of Revenue upheld the order of the Additional Commissioner declining the prayer of the appellants for restitution they filed an application for review and when this was dismissed they brought the matter before the High Court by an application made to it under article 226 of the Constitution
The actual judgment rendered by the High Court is not on record but it was admitted before us by learned Counsel for the appellant that the High Court dismissed the petition after elaborately discussing the merits of the contentions raised and on that ground Data Ram and others who had been let into possession by the Zamindar obtained a statutory right to possession under the U P Zamindari  Land Reforms Act 1950 and could not therefore be evicted by the application of the rule of lis pendens
No attempt was made by the appellant to prefer any appeal against this judgment by either applying to that court and obtaining a certificate of fitness or by moving this Court for the grant of special leave
The result is that there is now a decision of the High Court which has become final and binding on the parties
Learned Counsel for the respondent therefore contends that without the correctness of the decision of the High Court being challenged before us and the finality of that judgment impaired the appellant is not entitled to bypass that decision and seek to practically obtain a reversal of it by attacking the correctness of the decision of the Board of Revenue
We consider this preliminary objection wellfounded
Learned Counsel for the respondent relied in supportof his submission on the decision of this Court in Daryao vs The State of U P 1
The question before the Court was whether when the High Court dismissed a writ petition under article 226 after hearing a matter on the merits on the ground that no fundamental right was proved or contravened 1  832 a subsequent petition to the Supreme Court under article 32 of the Constitution on the same facts and for the same reliefs filed by the same party was permissible
This Court held that where such a petition was heard on the merits and dismissed by the High Court the decision pronounced was binding on the parties unless it was modified or reversed in appeal or by other appropriate proceedings
If thus the rule of res judicata were a bar even to a petition under article 32 which is a Constitutionally guaranteed right it looks to us that it would be afortiori so as regards an appeal under article 136 where the right to relief is discretionary
Learned Counsel for the appellant invited our attention to the decision of this Court in Chandi Prasad Chokhani vs State of Bihar 1 as lying down a rule not quite so inflexible as the decision in Daryao s case  would suggest that it depended upon the facts of each case and that in a proper case dependent upon the discretion of the Court this Court was competent to waive this rule and here the appeal notwithstanding that it meant that the decision of the High Court was bypassed
No doubt there are a few observations of section K Das J who spoke for the Court which are capable of being understood in the manner suggested by learned Counsel but as ultimately the learned judges upheld the preliminary objection and dismissed the appeal these observations are only by way of obiter and cannot outweigh the expressdecision on the point in Daryao s case
We might however point out that in Indian Aluminium CoLtd
vs Commissioner of Income tax West Bengal 2 in which also the judgment was delivered by section K DasJ the reasoning of the learned judge who upheld a similar preliminary objection is more in line with the decision in Daryao s3 case though the latter judgment which was delivered on the same day as in the Indian Aluminium Co s case 2 is not naturally referred to
The learned judge observed  1  3 1962 I SCR 574 833 The question which has arisen in this appeal by way of a preliminary objection is whether in the circumstances set out above no appeal was preferred against the order of the High Court refusing to make a reference under section 662 of the Income Tax Act special leave to appeal from the decision of the Tribunal dated May 29 1956 was properly given under article 136 of the Constitution and whether the appellant is entitled to ask this Court to exercise its discretion under the said article when it did not move against the subsequent orders of the Board and the High Court under section 66 of the Act   
We hold that special leave to appeal from the decision of the Tribunal dated May 29 1956 was not properly granted in this case and the appellant is not entitled to ask us to exercise our power under article 136 of the Constitution when it did not move against the subsequent orders of the Board and the High Court This preliminary objection therefore has to be upheld
The other preliminary objection raised was this
The application for special leave filed by the appellant was out of  time and the delay in filing it was condoned by this Court without notice to the respondent
Learned Counsel sought to urge that there were no grounds for condoning the delay and that for this reason the leave granted should be revoked
In view however of our decision on the first objection raised we do not consider it necessary to deal with this
The result is that the appeal failes and is dismissed with costs


Summary:
The father of respondent No 1 who was the Zamindar filed a suit for the eviction of Ramprasad the father of appell ants from certain plots of land
The suit was decreed and the Zamindar took possession of the land
Ramprasad filed an appeal before the Additional Commissioner but the same was dismissed 
He preferred a second appeal before the Board of Revenue during the pendency of which the matter was compromised whereunder he was recognised as tenant of the land in dispute and the order of eviction was thus nullified
He applied for restitution of possession under section 144 of the Code of Civil Procedure
The application was resisted by Dataram and others who had been inducted as tenants on these plots of land during the pendency of the appeals
The trial court allowed the application but its order was reversed by the Additional Commissioner who held that the newly inducted tenants could not be dispossessed
Its order was affirmed by the Board of Revenue in revision
Thereafter fie filed a petition under article 226 of the Constitution in the High Court challenging the decision of the Board of Revenue but that petition was dismissed on merits
No appeal was attempted to be filed against the order of the High Court either by applying for a certificate or moving this Court for special leave under article 136
The appellants have instead come to this Court in appeal by special leave against the order of the Board of Revenue
A preliminary objection was raised on behalf of of the respondent that the appeal was not maintainable as it was barred by res judicata
Held that the appeal was barred by res judicata as the decision of the High Court was on merits and would bind the parties unless it was modified or reversed in appeal or by other appropriate proceedings 829 Daryao vs State of U P 19621 1 section C R 574 and Indian Aluminium Co Ltd V The Commissioner of Income tax West Bengal 1961 43  relied on
Chandi Prasad Chokhani vs State of Bihar 1962 2 section C R 276 explained