IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- SPL. APPL. WRIT No. 517 of 1997 HARDAM SINGH V/S STATE & ORS Mr. N.S. Acharya, for the appellant / petitioner Mr. R.K. Singhal, for the respondent Date of Order : 27.2.2008 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI SANGEET LODHA,J. ORDER REPORTABLE ----- This appeal has been filed by the appellant against the judgment of the learned Single Judge dated 21.2.97, dismissing appellant's writ petition, whereby the appellant had challenged the order of the Board of Revenue Annexure 9 in the writ petition, being dated 19.10.93. The brief facts, necessary for the present controversy are, that two suits were filed, one by Bagdawat, the private respondent no. 5, being Suit No.240/80, for declaration of his khatedari rights, on the basis of adverse possession, and the other being Suit No.48/81, was filed by the petitioner appellant, against Bagdawat, for recovery of possession, on the basis of his having got a sale deed registered, consequent upon a decree for specific performance, in his favour, on 5.11.80, and thereby claiming title over the land. It may be noticed, that the land in question originally belonged to one Manak, who had entered into an agreement to sale, in favour of Bagdawat on 31.3.67, and he had also entered into agreement in favour of the petitioner on 15.11.67, and it was the petitioner, who could get the decree of specific performance of his agreement. We need not go into further facts, as the controversy before us lies to a very narrow compass, inasmuch, the learned trial Court had consolidated both the suits, and decided them by judgment and decree dated 8.10.85, whereby the suit of Bagdawat was decreed, and suit of petitioner was dismissed. Against that judgment and decree, the petitioner filed one appeal before the learned Revenue Appellate Authority, who by its judgment and decree dated 16.10.86 set aside the judgment and decree of the learned trial Court, and decreed the suit No.48/81, and dismissed the suit No.240/80. Against that, a second appeal was filed by Bagdawat, before the Board of Revenue, and the sheet anchor was, that since there were two suits which had been decided by the judgment and decree dated 8.10.85, two appeals should have been filed before the Revenue Appellate Authority ,while only one appeal was filed, with the result, that the decree in other suit became final, and therefore the learned Revenue Appellate Authority had no jurisdiction to set aside the decree, so as to reverse the result in both the suits, and the learned Board of Revenue 2 vide Annexure 9 held, that no doubt, the two suits were consolidated by the trial court, as the facts and issues in both were similar, but consolidation of the suits however does not mean consolidation of judgment and decree, rather, in fact, consolidation of suits is a facility provided by the court, so that litigants are not harassed and there is control over the multiplicity of the proceedings. It was also held, that if two identical suits are separately heard, there would be the necessity to obtain double sets of documents, the oral evidence would have to be recorded twice, and so on; while by consolidation, such legal procedures are simplified, and only one set of oral and written evidence would be required to be taken. But then, this does not mean, that the decrees in both the suits would also be a single decree, two separate decrees would have to be issued, especially so, when the prayer, or relief, in both the suits are different. On the basis of the above conclusions, the learned Board of Revenue set aside the judgment and decree of the learned Revenue Appellate Authority. With this, the learned Board of Revenue also proceeded to consider the question, as to whether Hardam Singh's suit was within limitation or not, and then, after embarking upon certain aspects, found the suit to be not within time, and thus, the second appeal filed by the respondent Bagdawat was allowed. The learned Single Judge in the impugned judgment 3 found, that two different suits can be consolidated, and disposed of by the trial Court by common order, but if a party is aggrieved, then it is necessary that it should file two appeals. Thus, it was found that the Board of Revenue did not commit any error in accepting the revision petition (sic. Second appeal) on the count that Hardam Singh had (sic. should have filed) filed two appeals, and therefore, the learned Revenue Appellate Authority was in clear error in accepting only one appeal. With this, the learned Single Judge, after negativing the contention, seeking to challenge the order of consolidation, also proceeded to embark on the merits also, and purported to concur with the conclusions arrived at by the Board of Revenue. Assailing the impugned judgment of the learned Single Judge, and that of the Board of Revenue, it was contended, that consolidation, in very nature of things, has the effect of amalgamation of the two suits, and only one decree was required to be passed, and for all intend and purposes, the two suits became one, and only one appeal was required to be filed, which was rightly filed before the learned Revenue Appellate Authority. The learned counsel relied upon a Division Bench judgment of this Court in Sukhlal vs. Deepchand, reported in 1954 RLW 373, and another Single Bench judgment of this Court, in Jai Kishan vs. Bajranglal, reported in I.L.R.1961(11) Raj. 1173. 4 The learned counsel for the respondent on the other hand supported the impugned judgment, and relied upon the Single Bench judgment of Gauhati High Court, in Maniram Saikia vs. Hira Bordoloi & Ors., reported in AIR 1990 Gauhati 32, and also submitted, that the two judgments of this Court proceeded substantially on the judgment of Nagpur High Court, in Manohar Vinayak & Ors. vs. Laxman Anandrao Deshmukh & Ors, reported in AIR 1947 Nagpur 248, which judgment is distinguishable on facts, and therefore, the judgments of this Court, relied upon by the learned counsel for the appellant cannot be said to be laying down the correct law, and in his submission, the correct legal position is, that in such cases two appeals should have been filed, at the pain of dismissal of the appeal in case, only one appeal is filed. We have considered the submissions, and have gone through the two judgments of this Court, so also the two judgments of Gauhati and Nagpur High Courts. Since, the precise question arising for our consideration is, as to whether, in cases, where two or more suits are consolidated, separate appeals are required to be filed in each suit, or it would become only one suit, and only one appeal is required to be filed. In that view of the matter, we are not inclined to dilate on the factual 5 aspect of the matter, involved in the present litigation, regarding merits of the rights of either of the parties to get possession, or to get the declaration of the khatedari rights in the land. We start with Manohar Vinayak's case, which is a Division Bench judgment. The facts therein were, that the plaintiff instituted a suit No.1 of 1928, wherein a money decree was passed on 28.2.1928. In execution, certain property was attached. Then, during subsistence of attachment, one of the sons of the defendant instituted the suit No.171 of 1931 for declaration about the property being not liable to attachment. The suit failed in the trial Court as well as in the First Appellate Court, but succeeded in the Second Appeal. While, the First Appeal was pending, 5/6th share of the property was put to auction, and was purchased by one of the decree holders, and then transferred it by private sale to the respondent no.4, who then instituted a suit No.266A of 1937 on 19.11.1937, for partition of 5/6th share in the field no.31. On the other hand, the other family members, including the son of the defendant Ramchandra also instituted another suit No.39A of 1938, for possession of the entire property against the purchaser. Both these suits were pending in the same Court, and at the request of the parties, both the suits were consolidated on 21.7.38, while passing order in Suit No.266A of 1937, to the effect, that two suits are ordered 6 to be consolidated and tried together, and that since suit No.39A of 1938 has already proceeded beyond the stage of issues, the suit No.266A would follow that case, and proceedings, and orders, in that would govern the Suit No.266A, and that the documents of that case would also be read in this case. It is in these facts, that an objection was raised about the competency of the appeal, on the ground, that in Suit No.266A, against which no appeal was filed, operated as res-judicata, and rendered the appeal preferred against the decree passed in another suit No.39A, incompetent. This objection prevailed in the First Appellate Court, and in Second Appeal, Bose, J. dismissed the appeal, by holding that there was no true consolidation of the suits, and there was no intention to consolidate them, as appears from the orders-sheets in the two suits, and that separate judgment and decree passed on different dates. It was also noticed, that in the order dated 21.7.38, the word “consolidation” was used in the wrong sense, and held, that in the absence of a true consolidation, the two decrees passed, have not the effect of a composite decree, and therefore, the decree in suit No.266A had a separate existence, and therefore operated as res-judicata. Against that judgment, the Letters Patent appeal was filed, and it was held by the Division Bench, as under:- “16. In our opinion, the contention of the appellants is correct. There is no specific 7 provision of law in the Civil Procedure Code for consolidation of two suits such as is contained in Order 49 of the Rules of Supreme Court requiring one trial and one judgment in consolidated actions. It is under the inherent powers of the Court under S.151, Civil P.C. That the suits are consolidated. The legal effect of a de facto consolidation is usually achieved by two suits being tried together by consent of parties and with the approval of the Court. In such cases, the legal position is however the same as in the case of a true consolidation permitted by law and no party who has by his own acts and conduct brought about a virtual, if not an actual consolidation of two suits can be permitted to turn round and invoke the rule of res judicata with a view to prevent the hearing of the appeal against the real judgment delivered in the consolidated suits.” Then, in para 21, it was further held as under :- “21. In suits which are consolidated for trial, there is usually one main judgment disposing of the two suits and it incorporates the decision of the learned Judge on common issue or issues. Even where a finding is separately recorded, it is to be treated as having been incorporated in that judgment. No judgment and decree in the other i.e. in the consolidated suit need be passed, and even if passed, it is of a formal nature depending solely on the main judgment and decree…................. Even, if two appeals were filed there would, in substance, be one verdict by the appellate Court. In our opinion, the mere passing of two judgments and decrees does not affect the real position that there was in substance one judgment and one decree and that was appealed against. Then, so far as the judgment in Maniram Saikia’s case is concerned, that was a case where two suits have been 8 tried together, and a common judgment has been delivered. It was not a case of consolidation. In that view of the matter, this judgment, do not detain us any more. Then, coming to the Sukh Lal's case; In that case, the plaintiff had carried on the business of Commission Agents, under the name and style of Ratan Lal Simrath Lal. The defendants were members of a Joint Hindu Family, defendant no. 1 being father and other beings sons. The suit was filed for recovery of certain amount as principal and interest. The trial Court decreed the suit for certain amount, against which both the parties appealed to the High Court of Former State of Jodhpur, The High Court disposed of both the appeals by one judgment and reduced the decree against the defendant and allowed proportionate cost in the trial court against the defendant and also allowed interest. Two decree sheets were prepared one in Appeal No.42 of 1947-48 filed by the defendant, and another in Appeal No.45 filed by the plaintiff. Thereafter, the defendants applied for leave to appeal to Ijlas-i-Khas of the Former State, and that being granted, the matter came before the Division Bench. It was noticed, that as a result of the judgments of the Former High Court, defendant while applying for leave to appeal, filed the copy of the decree in Appeal No.42 of 1947-48, but failed to file a copy of the decree, which was prepared in the appeal preferred by the plaintiff. In these circumstances, the objection was 9 raised about the maintainability of the appeal. Deciding the objection it was found by the Division Bench, that the decrees were prepared in exactly the same terms in both the appeals, which has been produced and it was found to be obvious that in both decrees, the operative para of the judgment was repeated irrespective of the points raised in the respective appeals, which in the opinion of the Division Bench rendered the preparation of two decrees a meaningless formality. Thus, the objection against the maintainability of the appeal, was overruled. In our view, this judgment strictly speaking is not a judgment on the aspect of the consolidation of the two suits, and consequences thereof. However, this much is clear, that if from one suit, the rival parties file two separate appeals, and they are decided by a common order, partly accepting both the appeals then, for further challenging that decree, only one appeal was held to be maintainable by the Division Bench. Then, we come to the judgment in Jai Kishan's case. In this case, two suits were filed by the plaintiff respondent Bajrang Lal for recovery of certain amounts, being Suit No.160/52 and 190/52. These two suits were consolidated, inasmuch vide order dated 23.9.52, the learned Munsiff ordered that as the parties in both the suits are same, the suit No.160/52 is to be consolidated with suit No.190/52. 10 Then, both the suits were decided by a common judgment dismissing the suits vide decree dated 30.12.53, and on the same day, recorded in the proceedings of Suit No.160/52, that as judgment has been pronounced in Suit No.190/52, the suit No.160/52 was also dismissed. In both the suits, two decrees were prepared separately. The plaintiff filed one appeal on 12.1.54, in which he has submitted copy of the decree of the suit No.190/52, and later on, an application was filed by the plaintiff, submitting copy of the decree prepared in Suit No.160/52, and also filed an application u/s 5 of the Limitation Act. The learned Appellate Court allowed the appeal, finding it to be regularly presented, and decreed the suit. The learned Appellate Court found, that as both the suits have been consolidated, the consolidated proceedings can be disposed of by one single judgment, and there was no necessity for preparation of the two decrees, and even if the Court thought it necessary to draw up two decrees, it cannot be said that plaintiff, could not have filed one appeal against the judgment of the learned trial Court dismissing both the suits. This was challenged by the defendant, on the ground, that the plaintiff having not filed any appeal against the decree passed in suit No.160/52, the Appellate Court could not upset the order of dismissal of that suit, and that as the judgment and decree in that suit has become final, it operated as res-judicata in the appeal filed by the plaintiff in the Suit No.190/52, and therefore, that appeal 11 was also liable to be dismissed. It is in these facts, that this Court considered the definition of “consolidation of actions” as given in Corpus Juris, Vol. I, Art.308, which reads as under :- “Consolidation of actions has been defined as the combination of several actions into one; and also as a direction that one of several pending actions, involving the same facts and issues, shall be tried, the result of the trial to be an adjudication of all the causes. The definitions usually given embrace, in substance, both of the definitions just stated; but it is apparent that the two definitions relate to two entirely distinct methods of procedure, the first involving an actual consolidation, where two or more actions are united into one and tried as such and judgment rendered accordingly, and the other involving a stay of proceedings in all but one of the cases, which is tried and the adjudication in that case made decisive of the others.” In our view, this judgment in Jai Kishan's case is on all the fours, applicable to be present case, rather, squarely covers it, and though, it is a judgment of the learned Single Judge, but then, it proceeds not only on the judgment of the Nagpur High Court in Manohar Vinayak's case, but also on Corpus Juris. That apart, after going through the judgment of Jai Kishan's case, we find ourselves in respectful agreement with the logic, reasonings and conclusions, given in the said judgment. The result of the aforesaid discussion is that we are not able to sustain the judgment of the learned Single 12 Judge, so also the judgment of the Board of Revenue (Annexure 9), who have taken the view, that the plaintiff was required to file separate appeals, even after consolidation. The question then is, as to what course of action should be adopted by this Court, inasmuch, the learned Board of Revenue, so also the learned Single Judge have given their conclusions on the merits of the case also? In our view, it would suffice to say, that once the learned Board of Revenue came to the conclusion, rightly or wrongly, that the appeal filed by the appellant before the Revenue Appellate Authority was not competent, and on that account, the judgment of the Revenue Appellate Authority was to be set aside, then the Board, in our view, would have stood better advised, not to go into the merits of the matter. Same is the position of the decision, so far as, as passed by the learned Single Judge is concerned. May be that the appellant, or litigant did make submissions on merits, and that might have tempted the learned Board of Revenue, or the learned Single Judge, to arrive at certain conclusions. But then the learned Board of Revenue, so also the learned Single Judge, should not have succumbed to the temptation, and should not have gone in the merits of the matter. 13 Consequently, the appeal is allowed. The impugned judgment of the learned Single Judge, so also of the Board of Revenue (Annexure 9), are quashed; and the matter is sent back to the Board of Revenue, to restore the appeal on its original number, and decide on merits, on the basis of the material on record, in accordance with law, treating one appeal filed by Hardam Singh before the Revenue Appellate Authority to be competent, and to decide the matter, without in any manner being obsessed, by whatever conclusions have been arrived at by the learned Single Judge, or the Board of Revenue. The parties are directed to appear before the Board of Revenue on 28.3.08. The learned Board of Revenue is expected to decide the matter expeditiously, as the matter is already very old. ( SANGEET LODHA ),J. ( N P GUPTA ),J. /aditya / 14