IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.366 of 2004. IN (CIVIL WRIT JURISDICTION CASE 7915/2000) Hridya Nand Pandey son of late Ram Briksh Pandey, Resident of village Milki Miyazipur P.S. Natwaar District Rohtas. .... .... Appellant. Versus 1.The State of Bihar. 2.The Director of Consolidation, Bihar, Patna. 3.TheDeputy Director of Consolidation, Rohtas at Sasaram 4.The Consolidation Officer, Dinara, Rohtas. 5.Sri Ganga Sagar Pandey son of Late Hari Naraya Pandey, 6.Prabhawati Kuer wife of Late Triloki Pandey. 7.Sri Surendra Pandey son of Late Triloki Pandey. 8.Sri Talukraj Pandey Res. 5 to 8 residents of village Milki Niyazipur P.S.Natwaar District Rohtas. 9(i)Motijhari Kuer wife of late Lallan Pandey 9(ii) Vijay Kant Pandey @ Pappu Pandey son of late Lallan Pandey 9.(iii) Munniji wife of Rajvansh Dubey R/o village Mangraulia P.S.Rajpur District Rohtas. 9.(iv) Pushpa Kumari wife of Late Arun Tiwary R/o village Sawandehri P.S. Kochas District Rohtas. 9(v) Kanchan Kumari wife of Dinesh Pandey, R /o village Handi P.S.Rajpur District Rohtas. 9(vi)Ranju Kumari wife of Kalendra Chaubey R/o village Dumri P.S. Bhojpur District Buxar. 10.Sri Rajbansh Pandey son of Late Chandra Kumar Pandey. 11.Sri Ramashankar Tiwary. 12. Sri Shiv Shankar Tiwary sons of not known. 13. Raj Lakhi 14.Shivjhari 2 15.Sumitra. All daughters of Late Chandra Kumar Pandey. 16.Sri Banarasi Pandey son of Late Deo Lochan Pandey. Res.10 to 16 residents of village Milki Niyazipur P.S.Natwaar District Rohtas. 17.Madan Pandey son of Late Jagarnath Pandey Resident of village Milki Niyazipur P.S.Natwaar District Rohtas. .... .... Respondents. =================================================== For the Appellant: :Mr. K.N.Singh,Sr.Adv. Mr.Manish Kumar, Adv. Mr.Kamaldeo Sharma,Adv. For the Respondents : Mr.Shashi Shekhar Dwevedi, Sr.Adv. Mr.Shailendra Kumar Chaubey,Adv. =================================================== CORAM: HON’BLE MR. JUSTICE SHIVA KIRTI SINGH & HON’BLE MR. JUSTICE SHIVAJI PANDEY. Shivaji Pandey,J In this appeal, the primal question arises as to whether the application filed by the appellant under Section 10B of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter, in short, referred to as the „Act‟) was maintainable, in view of the fact that the objection raised by the appellant purportedly under Section 10(2) of the Act was earlier rejected. Another point 3 which is also to be considered is as to whether the application under Section 10B of the Act was maintainable in view of a subsequent event of abatement of the suit at the appellate stage. The next question is as to whether the Revisional authority in stead of dismissing the revision application on the ground that the application under Section 10B of the Act was not maintainable, in view of the rejection of the application under Section 10(2) of the Act, ought to have decided the case on merit. 2. The brief facts of the case are that admittedly one Anarkali Devi was originally the land holder of C.S. Khata No.4, plot nos.291, 279, 395 and 396 having an area of 1.65 acres of village Sonbarsa P.S.Dinara in the district of Rohtas. As per the claim of the writ-petitioner-appellant, the original land holder sold the aforesaid land in favour of Manbaso Kuer (Devi) by registered sale-deed in the year 1917 for consideration money of Rs.16/-. Later on in the year 1919 Manbaso Kuer (Devi), orally sold the land to the father of petitioner no.1 for Rs.19/- by way of oral sale and in pursuance thereof, she had handed over the original sale- deed to the father of petitioner no.1 and since then, he is having possession of that registered sale-deed. In the year 4 1936, in between land-lords, there was a partition suit of Tauzi of land-holders. The suit land had fallen in the share of landlord Sri Ambika Mishra. Earlier it was under Bhoali rent and thereafter it was converted into Nakadi Rent and, accordingly, the ancestors of the petitioner- appellant were paying rent which was being accepted by the landlord. It was further averred by the appellant that the ex- landlords were Yajman of respondents and in connivance with the respondents, at the time of vesting, the landlord filed return in favour of the respondents and, accordingly, Jamabandi was created in the name of the respondents. It was further asserted that Ambika Mishra filed Rent Suit No. 1555 of 1953/71 of 1954 against the respondents for realization of rent. In that rent suit, the petitioner-appellant were not made party, having got knowledge of the same they appeared in the court as interveners but with the connivance of the respondents and Ambika Mishra, the case was closed as the rent was purportedly paid by the respondents. In 1962, the appellant filed Title Suit No. 25/306 of 1962 for declaration of title and confirmation of possession of the suit land. The suit was decreed in favour of the appellant. The respondents challenged 5 the decree before the appellate court and the appellate court set aside the judgment and decree of the trial court, vide judgment and decree dated 3rd January 1975. The appellant filed Second Appeal before this Court vide S.A.No. 68 of 1975 and the judgment of the appellate court was set aside. The case was remanded back to the appellate court. At the appellate stage, an application under Section 4 ( c) of the Act was filed making prayer for abatement of the suit in appeal and in pursuance thereof, the suit abated, vide order dated 19th July 1984. 3. After the abatement of the suit, the appellant filed an application under Section 10B of the Act making a prayer that the land in dispute be recorded in favour of the appellant giving the fact as stated hereinabove and the same was registered as Case No. 1 of 1984-85. The Consolidation court rejected the application of the appellant and confirmed the entries made in favour of respondents. Being aggrieved by the order of the Consolidation court, an appeal, vide Appeal No. 41 of 1985-86, was filed by the appellant before the Deputy Director, Consolidation, Rohtas, Sasaram which was allowed in favour of appellant. The litigation did not stop there, the respondents filed 6 revision before the revisional court i.e. Director, Consolidation vide Revision No. 10 of 1986 which was allowed in favour of respondents. The revisional order was challenged in writ petition vide C.W.J.C.No. 4997 of 1987 and this court remanded back the matter to the revisional court. On remand, the Revisional Court again decided the case in favour of respondents holding that the application under Section 10B of the Act was not maintainable in view of the fact that earlier an application filed u/s 10(2) of the Act was rejected 10 years ago. This revisional order has been affirmed by the Writ Court vide order under appeal. 4. The consolidation court in its order has said that he made inspection of the land and took statement of persons present at the spot and found possession of respondents. This finding of Consolidation Officer was challenged by the appellant, on the ground that the enquiry was conducted behind the back of appellant and he was not informed about the date of inspection by the Consolidation Officer. Records do not contain any Memorandum of Inspection. 5. It appears from the record that the writ petitioners had filed an application in the year 1974 before 7 the Consolidation court vide Case No.20/6232 of 1974 for correcting the entry made in the record of rights prepared by the Consolidation authorities. The ground was simply the judgment and decree in the title suit as passed by the Munsif Court in favour of the appellant. Clearly the application was in the nature of application under Section 10B of the Act bringing to the notice of authority the subsequent development by way of judgment and decree of learned Munsif. Entries in the record of rights were sought to be corrected according to the judgment and decree of the learned Munsif. There is not dispute that the Appellate Court had reversed that judgment and decree in January 1975 itself. Hence such application was wrongly labeled under Section 10(2) of the Act. Parties were litigating before the Civil Court till 1984 and hence, such an application, apparently under Section 10B of the Act was prematured in 1974 or 1975. Any order on such application could not have adversely affected the parties till the Civil Court was proceeding with the suit or appeal in its plenary jurisdiction. The consolidation officer without deciding any issues, rejected the application vide order dated 22nd May 1975 (Annexure-B) on the ground that the supporting 8 documents i.e. the judgment etc. were not filed by the appellant before the Consolidation Court. 6. The writ-petitioner/appellant in the writ petition in Para-34 has asserted that there was no notification under Section 3 of the Act and, as such, under ignorance the application was filed under Section 10(2) of the Act in the year 1974 and, hence, the order passed by the consolidation authority under Section 10(2) of the Act has no value in law. 7.At the appellate stage before this Court for the first time the appellant in the Memo of appeal asserted that even presuming the oral sale be not accepted, then also the appellant has succeeded to title and possession of Manbaso Kuer (Devi) who was from the family of the appellant, by inheritance. . 8. The case of the respondents is that C.S. Khata was recorded in the name of Mostt. Anarkali who was the limited owner and she had no authority to sell the land in favour of Mostt. Manbaso. It was further contended that as no consideration amount was paid to Anarkali, as a consequence thereof the sale remains only a paper transaction and, in fact, it remained inoperative. The sale- 9 deed purportedly executed by Anarkali to Manbaso was forged as she had no need for selling the suit property. Anarkali was “Azi”(grand mother) of the respondents, on her death, as she was issueless, ownership of the property devolved upon the respondents by way of survivorship and, as such, they are really title holders of the lands in question. The Respondents stated that the appellant never raised objection against the return filed by the ex-landlord at the time of vesting of the land and, as such, they are real title- holders of the land and they are in possession since the death of Anarkali. About Manbaso Kuer it is alleged that she had never been in possession of the aforesaid land and she did not transfer any title and possession to the appellant. There was a partition among the ex-landlords vide T.S.No. 3 of 1936. As per the partition the disputed land came to the share of Ambika Mishra who filed Rent Case No. 799 of 1945 in which parties compromised after realization of the arrears of rent from Hari Narayan Pandey, respondents‟ ancestor. Another Rent Suit No. 1955 of 1953/71 of 1954 was filed for realization of rent and the rent was paid by the respondents and, accordingly, the suit was disposed of. The respondents have claimed that they paid the rent to the ex- 10 landlord and accordingly, receipts were issued in their favour. During the R.S. operation the land was recorded in his name which further consolidates the case of the respondents about the title over the land in question. 9. The appellant, during argument raised a point that as there was no notification u/s 3 of the Act, relying on a notification dated 4th October 1975 stated that any decision prior to that date, has no value in law but the respondents by way of supplementary affidavit have brought the notification showing that the State Government issued the Notification under Section 3 of the Act vide S.O. 1076 dated 12th October 1972, to controvert the fact that at the time of decision under Section 10(2) of the Act there was no notification under Section 3 of the Act. In view of the notification filed by the respondents, the contention of the appellant about the notification having been not issued at the time of deciding the objection under Section 10(2) of the Act is of no avail and this objection of the appellant is not sustainable in law. 10. It was next contended that the case was heard on 14th March 1975, the appellant and the respondents were present, the objection of the respondents was heard, 11 the next date of hearing was fixed on 2nd April 1975 and the direction was given by the Consolidation Officer for production of the documents. It will be relevant to mention that the Consolidation Officer fixed the next date of hearing on 2nd April 1975 but it appears from the record that the order of rejection was passed on 22nd May 1975 without fixing any date of hearing. From the said order it appears that the case was rejected only on the ground that the appellant did not produce the supporting documents to substantiate his case. The appellant at this stage has contended that the order was illegal passed on a date when the case was not fixed for hearing and, as such, this order cannot be a bar for filing objection under Section 10B of the Act. 11. The next contention has been raised that the Revisional authority without considering the materials on the records and without deciding the title of the parties, rejected the application only on the ground that as already the application under Section 10(2) of the Act was rejected in the year 1975 and after 10 years, there was no subsequent change of event, the application under Section 10B of the Act was not maintainable. The revisional authority ought to 12 have decided the case looking into the merits and the contention of the parties, merely because there was rejection of the application under Section 10(2) of the Act and that, too, without any consideration by a cryptic order, it cannot be a ground for rejecting the application under Section 10B of the Act. 12. In rebuttal, the respondents have stated that the writ petition was not maintainable as there was a suppression of fact. The appellant did not mention that the earlier application filed under Section 10(2) of the Act was rejected in the year 1975 and in support of the contention relied on the judgments reported in the case of Prestige Lights Ltd. V. State Bank of India, (2007)8 SCC 449,Para- 33 which is as under: Para-33: It is thus clear that though the appellant Company had approached the High Court under Article 226 of the Constitution, it had not candidly stated all the facts to the Court. The High Court is exercising discretionary and extraordinary jurisdiction under Article 226 of the Constitution. Over and above, a court of law is also a court of equity. It is, therefore, of utmost necessity that 13 when a party approaches a High Court, he must place all the facts before the Court without any reservation. If there is suppression of material facts on the part of the applicant or twisted facts have been placed before the Court, the writ court may refuse to entertain the petition and dismiss it without entering into merits of the matter”. 13. Reliance was also placed upon the case of K.D.Sharma v. Sail, reported in (2008)12 SCC 481, Para 38 & 39, the Court has held as follows: Para: 38 :The above principles have been accepted in our legal system also. As per settled law, the party who invokes the extraordinary jurisdiction of this Court under Article 32 or of a High Court under Article 226 of the Constitution is supposed to be truthful, frank and open. He must disclose all material facts without any reservation even if they are against him. He cannot be allowed to play “hide and seek” or to “pick and choose” the facts he likes to disclose and to suppress (keep back) or not to disclose (conceal) other facts. The very basis of the writ jurisdiction rests in 14 disclosure of true and complete (correct) facts. If material facts are suppressed or distorted, the very functioning of writ courts and exercise would become impossible. The petitioner must disclose all the facts having a bearing on the relief sought without any qualification. This is because “the court knows law but not facts”. Para: 39: If the primary object as highlighted in Kensington Income Tax Commrs is kept in mind, an applicant who does not come with candid facts and “clean breast” cannot hold a writ of the court with “soiled hands”. Suppression or concealment of material facts is not an advocacy. It is a jugglery, manipulation, manoeuvring or misrepresentation, which has no place in equitable and prerogative jurisdiction. If the applicant does not disclose all the material facts fairly and truly but states them in a distorted manner and misleads the court, the court has inherent power in order to protect itself and to prevent an abuse of its process to discharge the rule nisi and refuse to proceed further with the examination of the case on merits. 15 If the court does not reject the petition on that ground, the court would be failing in its duty. In fact, such an applicant requires to be dealt with for contempt of court for abusing the process of the court”. 14. Now the objection with regard to suppression of material fact raised by the respondent against the appellant is to be decided. In this connection before relying upon the judgments cited by the respondents, it has to be examined as to whether there was really suppression of fact by the appellant or not in relation to the fact that there was no averment made in the writ petition about the decision rendered by the consolidation authority ten years before under Section 10(2) of the Act. In Para-34 of the writ petition, the writ-petitioner/appellant has specifically mentioned about the Consolidation Case No. 20/6232 of 1974. In that paragraph he has stated that as there was no notification under Section 3 of the Act, the decision rendered by the consolidation authority has no value in law, as the consolidation authority had no jurisdiction to decide any objection filed under Section 10(2) of the Act. In view of this fact, specifically stated in 16 the writ petition and the fact that the Director, while deciding the case has considered the objection of the respondents about the rejection under Section 10(2) of the Act, the objection of suppression of material fact is not sustainable and the same is rejected. The judgments relied on by respondents have no application in the present case. 15. Another point that has been raised by the respondents is that in view of the fact that there was an earlier decision of the Consolidation court under Section 10(2) of the Act which remains unchallenged and, as such, the subsequent application under Section 10B of the Act raising the same issue is certainly hit by the principle of res judicata and has relied upon two judgments of the Hon‟ble Supreme Court (1) State of West Bengal Vs.. Hemant Kumar (AIR 1966 SC 1061) and (2) Sulochana Amma v. Narayanan Nair (AIR 1994 SC 152). On the other hand the appellant has controverted this argument of the respondents on the ground that there was no decision rendered by the Consolidation authority while deciding the application u/s 10(2) of the Act and, as such, as there was no decision on merit, the application under Section 10B of the Act was maintainable in view of the fact that after the abatement of 17 suit on remand before the appellate authority he had no other forum to raise the issues before the Consolidation authority except under Section 10B of the Act on the basis of such subsequent event. 16. Now, in respect of applicability of res judicata, it will be relevant to examine the statutory provision and the relevant judgments relating to this issue. Section 11 of the Code of Civil Procedure deals with the applicability of res judicata and, as such, it will be relevant to quote the same: Section 11: Res judicata – No court shall try any suit or issue in which the matter directly or substantially in issue has been directly or substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Explanation-I – The expression “former suit” shall denote a suit which has been decided 18 prior to the suit in question whether or not it was instituted prior thereto. Explanation-II – For the purposes of this section, the competence of a Court shall be determined irrespective or any provisions as to a right of appeal from the decision of such Court. Explanation-III – The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. Explanation-IV – Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly or substantially in issue in such suit. Explanation-V – Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused. Explanation-VI – Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and 19 others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating. Explanation-VII –The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arises in such proceeding and a former proceeding for the execution of that decree. Explanation- VIII – An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised”. 17. On consideration of wordings which have been used in Section 11 of Code of Civil Procedure which specifically provides that if in the former suit, the same issue has been raised and decided then if in a subsequent 20 suit the same issue has been raised, in that circumstance, the judgments rendered in a former suit will act as res judicata for the subsequent suit. 18.In this connection we will have to first decide as to whether the order passed under Section 10(2) of the Act amounts to a decision on the merit of the issues or not. Unless the judgment has dealt with the merits, considered the issues and decided the same, it will be very difficult to subscribe to the view that the mere rejection of the application without deciding the case on merits will operate as a res judicata for a subsequent suit or proceeding. It is a fact that the application under Section 10(2) of the Act was rejected merely on the ground that the supporting materials were not produced by the appellant. As noticed and discussed earlier, the application under Section 10(2) of the Act was actually one falling under Section 10B of the Act and was filed prematurely in 1974 on the sole basis of Munsif‟s judgment which was reversed in appeal in January 1975. Both the parties, till 1984 had accepted that the issues in the suit lay within the jurisdiction of the civil court. Hence, they had to wait till abatement of the suit in 1984, before they could move the Consolidation authorities only 21 under Section 10B