Case: Gorakh Nath Dube Vs. Hari Narain Singh &amp; Ors

1. The Plaintiff-Appellant, Gorakh Nath Dube, before us by grant of special leave against the judgment and decree of the High Court of Allahabad allowing a Defendants second appeal, had filed a suit for the cancellation of a sale deed, dated 12-4-1932, to the extent of a half share claimed by the Plaintiff in fixed rate tenancy plots on a payment of Rs. 250/-, or, whatever sum the plaintiff may be found liable to pay, and, after cancellation of the sale-deed to the extent of the plaintiffs share, for an award of possession of the plaintiffs share. There was no prayer for partition, and, by asking for possession of his share, the plaintiff could only be seeking joint possession after declaration of rights claimed. The plaintiff based his claim in the fixed rate tenancies on the ground that, although, the vendor Sukhpal Dube, his uncle, had, on 28-9-1912, ostensibly singly and separately purchased the plots, which were the subject matter of the impugned sale, yet, actually, this was an acquisition on behalf of the joint Hindu family which provided the funds for the purchase of the plots. The Trial Court had dismissed the plaintiffs suit on 4-1-l960. The learned District Judge of the Jaunpur had allowed the plaintiffs appeal and decreed the suit on 30-4-1962. The Defendant-Respondents before us then filed a second appeal in the High Court on 18-8-1962 which was admitted for hearing. During the pendency of the second appeal, a notification under Section 4 of the U. P. Consolidation of Holdings Act of 1954 (hereinafter referred to as the Act) was published in the Government Gazette on 22-10-1966 declaring that village Kukuripur, in which the plots in dispute were situated, had come under consolidation operations. Consequently, the Defendants-Appellants filed an application under Section 5 of the Act in the second appeal. The High Court, by its Judgment dated 5-5-1967, after dismissing the Defendants application under Section 5 of the Act, dealt with the merits of the case and accepted the appeal of the Defendants-Respondents.

Reasoning:
After going through the order of the Settlement Officer, we find that he did not reach any such conclusion. All that the Settlement Officer did was to stay the appeal pending before him until the appeal, by special leave pending before this Court is decided here. We may observe that this was a very correct and proper course for the Settlement Officer to adopt. He did not make any observations about the absence of his own jurisdiction. And, he could not properly make any observation about the existence or absence of the jurisdiction of this Court to decide the merits of the case pending before this court because this question was likely to arise before us and has been raised in the case before us now. It is obvious to us that the result of the order of the Settlement Officer is that, after the disposal of this appeal by special leave by us, the appeal pending before the Settlement Officer can be revived and an appropriate decision on merits on respective claims taken by him in view of Section 52, sub-sec. (2) of the Act, which provides, inter alia, that, despite a notification under Section 52 (l) of the Act, closing consolidation operations in a village, cases or proceedings pending under the Act on the date of the issue of notification under Section 52 (1) will be decided as though consolidation operations had not terminated. The result is that the parties are not deprived of an appropriate forum for a decision on the merits of the case before us about which we deliberately refrain from making anyfind that the merits of the question raised by the application were dealt with in the body of the judgment allowing the second appeal and dismissing the plaintiffs suit which is under appeal before us. The Defendant-Respondents are only seeking to support the Judgment of dismissal of the suit on another ground which was available. It is true that there is a very short separate order of the High Court also on the application of the Defendant-Respondents in the High Court under Sections 4 and 5 of the Act stating that the application is dismissed for the reasons given in the body of the judgment in the case. We, however, think that the Defendant-Respondents were justified in not appealing separately from it as there could be no res judicata against them when the plaintiffs suit was dismissed by the High Court. It has been rightly contended, on behalf of the Defendant-Respondents, that, as they had secured their object, which was the dismissal of the suit, there was nothing left for them to appeal against.8. Upon the facts and circumstances mentioned above, we think that the preliminary objection of the Defendant-Respondents, in support of which they have filed a separate application in this Court also, uncles Sections 4 and 5 of the Act, has to be accepted for the reasons given above. But, we also think that there is some force in the objection on behalf of the Plaintiff-Appellant that, we allow the decree of the High Court to stand, the disposal of the claims on merits by the consolidation authority may be hampered.