1974 (7) TMI 125 - HC - Indian Laws

Appeal Dismissed with Costs Upheld. Res Judicata, Limitation, and Section 209 Suit Rejected.

Gangadhar and Ors. Versus Raghubar Dayal and Ors.

Gangadhar and Ors. Versus Raghubar Dayal and Ors. - AIR 1975 Allahabad 102 (F. B.) Issues Involved:1. Application of Section 145 and 146 of the Code of Criminal Procedure.2. Validity of subsequent applications for restitution under Section 144 of the Code of Civil Procedure.3. Determination of sirdari rights under the U.P. Zamindari Abolition and Land Reforms Act.4. Effect of consolidation proceedings on pending civil and restitution claims.5. Interpretation of Section 144(2) of the Code of Civil Procedure.6. Inherent powers of the Court under Section 151 of the Code of Civil Procedure.7. Limitation for filing restitution applications.8. Impact of non-filing of a suit under Section 209 of the U.P. Zamindari Abolition and Land Reforms Act.Detailed Analysis:1. Application of Section 145 and 146 of the Code of Criminal Procedure:The dispute originated from proceedings under Section 145 of the Code of Criminal Procedure initiated by Shyam Lal on behalf of respondents 7 to 10 regarding three plots. The Magistrate ordered attachment of the properties under Section 146 until a competent court determined the rights of the parties. The properties were placed under the possession of a supurdar appointed by the Magistrate.2. Validity of Subsequent Applications for Restitution under Section 144 of the Code of Civil Procedure:The appellants contended that the application filed by respondents 1 to 10 on 4th June 1957 for restitution was dismissed, thereby barring subsequent applications under the doctrine of res judicata. However, the Division Bench found that the necessary material, including the order dismissing the application, was not on record, making it impossible to determine the nature of the order. Consequently, the contention was rejected.3. Determination of Sirdari Rights under the U.P. Zamindari Abolition and Land Reforms Act:Respondents 1 to 6 claimed bhumidhari rights over plot No. 878, while respondents 7 to 10 claimed sirdari rights over plots Nos. 874 and 875. The consolidation authorities initially found in favor of the appellants, who claimed sirdari rights by adverse possession. However, the High Court held that the respondents could not mature any title by tacking on their pre-existing period of possession during the attachment period.4. Effect of Consolidation Proceedings on Pending Civil and Restitution Claims:During the pendency of the second appeal and restitution applications, the village came under consolidation operations. The consolidation authorities' decision was deemed final, making the appeal infructuous. The learned Single Judge allowed the writ petition, directing that respondents 1 to 10 be recorded over the land in dispute as claimed by them.5. Interpretation of Section 144(2) of the Code of Civil Procedure:The appellants argued that the claim of respondents 1 to 10 was barred by Section 144(2) of the Code of Civil Procedure, which prohibits suits for obtaining restitution or other relief obtainable by application under Section 144(1). The Court held that proceedings under the U.P. Consolidation of Holdings Act could not be equated with a suit of the nature contemplated by Section 144(2).6. Inherent Powers of the Court under Section 151 of the Code of Civil Procedure:The Court emphasized that Section 144 of the Code of Civil Procedure is not exhaustive and that the Court has inherent jurisdiction under Section 151 to grant restitution. This principle was supported by precedents from the Privy Council and various High Courts, which held that the Court must act to ensure no injury is caused to any suitor due to its orders.7. Limitation for Filing Restitution Applications:The applications for restitution made on 4th June 1959 and 5th February 1960 were within the limitation period, even if considered under Section 151 of the Code of Civil Procedure, which prescribes a three-year limitation period under Article 181 of the old Limitation Act.8. Impact of Non-Filing of a Suit under Section 209 of the U.P. Zamindari Abolition and Land Reforms Act:The appellants argued that respondents 7 to 10 should have filed a suit under Section 209 within the prescribed limitation period, failing which their claim would be barred. The Court held that since respondents 7 to 10 were impleaded in the suit on 2nd April 1957, before the limitation period expired, their rights could be determined in the pending suit. The possession of the appellants after 2nd April 1957 could not be tacked on to their prior possession for acquiring sirdari rights.Conclusion:The appeal was dismissed with costs. The Court upheld the learned Single Judge's decision, rejecting the appellants' contentions regarding the applicability of res judicata, the limitation for restitution applications, and the necessity of filing a suit under Section 209. The inherent powers of the Court under Section 151 were affirmed, allowing respondents 7 to 10 to claim restitution despite not being parties to the ex parte decree.