MALKHAN SINGHversusSOHAN SINGH & ORS.

                                                              747


                          MALKllAN SINGH                             A
                                v.
                       SOllAN SINGH & ORS.

                        SEPTEMBER 2, 1985

            [E.S. VENKATARJIMIAH AND R.B. MISRA, JJ.]                B

      Uttar Pradesh Consolidation of Holdings Act (as it stood
before the Amendment Act of 1963) section 49 - Bar to civil
jurisdiction and/or applicability of the principle of res
judicata, when there is ·no provision for the adjudication of
rights and title after the statements of proposals had become        C
final under section 23 of the Act and if in the mutation proceed-
ings the issue of adoptions is found against.

      Kishan Singh, Natha Singh and Guman Singh were three
brothers. Kishan Singh had no issue while Natha Singh had three
sons: Chajju, Rambir and Malkhan Singh; Guman Singh had two          D
sons: Solian Singh and Rohan Singh. Kishan Singh was possessed of
some agricultural land and also a house. The village, where the
agricultural plots of Kishan Singh were situate was brought under
Consolidation of Holdings Act, the rights and title of Kishan
Singh were determined in these proceedings and eventually chak
No. 14 was allotted to him. Although the notification under
section 52 had not been issued bringing to an end the consolida-     E
tion proceedings, the statement of proposals (allotment of chak)
had ~ confirmed under section 23 of the Act.

      1. At this stage Kishan Singh died and a dispute arose
about his heirship. There were. two sets of competitive claimants.
Malkhan Singh son of Natha Singh claimed to be adopted son of        F
Kishan Singh while the two other sons of Natha Singh and the
sons of Guman Singh formed the other set and claimed to succeed
Kishan Singh alongwith Malkhan Singh jointly as nephew denying
the factum of adoption of Malkhan Singh by Kishan Singh. The
consolidation authorities found that Malkhan Singh was not the
adopted son.                                                         G

     2. When the village was denotified under section 52 of the
Act and the consolidation proceedings came to an end, Malkhan
Singh filed a suit· claiming to .be the adopted son . of the
deceased. The claim was resisted by the defendants. They denied
the factum of adoption set up by the ·plaintiff and they also        H
                                                                           ,"
     748           SUPREME COURT REPORTS           [1985] SUPP.2 s.c.R.

A
     pleaded the bar of section 42 of the Specific Relief Act and
     section 49 of the Consolidation Act. The bar of section 49 set up
     in the written statement was, however, given up. The trial Court
     disniissed the suit holding that Malkhan Singh was not the
     adopted son. On appeal the civil and Sessions Judge reversed the
B    finding ot the trial court and decreed the suit holding that
     Malkhan Singh was the adopted son of Kishan Singh and that he was
     given in adoption by his mother after the death of her husband.
     Feeling aggrieved, the respondents took up the matter to the High
     Court in second appeal and the High Court in its turn allowed the
     appeal and dismissed the suit on a short ground that the suit
     giving rise to appeal was barred by the principles of res judi-
c    csta as the question of adoption had already been determined by
     the consolidation authorities during consolidation proceedings
     and that decision could not be upset by any other court as provi-
     ded by section 49 of the said Act and the earlier decision of the
     consolidation authorities would operate · as res judicsta on
     general principles. In the view that the High Court took it did
     not decide.the question of adoption. Hence the appeal by special
     leave.
D

           Allowing the appeal, the Court,

           HKLD: 1.1 The decision of the consolidation authorities
     may operate as a bar on the principles of res judicsta as
     correctly laid down in Raj I-akplwd Dasi's case. In the instant
E
     case there has been no adjudication of the rights and title of
     Malkhan Singh. Under the Consolidation Act as prevailing at that
     time there was no provision for the adjudication of rights and
     title after the statement of proposals had become final. The
     consolidation authorities, thereafter, were oilly required to
F
     maintain the record and in so doing they could also entertain an
     application for IDlltation. The application filed by Malkhan Singh
     to succeed Kishan Singh was virtually an application for 1D11tation
     and the decision of the consolidation authorities that Malkhan
     Singh was not an adopted son of Kishan Singh would not amount to
     a decision.of the title and interest of Malkhan Singh. [751 G-11,
G
     752 A-<:]
           1.2 It is well settled that the 1D11tation proceedings do not
     decide the rights and title of the parties and it is always open
     to a party aggrieved to get its rights adjudicated upon by a
     competent court despite the order in 1D11tation proceedings. If the
     consolidation authorities had decided the title of Malkhan Singh
II
     in consolidation proceedings then certainly a subsequent suit for
     the same would be barred by the principles of res judicata.
     [752 C-DJ
              MALK11AN SINGH v. SOHAN SINGH [MISRA, J.]       749


      1.3 Whether the bar is created by the principles of rea        A
judicata or by section 49 of the Act the results remains the
same. If once it is accepted that the decision of the consolida-
tion authorities after the final · allotment of chak to Kishsn
Singh that the appellant was not the adopted son of Kishsn Singh
amounts to an order under 1D11tation proceedings and there was no
adjudication of rights and title of the appellant in the earlier     B
proceedings, there is no question of the suit being ·barred by res
judicata or by the principles of res judicata. The position after
the •mendw>nt of the Consolidation Act in 1963, however,
materially changed. Section 12 of the Act brought in by the
amendment gives power to the consolidation authorities to decide
matters relating to_ changes and transactions affecting rights· or   c
interest recorded in the revis.id records even after the statement
of proposals had become final provided that the no.tification
under section 52 had not been issued, the provisions of section 7
to 11 have been made applicable to the proceedings under section
12. The adjudication of the fresh cause of action will therefore
amount to the adjudication of right and title.[755 A-D,G-H,756 Aj    o
      Sid:• lfatbo & Aor. y, Board of 11.eveuue, U,P, Al1ababad &
Ors., 1966 A.L.J. 563 <>pproved.

      Suba SiDgh v. Mahmw!ra Singh & Ors., A.I.R. 1974 S.C. 1657
followed.

        CIVIL APPELLATE JURISDICTION       Civil Appeal No. 650 of
1972.

      nom the Judgment and Order dated the 28th October, 1971 of
the Allahabad High Court in Second Appeal No. 94 of 1965.
                                                                     F
        J.P. Goyal and S.K. Jain for the Appellant.

        M.v. Goswami for the Respondent.
        The Judgment of the Court was deuvered by
                                                                     G
      MISRA, J. The present appeal by special leave is directea /
against the judgment of the High Court of Allahabad dated 28th
October, 1971.                                     ·

      One Ganga Singh had three sons, Kishan Singh, Natha Singh
and Gtunan Singh. Kishan Singh had no issue while Natha _Singh had   H
three sons, Chajju, Rambir and Malkhan Singh. Guman Singh
          750           SUPREME COURT REPORTS          [1985] SUPP.2   s.c.R.
     A
          had two sons, Sohan Singh and Rohan Singh. Kishan Singh was
          possessed of some agricultural land and also a house. It appears
          that the village where the agricultural plots of Kishan Singh
          were" situate was brought under Consolidation operations and the
          rights and title of Kishan Singh were determined in those
 .b       proceedings and eventually chak No. 14 was allotted to him. The
          consolidation proceedings start with a notification under s. 4 of
          the u.p. Consolidation of Holdings Act and comes to an end with a
         "denotification under s. 52 of the Act. Although the notification
          under s. 52 had not been issued but the statement of proposals
          (allotment of chak) had been confirmed under s. 23 of the Act.

 C              Kishan Singh at this stage died without leaving any issue
          and a dispute arose about his heirship. Malkhan Singh son" of
          Natha Singh claimed to be an adopted son of Kishan Singh and on
          that basis claimed to inherit the interest of Kishan Singh while
          Sohan Singh and Rohan Singh claimed to inherit the interest of
          Kishan Singh along with Chajju, Rsmbir and Malkhan Singh. The
          consolidation authorities after taking evidence, both oral and
 D        documentary came to the conclusion that Malkhan Singh was not the
          adopted son.

                  When the village was denotified under s. 52 of the Act and
           the consolidation operations came to an end, Malkhan Singh filed
           a suit in respect of the agricultural plots as well as the house
 E         left by Kishan Singh alleging that he was given in adoption by
           his mother, wife of Nathu Singh to Kishan Singh and Kishan Singh
           took him in adoption on 9th June 1946 with all the formalities of
           giving and "taking and datta-homa. He also executed a deed of
           adoption on 29th November, 1948 in proof of adoption. The suit
           was contested only by defendants Nos. 1 and 2, Sohan Singh and
F          Rohan Singh. The other defendants Rsmbir Singh and Chajju, sons
           of Nathu Singh did not contest. Their defence in the main was
           that the plaintiff was not the adopted son of Kishan Singh, that
           the court had no jurisdiction to try the suit and that the suit
           was barred by s. 49 of the Act and and also by s. 42 of the
           Specific Relief Act. The plea of jurisdiction and bar of s. 49 of
G           the Consolidation Act were not pressed by the defendants. The
           issue of adoption was decided against the plaintiff. The bar of
         \ s. 42 of the Specific Relief Act was also negatived. On these
            findings the plaintiff's suit was dismissed by the trial Court.
           On an appeal the Civil and Sessions Judge reversed the finding of
            the trial court and decreed the suit holding that Malkhan Singh
1!          was the adopted son of Kishan• Singh and that he was given in
            adoption by his mother afte~ the death of her husband. Feeling
                 MALKHAJ;. SINGH v. SOHAN ,SINGH [MISRA, J.]        751

                                                                          A
    .aggrieved the defendants took up the matter to the High Court in
     second appeal and the High Court in its turn allowed the appeal
     and dismissed the suit on a short ground that the suit giving
    rise to appeal was barred by the principles of res judicata as
     the question of adoption    had already been determined by the
    consolidation authorities during consolidation proceedings and
    that decision could not be upset by any other court as provided       B
    by s. 49 of tl\e said Act and the earlier decision of the consoli-
     dation authorities would Operate as      res   judicata on general
    principles. In the view that the High Court took it did not
    decide the question of adoption. The plaintiff has now come to
    this Court by special leave as stated earlier.
                                                                          G
           Shri J.P. Goyal appearing for the appellant contended that
     the High Court had carved out a new case for the defendants which
    was not their case in the written statement. Elaborating the
     argument the counsel urged that the plea of jurisdiction and bar.
     of s. 49 had been taken at one stage but at· a later stage the two
     pleas were given up and we're not pressed, and that the bar of res   D
     judicata had never been set up. This contention was raised even
     before the High Court but the same was repelled on the ground
     that the application of the general principles of res judicata as
     a bar to the suit did not require much evidence and all that was
     necessary to prove was that the earlier court or. authority had
     the jurisdiction to decide the question of title.
                                                                          E
           Shri M.V. Goswami appearing for the respondents has tried
     to support the judgment on the ground that the suit may not be
     barred by s. 11 of the Code of Civil Procedure as the consolida-
     tion authotities had no jurisdiction to decide the rights and
     title in respect of the house property, but all .the same the
     principles of res judicata would be applicable if the question of    F
     adoption had been decided by the consolidation authorities wl1ich
     had the exclusive jurisdiction to decide the rights and title
     during the pendency of the consolidation proceedings. In support
     of his contention he relied upon Baj Lakshmi Dasi & Ors. v.
     Banmna11 Sen & Ors. tl953] s.c.R. 154.
                                                                          G
          There is no quarrel with the proposition of law laid down
     in RaJ Lakshmi Dasi's case (supra) that the. decision of the
     consolidation a~thorities may operate as a bar on the principles.
     of res judicata. But the question in the instant case is whether
     there has _b~en an adjudication of the rights and title of Malkhan
     Singh. As stated earlier the rights and title of Kishan Singh had    l!
     already been deternlined and that, is no more in dispute.· It was



•
    752           SUPREME COURT REPORTS           [1985] SUPP.2 s.c.R.

A   only when Kishan Singh died before denotification of the village
    under s. 52 of the Act and after the statement of proposals had
    become final that the question cropP."d up about the heirship of
    Kishan Singh deceased. Under the Consolidation Act as prevailing
    at that time there was no provision for the adjudication of
    rights and title after the stateii.ent of proposals h«<1 become
B   final. The coWiolidation authorities thtreafter ware only
    required to maintain the record and in so doir.g they could alao
    entertain an application for mutation. The a~pl1Cdtion filed by
    Malkhan Singh to succeed Kishan Singh was vittually an a~plica­
    tion for mutation and the decision of the consolidation autho-
    rities that Malkhan Singh was not an adopted son of Kishan Singh
    would, not amount to a decision of the title and interest of
c   Malkhan Singh. It is well settled that the mutation proceedings
    do not decide the rights and title of the parties and it ts
    alwys open to a party aggrieved to get its rights adjudicated
    upon by a competent court despite the order in mutation proceed-
    ings. If the consolidation authorities had decided the title of
    Malkhan Singh in consolidation proceedings then certainly a
    subsequent suit for the same would be barred by the principles of
D   res judicata.

           The contention of Shri J.P. Goyal is that tha decision by
    the consolidation authorities that Malk.'>an Singh was not the        '
    adopted son of Kishan Singh amo~nts to an order passed by the
    mutation court ' in mutation proce~dings. In support of llis
E   contention he has relied upon two decisions: ·Soot. Natho &Anr. v.
    lloard of Kevenue, o.P. Al.lahabad & Ors., 1906 A.L.J. 563 and Suba
    S1ngb v. llahendra Singh & Ors., A.I.R. 1974 S.C. 1657. In both
    these cases the ·bat of s. 49 of the U.P. Consolidation of
    Holdings Act had been pleaded. It li'ill be pertinent to read s.
    49:

               "49, Bar to civil juriliCliction. Notwithstanding any-
               thing contained in any other law for the time being in
               force, the declaration and adjudication of rights of
               tenure holders in respect ot land lying in an area,
               for ll.1lich a notification has been issued under sub-
G              section (2) of Section 4 or adjudkatioa of' any other
               right arising out of consolidation proceedings aud in
               regard to which a proceeding could or ought to have
               been taken u11der this Act, shall be do~e 'in accordance
               with the provisions of chis Act aad no civil or
               revenue co:urt &hall eutertaia any suit or p~~occ.edings
H




                                                                          •
            MAI.KHAN SINGH v. SOHAN SINGH [MISRA, J • ]        753

                                                                      A
          <tith respect to rights in such land or with respect to
          any other matters for which a proceeding could or
          ought to have been taken under this Act."

In the instant case as stated in the earlier part of the
judgment, the defendants had given up' the plea .of jurisdictiorr     B
and bar of s. 49 of the Act. They, however, banked upon the bar
of principles of res judicata although no such specific plea had
been taken by them in the written statement. As the High Court
has allO\red the defendants to take up this plea, we propose to
decide the question of bar of principles of res judicata. Whether
the bar is created by the prirtciples of res judicata or by s. 49     c
of the Act the result remains the same. While considering the
applicability of s. 49 of the Act the Allahabad High. Court in
Smt. Natho's case (supra) observed:

          "Consequently, Sec. 49 will only come into play if
          either th,ere had been proceedings relating to declara-     D
          tion and adjudication of rights of tenure-holders in
          respect of the disputed land or if a proceeding for
          such declaration or adjudication of rights of tenure-
          holders in respect of the land could or ought to have
           been taken under the Consolidation     of Holdings Act.
          In the present case, the. proceedings that were taken
          before the consolidation authorities on the death of        E
          Bakhtawar were admittedly fpr Iillltation of names in the
          revenue records. We need not cite any ruling for the
          well settled principle that proceedings for nrutation
          of names in revenue courts do not decide any rights or
          title of tenure-holders, so that those nrutation
          proceedings were not proceedings in which there could       F
          be any declaration or adjudication of rights of these
          parties by the consolidation authorities. All that the
          consolidation authorities could do was to enter the
          name of the person found entitled in place of
          Bakhtawar without adjudicating upon or declaring the
          rights of any of the parties to the land to which the       G
          proceedings for mutation related. At the stage at
          which Bakhtawar died, no proceeding could have been
          taken before the consolidation authorities for the
          purposes of having the rights declared or adjudicated
          upon. The powers of consolidation authorities to
          adjudicate upon rights of tenure-holders are confined       H
          to proceedings taken under section 9 or section 20 of
    754             SUPREME COURT REPORTS           [1985] SUPP.2 s:c.R.

A
                 the Consolidation of Holdings Act or subsequent
                 proceedings arising out of those proceedings itself,
                 such as appeals or revisions. Once the proceedings up
                 to the stage of Sec. 23 of the Consolidation of Hold-
                 ings Act have been completed and the statement of
B                proposals under Sec. 23 have been confirmed, the
                 statement of proposals becomes final and the effect of
                 finality is that all adjudications already made upto
                 that date became final. The further ·effect is that,
                 thereafter there is no provision empowering the conso-
                 lidation authorities to go into new questions of title
                 or rights, which may arise as a result of new causes
c                of action which may arise after       the statement of
                 proposals have been confirmed."

          In Suba Sillgb's case (supra) a chak had been allotted to
    the original tenure holder and the same had become final under
    s.23. The tenure holder thereafter died but before his death the
    possession over the chak allotted to him had been given to him
D   and nothing substantial remained to be done in the shape of
    consolidation operations so far as his parcel of land was
    concerned.    Title,   conglomeration,   allotment and occupation -
    practically the whole gamut of consolidation stages was thus
    covered. This Court held that the present case was neither
    covered by the first clause or by the second clause of s.49 of
E   the Act inasmuch as after the death of the chak holder the
    question of his heirship arose which could not be decided by the
    consolidation authorities after the statement of proposals had
    become final. It observed:

                 "Section 27(1) requires the Director of Consolidation
F
                 to cause soon after the consolidation scheme has come
                 into force, the preparation of the record of rights
                 and other revenue records, but this, in terms of that
                 sub-section, is to be done in accordance with the
                 provisions of the u.p. Land Revenue Act, 1901. Accord-
                 ing to sub-section 27(3), after the records have been
                 so prepared, their further maintenance will be the
                 responsibility of the Collector, and this, too, is to
                 be done under Section 33 of the U.P. Land Revenue Act,
                 1901. It was thus abundantly clear that an application
                 for mutation on the basis of inheritance when the
                 cause of action arose, after- the finalisation and
                 publication of the scheme under Section 23, is not a
            · MAI.KHAN SINGH v, SOHAN SINGH [MISRA, J. J      755

                                                                     A
           matter in regard to which an application could be
           filed under the provisions of this Act within the
           meaning of clause 2 of Section 49."

      If once it is accepted that the decision of the
consolidation authorities after the final allotment of chak to       B
!Cishan Singh that the appellant was not the adopted son of Kishan
Singh amounts to an order under mutation proceedings and there
was no adjudication of rights and title of the appellant in the
earlier proceedings, there is no question of the suit being
barred by res judicata or by the principles of res judicata. The
High Court in our opinion had committed a manifest error in          C
holding that the suit giving rise to the present· appeal was
barred by the principles of res judicata or by s. 49 of the
Consolidation of Holdings Act.

     Before we close the judgment we would like to make it clear
that after the amendment of the U.P; Consolidation of Holdings       D
Act in 1963 the p0sition has materially changed. Section 12 of
the Act brought in by the amendment deals with the decision of
matters relating to changes and transac.tions affecting rights or
interests recorded in revised records. It reads:

           "12.(1) All matters relating .to changes and transfers    E
           affecting any of the rights or interests recorded in
           the revised records published under sub-section (1) of
           Section 10 for which a cause of action had not arisen
           when proceedings under Section 7 to 9 were started or
           were in progress, may be raised before the Assistant
           Consolidation Officer as and when they arise, but not
           later than the date of notification under Section 52,     F
           or under sub-section (1) of Section 6.

           (2) The provisions of ·sections 7 to 11 shall mtatis
           1111tandis, apply to the hearing and decision of any
           matter raised under sub-section (1) as if it were a
           ma.tter raised under the aforesaid sections."
                                                                     G
     Sections 7 to 11 of the Act ·deal with the rights and title
of the tenure holder and by the application of those provisions
to the proceedings under s. 12 in matters for which cause of
action had arisen subsequently will make the decision a decision
of title. But the position prior to the amendment of 1963 was
different and there was no provision for the adjudication of the     H
    756            SUPREME COURT REPORTS          [1985] SUPP.2 s.c.R.


    rights and title of a tenure holder once the title and interest
A   -Of the -Original. tenure holder had been finally determined and
    chak had been allotted.

          The inevitable result is that the judgment and order of the
     High C-Ourt cannot be sustained and i·t must be set aside. ·The
     &ppeal is .&ecordingly allowed, the impugned judgment and order
    .of the High Court "re set as:i.<le ood the case is sent back to it
    ·for decidtng the .quesHon of adoption according to law. There is,
    however, no order as 1to .cost ..




    S.R.                                              Appeal allowed.