# Kamla Kant and another v. III Additional District Judge and others

- **Citation:** Revenue Ceiling Appeal No. 3 of 1978
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-04-02
- **Case number:** Revenue Ceiling Appeal No. 3 of 1978
- **Bench:** Shri Narayan Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kamla-kant-and-another-v-iii-additional-district-judge-and-others-42948
- **Pages:** 4

## Headnote

Code of Civil Procedure- Section-11Principle of "Res-judicata"- applicability-
in
Ceiling
proceeding-once
ceiling
proceeding
of
same
plots
finalizedimpugned notice u/s 10 for the same
subject matter-held-barred by principle
of "Resjudicata.

Held: Para-8-
Upon perusal of the orders impugned in
comparison to the order passed by the
Prescribed Authority as well as the
appellate
authority
in
the
earlier
proceeding I find that the same very
land
was
subjected
under
the
proceedings of declaration of surplus
land and also find that the order, passed
by the Prescribed Authority is based on
re appreciation of evidence which is not
permissible under the eye of law as has
been held in the judgments quoted
above. This fact is not disputed that the
earlier proceeding was on the same
subject in which the issue had already
been determined between the parties by
the Court of competent jurisdiction.
Therefore, I am of the view that the
proceeding in question was barred by
principle of res judicata. That being so
the orders impugned passed in such
proceeding are nullity.

Case Law discussed:
(1999) 1 Supreme Court Cases 71; (2003)(94)
RD 527; (2009) (27) LCD 71; 2002 (20) LCD
1408

## Text

568 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

15. The impugned orders of the
lower court concerned are quashed.

16. Petition succeeds.

17. Let a copy of this order be sent
to the court concerned forthwith for
necessary compliance by the quickest
mode available.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.04.2013

BEFORE
THE HON'BLE SHRI NARAYAN SHUKLA, J.

Writ Petition 2439 (Ceiling) of 1978

Kamla Kant and another ...Petitioners
Versus
III Additional District Judge and others

 ...Opp. Parties

Counsel for the Petitioners:
Sri A.R. Khan, Sri Amrendra Nath Tripathi
Sri Shiv Kumar Pandey

Counsel for the Opposite Parties:
Sri Ram Krishan Pandey
Sri S K Mehrotra
Code of Civil Procedure- Section-11Principle of "Res-judicata"- applicability-
in
Ceiling
proceeding-once
ceiling
proceeding
of
same
plots
finalizedimpugned notice u/s 10 for the same
subject matter-held-barred by principle
of "Resjudicata.

Held: Para-8-
Upon perusal of the orders impugned in
comparison to the order passed by the
Prescribed Authority as well as the
appellate
authority
in
the
earlier
proceeding I find that the same very
land
was
subjected
under
the
proceedings of declaration of surplus
land and also find that the order, passed
by the Prescribed Authority is based on
re appreciation of evidence which is not
permissible under the eye of law as has
been held in the judgments quoted
above. This fact is not disputed that the
earlier proceeding was on the same
subject in which the issue had already
been determined between the parties by
the Court of competent jurisdiction.
Therefore, I am of the view that the
proceeding in question was barred by
principle of res judicata. That being so
the orders impugned passed in such
proceeding are nullity.

Case Law discussed:
(1999) 1 Supreme Court Cases 71; (2003)(94)
RD 527; (2009) (27) LCD 71; 2002 (20) LCD
1408

(Delivered by Hon'ble Shri Narayan Shukla, J.)

1. Heard Mr Amrendra Nath
Tripathi,
learned
counsel
for
the
petitioners as well as learned Standing
Counsel.

2. Through the instant writ petition,
the petitioners have challenged the order
dated 13.1.1978, passed by the Prescribed
Authority, Kunda, Pratpgarh in Ceiling
Case No. 99 of 1974 as well as the order
dated
5.7.1978,
passed
by
the
II
Additional District Judge, Pratapgarh in
Revenue Ceiling Appeal No. 3 of 1978
and other connected appeals.

3. The petitioners are lease holders
of the land declared as surplus land of
respondent
no.
4.
Therefore,
after
declaration the land as surplus they filed
objection before the Prescribed Authority,
claiming their right available there on the
basis of registered lease executed in their
favour.
The
Prescribed
Authority
considered their objection and decided the
case by judgment and order dated
25.1.1975 and declared total 24 Bigha 7
1 All Kamla Kant and another Vs. III Additional District Judge and others
569
Biswa 10 biswansi land as surplus. The
State Government filed Revenue Civil
Appeal No. 98 of 1975 before the District
Judge, Pratapgarh against the order of
Prescribed
Authority
which
was
dismissed by the judgment and order
dated 29.4.1976. The order, passed in
appeal, attained the finality as it was not
challenged in the higher forum. Thus, the
things took at rest but the Prescribed
Authority again issued a notice under
Section 10 (2) of the U.P. Imposition of
Ceiling on Land Holdings Act ( herein
after referred to as Ceiling Act) against
the opposite party no. 4.

4. The opposite party no. 4 as well
as the petitioners filed their objection
challenging the maintainability of the
proceedings being barred by res judicata.
They
asserted
that
the
Prescribed
Authority had adjudicated upon the issue
by means of order dated 25.1.1975 which
has been upheld in appeal. They claimed
that pursuant to the registered deed dated
13.8.1949 the name of Smt. Shiv Kali was
mutated in revenue record by means of
order dated 5.2.1955 passed by Tehsildar
Kunda but due to inadvertent mistake the
petitioners' names were left from being
entered into the revenue record. They
further stated that they had filed one case
under Section 229 (B) of the U.P.
Zamindari Abolition and Land Reforms
Act,1950 for declaration of their right
over the land in dispute which was
decreed vide judgment and order dated
30.3.1973. These facts were placed before
the
Prescribed
Authority
but
the
Prescribed Authority did not acknowledge
it on the basis of statement of Jagan Nath
and held that the order passed in the
declaratory suit was nullity as it was
passed against the dead person. Thus, the
Prescribed Authority rejected petitioners'
preliminary objection by means of order
dated 13.1.1978 and held that 55 Bigha 13
Biswa and 6 Biswansi irrigated land and
56 Bigha 5 Biswa and 8 Biswansi
unirrigated land are surplus. Against
which the petitioners filed Ceiling Appeal
No. 6 of 1978 before the III Addl. District
Judge, Pratapgarh, who dismissed the
same by means of order dated 5 th July,
1978.

5. The learned counsel for the
petitioners submits that the facts of the
case reveal that the dispute was finally
adjudicated upon earlier by the Prescribed
Authority by means of judgment and
order dated 25.1.1975 between the parties.
Therefore, it was not permitted for the
respondents to re-open the proceedings.
Thus, he claims that the proceeding was
barred by principle of res judicata. He
supports his submission with the decision
of Hon'ble the Supreme Court rendered in
the case of Devendra Singh Vs. Civil
judge, Basti and others (1999) 1
Supreme Court Cases 71. Relevant
paragraph 3 of which is extracted below:

"3.Having examined the provisions
of Section 13-A and Section 38-B of the
Act, we are of the considered opinion that
under Section 13-A, the prescribed
authority has the power to reopen the
matter within two years from the date of
the notification under sub-section (4) of
Section 14 to rectify any apparent mistake
which was there on the face of the record.
That power will certainly not include the
power to entertain fresh evidence and reexamine the question as to whether the
two
sons,
namely,
Hamendra
and
Shailendra were major or not. The power
under Section 38-B merely indicates that
if any finding or decision was there by
any
ancillary
forum
prior
to
the
570 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
commencement of the said section in
respect of a matter which is governed by
the Ceiling Act then such finding will not
operate as res judicata in a proceeding
under the Act. That would not cover the
case where findings have already reached
their finality in the very case under the
Act. In this view of the matter, we have
no hesitation to come to the conclusion
that the prescribed authority had no
jurisdiction to reopen the question of the
majority of the two sons in purported
exercise of the power under Section 13-A.
If the authority had no jurisdiction,
question of waiver of jurisdiction does not
arise, as contended by learned counsel for
the respondent."

6. In support of his submission he
further cited (1) Karan Singh Vs. State
of U.P. and others (2003)(94) RD 527.
Relevant paragraph 8 of which is
reproduced hereunder:-

"8. A reading of the aforesaid,
section
reveals
that
the
Prescribed
Authority may at any time within a period
of two years from the date of the
notification under sub-section (4) of
section 14, rectify any mistake apparent
on the face of the record. As stated above
in the present case there was no error
apparent on the face of the record and
what the State Government attempted to
do by means of an application under
section 13-A of the Act was to take up a
new case, "and that too after the orders
passed by the authorities below have
become final, which is legally not
permissible. The order passed by the
Appellate Authority dated 12.1.1977
operates as res-judicata between the
parties as the provisions of section 13-A
of the Act have got no application in the
present case.

(ii) State of U.P. through Collector
Mirzapur
Vs.
Commissioner
(J)
Varanasi Division (2009) (27) LCD 71.
Paragraph 7 of which is reproduced
hereunder;

"7.
I
have
considered
the
submissions made on behalf of the parties
and have perused the record. Admittedly
from the record it clearly appears that the
proceedings between the parties have
become final by order dated 30.3.1977 in
the appeal filed by the State. From the
record it is also clear that the State
petitioner has not filed any writ petition
against
that
order.
In
the
earlier
proceedings it has been decided that the
property which was clubbed in the
holding of respondent no. 3 is a charitable
Trust property in the name of Thakur
Laxmia Narain Ji and Mahavir Ji.
Therefore, the Prescribed Authority as
well as the appellate authority has rightly
held
that
second
notice
is
not
maintainable and is barred by re judicata.
This Court in judgments mentioned above
has also taken the same view."

(iii) State of U.P. Vs. Dev karan
and others 2002 (20) LCD 1408.

7. He further submitted that the
Prescribed Authority has got no power to
reappreciate evidence in the successive
proceedings when earlier proceeding was
finalized by declaring the some land of
opposite party no. 4 as surplus. The order
passed by the Prescribed Authority was
approved by the Court of Appeal filed by
the State Government. Therefore, the
learned counsel for the petitioners submits
that on this very ground the writ petition
deserves to be dismissed.

8. Upon perusal of the orders
impugned in comparison to the order
1 All Kamla Kant and another Vs. III Additional District Judge and others
571
passed by the Prescribed Authority as
well as the appellate authority in the
earlier proceeding I find that the same
very land was subjected under the
proceedings of declaration of surplus land
and also find that the order, passed by the
Prescribed Authority is based on re
appreciation of evidence which is not
permissible under the eye of law as has
been held in the judgments quoted above.
This fact is not disputed that the earlier
proceeding was on the same subject in
which the issue had already been
determined between the parties by the
Court
of
competent
jurisdiction.
Therefore, I am of the view that the
proceeding in question was barred by
principle of res judicata. That being so the
orders
impugned
passed
in
such
proceeding are nullity.

9. Therefore, the orders impugned
dated 13.1.1978 and 5.7.1978 are hereby
quashed.

10. In the result the writ petition is
allowed.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.04.2013

BEFORE
THE HON'BLE ADITYA NATH MITTAL, J.

Criminal Revision No. 2751 Of 2010.

Prithvi Pal Singh & another...Revisionists
Versus
State of U.P. and others ...Opp. Parties.

Counsel for the Revisionists:
Sri Indra Mani Tripathi

Counsel for the Respondents:
A.G.A., Sri R.P.Singh Parihar
Sri Santosh Kr. Singh

Code
Of
Criminal
Procedure-Section
397/401- offence under Section 419,
420, 467, 468, 471 IPC- summoning
order-on
application
under
section
156(3) FIR lodged-after investigation
chargesheet
submitted-on
allegation
exceeding his share-sale deed executed
to harm the complaint-much prior to
move application civil suit pending-non
disclosure of this fact-direction issued-in
view of law laid down by Apex Court in
Indian oil Corporation-any effort to
settle dispute-not involve any criminal
offence-criminal prosecution should be
deprecated-held-clearly
an
abuse
of
process-impugned order set-a-side.

Held: Para-23
In view of the above, the present dispute
is purely of civil nature and opposite
party no.2 has already instituted a civil
suit for cancellation of the sale deed,
therefore,
initiation
of
criminal
proceedings
by
the
opposite
party
against the revisionists is clearly an
abuse of process of the Court.

Held: Para-25
For the aforesaid reasons, I am of the
opinion that the civil dispute between
the parties has been given a criminal
colour and the fact of pendnecy of civil
suit has also been concealed in the
application under Section 156(3) Cr.P.C.
given on 9.10.2009 while the civil suit
has already been filed on 3.7.2009 i.e.
much prior to the aforesaid application
under
Section
156(3)
Cr.P.C.
The
pendency of the civil suit has also not
been brought to the notice of the court
which has passed the summoning order.

Case Law discussed:
AIR 1960 SC 866; 1992 SCC (Cr) 426; 1992
SCC (Cr) 192; 2005 SCC (Cr) 283; (2012) 11
SCC 465; 2005 Cr.L.J. 1952; 2001 (43) ACC 50
(All) (FB); 1978(1) SCR 749; 1980 SCC (Cri.)
72 ; 2009 (67) ACC 886;2008 (60) ACC 1;
2009 (66) ACC 28; (2011) 3 SCC 351; (2006)
6 SCC 736; (2009) 8 SCC 751