# Tilak Ram and others v. Deputy Director of Consolidation, Allahabad and others

- **Citation:** (2002) 3 ILRA 847
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-09-19
- **Case number:** Civil Misc. Writ Petition No. 18567 of 1995
- **Bench:** R.H. Zaidi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/tilak-ram-and-others-v-deputy-director-of-consolidation-allahabad-and-others-40018
- **Pages:** 6

## Headnote

Constitution
of
India,
Article
226
Doctrine of merger- order passed by the
inferior court- superseded by Superior
Court- having binding effect- 'held-
principle of merger is fully applicable.

Held- Para 13 and 17

From what is noted above, it is clear that
if the judgement and order of an inferior
court is subject to an appeal by the
superior court and in such proceedings
the order or judgment is passed by the
superior court determining the rights of
parties, it would supersede the order or
judgment passed by the inferior court
and the judgment of the superior court
shall remain operative and binding upon
the parties. It would not be open to any
one of the parties to say that judgment
and order passed by the inferior court
were still alive or operative.

From the above noted authorities cited
by learned counsel for the petitioner, it is
abundantly clear that the orders passed
by the subordinate authorities merge in
the orders passed by the Consolidation
Officer
and
the
Settlement
Officer
Consolidation were merged in the order
passed
by
the
Deputy
Director
of
Consolidation,
which
was
ultimately
quashed by this Court. Thus, the only
judgment
which
remained
operative
between the parties was the judgment of
this Court passed in the above noted
writ petition. Learned counsel for the
petitioners is right in his submission that
the theory of merger was fully applicable
in the present case.
Case law discussed.
AIR 2000 sC-1623
AIR 2000 SC-2587
AIR 2001 SC-203
1969 (3) SCC-489

## Text

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3 All] Tilak Ram and others V. D.D.C., Allahabad and others 847
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: THE ALLAHABAD 19.9.2002

BEFORE
THE HON'BLE R.H. ZAIDI, J.

Civil Misc. Writ Petition No. 18567 of 1995

Tilak Ram and others
...Petitioners
Versus
Deputy
Director
of
Consolidation,
Allahabad and others
...Respondents

Counsel for the Petitioners:
Sri H.N. Shukla
Sri R.R. Shukla

Counsel for the Respondents:
S.C.

Constitution
of
India,
Article
226
Doctrine of merger- order passed by the
inferior court- superseded by Superior
Court- having binding effect- 'held-
principle of merger is fully applicable.

Held- Para 13 and 17

From what is noted above, it is clear that
if the judgement and order of an inferior
court is subject to an appeal by the
superior court and in such proceedings
the order or judgment is passed by the
superior court determining the rights of
parties, it would supersede the order or
judgment passed by the inferior court
and the judgment of the superior court
shall remain operative and binding upon
the parties. It would not be open to any
one of the parties to say that judgment
and order passed by the inferior court
were still alive or operative.

From the above noted authorities cited
by learned counsel for the petitioner, it is
abundantly clear that the orders passed
by the subordinate authorities merge in
the orders passed by the Consolidation
Officer
and
the
Settlement
Officer
Consolidation were merged in the order
passed
by
the
Deputy
Director
of
Consolidation,
which
was
ultimately
quashed by this Court. Thus, the only
judgment
which
remained
operative
between the parties was the judgment of
this Court passed in the above noted
writ petition. Learned counsel for the
petitioners is right in his submission that
the theory of merger was fully applicable
in the present case.
Case law discussed.
AIR 2000 sC-1623
AIR 2000 SC-2587
AIR 2001 SC-203
1969 (3) SCC-489

(Delivered by Hon'ble R.H. Zaidi, J.)

1. Heard learned counsel for the
parties.

2. By means of this petition filed
under Article 226 of the Constitution of
India, petitioners pray for issuance of a
writ, order or direction in the nature of
certiorari
quashing
the
order
dated
16.6.1995 passed by respondent no. 1.

3. The relevant facts of the case,
giving rise to the present petition, in brief,
are that in the basic year, the name of
Badri, father of the contesting respondents
was recorded in the revenue papers over
the land in dispute. On receipt of C.H.
Form No. 5, objection was filed by the
petitioners contending that the land in
dispute was ancestral property and Badri,
father of the respondent no. 2 to 4, got
illegally and fictitiously recorded his
name over the land in dispute in the
revenue
papers.
Parties
produced
evidence, oral and documentary, in
support of their cases. The Consolidation
Officer after going through the material
on the record, allowed the objection filed
by the petitioners by his judgment and
order dated 14.2.1979. Feeling aggrieved
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848 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
by the judgment and order passed by the
Consolidation Officer, Badri filed an
appeal before the Settlement Officer
Consolidation. The Settlement Officer
Consolidation allowed the appeal by his
judgment and order dated 31.3.1979. The
petitioner, therefore, had to file a revision
under
Section
48
of
the
U.P.
Consolidation of Holdings Act before the
Deputy Director of Consolidation. The
revision filed by the petitioners was
dismissed by the Deputy Director of
Consolidation by his judgment and order
dated
17.4.1980.
Therefore,
the
petitioners filed writ petition no. 4365 of
1980. The said writ petition was, after
hearing the parties, allowed by this Court
by judgment and order dated 13.9.1994
and the impugned order dated 17.4.1990
was quashed. The said order has become
final as no appeal against the said order
was filed by the contesting respondents. It
appears that after about 11 years, Badri
made an application before the Deputy
Director of Consolidation for making a
reference. On the said application a
reference was made and ultimately the
Deputy Director of Consolidation vide
order dated 13.9.1984 expunged the
names of the petitioners from the revenue
papers, hence the present petition.

4. On this petition, notices were
issued to the contesting respondents who
have
filed
their
counter
affidavit
controverting the facts stated in the writ
petition in reply of which a rejoinder
affidavit has also been filed, denying the
facts stated in the counter affidavit and
reasserting the facts stat ed in the writ
petition.

5. Learned counsel for the petitioners
vehemently urged that the judgment and
order passed by this Court in writ petition
No. 43465 of 1980 has become final
between the parties. The same operates as
res judicata. It has also been urged that
the orders passed by the authorities below
merged in the order passed by this Court
in writ petition no. 4365 of 1980. The
Deputy
Director
of
Consolidation,
therefore,
had
no
jurisdiction
to
subsequently pass an order contrary to the
order passed by this Court. According to
him, the Deputy Director of Consolidation
has committed contempt of this Court. It
was further urged that the contesting
respondents have slept over their rights
for about 11 years, therefore, there was
justification for the Deputy Director of
Consolidation
to
entertain
their
application for inviting a reference, he
should have rejected the said application
as not maintainable and barred by
limitation.

6. On the other hand, learned counsel
for the contesting respondents supported
by the validity of the order passed by the
Deputy Director of Consolidation. It has
been urged that this Court in Writ petition
no. 4365 of 1980, only quashed the order
passed by the Consolidation Officer and
the Settlement Officer Consolidation was
right in passing the impugned order.
According to him, writ petition had no
merit., the same is liable to be dismissed.

7. I have considered the submissions
made by learned counsel for the parties
and also carefully perused the record.

8. In the present case, the question is
as to whether in one case between the
same parties, there can be two judgments
in operation. It is not disputed that
judgment and order dated 13.9.1980
passed by this Court in writ petition no.
4365 of 1980 became final. The said
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3 All] Tilak Ram and others V. D.D.C., Allahabad and others 849
judgment was between the same parties
and in respect of the same property which
is involved in the present case. The
judgments and orders passed by the
authorities below merged in the order
passed by the Deputy Director of
Consolidation,
which
was ultimately
quashed by this Court and the judgment
and order passed by this Court became
final. The said judgments, thus, operate as
res judicata between the parties.

9. On the question of merger of the
orders
passed
by
the
subordinate
authorities in the order of the superior
court or Tribunal, learned counsel for the
petitioners has referred to and relied upon
the following decisions of the Apex
Court. -

(i) V.M. Salgaocar and Bros. Pvt. Ltd. v.
Commissioner
of
Income
Tax,
reported in AIR 2000 SC 1623;
(ii) Kunhayammed and others v. State of
Kerala and another, reported in AIR
2000 SC 2587; and
(iii) Amba Bai and others v. Gopal and
others , reported in AIR 2001 SC 203.

10.

Learned
counsel
for
the
respondents in support of his submissions
referred to and relied upon the following
decisions :-

(i) Thakur Birendra Singh v. The State of
Madhya Pradesh and others, reported
in 1969 (3) SCC 489;
(ii) Special Appeal No. 363 of 1970,
Vishwa Swarup v. Kamla Prasad and
others, decided by this Court on
14.12.1970;
(iii) Order passed on Misc. Application
No. Nil of 1981 in Civil Misc. Writ
Petition NO. 7458 of 1978, Kamta
Singh v. Lalta and others.
11. In the case of V.M. Salgaocar
(supra), ultimately the Special Leave
Petition under Article 136 was dismissed
by the Supreme Court. Under these
circumstances, it was ruled as under:-

"In that case, the Supreme Court
upholds the decision of the High Court or
of the Tribunal from which the appeal is
provided under clause (3) of Article 133.
This doctrine of merger does not apply in
the case of dismissal of special leave
petition under Article 136. When appeal
is dismissed order of the High Court is
merged with that of the Supreme Court.
We quote the following paragraph from
the judgement of this Court in the case of
Supreme
Court
Employees
Welfare
Association v. Union of India, (1989) 4
SCC 187: AIR 1990SC 34:

"22. It has been already noticed that
the special leave petitions filed on behalf
of the Union of India against the said
judgments of the Delhi High Court were
summarily dismissed by this Court. It is
now a well settled principle of law that
when a special leave petition is summarily
dismissed under Article 136 of the
Constitution, by such dismissal this Court
does not lay down any law, as envisaged
by Attorney General. In (AIR 1986 SC
1780) it has been held by this Court that
the dismissal of a special leave petition in
limine by a non-speaking order does not
justify any inference that, by necessary
implication, the contentions raised in the
special leave petition on the merits of the
case have been rejected by the Supreme
Court. It has been further held that the
effect of a non-speaking order of
dismissal of a special leave petition
without anything more indicating the
grounds or reasons of its dismissal must,
by necessary implication, be taken to be
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850 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
that the Supreme Court had decided only
that it was not a fit case where special
leave petition should be granted. In Union
of India v. All India Services Pensioners
Association, (1988) 2 SCC 580 : (AIR
1988 SC 501) this Court has given
reasons for dismissing the special leave
petition when such reasons are given, the
decision becomes one which attracts
Article 141 of the Constitution which
provides that the law declared by the
Supreme Court shall be binding on all the
Courts within the territory of India. It,
therefore, follows that when no reason is
given, but a special leave petition is
dismissed simpliciter, it cannot be said
that there has been a declaration of law by
this Court under Article 141 of the
Constitution.

12. In the case of Kanhayammed
(supra), it was ruled by the Supreme
Court as under:

"12.
The
logic
underlying
the
doctrine of merger is that there cannot be
more than one decree or operative orders
governing the same subject-matter at a
given point of time. When decree or order
passed by inferior Court, tribunal or
authority was subjected to a remedy
available under the law before a superior
forum then, though the decree or order
under challenge continues to be effective
and binding, nevertheless its finality is put
in jeopardy. Once the superior court has
disposed of the lis before it either way-
whether the decree or order under appeal
is set aside or modified or simply
confirmed, it is decree or order of the
superior court, tribunal or authority which
is the final, binding and operative decree
or order wherein merges the decree or
order passed by the Court, tribunal or the
authority below. However, the doctrine is
not of universal or unlimited application.
The nature of jurisdiction exercised by the
superior forum and the content or subjectmatter of challenge laid of which could
have been laid shall have to be kept in
view.

"We may look at the issue from
another angle. The supreme Court cannot
and does not reverse or modify the decree
or order appealed against while deciding a
petition for special leave to appeal. What
is impugned before the Supreme Court
can be reversed or modified only after
granting leave to appeal and then
assuming appellate jurisdiction over it. If
the order impugned before the Supreme
Court cannot be reversed or modified at
the SLP stage obviously that order cannot
also be affirmed at the SLP stage.

To sum up our conclusions are:-

(i) where an appeal or revision is
provided against an order passed by a
Court, tribunal or any other authority
before superior forum and such
superior forum modifies, reverses or
affirms the decision put in issue
before
it,
the
decision
by
the
subordinate forum merges in the
decision by the superior forum and it
is the latter which subsists, remain
operative
and
is
capable
of
enforcement in the eye of law.
(ii) The jurisdiction conferred by Article
136 of the Constitution is divisible
into two stages. First stage is upto the
disposal of prayer for special leave to
file an appeal. The second stage
commences if and when the leave to
appeal is granted and special leave
petition is converted into an appeal.
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3 All] Tilak Ram and others V. D.D.C., Allahabad and others 851
"44. Having thus made the law clear,
the case at hand poses no problem for
solution. The earlier order of the High
Court was sought to be subjected to
exercise of appellate jurisdiction of
Supreme Court by the State of Karela.
Wherein it did not succeed. The prayer
contained in the petition seeking leave to
appeal to this Court was found devoid of
any merits and hence dismissed. The
order is a non-speaking and unreasoned
order. All that can be spelt out is that the
Court was not convinced of the need for
exercising its appellate jurisdiction. The
order of the High Court dated 17.12.1982
did not merge in the order dated
18.7.1983 passed by this Court. So it is
available to be reviewed by the High
Court."

In Amba Bai (supra), it was ruled by the
Supreme Court as under :-

"If the judgment or order of an
inferior court is subject to an appeal or
revision by the superior court and in such
proceedings the order of judgment is
passed by the superior court determining
the rights of parties, it would supersede
the order or judgment passed by the
inferior Court. The juristic justification
for such doctrine of merger is based on
the common law principle that there
cannot be, at one and the same time, more
than one operative order governing the
subject matter and the judgment of the
inferior court is deemed to lose its identity
and merger with the judgment of the
superior court. In the course of time this
concept which was originally restricted to
appellate decrees on the ground that an
appeal is continuation of the suit, came to
be
gradually
extended
to
other
proceedings like revisions and even the
proceedings before quasi-judicial and
executive authorities.

13. From what is noted above, it is
clear that if the judgment and order of an
inferior Court is subject to an appeal by
the
Superior
Court
and
in
such
proceedings the order or judgment is
passed by the superior court determining
the rights of parties, it would supersede
the order or judgment passed by the
inferior Court and the judgment of the
superior court shall remain operative and
binding upon the parties. It would not be
open to any one of the parties to say the
judgment and order passed by the inferior
Court were still alive or operative.

14. The judgment in Thakur
Birendra Singh case (supra) was the
judgment on the facts of that case. In that
case it was held by the Supreme Court
that in the opinion of the High Court the
appellate authority having overlooked this
aspect of the matter and the order by the
Collector or those in appeal could not be
allowed to stand. It was observed that the
High Court quashed the order dated June
3, 1960, January 14, 1960 and July 27,
1964 directing at the same time that the
case is remitted to the Collector for fresh
decision with deference to the observation
made in this order after giving an
opportunity to the petitioner of being
heard. The Supreme Court, in these
circumstances, has taken the view that the
High Court was wrong in giving further
direction
and
that
once
the
order
complained are quashed, the matter
should have been left at large without any
further direction leaving the revenue
authorities
free
to
take
any
steps
allowable
under
the
law
and
the
proceeding out of which the said
proceedings arose, were pending disposal.
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852 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
The said case has got no application to the
facts of the present case.

15. In Vishwa Swarup case (supra),
the said case was also decided on the facts
of that case. There was dispute regarding
an
entry
which
showed
Kamala
respondent in the said case as sub-tenant.
It was observed that an entry in that case
in Khasra 135 F. which has got the special
status under the law. The said entry
confers the right of occupant under
Section 20 of the U.P. Zamindari
Abolition and Land Reforms Act and
further confers the right of Adhivasi. The
said view was taken by the single Judge.
The Deputy Director of Consolidation
held to the contrary. Once the order of
the Dy.Director of Consolidation was
quashed, this Court was right in holding
that the case was to be re-considered by
the Deputy Director of Consolidation.

16. In Kamta Singh (supra), the
order was passed on an misc. application.
It is not known as to what had happened
in the case ultimately, therefore, the said
order has got no binding effect.

17. From the above noted authorities
cited by learned counsel for the petitioner,
it is abundantly clear that the orders
passed by the subordinate authorities
merge in the orders passed by the superior
authority. In the present case , orders
passed by the Consolidation Officer and
the Settlement Officer Consolidation were
merged in the order passed by the Deputy
Director of Consolidation, which was
ultimately quashed by this Court. Thus
the only judgment which remained
operative between the parties was the
judgment of this Court passed in the
above
noted
writ
petition.
Learned
counsel for the petitioners is right in his
submission that the theory of merger was
fully applicable in the present case. So far
as the decisions referred by learned
counsel
for
the
respondents
are
concerned, for the reasons stated above,
they have got no application to the facts
of this case. They are decisions of the
facts of those cases and are, therefore,
distinguishable from the facts of the
present case.

18. In view of the aforesaid
discussion, this petition deserves to be
allowed.

19. The writ petition succeeds and is
hereby
allowed.
The
order
dated
16.6.1995 passed by the respondent no. 1
is hereby quashed.

20. It is further directed that the
name of Badri from the revenue papers be
expunged and of Shri Nath and Radhey
Shyam, who claim their rights on the
basis of sale deed executed by Badri and
the names of the petitioners be entered in
revenue papers.
No orders as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.9.2002

BEFORE
THE HON'BLE SUSHIL HARKAULI, J.

Civil Misc. Writ Petition No. 37313 of 2002

Mohd. Ilyas Ahmad

...Petitioner
Versus
The
XIII
Additional
District
Judge,
Allahabad and others
 ...Respondents

Counsel for the Petitioner:
Sri Rajesh Tandon
Sri S.N. Misra