# D1ccm6er1 7, 828 SUPREME COURT REPORTS [1963] SUPP. PHOOL CHAND SHARMA AND OTHERS v. CHANDRA SHANKER PATHAK AND OTHERS

- **Citation:** [1963] Supp. 2 S.C.R. 828
- **Court:** Supreme Court of India
- **Decided:** 1963
- **Case number:** Civil Appeal No. 310 of 1960
- **Bench:** S.j. IMAM, K. SuBBA RAo, N. RAJAGOPALA AYYANGAR andj. R. MUDHOLKAR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/d1ccm6er1-7-828-supreme-court-reports-1963-supp-phool-chand-sharma-and-others-v-2849
- **Pages:** 6

## Headnote

Res Judicata-Rule-Applicatian lo appeals.
The father of respondent No. 1, who was the Zamindar,
filed a suit for the eviction of Ramprasad, the father of appellants, from certain plots of land. The suit was decreed and the
Zamindor took possession of the land.
Ramprasad filed an
appeal before the Additional Commissioner but the same was
dismissed. He preferred a second appeal before the Board of
Revenue during the pendency of which the matter was compromised whereunder he was recognised as tenant of the land in
dispute and the order of eviction was thus nullified.
He applied for restitution of possession under s. 144 of
the Code of Civil Procedure. The application was resisted by
Dataram and others who had been inducted as tenants on these
plots of land during the pendency of the appeals. ' The trial
court allowed the application but its order was reversed by the
Additional Commissi0ner who held that the newly inducted
tenants could not be dispossessed.
Its order was affirmed
by the Board of Revenue in revision.
Thereafter he filed a
petition under Art. 226 of the Constitution in the High Court
challenging the decision of the Board of Revenue, but that
petition was dismissed on merits. No appeal was attempted to
be filed against the order of the High Court either by applying
-
for a certificate or moving this Court for special leave under
Art. 136. The appellants have instead come to this Court in
appeal by special leave against the order of the Board of
Revenue. A preliminary objection was raised on behalf of
of the respondent that the appeal was not maintainable as it
was barred by rM j1tdicata.
Hekl, that the appeal was barred by res j1tdicata as the
decision of the High Court was on merits and would bind the
parties unless it was modified or reversed in appeal or by other
appropriate proceedings.
2 S.C.R.
SUPREME COURT REPORTS
829
Daryao v. ~late of U. P.,
fl962]
I S. C. R. 574 and
Indian Aluminium Oo. Ltd .. v. The Dommissioner of Income-ta,,,
West Bengal, (1961) 43 I. T. R. 532, relied on.
Ohandi Prasad Ohokhani v. State of Bihar, [l 962] 2
S. C. R. 276, explained.
CIVIL
APPELLATE
JURISDICTION :
Civil
Appeal No. 310 of 1960.
Appeal by special leave from the judgment and
decree dated July 24, 1954, of the Board of Revenue
(Uttar Pradesh) Allahabad, in Revision No. 20A
of 1952/53.
8. P; Sinha and J.P. Goyal, for the appellants,
N. N. Keswani, for respondent No. 2.
1962. December 7.
The Judgment of the
Court was delivered by
1962
Phool Chand Sharma
v.
Chandra Shanker
Pathak
AYYJ.NGAR, ].-This is an appeal by special
Ay;·an1ar, J.
leave against an order of the Board of Revenue,
Uttar Pradesh which declined to order restitution
under s. 144, Civil Procedure Code in the following
circumstances. The father of the 1st respondent was
the Zamindar who filed a suit in the court of SubDivisional Officer, Tehsil Iglas at Aligarh for the
eviction of Ram Prasad-father of the appellants
from certain plots of land situated in village
Kanchiraoli in the district of Aligarh. The suit was
decreed and in execution of that decree the Zamindar
took possession.
Thereafter Ram Prasad filed an
appeal to the Additional Commissioner but this was
dismissed in November, 1944. He then preferred a
further appeal to the Board of Revenue but before
it came on for hearing the dispute was settled and on
March 28 1948 an application was filed for recording
this compromise. The term of the compromise which
is of relevance to the present appeal is that
Ram Prasad wa! to be re,cognised as tenant of the
land in dispute; in other words, the order for eviction
1962
Ph1ol Cha11d SliarmJ
v.
C!JOJ1drt1 Shanker
Pathak
Ayyangar, J.
830 SUPREME COURT REPORTS [1963] SUPP.
was nullified. The compromise was recorded and a
ciecree in terms thereof was passed.
Some attempt
was made by the Zamindar to have the compromise
set aside on grounds which it is not necwary to
mention, but these attempts failed with the result
that it left the compromise decree passed by the
Board i

## Text

1962
D1ccm6er1 7,
828 SUPREME COURT REPORTS [1963] SUPP.
PHOOL CHAND SHARMA AND OTHERS
v.
CHANDRA SHANKER PATHAK
AND OTHERS
(S.j. IMAM, K. SuBBA RAo, N. RAJAGOPALA
AYYANGAR andj. R. MUDHOLKAR,jj.)
Res Judicata-Rule-Applicatian lo appeals.
The father of respondent No. 1, who was the Zamindar,
filed a suit for the eviction of Ramprasad, the father of appellants, from certain plots of land. The suit was decreed and the
Zamindor took possession of the land.
Ramprasad filed an
appeal before the Additional Commissioner but the same was
dismissed. He preferred a second appeal before the Board of
Revenue during the pendency of which the matter was compromised whereunder he was recognised as tenant of the land in
dispute and the order of eviction was thus nullified.
He applied for restitution of possession under s. 144 of
the Code of Civil Procedure. The application was resisted by
Dataram and others who had been inducted as tenants on these
plots of land during the pendency of the appeals. ' The trial
court allowed the application but its order was reversed by the
Additional Commissi0ner who held that the newly inducted
tenants could not be dispossessed.
Its order was affirmed
by the Board of Revenue in revision.
Thereafter he filed a
petition under Art. 226 of the Constitution in the High Court
challenging the decision of the Board of Revenue, but that
petition was dismissed on merits. No appeal was attempted to
be filed against the order of the High Court either by applying
-
for a certificate or moving this Court for special leave under
Art. 136. The appellants have instead come to this Court in
appeal by special leave against the order of the Board of
Revenue. A preliminary objection was raised on behalf of
of the respondent that the appeal was not maintainable as it
was barred by rM j1tdicata.
Hekl, that the appeal was barred by res j1tdicata as the
decision of the High Court was on merits and would bind the
parties unless it was modified or reversed in appeal or by other
appropriate proceedings.
2 S.C.R.
SUPREME COURT REPORTS
829
Daryao v. ~late of U. P.,
fl962]
I S. C. R. 574 and
Indian Aluminium Oo. Ltd .. v. The Dommissioner of Income-ta,,,
West Bengal, (1961) 43 I. T. R. 532, relied on.
Ohandi Prasad Ohokhani v. State of Bihar, [l 962] 2
S. C. R. 276, explained.
CIVIL
APPELLATE
JURISDICTION :
Civil
Appeal No. 310 of 1960.
Appeal by special leave from the judgment and
decree dated July 24, 1954, of the Board of Revenue
(Uttar Pradesh) Allahabad, in Revision No. 20A
of 1952/53.
8. P; Sinha and J.P. Goyal, for the appellants,
N. N. Keswani, for respondent No. 2.
1962. December 7.
The Judgment of the
Court was delivered by
1962
Phool Chand Sharma
v.
Chandra Shanker
Pathak
AYYJ.NGAR, ].-This is an appeal by special
Ay;·an1ar, J.
leave against an order of the Board of Revenue,
Uttar Pradesh which declined to order restitution
under s. 144, Civil Procedure Code in the following
circumstances. The father of the 1st respondent was
the Zamindar who filed a suit in the court of SubDivisional Officer, Tehsil Iglas at Aligarh for the
eviction of Ram Prasad-father of the appellants
from certain plots of land situated in village
Kanchiraoli in the district of Aligarh. The suit was
decreed and in execution of that decree the Zamindar
took possession.
Thereafter Ram Prasad filed an
appeal to the Additional Commissioner but this was
dismissed in November, 1944. He then preferred a
further appeal to the Board of Revenue but before
it came on for hearing the dispute was settled and on
March 28 1948 an application was filed for recording
this compromise. The term of the compromise which
is of relevance to the present appeal is that
Ram Prasad wa! to be re,cognised as tenant of the
land in dispute; in other words, the order for eviction
1962
Ph1ol Cha11d SliarmJ
v.
C!JOJ1drt1 Shanker
Pathak
Ayyangar, J.
830 SUPREME COURT REPORTS [1963] SUPP.
was nullified. The compromise was recorded and a
ciecree in terms thereof was passed.
Some attempt
was made by the Zamindar to have the compromise
set aside on grounds which it is not necwary to
mention, but these attempts failed with the result
that it left the compromise decree passed by the
Board in full force.
It might however, be mentioned
that the Zamindar immediately obtained possession in execution of the decree of the Sub-Divisional
officer, admitted one Data Ram and certain others
as tenants and put them in possession of the property
and this has led to all the subsequent complications
in this case.
On the strength of 'the compromise decree
Ram Prasad applied for restitution of possession
under s. 14i of the Civil Procedure Code.
This
application was resisted particularly by Data Ram
and others who had been inducted as tenants on the
land, while the eviction proceedings were pending
before the Additional Commissioner on appeal. The
trial court allowed the application on the ground
that Data Ram and others were bound by the rule of
li8 penden8 and were not, therefore, entitled to retain
the
possession which they obtained during the
proceedings for cjcctmcnt.
From this order an
appeal was taken hy Data Ram and others to the
a<lditior.al co11unissioucr who, for reasons which 1t IS
not necessary now to canvass, held that the newly
inducted tenants could not be dispossessed and that
Ram Prasad was entitled only to symbolical possession as against the Zamindar. This order was taken
to the Board in revision where, however, it was
dismissed.
It is to challenge the correctness of this
order that this appeal has been liled.
Learned Counsel for the respondent raised two
preliminary objections to the hearing of this appeal.
The first objection was that this appeal was barred
by res judicate. To understand thIS objection it is
-
2 S.C.R. SUPREME COURT REPORTS
831
necessary to state a few more facts. When the Board
of Revenue upheld the order of the
Additional
Commissioner declining the prayer of the appellants
for restitution they filed an application for review
and when this was dismissed they brought the matter
before the High Court by an application made to it
under Art. 226 of the Constitution.
The actual
judgment rendered by the High Court is not on
record but it was admitted before us by learned
Counsel for the appellant that the High Court dis·
missed the petition after elaborately discussing the
merits of the contentions raised and on that ground
Data Ram and others who had been let into possession by the Zamindar obtained a statutory right to
possession 1mdcr the U. l'. Zamindari
& Land
Reforms Act, l!l50 and could not therefore be evicted
by the application of the rule of lis pendens.
No
attempt was made by the appellant to prefer any
appeal against this judgment by either applying to
that court and obtaining a certificate of fitness or by
moving this Court for the grant of special leave. The
result is that there is now a decision of the High
Court which has become final and binding on the
parties.
Learned Counsel for the respondent therefore contends that without the correctness of the
decision of the High C0urt being challenged before
m and the finality of that judgment impaired, the
appellant is not entitled to bypass that decision and
:;eek lo practically obtain a reversal of it by attacking the correctness of the decision of the Board of
Revenue.
We consider this preliminary objection wellfounded.
Learned Coumel for the respondent relied
in support of his submission on the decision of this
Court in D11ryao v. The State of U. P. (').
The
question before the Court was whether, when the
High·Court dismis~ed a writ petition under Art. 226
after hearing a matter on the merits on the ground
that no fundamental right was proved or contravened
(I) [19S2j I s.C.R. s1• •.
1962
Phool Chand SAarma
Y.
Chandra .Shanktr
Patllak
Ayya11gar, J.
1962
Phool ChiJnd SM.rma
••
Chandra SM.Ilk
Pathak
~,,..,.,, J.
832 SUPREME COURT REPORTS [1963) SUPP.
a subsequent petition to the Supreme Court under
Art. 32 of the Constitution on the same facts and for
the same reliefs filed by the same party was permissible .. This Court held that where such a petition was
heard on the merits and dismissed by the High Court
the decision pronounced was binding on the parties
unless it was modified or reversed in appeal or by
other appropriate proceedings. If thus the rule of
res judicata were a bar even to a petition under
Art. 32 which is a Constitutionally guaranteed right, ·
it looks to us that it would be afortiori so as regards
an appeal under Art. 136 where the right to relief
is discretionary.
Learned Counsel for the appellant invited our
attention to the decision of this Court in G Jiandi
Prasad Glwkhani v. State of Bihar (') as lying down
a rule not quite so inflexible as the decision in
Daryao's case would suggest, that it depended upon
the facts of each case and that in a proper case
dependent upon the discretion of the Court, this
Court was competent to waive this rule and here the
appeal notwithstanding that it meant that the decision
of the High Court was bypassed.
No doubt, there
are a few observations of S. K. Das, J., who spoke
for the Court which are capable of being understood
in the manner suggested by learned Counsel but as
ultimately the learned Judges upheld the preliminary
objection and dismissed the appeal, these observations are only by way of obiter and cannot outweigh
the express decision on the point in Daryao's case.
We might, however, point out that in Indian
Aluminium Co. Ltd. v. Gommiss·ioner of Income-tax,
West Bengal(') in which also the judgment was
delivered by S. K. Das, J., the reasoning of the learned
Judge who upheld a similar preliminary objection is
more in line with the decision in Dary1w' s(3) case
though the latter judgment which was delivered on
the same day as in the Indian Aluminium Oo.'a
case (') is not naturally referred to. The learned
Judge observed :
(I) [19'2] 2 s.c,R. 275
(2) (1911) t31,T.R,$U,
C3l .c1162J 1 a.a.a, 57,,
·
2 s.c.R.
SUPREME COURT REPORTS
833
"The question which has arisen in this appeal
by way of a preliminary objection is whether in
the circumstances set out above-(no appeal
was preferred against the order of the High
Court refusing to make a reference under
s. 66(2) of the Income Tax Act)-special leave
to appeal from the decision of the Tribunal
dated May 29, 1956, was properly given under
article 136 of the Constitution and whether the
appellant is entitled to ask this Court to exercise
its discretion under the said article when it did
not move against the subsequent orders of the
Board and the High Court under section 66 of
the Act ..................... We hold that special
leave to appeal from the decision of the Tribunal dated May 29, 1956, was not properly
granted in this case and the appellant is not
entitled to ask us to exercise our power under
article 136 of the Constitution, when it did not
move against the subsequent orders of the Board
and the High Court."
This preliminary objection therefore has to be
upheld.
The other preliminary objection raised was this.
The application for special leave filed by the apps:ll·
ant was out of time and the delay in filing it was
condoned by this Court without notice to the respondent. Learned Counsel sought to urge that there
were no grounds for condoning the delay and that
for this reason the leave granted should be revoked.
In view, however, of our decision on the first objection raised we do not consider it necessary to deal
with this.
The result is that the apueal failes and is dis·
missed with costs.
19f2
PJw.l C,,...i Sharma
v.
Clwrdr• Sh.nker
Potliak