TMI Blog1995 (4) TMI 313X X X X Extracts X X X X X X X X Extracts X X X X ..... 958, Smt. Budhna, the mother of Nanki, filed a suit, as a next friend of the appellant who was a minor, under Section 229B, of the U. P. Zamindari Abolition and Land Reforms Act, 1950 for a declaration that the appellant is the son and the only heir of Raja Ram, deceased, and for possession of the agricultural lands of Raja Ram. The said suit was contested by Smt. Koili who denied that the appellant is the son of Raja Ram. By judgment dated January 2, 1961, the Judicial Officer, sadar, Pratapgarh, dismissed the said suit after finding that the plaintiff-appellant had failed to establish that he is the son of Raja Ram. The appeal filed against the said decision was dismissed by the Addl. Commissioner, Faizabad Division, Faizabad on May 25, 1962. Subsequently, consolidation proceedings were initiated in the village under the provisions of the U. P. Consolidation of Holdings Act, 1953 hereinafter referred to as 'the Act'. In those proceedings, the appellant filed an objection under Section 9, of the Act claiming that he is the son of Raja Ram and is in possession of the plots in question since long. The said proceedings was contested by Smt. Koili on the ground that she is the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... must have been successfully asserted. The Deputy Director (Consolidation) further found that the declaratory suit filed by Smt. Budhna, as the next friend of the minor appellant, was dismissed for the reason that Smt. Nanki was not examined as a witness and important documentary evidence such as rent receipts, extract of kutumb register and admission register were not filed. The Deputy Director (Consolidation), therefore, found that Smt. Budhna did not conduct the suit in the Court of Judicial Officer, Sadar, Pratabgarh, with due care and did not produce evidence that was available and that she was guilty of gross negligence. On the basis of the evidence on record produced in the consolidation proceedings the Deputy Director (Consolidation) has found that the appellant is the son of Raja Ram and is his sole heir. 3. Feeling aggrieved by the said order of the Deputy Director (Consolidation), Smt. Koili filed the Writ Petition, giving rise to this appeal. The said writ petition was allowed by the High Court by its judgment dated February 23, 1982 on the view that a decree obtained against a minor due to negligence of guardian is not void but voidable and that the decree pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invested with jurisdiction, by the necessary implication of their statutory powers to adjudicate upon such rights and interests in land, to declare such documents effective or ineffective, but, where there is a document the legal effect of which can only be taken away by setting it aside or its cancellation, it could be urged that the consolidation authorities have no power to cancel the deed, and, therefore, it must be held to be binding on them so long as it is not cancelled by a Court having the power to cancel it. P. 3421 (of SCR): at p. 2453 of AIR) 7. The said view has been reiterated in Dularia Devi v. Janardan Singh and Sita Ram v. Chotta Bhondey . 8. The same principle would apply to a judgment of a Court in an earlier suit or proceeding. The judgment of a competent Court is normally binding on the parties to the proceeding and it operates as resjudicata in a subsequent proceeding between the same parties. An exception to the said rule is en grafted by Section 44 of the Evidence Act which provides that any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under Sections 40, 41 and 42, and which has been pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1; Hanmantapa Chundruna Punnayyah v. Rajan Viranna AIR 1922 Mad. 273; Kumar Ganganand Singh v. Maharaja Sir Rameshwar Singh Bahadur AIR 1927 Pat. 271; Imam Din v. Puran Chand (1919)ILR 1Lah27: AIR1920 Lahore417; Siraj Fatma v. Mahmud Ali (1932) ILR 54 All. 646 : AIR 1932 All 293 (FB). 11. In 1936, the Privy Council in Talluri Ventaka Seshayya v. Thadikonda Koliswara Rao AIR 1937 P.C.I, considered the question whether a decree can be set aside on the ground of gross negligence in the context of a representative suit under Order 1, Rule 8, C.P.C. In that case, their Lordships, after noticing the decisions of the Calcutta High Court and Madras High Court, have observed: Their Lordships are not concerned to discuss the validity of these decisions, or the illusive distinction between negligence and gross negligence, as they are satisfied that the principle involved in these cases is not applicable to such cases as the present one. The protection of minors against the negligent actings of their guardians is a special one, and in these cases the plaintiff in the second suit was also the plaintiff in the former suit, although in the earlier suit he or she had sued through a guardi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a97 (FB) (supra), has dealt with the English law on the subject and has pointed out that Beaumont C. J. in Krishnadas Padmanabhrao Chandavarkarv. Vithoba Annappa Shetti AIR 1939 Bom 66 (FB) (supra) was not right in his appreciation of the English law on the subject. According to the learned Judge [Meredith j.] the substantive right of an infant, on attaining majority, 10 avoid a decree obtained against him owing to the gross negligence of his next friend was undoubtedly recognised in England from early times. The Privy Council in Talluri Venkata Seshayya v. Thadikonda Kotiswara Rao AIR 1937 P.C.I (supra) has also pointed out that protection of minors against the neglect actings of their guardians is a special one. In she instant case, the High Court has proceeded on the basis that it is permissible for a minor to file a suit to set aside a decree on the ground of gross negligence on the part of his next friend. We are in agreement with the said view. 14. The question for consideration is whether, apart from filing a separate suit for setting aside a decree on the ground of gross negligence on the part of his next friend, it is permissible for a minor to avoid a decree, if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence Act but has held that the same were not of any assistance to the appellant. In taking the said view the High Court, with respect, has failed to note that if a judgment falls within the ambit of Section 44, of the Evidence Act it can be avoided in the proceedings in which it is sought to be relied upon and it is not necessary to have it set aside by instituting independent proceedings in a competent Court. What was required to be considered was whether the judgment in the earlier declaratory suit fell within the ambit of Section 44, of the Evidence Act and for that purpose it was necessary to examine whether an inference of fraud or collusion could be drawn from the gross negligence on the part of Smt. Budhna, the next friend of the appellant, in conducting the earlier declaratory suit. Since the matter has not been examined from this aspect, we consider it appropriate that the matter be remitted to the Deputy Director (Consolidation) for considering whether in view of the finding recorded by him that there was gross negligence on the part of Smt. Budhna in prosecuting the earlier declaratory suit filed an inference of fraud or collusion can be drawn so as to attract the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
