LexPHOOL CHAND SHARMA AND OTHERS versus CHANDRA SHANKER PATHAK AND OTHERS
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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 appell- ants, 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 compro- mised 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 Sub- Divisional 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 possess- ion in execution of the decree of the Sub-Divisional officer, admitted one Data Ram and certain
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