Holding

The Consolidation authorities have no power to modify or cancel the proprietary rights conferred by the Sanad under Section 10, and a dismissal in limine does not give rise to res judicata.

Summary

Smt. Pujari Bai, a displaced person, was allotted agricultural land and on 29 April 1963 received a permanent Sanad under Section 10 of the Displaced Persons (Compensation & Rehabilitation) Act, 1954, conferring absolute title. Later, during consolidation proceedings under the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, the Consolidation Officer, citing over‑allotment, deprived her of the land and allotted it to Madan Gopal. Pujari Bai challenged this order in an appeal, a writ petition (dismissed in limine), and a suit, all of which were rejected by lower courts. The Supreme Court examined whether the Consolidation authorities could cancel or modify the proprietary rights created by the Sanad, and whether the earlier dismissal barred the suit by res judicata. The Court held that the Consolidation Act gives no jurisdiction to alter rights granted under the Sanad, and that a dismissal in limine does not operate as res judicata. Consequently, the suit was allowed and the lower courts' judgments set aside.

Issues considered

Whether the Consolidation authorities under the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 have jurisdiction to modify or cancel proprietary rights granted by a Sanad under Section 10 of the Displaced Persons (Compensation & Rehabilitation) Act, 1954.
Whether land transferred permanently by such a Sanad can be taken away in consolidation proceedings without providing alternate land.
Whether the earlier dismissal of the writ petition in limine bars the suit by the doctrine of res judicata.

Legislation cited

Code of Civil Procedure, 1908s. 11
Constitution of Indias. Article 226
Displaced Persons (Compensation & Rehabilitation) Act, 1954s. 10
Displaced Persons (Compensation & Rehabilitation) Rules, 1954s. Rule 68, s. Rule 69
East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948s. 30

Subjects

Displaced personsSanadProprietary rightsLand consolidationRes judicataLand allotmentCompensationJurisdiction

Judgment

SMT. PUJARI BAI A
v.
MADAN GOPAL

JULY 12, 1989

[G.L. OZA AND K. JAGANNATHA SHETTY, JJ.] B

Displaced Persons (Compensation and Rehabilitation) Act, 1954/
Displaced Persons (Compensation & Rehabilitation) Rules, 1954:
Section JO/Rule 68 . . Grant of proprietary rights by Rehabilitation
authorities with issue of Sanad-Right of authorities under Consolida-
tion Act to modify or cancel the proprietary rights.
c
East Punjab Holdings (Consolidation and Prevention of Frag-
mentation) A ct, 1948: Section JO-Transfer of property during consoli-
dation proceedings-Has no reference and cannot have reference to
transfer of Sanad issued by Rehabilitation Department.
D
Constitution of India, 1950: Article 226-Writ Petition-Dismis-
sal in limine on grounds of /aches or available of alternative remedy~
Decision does not operate as res judicata.

~. Civil Procedure Code, 1908: Section JI-Res judicata-Does not
apply where suit, writ petition is dismissed in limine. E

The appellant who migrated from Pakistan in 1947 was allotted
certain lands. On 29.12.1962 allotment was made quasi-permanent
in character, but on 29.4.1963, the lands were transferred to her
permauently, by a Sanad issued under Rule 68 of the Displaced Persons
-'4 (Compensation & Rehabilitation) Roles, 1954. F

The respondent like the appellant had also migrated from
Pakistan and on 29.12.1959 lands were also allotted to him but no entry
could be made in the revenue record.

On 29.6.1960 during consolidation proceedings no tuk was how- G
ever made for the respmldent. He tiled objections which were rejected.
He unsuccessfully appealed to the Appellate Authority-The Settlement
Officer (Appeals). In the second appeal, the Assistant Director Consoli-
dation of Holdings remanded the matter .to the Special Settlement
Officer with the observation that because of the mistake of the Consoli-
dation authorities there had been over-allotment, and the authorities H
383
384 SUPREME COURT REPORTS (1989] 3 S.C.R.

A will see that the first allottee is given the land first.

As nothing happened for about three years, the respondent filed a
writ petition in 1966 and the High Court directed implementation of the
order of the Assistant Director Consolidation. The appellant was not a
8 party to either of these proceedings.

Pursuant to the order of the High Court the Consolidation Officer
started enforcing the observations of ibe Assistant Director, found that
the land allotted to various persons was more than the land available for
allottment, and in order to resolve this difficulty evolved a via-media
procedure. He deprived some of the allottees of the land allotted to
c them, and the appellant was one such person. He allotted all such lands
to the respondent. This was the commencement of the instant litigation.

Against the aforesaid order of the Consolidation Officer the
appellant preferred an appeal before the Assistant Director which was
dismissed and the writ petition against the said order was rejected hy
D
the High Court in limine with only one word, namely, 'dismissed'.

The appellant having no other alternative instituted a suit
contending that it was impermissible for the Consolidation Officer to
adjust the lands, or take away any part of it which became .her absolute
property by virtue of the Sanad granted on 29.4.1963. The trial Court
E
dismissed. the suit. The Additional District Judge confirmed that judg-
ment, and the second appeal to the High Court was also dismissed.

In the appeal to this Court on the question; whether the lands
given to the appellants by permanent Sanad could be deprived of in
consolidation proceedings without giving them adequate alternate
F lands.

Allowing the appeal,

HELD: 1. The authorities under the Consolidation Act have no
G jurisdiction or power to modify or cancel the grante of proprietary
rights granted in the Sanad under s. 10. [392G I
-,
2. From s. 10 of the Displaced Persons (Compensation & Rehabi-
litation) Act 1954, it is clear that the parties who were put in possession
under initial allotment would continue to remain in possession even
after its acquisition by the Central Government. But it is 9pen to the
H
Central Government for the purposes of payment of compensation to
......
SMT. PUJARI v. MADAN GOPAL (OZA, J.J 385

such displaced person, transfer to him such property on such terms and A
conditions as may be prescribed. Apparently this refers to a permanent
transfer in lieu of compensation. [390D-El

3. Transfer of property referred to in s. 30 of the East Punjab
Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 is
either by a landowner or by · a tenant, and it has no reference, and B
indeed cannot have a reference to transfer of Sanad under s. 10 of the
Displaced Persons (Compensation & Rehabilitation) Act of 1954. The
conferment of rights in lieu of compensation under s. 10 stands on a
different footing which could not be contemplated within the language
of s. 30 of the Consolidation Act. [391F]

4. ·When a writ petition after contest is disposed of on merits by a c
speaking order, the question decided in that petition would operate as
res judicata, but not a dismissal in limine or dismissal on the ground of
lacbes, or availability of alternative remedy. [392E-F]

Workmen of Cochin Port Trust v. Board of TruStees of the D
Cochin Port Trust & Another, [1978] 3 SC_R 971, referred to.
.......
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6012-
13 of 1983.

From the Judgment and Order dated 31.1.1983 of the Punjab & E
Haryana High Court in C.R.S.A. No. 1871 of 1975 and R.S.A. No.
1611of1980.

Shiv Dayal Srivastava, S.K. Bagga and Mrs. Bagga for the
Appellant.
F
Kapil Sibal, S. Markandeya, Mrs. C. Markandeya, O .P.
Ahluwalia, G. Seshagiri Rao and Km. U . Saraswat for the Respon-
dents.

The Judgment of. the Court was delivered by
G
OZA, J. This appeal arises out of a judgment of the Punjab &
Haryana High Court delivered in Civil Regular Second Appeal No.
i 1871of1975 dated 31.12.1983.

This second appeal before the High Court of Punjab & Haryana
was taken against the judgment of Additional District Judge, Patiala H
386 SUPREME COURT REPORTS lt989J 3 s.c~

A who affirming the judgment of the trial Court i.e, sub-Judge 1st class ,
Rajpura, maintained the dismissal of the suit filed by the plaintiff-
present appellant.

The suit was filed for a declaration that the appellant plaintiff is
the owner in possession of agricultural l~nds measuring 100 Bi,ghas 10
B Biswas comprising Khasra .Nos. 54-1-2-3-8/3-9-11-19/2, 55 "3-4-5-6-
7-15, 55/16, 20 situated in village Urdan, Tehsil Rajpura with the
consequential relief of permanent injunction restraining the defendant
from interfering with the possession of the plaintiff and dispossession
thereof in any manner.

C The appellant-Pujari Bai, it is alleged, migrated from Pakistan
in 1947 after the partftion of the country and she left behind in
Pakistan a large areas of agricultural land. In 1949 Government in
order to settle such refugees adopted certain measures and gave land
to the displaced persons for the purpose of cultivation. The displaced
persons cl~ims were examined by the claims organisation set up by the
D East Punjab Government at some places and the lands were given
individually to those who had left behind agricultural lands in the West
Punjab which become Pakistan after 1947. As Smt. Pujari Bai, was
one of such claimants, she was allotted certain lands in village Urdan.
On 29.12.1962 allotment made was quasi permanent in ctiaracter, but
on 29 .4.1963 the lands were transferred to her permanently. The trans-
E fer was right, tiltle and interest in ownership by a Sanad issued in the
name of the President (the Central Government) under Rule 69 of the
Displaced Persons (Compensation & Rehabilitation) Rules, 1954.
This was the basis of her claim.

It appears that the defendant-respondent had also migrated
F from Pakistan like the appellant and on 29.12.1959 some lands were
also allotted to him but no entry could be made in the revenue record
and it was not certain whether possession was taken by the respondent.
On 29.6.1960 during the consolidation proceedings, no tuk was
however, made for the respondent. He filed objections and to these
objections Pujari Bai was not a party. The objections were rejected. It
·G appears that against this order be appealed to the Appellate
Authority-The Settlement Officer (Appeals) and this appeal also was
dismissed. He took up the matter in second appeal to the Assistant
Director Consolidation of Holdings who remanded the matter to the
Special Settlement Officer with certain observations. He observed
" that there have been over allotment and authorities will see that first
H allottee is given land first". He also observed that it all happened
SMT. PUJARI v. MADAN GOPAL !OZA, J.) 387

because of the mistake of the Consolidation authorities. ·This order
A
was passed on 2.12.1963.

In spite of this remand order made by the Assistant Director
Consolidation, nothing happened for about three years. In 1966 the
respondent filed a writ petition before the High Court of Punjab &
Haryana. Even to this writ petition the present appellant Pujari Bai B
was not a party. In this writ petition a direction was sought to imple-
ment the aforesaid order of the Assistant Director Consolidation. The
High Court by the order dated 25.11.1966 directed that the observa-
tions contain.ed in the order passed by the Assistant Director should be
complied with.

After the direction of the High Court the Cons<>lidation Officer
c
became active. He started enforcing the observations contained in the
remand order of the Assistant Director and in so doing, he found that
the land allotted to various persons in the village was more than the
land available for allotment. In order to resolve this difficulty he
evolved a via-media. He deprived some of the allottees of the part of D
land allotted to them, and the appellant was one such casualty. He
allotted all such lands to the respondent and it is this which was the
starting point of the trouble. It is, however, significant to note that
before this order was passed by the Consolidation Officer so far as the
appellant is conce.m ed she had already obtained a permanent Sanad in
respect of her lands from the Government of India. E

Against the order of the Consolidation Officer, the appellant
preferred an appeal before the Assistant Director, Pun jab & Haryana,
Chandigarh. The appeal was dismissed with an observation that he was
bound by the remand order and the right acquired by the appellant by
the Sanad should have been brought to the notice when matter was F
disposed of earlier by the Assistant Director, Patiala. Against this
order of the Assistant Director, the appellant preferred a writ petition
which was rejected by the High Court in limine with one word 'dismis-
sed' by order dated 14.4. 1969.

Mer the rejection of the writ petition, the appellant had no G
other alternative and therefore instituted the suit out of which this
appeal arises. Her case.in the suit was that it was impermissible for the
Consolidation Officer to adjust the lands or take away any part of it
which became her absolute property by virtue of the Sanad granted on
29 .4 .1963. However, she became unsuccessful in all Courts . On
5.9.1975, the trial Court dismissed the suit. The Additional District H
388 SUPREME COURT REPORTS [1989! 3 s.c.~

A Judge confirmed that judgment. The High Court of Punjab & Haryana
dismissed the Second Appeal by the judgment dated 31.1.1983 which
is now under appeal before us.

Learned counsel for the appellant ~ntended that after the Sanad
was granted to the appellant on 29.4 .1963 she became the absolute
B owner of the land. The land was given to her in lieu of settlement of
her claim of compensation and the Sanad-specifically provided that all
rights and interest in the property were transferred to the appellant
under the authority of the President. It was, therefore, not open to any
consolidation authority to cancel this Sanad. It was also contended
that the Consolidation authorities and the civil courts did not examine
C the legal consequences of the Sanad and the scope of Section 10, and
without taking that into consideration the allotment made was illegal
and could not be sustained.

The other limb of the argument of learned counsel relates to the
question of res judicata on which ground also the appellant was non-
D suited. It may be recalled the appellant being aggrieved by the order of
the Consolidation Officer which was confirmed by the Assistant
Director Consolidation apprcached the High Court in a writ petition.
That writ petition was rejected in limine and therefore the courts
below held that the question of res judicata operates and there was no
scope for the civil court to go into the question once again. It was
E argued that the High Court committed an error since apparently the
writ petition filed by the appellant was dismissed in limine and it could
not operate as res judicata since it was not a decision on merits decid-
ing anyone of the issues arising in the litigation.

Learned counsel for the respondent, on the other hand conten-
F ded that the allotment made in favour of the respondent was very
much before the allotment made in favour of the appellant. The
allotment to the respondent was on 29 . 12. 1959 and whereas the allot-
ment to the appellant was on 29.12.1962. But unfortunately as there
was no entry made in the revenue record about the allotment to the
respondent. No land was earmarked in the consolidation proceedings
G which ultimately had to be brought to the notice of Assistant Director.
The later remanded the matter with a direction to the consolidation
officer "to see that the first allottee is accommodated first and the later
allottees who have been accommodated before the respondent shall
not be given their allotment." Learned counsel contended that when
this order of the Assistant Director was not complied with, the respon-
H dent had no option but to approach the High Court for a direction for
SMT. PUJARI v. MADAN GOPAL [OZA, J.] 389

enforcement of the said order. But learned counsel had to concede
that even before the order of the Assistant Director by which he A
remanded the matter, the allotment in favour of the appellant had
been converted into a permanent transfer by a Sanad granted by the
"!'resident.

The main argument of the learned counsel for the respondent B
was that in view oHhe fact that the respondent was allotted earlier in
1959 whereas the allotment in favour of the appellant being in
December 1962 and-ifThere was no adequate land available for allot-
ment to the appellant, the authorities should find an alternative land
somewhere else but the respondent could not be deprived of the land
which was allotted to him. He, however, frankly conceded that there is
nothing on record to indicate that the same land which was allotted to C
the n:spondent was allotted to the appellant. He, however, said that it
was a case of over allotment and the authorities were justified in taking
the land proportionately from all allottees and adjusting.all the allot-
tees with the available lands.
D
From all the facts and documents, one thing appears to be dear
that although certain allotment was made in favour of the respondent
in 1959, he was not put in possession of the allotted lands. It is also
clear that the survey Nos. of lands allotted in 1959 to the respondent
are not the same survey Nos, allotted to the appellant in December,
1962. It is further clear that the appellant was given possession of those E
properties allotted to her and even permanent Sanad was granted to
her,

The main question that arises for consideration therefore, is
whether the lands given to the appellants by permanent Sanad could be
deprived of in the consolidation proceedings without giving them F
adequate alternate lands. Section 10 of the Displaced Persons (Com-
pensation & Rehabilitation) Act of 1954 provides:

"10. Where any immovable property has been leased or
allotted to a displaced person by the Custodian under the
conditions prescribed: G

(a) by the notification of the Government of Punjab in the
Department of Rehabilitation No. 4891-S or 4892-S, dated
the 8th July, 1949; or

(b) by the notification of the Government of Patiala and H
390 SUPREME COURT REPORTS [1989] 3 S.C.R.

East Punjab States Union in the Department of Rehabili-
A
tation No. 8R or 9R, dated tile 23rd July, 1949, and
published in the Official Gazette of that State, dated the
7th August, 1949.

and such property is acquired under the provisions of this
Act and forms part of the compensation pool, the displaced
person shall, so long as the property remains vested in the
Central Government continue in possession of such pro-
perty on the same conditions on which he held the property
immedia!ely before the date of the acquisition, and the
Central Government may, for the purpose of payment of
compensation to such displaced person, transfer to him
c such property on such terms and conditions as may be
prescribed."

From this provisions, it will be clear that the parties who were
put in possession under initial allotment would continue to remain in
D possession even after its acquisition by the Central Government. But it
is open to the Central Government for the purposes of payment of
compensation to such displaced persons transfer to him such property
on such terms and conditions as may be prescribed. Apparently this
refers to a permanent transfer in lieu of compensation. It is not in
dispute that the appellants were the only allottees in whose favour \...
E permanent transfer was made on 29.4. 1963 and 15. 6. 1964 respectively.

A perusal of the terms of Sanad clearly indicate that it conveys
absolute title and it could be cancelled only by the authority which
granted the Sanad. Sanad (Ex. p 2) granted to the appellant on
29.4.1963 reads:
F
"The President is hereby pleased to transfer the right, title
and interest acquired by the Central Government in the
said property to Pujari Bar wife of Bihari Lal (hereinafter
referred to as the transferee) subject to the following terms
and conditions."
G
It was perhaps for this reason, as contended for the appellant
that after the Sanad was granted in favour of the appellant, the respon- ,...-. ,
dent went on with the proceedings before the consolidation authorities
and also before the authorities under the Displaced Persons (Compen-
sation & Rehabilitation) Act, 1964, but did not implead the appellant
I{ and only impleaded the other allottees who were not granted Sanad till
SMT.,,PUJARI v. MADAN GOPAL [OZA, J.] 391

then. Quite naturally, the authorities had no opportunity to examine A
the effects of the Sanad granted to the appellant.

Learned counsel for the respondent next contended that the con-
solidation proceedings had started when the Sanad was granted to the
appellant on 29.4.1963 and Section 30 of the East Punjab Holdings B
(Consolidation and Prevention of Fragmentation) Act, 1948 prohibits
a transfer during the consolidation proceedings.

We do not think that Section 30 has any application to the facts
..- ~ , of the case.

Section 30 of the East Punjab Holdings (Consolidation and Pre-
vention of Fragmentation) Act, 1948, provides:

"Sec. 30. Transfer of Property during consolidation
proceedings-After a notification under sub-section (1) of
Section 14 has issued and during the pendency of the con- D
solidation proceedings no land owner or tenant having a
right of occupancy upon whom the scheme will be binding
shall have power without the sanction of the Consolidation
· Officer to transfer or otherwise deal with any portion of his
original holding or other tenancy so as to affect the rights of
any other landowner or tenant. having a right of occupancy
E,
therein under the scheme of consolidation."

Transfer of property referred to in this Section is either by a
landowner or by a tenant, and it has no reference and indeed cannot
have a reference to trail!;fer of Sanad under Section 10 of the Displaced
""-" Persons (Compensation & Rehabilitation) Act of 1954. The confer-
F.
• ""'.II ment of rights in lieu of compensation under Section 10 stands on a
different footing which could not be contemplated within the language
of Section 30 of the aforesaid Act. This contention advanced by
learned counsel for the respondent is, therefore, rejected.

This takes us to the question of res judicata. The question is G
whether the suit of the appellant was barred by res judicata in view of
the summary dismissal of her writ petition earlier. It is not disputed
~ that the writ petition filed by the appellant against the ·order of the
Assistant Consolidation Officer was dismissed in limine. This order
dated 14.4.1969 was passed by the Division Bench .of pun jab &
Haryana High Court. It was a one word order. The question or res If
392 SUPREME COURT REPORTS [1989] 3 S.C.R.

A judicata apparently arises when a controversy or an issue between the y-
parties has been heard and decided. This Court in Workmen of Cochin
Port Trust v. Board of Trustees of the Cochin Port Trust & Another,
[1978] 3 SCR 971 considered this principle and observed (at 977):

a "But the technical rule of res judicata although a whole-
some rule based upon public policy, cannot be stretched
too far to bar the trial of identical issues in a separate )'--
proceedings merely on an uncertain assumption that the
issues must have been decided. It is not safe to extend the
principle of res judicata to such an extent so as to found it

c
on mere guess work. To illustrate our view point, we may
take an example. Suppose a writ petition is filed in a High
~
Court for grant of a writ ot Certiorari to challenge some
order or decision on several grounds. H the Writ Petition is ~ ~
dismissed after contest by a speaking order obviously it will
operate as res judicata in any other proceeding, such as, of
D suit, Article 32 of Article 136 directed from the same order
or decision. If the Writ Petition is dismissed by a speaking
order either at the threshold or after contest, say, only on
the ground of !aches or the availability of an alternative·
remedy, then another remedy open in law either by way of
suit or any other proceeding obviously will not be barred
E
on the principle of res judicata." '.l
It thus becomes clear that when a writ petition after contest is
disposed of an merits by a speaking order, the question decided .in that
petition would operate as res judicata, but not a dismissal in limine or
dismissal on the ground of !aches or availability of alternative remedy.
The High Court and the courts below, therefore, were not right in
F
throwing out the suit of the appellant on the ground of res judicata. ~·
It is, therefore, plain that. all the three courts have omitted to
consider the material question, that is, the impact of .the grant of
San.ad under Section 10 and its effect on the jurisdiction of the autho-
riti¢s under the Consolidation A~t. The authorities under Consoli.la-
G
tioll Act have no jurisdiction or power to modify or cancel the grant of
pr.,prietary rights granted in the Sanad under Section 10.
~
In the connected Civil Appeal No. 6013 of 1983 the Sanad was
also granted on 15.6.1964 in accordance with Section 10 and, there,-
H fore, the same principle applies to that case also.
SMT. PUJARI v. MADAN GOPAL [OZA, J.J' 393

The appeals are therefore allowed. The judgment and decree A
passed by all the three courts below are set aside and the suit filed in
each case is decreed with costs. The appellant shall be entitled to costs
in this Court. Costs quantified at Rs.5,000 in each of the two appeals.

N.V.K. Appeals allowed. B

..