R. R. K. Triredi, J. - (1.)IN this writ petition, dispute is regarding share in khata no. 92 of village Korai, Pargana and Tahsil Kirawali, district Agra. IN basic year, petitioners and respondents no 4 to 10 were recorded. Respondent no. 9 Net Ram and respondent no. 7 Kishan Lal have died during the pendency of this writ petition and their heirs and legal representative have been brought on the record. It would be appropriate to mention a pedigree of the parties to appreciate the dispute :- JUDGEMENT_1033_AWC2_1992Image1.jpg During the consolidation the dispute arose between the parties regarding share on Ganeshi. Petitioners filed an objection under section 9 claiming share of Ganeshi on the basis of the sale deed dated 9th June, 1965 executed in favour of Sobaran Singh, Badan Singh, Babu and Ram Saran. On the basis of this sale deed, their mutation was also granted in their favour in the year 1966. They also claimed in possession of the share and in view of this sale deed they claimed 1/12 share in the khata in dispute and they disputed their share shown in C. H. Form-5. IN their objection, they also pleaded that Smt. Kalawati widow of Ganeshi filed a suit No. 533 of 1957 in the court of II Additional Munsif, Agra, Smt. Kalawati v. Parsadi and others, in which a decree was passed in her favour on 20th April, 1959 and she was found entitled for l/4th share in the khata in depute. This judgment has been filed along with the writ petition as Annexure 2. Another document relied on by the petitioners was preliminary decree dated 16th July, 1968 passed in a suit under section 176 for petition of the khata. This suit was filed by Beni now represented by petitioners no. 3 and 4. Another objection was filed by Net Ram, Dal Dhand, Udai Ram, Hatam Singh and Kishan Lal, contesting the claim of petitioners, on the ground that Smt. Kalawati was not wife of Ganeshi and she had no right, title or interest in the khata in dispute and on the basis of the alleged sale deed executed, the petitioners are not entitled for the share claimed by them.
(2.)BOTH the parties adduced oral and documentary evidence. Consolidation Officer, Agra vide his order dated 31st August, 1981 accepted the claim of petitioners and held that Smt. Kalawati was widow of Ganeshi and petitioners were entitled for the share claimed by them. The order of the Consolidation Officer was challenged in appeal before the Settlement Officer Consolidation, Agra. The Appellate authority allowed the appeal and set aside order of the consolidation officer by order dated 6th August, 1982, (Annexure- 5 to the writ petition) This order was. however, set aside by the revisional authority by order dated 15th July, 1983 and the case was remanded to the appellate authority for determining the question as to whether the decree of the Munsif dated 20th April, 1959 operated as res-judicata, whether the preliminary decree dated 16th July, 1968 passed by Assistant Collector 1st Class in a partition suit was res-judicata and whether Mst. Kalawati was widow of Ganeshi.
After remand, the appellate authority however, again allowed the appeal by order dated 18th January, 1984. The appellate authority in respect of the decree of the learned Munsif dated 20th April, 1959 only stated that as it was ex parte against some of the defendants in that suit it will not be res judicata. So far as the preliminary decree passed in partition suit was concerned it was said that it was based on compromise hence it shall not operate as res-judicata. It was also said that on the basis of this preliminary decree the dispute regarding Koras for preparation of the final decree was taken up to the Board of Revenue where it abated under section 5 (2) of the U. P. Consolidation of Holdings Act. Hence preliminary decree dated 16th July, 1968 will not apply as res-judicata. Thereafter on the basis of the oral and documentary evidence the Settlement Officer Consolidation, Agra recorded a finding that Smt. Kalawati was not widow of Ganeshi. This order of the Settlement Officer Consolidation was challenged before the revisional authority under section 48 of the U. P. Consolidation of Holdings Act- The revision has been dismissed by Deputy Director of Consolidation, Agra by order dated 31st May, 1984 which has been challenged in this writ petition.

I have heard Sri Sankatha Rai, learned counsel for the petitioners and Sri Faujdar Rai, learned counsel appearing for the respondents. Sri Sankatha Rai has submitted that both the Settlement Officer Consolidation as well as Deputy Director of Consolidation, Agra have committed manifest error of law in ignoring the decree of the civil court dated 20th April, 1959. After elaborate finding it was found that Smt. Kalawati was widow of Ganeshi. The decree was passed after hot contest. It could not be ignored merely because some of the defendants in that suit did not choose to contest the suit and the court proceeded ex parte against them. The learned counsel for the petitioners further submitted that the preliminary decree dated 16th July. 1968 passed in partition suit will also operate res-judicata and shall also be estoppel which became final and conclusive between the parties. Before the Board of Revenue the matter of dispute was only the preparation of the final decree which had abated on village coming under the consolidation operation It has been submitted that both the authorities below have committed manifest illegality in ignoring this preliminary decree. The learned counsel has further submitted that if the two aforesaid decrees are accepted the consolidation authorities cannot say that Smt. Kalawati was not widow of Ganeshi. The finding of the respondents no, 1 and 2 has been challenged which is based on the existence of kutumb register. Sri Sankatha Rai has placed reliance on Rudra Pal Singh v. Ram Pal Singh, 1971 RD 479 and Satish Kumar v. Lalta Tiwari, 1974 RD 379.

On the other hand Sri Faujdar Rai, learned counsel for the respondents has argued that the Deputy Director of Consolidation and Settlement Officer Consolidation had taken correct view on the basis of the view expressed by this Court in case of Brij Lal v. Deputy Director of Consolidation, 1983 RD 30 and it cannot be said that they had committed illegality. It has been submitted that the petitioners, failed to adduce any evidence showing that the notices were served on respondents and in spite of notices they did not contest the suit and thus an ex-parte decree was passed In absence of such an evidence the ex-parte decree dated 20th April. 1959 cannot operate as res-judicata. Sri Faujdar Rai has further submitted that even after remand of the case issues were; framed vide order dated 15th July, 1983 passed by Deputy Director of Consolidation, the petitioners did not adduce any evidence to the aforesaid effect. It has been further submitted that the decree dated 16th July, 1978 was passed on compromise, it could also not operate as res judicata and the view taken by the respondents no. 1 and 2 is correct and legal. He has placed reliance in case of Baldevdas Shivlal v. Filmistan Distributor (India) Pvt. Ltd., AIR 1970 SC 406 and Pulaverthi Venkata Subba Rao v. Jagannadha Ram (deceased) by his heirs and legal representatives, AIR 1967 SC 591 The learned counsel for the respondents has further submitted that this Court cannot appreciate the evidence at this stage. The orders do not suffer from any error of law which may be said to be manifest error. The learned counsel for the respondents submitted that the error should be such which should be visible on the face of record and it should not be such which may be searched out after elaborate and long arguments. He has placed reliance in case of Beant Singh v. Union of India, AIR 1977 SIC 388, Satyanarain Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumadi, AIR 1960 SC 137 and Natha Singh v. The Financial Commissioner Taxation Punjab, AIR 1976, SC 1053.

Sri Sankatha Rai in his rejoinder affidavit has submitted that the case of Brij Lal v. Deputy Director of Consolidation, 1983 RD 30 has been overruled by a Division Bench of this Court in case of Brahma Nand Rai alias Parma Nand Rai v. Deputy Director of Consolidation, Ghazipur, 1986 AWC 306, and it has been held that the ex parte decree will also operate as res-judicata. As orders of the respondents no. 1 and 2 are based on the earlier view expressed by learned Single Judge it has been overruled by the Division Bench. The orders are liable to be set aside. Learned counsel for the petitioners has further placed reliance in case of Byram Pestonji Gariwala v. Union Bank of India, (1992) 1 SCC 31 wherein it has been held that the compromise decree if not vitiated by fraud, misrepresentation, misunderstanding or mistake,, is binding and operates as res judicata as also estoppel between the parties, validity cannot be questioned after several years.

(3.)I have thoroughly considered the submissions made by the learned counsel for the parties and have also considered the cases relied on by them. A perusal of the judgment dated 20th April, 1959, Annexure-2 to the writ petition, will show that the learned Munsif passed the judgment after discussing the oral and documentary evidence adduced by the parties. The issue as to whether Smt Kalwati is wife of Ganeshi was seriously involved as issue no. 1 in Suit No. 533 of 1957. The learned Munsif though proceeded ex parte against defendants no. 1 to 4 and 7 to 9 of that suit as they did not file any written statement, there is no averment on the part of the respondents that they had no notice or knowledge of the suit. In my opinion, the ex-parte decree is as good and effective and binding on the parties as the decree passed after contest and though the decree may be ex-parte against some of the respondents, it shall be res-judicata for the subsequent proceeding. The Deputy Director of Consolidation has found that the civil court had jurisdiction in 1957 to entertain the suit filed by Smt Kalawati. However relying on the case of Brij Lal and others v. Deputy Director of Consolidation and others referred to above, decided by this Court, he took the view that the decree will not operate as res judicata as it was ex-parte. as against respondents. The Division Bench while overruling the view of the learned Single Judge has expressed the legal position in the following words :
"The Court can proceed ex parte against a person only if it is proved that summon was duly served upon him and, therefore, once an ex parte decree is passed against a person the presumption would be that the summon was duly served upon him The ex parte decree can be set aside by that very court on the defendant's satisfying it that summon was not duly served upon him. Thus, the burden to establish that summon was not served upon him was on the defendant of that suit which could not be shifted on the plaintiff while determining as to whether an ex parte decree would operate as res judicata against him or not. We are of the view that the decisions of the court in Nathai v. Joint Director of Consolidation, Allahabad and Brij Lal v. Deputy Director of Consolidation, Lucknow run contrary to the spirit of the procedural law which places the ex parte decree at par with ordinary decree except that the ex parte decree could be set aside on the defendant's satisfying that court that summon was not duly served upon him he was prevented from appearing in the court for some other sufficient reason. Moreover, the question whether a particular decision operates as res judicata may arise after such a long time by which all the record regarding service of summonses etc. may be weeded out making it impossible for the plaintiff to adduce evidence to prove that the summon had been duly served. In the circumstances, placing of burden of proof on the plaintiff is likely to result in miscarriage of justice. The ratio of the aforesaid division bench is squarely applicable in the present case. The view taken by respondents no. 1 and 2 is manifestly erroneous in respect of the decree dated 20th April, 1959.

Similarly the impugned orders are illegal in respect of the preliminary decree dated 16th July, 1968 which was passed in partition suit. On the basis of the aforesaid decree dated 16th July, 1968 Koras were prepared for preparation of the final decree in respect of which the dispute arose between the parties and which was taken up to Board of Revenue, where the proceedings for preparation of final decree were abated under section 5 of the U P. Consolidation of Holdings Act. This Court in case of Rudra Pal Singh v. Ram Pal Singh, 1971 RD 479 and Satish Kumar v Lalta Tiwari, 1974 RD 379 has already expressed the view that the preliminary decree will not abate and it shall continue to be binding on the parties. There can be partial abatement of the suit. However, the Settlement Officer Consolidation and the Deputy Director of Consolidation have ignored the decree dated 16th July, 1968 on the ground that it was based on compromise between the parties. In my opinion, on this account also the respondents no. 1 and 2 have committed manifest illegality. A decree based on compromise also brings the dispute to a conclusion by consent of the parties and the parties cannot be allowed to reagitate the same dispute in the subsequent proceedings. As the preliminary decree becomes conclusive and final it remains binding on the parties and it's effect cannot be subsequently ignored. The Hon'ble Supreme Court in case of Byram Pestonji Gariwala v. Union Bank of India, (1992) I SCC 31 after examining the various judgments in paragraph 43 has observed that a judgment by consent is intended to stop litigation between the parties just as much as a judgment resulting from a decision of the court at the end of a long drawn out right. A compromise decree creates an estoppel by judgment. There is nothing on record to show that the decree dated 16th July, 1968 is vitiated by fraud and misrepresentation and in absence it shall be continued to be binding on the parties. The judgment cited by the learned counsel for the respondents which have been mentioned earlier have also been considered. However, in my opinion, they are not applicable in the facts and circumstances of the present case the orders of both the authorities below suffer from manifest error which is apparent on the face of record. The order of the Deputy Director of Consolidation is thus liable to be quashed,

For the reasons recorded above, this writ petition is allowed. The order passed by Deputy Director of Consolidation dated 31st May, 1984 dismissing the revision filed by petitioners is hereby quashed. The revisions shall stand restored to their original numbers and the respondent no. 1 shall decide the revisions afresh after hearing the parties in the light of the observations made above. There will be no order as to costs.