Judgment:
S.K. Katriar, J.
1. This writ petition is directed against the order dated 12-1-2000 (Annexure 4), passed by the learned Additional Member, Board of Revenue, Bihar, Patna, in Revision Case No. 240 of 1997 Dinanath Prasad v. Ramagya Sah, whereby he has dismissed the revision application of the present petitioner (pre-emptor). It relates to proceeding under Section 16 (3) of the Bihar Land Ceiling Act (hereinafter referred to as 'the Act').
2. Original respondent No. 8 Smt. Gangorti Devi, since deceased, whose heirs are on record as respondent Nos. 8 (A) to (F) had alienated 3 khatas & 10 dhurs each, in favour of respondent Nos. 5 to 7, being portions of plot No. 354, appertaining to khata No. 25, situate at village Sayedpura, district Siwan i.e. governing a total area of 10 khatas and 10 dhurs, by three separate deeds of absolute sale executed on 12-2-1982, and registered on 19-2-1982. Respondent No. 8 had alienated 4 dhurs of the same plot in favour of Ram Lakshman Shah, executed and registered on the same dates. The present petitioner filed three separate applications under Section 16 (3) of the Act claiming preemption with respect of the lands alienated in favour of respondent Nos. 5 to 7 which were registered as Land Ceiling Case Nos. 13/82-83, 14/82-83 and 15/82-83. It is not at all necessary to go into the details of these proceedings. The matter had ultimately travelled to the High Court in CWJC No. 4584 of 1995, CWJC No. 4585 of 1995, of 1995 and CWJC No. 4586 of 1995, preferred by each of the three vendees, namely, respondent Nos. 5 to 7, which were allowed by a common judgment dated 13-2-1987 (Annexure 1), whereby the orders of the authorities below were set aside, and the matter was remitted back to the Sub-divisional Officer, Siwan, for fresh judgment in accordance with the observations made therein.
3. The learned SDO, Siwan, on remand allowed the three pre-emption applications by a common order dated 6-2-1089 (Annexure 2 series), whereby he, inter alia, held that the pre-emptor is an adjoining raiyat. The vendees preferred a common appeal bearing Pre-emption Appeal No. 364 of 1988-89 Ram Agya Saha v. Dina Nath Prasad, which was allowed by order dated 7-10-1987 (Annexure 3), inter alia, on the ground that the pre-emptor is not an adjoining raiyat of the vended plots and held that the land of the aforesaid Ram Lakshman Shah intervenes between the land of the pre-emptor and those of the vendees. The pre-emptor preferred Revision Case No. 240 of . 1997 before the Board of Revenue which has been dismissed by the impugned order dated 12-1-2000 (Annexure 4), passed by the learned Additional Members. Hence, this writ petition at the instance of the pre-emptor.
4. While assailing the validity of the impugned order, learned Counsel for the petitioner submits that the vendees preferred only one appeal which, in his submission, was directed against the order in Case No. 13/82-83. In other words, in his submissions, the order of the learned SDO with respect to the remaining two preemption applications became final giving rise to the plea of Res Judicata. He relies on the following reported judgments:
(i) AIR 1966 SC 1332 : 1996 (2) Supreme Court Journal, Sheodan Singh v. Daryao Kunwar
(ii) 1997 (9) SCC 543, Ram Prakash v. Charan Kaur
He next submits that in view of the case of the parties, no adverse inference can be drawn by not impeading Ram Lakshman Shah as a party respondent in the preemption application. He next submits that the finding with to minority of respondent No. 6 (Ram Pukar Sah) and respondent No. 7 (Kanhaiya Sah), is incorrect. He further submits that the three authorities have consistently held that the pre-emptor is a boundary raiyat and the case of the pre-emptor was never that of adjoining raiyat.
5. Learned Counsel for respondent Nos. 5 to 7 submits that the vendees had preferred a composite appeal against the three orders of the LRDC which was adequate compliance of law. The pre-emptor also filed only one revision application. He relies on the following reported judgments:
(i) AIR 1932 Madras 689, Appa v. Kachai Bayyan Kutti (DB)
(ii) AIR 1929 Nagpur 229 (FB), Sheoram v. Heeraman
He next submits that in view of the provisions of Section 149 of the Court Fees Act and Rule 53 of the Bihar Land Ceiling Rules, one Court fee should suffice. He submits in the alternative that in the event of success in the present writ petition on merits, he may be permitted to file the deficit Court fee. In any view of the matter, in his submission, there was no prejudice to the parties. As to the merits of the matter, he submits that if it is treated to be a joint family, then the Karta of the family (the grandfather, Ram Lakhan Sah) ought to have been impleaded as a party respondent. He relies on the judgment of a Division Bench of this Court reported in 1980 BBCJ 49, Rajnath Gutgutia v. The State of Bihar. He further submits that if the acquisitions are treated to be of the joint family in favour of its individual members, then the land of Ram Lakshman Shah intervenes in between that of the pre-emptor and the three vendees, as has concurrently been found by the appellate authority as well as the revisional authority with the result that the pre-emptor is not an adjoining raiyat.
6. I have perused the materials on record, the lower Court records, and considered the submissions of learned Counsel for the parties. The three vendees had jointly preferred a common appeal bearing Land Ceiling Appeal No. 364 of 1989, which was a composite memorandum of appeal challenging the orders on the three pre-emption applications, as is manifest from the averments made in the memorandum of appeal. The aggrieved portion is set out herein below for the facility of quick reference:
'Being aggrieved by and dissatisfied with the order dated 6-2-1989 passed by the Sub-divisional Magistrate, Siwan in Land Ceiling Case No. 13, 14 and 15 of 1982-83, the appellants bag to prefer this appeal on amongst others the following grounds:
It is further manifest from a bare perusal of the impugned order that the pre-emptor (the petitioner) had preferred a composite revision application with respect to all the three preemption applications. In the background of this factual position, it is now to be considered whether or not the same is permissible in law. In so far as the judgment of the Supreme Court in the case of Sheodan Singh v. Daryao Kunwar (supra) relied on by learned Counsel for the petitioner is concerned, it appears that the trial Court had decided on merits two suits consolidated and tried together between the same parties having common issues and there were two appeals therefrom, one of which was dismissed on some preliminary ground like limitation or default in printing the records with the result that the trial Court's decision on merits in that the stood confirmed. It was held that the decision of the appeal Court will operate as Res Judicata in the other pending appeal and Section 11, Code of Civil Procedure, would barthe hearing of the appeal. In such a case, the result of the decision of the appeal Court is to confirm the decision of the trial Court given on merits, and that is to say, the decision of the appeal Court will be Res Judicata, whatever may be the reason for the dismissal. It was further held that it would be a different matter, however, where the decision of the appeal Court does not result in the confirmation of the decision of the trail Court given on merits, as for example, where the appeal Court holds that the trial Court had no jurisdiction and dismiss the appeal, even though the trial Court might have dismissed the suit on merits. It is thus manifest that the judgment in Sheodan Singh v. Daryan Kunwar (supra) dealt with a fundamentally different factual matrix where two separate appeals were in fact preferred, one of which was dismissed, as a result of which the judgment with respect to that suit became final and the next legal consequence was that the other appeal which survived was hit by the principles of Res Judicata. On the other hand, the question for consideration in the present case in whether or not a composite appeal against a composite order, disposing of three separate applications, is permissible or not. The judgment in Sheodan Singh v. Daryao Kunwar (supra) is inapplicable to the facts and circumstances Of the present case.
(6.1) In so far as the judgment in Ram Prakash v. Charan Kaur (supra) relied on by learned Counsel for the petitioner is concerned, two connected suits filed by the petitioner and respondent claiming damages against each other were tried together. The petitioner's case was dismissed which had become final in the absence of an appeal. The respondent's suit was dismissed but was decreed in appeal. The second appeal preferred by the petitioner against the decree for damages granted against him was held by the Supreme Court to be barred by Res Judicata. The said judgment deals with an altogether different issue and is of no assistance in the present case.
7. In so far as the judgment in the case of Appa v. Kachhai Bayyan Kutti (supra) relied on by learned Counsel for respondent Nos. 5 to 7 is concerned, the suit was decreed against two sets of defendants who preferred two separate appeals before the lower appellate authority. The result of the appeals was that the suit was dismissed by the lower appellate Court and a decree dismissing the suit was passed. The Madras High Court held that in such circumstances the plaintiffs need not file two second appeals. It is enough if the plaintiff files one second appeal. The judgment clearly supports respondent Nos. 5 to 7 (the vendees).
(7.1) In so far as the Full Bench judgment in the case of Sheoram v. Heeraman (supra) relied on by learned Counsel for respondent Nos. 5 to 7 is concerned, the first Court had passed a decree in favour of plaintiff A against defendants B, C and D. Plaintiff A filed an appeal and so did the defendants B, C and D. The lower appellate Court delivered separate judgments in the two appeals and drew up two separate decrees. The net result was that the suit was dismissed. The plaintiff A came upto the High Court in second appeal that both the decrees of the lower appellate Court should be set aside. The plaintiff had filed only one second appeal. It was held that it was not necessary for the plaintiff to file two separate appeals. This judgment also supports respondent Nos. 5 to 7.
8. It is in view of this legal position that a composite application Under Order XXII, of the Code of Civil Procedure and Section 5 of the Limitation Act is entertained by the Courts. I am also reminded of a Division Bench judgment of this Court, reported in 1977 BBCJ Page 79 Rohtas Industries Limited v. State of Bihar, wherein it was held that a composite notification under Sections 6 and 10(1)(h) of the Industrial Dispute Act was permissible in law. I am mindful of the position that the same did not deal with adjudication before Courts and dealt with matters either administrative or quasi-judicial, but the same in principles supports the case of respondent Nos. 5 to 7.
9. Learned Counsel for respondent Nos. 5 to 7 has rightly submitted that no prejudice was caused to the parties by one appeal or one revision application. It is manifest from the discussion in both the judgments that the parties were mindful of the position that they were contesting the claim and counter-claim with respect to the three pre-emption applications. Furthermore, this plead ought to have been raised at the earliest occasion, namely, the appellate authority which was not availed. This aspect of the matter has been noticed in the impugned order and the learned revisional authority has for the same reason refused to go into the details of this aspect of the matter. The question of prejudice is basically a question of facts, not having been raised at the earliest opportunity cannot normally be permitted to be raised at a later stage. Furthermore, law is well settled that having submitted to the jurisdiction and taken the chance of a judgment, the aggrieved party cannot at a later stage raise this issue, particularly when the judgment has gone against him, Subject to wall known exceptions.
10. I am thus of the view that in the facts and circumstances of the present case, one composite appeal challenging the common order of the learned first authority disposing of the three pre-emption applications, was maintainable.
11. This takes me on to the question of payment of Court fee, whether or not one or three Court fees on the memorandum of appeal was payable. Learned Counsel for respondent Nos. 5 to 7 submits that one set of Court fee was payable on the memorandum of appeal as well as the revision application. He submits that none of the judgments relied upon by him directed for payment of additional Court fee. Relying on the provisions of Rule 41 of the Bihar Land Ceiling Act 1961, read with Rule 53 of the Bihar Land Ceiling Rules 1963, he submits that only one Court fee is payable. The said provisions are reproduced herein below:
'41. Court-fees.--Every application memorandum of appeal or application for revision, under this Act shall bear Court-fee stamp of such value as may be prescribed.'
'53. Court-fees (Vide Section 41).--Every application, memorandum of appeal or application for revision under the Act shall bear Court fee stamp of such value as may be payable for it under the Court Fees Act, 1870 (Act VII of 1870) for the time being in force in the State of Bihar.'
It appears to me on a consideration of the relevant aspects of the matter that normally one appeal has to be filed with respect to one suit or on pre-emption applications and the appellant may be required to present separate memorandum of appeal disposed by a common or separate judgments. If not noticed at an early stage, permission may be granted to pursue a composite memorandum of appeal because the litigation has registered progress in the meanwhile, the parties are faced with the Fait Accompli, and it will not be in the interest of justice to dismiss the appeal on that ground, or confine the appeal to one lis and dismiss the same with respect to the rest. This is an issue which does not go to the root of the jurisdiction. No prejudice has taken place, the issue was not raised by the aggrieved party a the earliest opportunity, and the interest of justice should not suffer. Therefore, it has been held on various occasions that a composite memorandum of appeal may be permitted, particularly in situation where it was detected a t a late stage, provided the intention was to challenge all the orders and separate sets of Court fee has been paid. Learned Counsel for respondent Nos. 5 to 7 has rightly relied on the Division Bench judgment of this Court, reported in AIR 1918 Patna 623 Narain Prasad v. Kameshwar Prasad Singh, wherein it has been held that'..... it is the duty of the High Court to see that the Court fees are paid in the High Court and in the Courts below from which the case has come. It appears to me to be our plain duty to require the appellant to pay the deficiency in the Court-fee in the Court below'. In that view of the matter, the Taxing Officer is hereby directed to asses and inform respondent Nos. 5 to 7 to deposit in the High Court two additional sets of Court fee on the memorandum of appeal, on the basis of the original records provided by the learned standing Counsel (Ceiling). Let the records be returned promptly.
12. This takes me on to the merits of the matter. Learned Counsel for respondent Nos. 5 to 7 has rightly submitted that if the three alienations in favour of respondent Nos. 5 to 7 are taken to be acquisitions for the joint family, then the Karta (the grandfather, Ram Lakahan Sah) should be impleaded as a party respondent in the absence of which the three pre-emption applications should fail. Ram Lakhan Shah has not been impleaded as a party respondent throughout. He is further right in submitting that it has been concurrently found by learned revisional authority as well as the appellate authority that the land of Ram Lakhan Sah intervenes that of the pre-emptor and the three vendees. Judging from this angle, the pre-emptor ceases to be an adjoining raiyat. The met result, therefore, that the three pre-emption applications must fall for not impleading ram Lakhan Shah as a party respondent. In the alternative, the same also fails on the ground that the pre-emptor is not an adjoining raiyat.
13. In the result, this writ petition is dismissed.