Ramchandra Dagdu Sonavane vs Vithu Hira Mahar

Ramchandra Dagdu Sonavane (Dead) by L.Rs. & Ors. .......Appellants

Versus

Vithu Hira Mahar (Dead) by LRs. & Ors. ........Respondents

JUDGMENT

H.L. Dattu,J.

These appeals are directed against a common judgment and

order passed by the High Court of Judicature at Bombay in Writ

Petition No.3667 of 1985 and Second Appeal No.87 of 1986 dated

01.7.1999, whereby and whereunder the writ petition and the second

appeal filed by the respondents herein are allowed and the order

passed by Additional Commissioner in Appeal No. A/WIN/SR/9/80

1 dated 6.4.1985 and the judgment and decree passed by the trial court

in Civil Suit No. 2353 of 1979 dated 10.2.1984 and confirmed in

Appeal No. 535 of 1984 dated 18.6.1985 are set aside.

2) To appreciate the contentions of the parties, the facts in extenso requires

to be noticed and they are:- The suit land was of the category of Mahar

Watanlands situated in village Pimpre Khurd, Purandhar Taluk, District

Pune. The suit lands originally belonged to Ramabai, wife of Pandu

Sonawane and Radhabai wife of Sawale Sonavane. Both of them did not

have any issues. The appellants had claimed that their forefathers were

the nearest relatives of both the ladies and the property being watanlands,

the same vested in them. The appellants had further claimed that Vithu

Hira Mahar (for short `Vithu') had no right, title or interest in the

watanlands, however, was cultivating the suit lands after getting the

entries made in the records of rights. It was the case of the

plaintiffs/appellants before the trial court, that, when it came to the notice

of respective fathers of the plaintiffs, as well as plaintiff No.2, an

application dated 14.08.1940, was filed before the District Deputy

Collector for resumption of watanlands which were in possession of

Vithu. In the application filed, it was the stand of the applicants that they

were the nearest relatives of Ramabai and that Vithu got his name entered

2 in the record of rights fraudulently after the death of Ramabai. They had

further contended that Vithu is an outsider and belongs to different

family and as such his name could not have been entered in the Peta

Account Book. After recording the statement of both the parties, the

Deputy District Collector had passed an order dated 18.06.1941, directing

the suit lands be returned to the applicants on the ground that the entries

in the Peta Account Book made in Vithu's name pursuant to an order said

to have been passed in the year 1931 was not traceable and therefore, it

is not clear how the name of a person not connected with the family of

Watandar was entered in the cash allowance register and, therefore, the

watanland requires to be resumed and handed over to the applicants who

are the nearest family members of the deceased Watandar and further had

directed that the circumstances under which Vithu's name came to be

entered in the revenue records was suspicious and the same should be

investigated.

3) Vithu (respondent no.1) was the grandson of Ramabai. It is his

assertion that he had filed an application on 16.07.1931 before the

Mamlatdar under Section 15 and 18 of the Bombay Hereditary Office

Act, 1874, to recognize him as the Watandar with respect to the suit

lands. The Mamlatdar said to have passed an order dated 22.10.1931

3 in favour of Vithu under Section 15 and 18 of the said Bombay

Hereditary Office Act, to enter his name in the Peta Account Book, in

the place of Ramabai after declaring that Vithu was the adopted son of

Ramabai.

4) Sometime in the year 1953, the appellants had filed a suit, O.S.

No.104 of 1953, against Vithu and others for an order of permanent

injunction before the Court of Civil Judge, Junior Division, Saswad,

to restrain Vithu and the other respondents from interfering with their

peaceful possession of the suit land, on the ground that the Deputy

District Collector had passed an order in their favour and that Vithu

and others were obstructing their peaceful possession of the suit land.

The appellants had also based their claim on the finding arrived at by

the Collector of Pune in his order dated 18.6.1941, that they were the

representative of Watandars with respect to the suit land. Vithu and

the other respondents had resisted the relief sought in the suit, inter-

alia contending that there was an earlier suit filed by the appellants

against their tenant to whom the suit land had been leased and they

have not obtained valid permission to withdraw the said suit and

therefore the present suit is barred by res judicata. The Trial Court in

its judgment and decree after considering the rival contentions of the

4 parties to the lis, had concluded, apart from others, that the Prant

Officer had issued a notice in 1951 to the respondents restraining

them from obstructing the vahiwat of the appellants; that the doctrine

of res judicata did not apply as the previous suit filed by the appellants

was different from the present suit. The trial court while considering

the other rival contentions of the parties had specifically framed the

following two important issues for its consideration and decision.

They were:

(i) Do the plaintiffs prove that they were in possession of the suit property as Watandars as alleged?

(ii) Do defendants prove that defendant no.1 (Vithu) was he adopted son of his grandmother and as such was in possession of the suit property?

5) The trial court after considering the pleadings and the oral and

documentary evidence on record had answered the first issue in the

affirmative and the second issue in the negative. In so far as the first

issue, the trial Court had concluded that the plaintiffs are in possession

of the suit lands as Watandars. While answering the second issue of

adoption, the trial court had observed, that, even though Vithu had

stated in the cross examination that he had the necessary documents to

prove the adoption, the same was never produced, and the testimony

5 of the Vithu and his witnesses with regard to the year of adoption was

inconsistent. Therefore the trial court held that the adoption of Vithu

had not been proved. Accordingly, the trial court had decreed the suit

and thereby had permanently restrained the respondents from

obstructing the Vahiwat of the plaintiffs/appellants in the suit lands.

6) Vithu, being aggrieved by the judgment and decree passed by the trial

court in O.S. No.104 of 1953 dated 24.10.1955, had preferred first

appeal before the District Court, Pune in Civil Appeal No.578 of

1955. The said appeal was dismissed by the District Court by its

order dated 22.02.1958, by confirming the findings of the trial court.

7) Being aggrieved by the said order, Vithu had approached the High

Court in Second Appeal No.962 of 1958. In the appeal, it was

contended that, in the year 1931, Mamlatdar of Purandar had held an

inquiry under the Watan Abolition Act in which Vithu was recognized

as a representative Watandar and that order had attained finality, since

neither the appellant nor any other person had questioned the said

order before any forum within the period of limitation. The court

declined to answer this contention mainly on two grounds. Firstly,

this issue was never raised in the trial court nor before the appellate

6 court and the same cannot be permitted to be raised and argued for the

first time in second appeal, since the issue is purely a question of fact,

though it is sought to be raised as a question of law. The court had

also taken note of the fact, that, the order said to have been passed by

Mamlatadar in the year 1931 was not produced, for the reason that the

record for the relevant year had been destroyed. The second issue that

was also not entertained by the court was the reference made to 1931

order in the order made by the Deputy District Collector dated 21st

August, 1941, by which the appellants/plaintiffs were recognized as

the representative of Watandar in an enquiry held under Watan

Abolition Act, on the premise that, the same is raised for the first time

in second appeal and it cannot be permitted, since answer to that issue

requires the factual foundation before the trial court. Ultimately, the

court had observed that the only issue that was agitated before the trial

court was, whether Vithu was the adopted son of Pandu Mahar or not

and since there was concurrent finding by the trial court and first

appellate court and since that finding does not appear to be perverse

finding, it is not possible to interfere with the findings of fact and,

accordingly, had dismissed the second appeal by its order dated

20.10.1964.

7 8) The appellants during the pendency of the proceedings before the

High Court had filed application for regrant of watanlands under the

provisions of the Bombay Inferior Village Watans Abolition Act,

1958, before the Collector who is the competent authority under the

Act, to decide the question whether any land is watan land and

whether any person is Watandar. The Collector after holding an

inquiry had passed an order dated 03.6.1963, regranting the suit lands

in favour of the appellants.

9) It is pertinent to note at this stage itself, that, Vithu had made an

application dated 24.5.1941 to the Mamlatdar, requesting for a supply

of the certified copy of the order passed in his favour, recognizing him

as the Watandar with respect to the suit land in the year 1931. By a

reply dated 15.6.1941, the Mamlatdar had informed him that the

concerned papers had been destroyed previously and therefore

certified copy of the same cannot be supplied.

10) Vithu had filed another application in the year 1976, requesting for

supply of certified copies of the order passed in the year 1931 before

Mamaltadar. After obtaining the xerox copy of the said order, had

filed application before the State Government, inter-alia stating that he

8 had been dispossessed on the basis of not being in possession of the

relevant documents relating to the 1931 order passed in his favour by

the Mamlatdar after holding an inquiry under Section 15 and 18 of the

Bombay Hereditary Offices Act, 1874, and, therefore, had requested

the State Government to direct the Collector to initiate proceedings to

regrant and restore possession of suit land.

11) Pursuant to the direction issued by the State Government, the Sub

Divisional Officer, Baramati Division, (hereinafter referred to as

`SDO'), had made an inquiry under Section 3(1)(b) of the Bombay

Inferior Village Watan Abolition Act, 1958 (hereinafter referred to as

the Watan Act) to decide as to who was the rightful Watandar with

respect to the suit land. The SDO relying on the xerox copy of the

order passed in the year 1931 by the Mamlatdar, which according to

him conclusively proves, that, Vithu was the adopted son of Ramabai,

in spite of the contention of the appellants that the civil court in O.S.

No. 104 of 1953 has concluded that he was not the adopted son of the

deceased Watandar. The SDO had also observed in his order, that the

finding of the trial court which was affirmed by the High Court, was

for the reason that Vithu was unable to produce the order passed by

Mamlatdar dated 22.10.1931, and the findings and the conclusions

9 reached by the civil court will not have any bearing in a proceeding

under the provisions of Bombay Inferior Village Watan Abolition Act,

1958. Accordingly, had allowed the claim of Vithu and had declared

that Vithu was the watandar of the suit lands.

12) The appellants being aggrieved by the order passed by the SDO dated

22.11.1979, had preferred an appeal before the Additional

Commissioner and also had filed a civil suit, O.S. No.2353 of 1979

before the Civil Judge, Junior Division, Pune, for a declaration that

the said order of the SDO was illegal and void ab initio. The

appellants had also prayed for permanent injunction against the

respondents from taking possession of the suit lands.

13) The trial court while passing the judgment and decree in the suit filed

by the appellants has noticed that, once the issue of adoption was

conclusively decided by the civil court in the suit filed in the year

1953 by the appellants against Vithu, the same would operate as res-

judicata and thereby preclude Vithu from raising the issue of adoption

again before the Sub Divisional Officer. Secondly, ignoring the

judgment and decree passed by the civil court, the SDO could not

10 have allowed the claim of Vithu and recognized him as watandar,

since he was not the adopted son of deceased watandar.

14) The Additional Commissioner, Pune Division, by his order dated

06.04.1985, had allowed the appeal and had set aside the order passed

by Additional Commissioner in view of the judgment and decree

passed by the civil court in O.S. No. 2353 of 1979.

15) Being aggrieved, the respondents had filed first appeal before District

Court, Pune, in Civil Appeal No.535 of 1984. The primary contention

of the respondents was that, the order passed by the SDO under the

Act was binding on the civil courts and therefore, civil court has no

jurisdiction to decide the matter of Watandari rights. Further the

findings of the civil court in the earlier round of litigation with

respect to adoption of Vithu is not conclusive and in fact it was left

open to be investigated. Since the SDO has decided the matter in the

light of the documents which Vithu managed to obtain in the year

1976, the finding is conclusive and binding on the parties. The first

appellate court after a detailed consideration of the issues raised had

dismissed the appeal by its order dated 18.06.1985.

11

16) Being aggrieved by the findings of the lower appellate court, Vithu

and others had filed a second appeal under Section 100 of Code of

Civil Procedure, 1908, before the High Court. Simultaneously, they

had also filed a writ petition against the order passed by the

Additional Commissioner, Pune Division, dated 06.04.1985.

17) The primary contention of the respondents before the High Court was

that, when Vithu initiated proceedings before the SDO for declaration

of his Watandari rights, Vithu had in his possession the documents of

the proceedings before the Mamlatdar in the year 1931, which

included the order of Mamlatdar who had recognized Vithu as

watandar of the suit lands, being the adopted son of Ramabai and

since the Deputy District Collector had in his order dated 18-6-1941,

had kept open the issue regarding status of Vithu, the SDO was

justified in allowing the application of Vithu and conferring upon

Vithu the rights of Watandar in respect of the suit lands. Secondly,

the subject matter in both the suits are not identical. While the Suit

filed in the year 1953, the only relief that was sought for was

permanent injunction, restraining Vithu and others from obstructing

peaceful possession of the appellants and the relief that was prayed in

12 the Suit filed in the year 1979 was to set aside the order passed by

Sub-Divisional officer dated 22.11.1979.

18) To answer the aforesaid contentions, the High Court has observed,

that, no relief of declaration that Vithu was not the adopted son of

Ramabai was claimed by the respondents in the civil suit filed in the

year 1953. Further, in a suit for injunction the only question that was

relevant and important was about the possession and as such the other

questions raised by Vithu in defence was only an incidental and

ancillary question. The High Court has further relied on the law laid

down by this court, that the issue of res judicata was to be decided on

the basis of the pleadings produced by the parties in the earlier suit

and not by mere recitals of the allegations in the judgment. Therefore

in the absence of the pleadings of the previous suit, the lower

appellate court had erred on deciding the issue of res judicata on the

basis of recitals of allegations in the judgments of the 1953 suit. The

High Court has also observed that the jurisdiction of deciding

wantandari rights are vested in the revenue authorities, and therefore,

finding of the civil court in the 1953 suit will not operate as res

judicata in the 1979 suit.

13

19) Before the High Court, it was also contended that the civil court had

no jurisdiction to decide the Watandari rights by virtue of the

provisions of The Bombay Inferior Watans Abolition Act, 1958, The

Bombay Hereditary Offices Act, 1874, and The Bombay Revenue

Jurisdiction Act, 1876. Section 3 of the Bombay Watans Abolition

Act, 1958, lays down that if a question arises, whether any land is

watan land, whether any person is a Watandar or whether any person

is an unauthorised holder, the Collector shall decide the question after

holding an inquiry. As per sub-section (2) right of appeal is provided

to the State Government and sub-section (3) lays down that the

decision of the Collector, subject to an appeal shall be final. The

contention by the counsel for the respondents was that even if a

watanship is abolished by this Act, the Collector was still empowered

to make an enquiry under section 3(1)(b) as to whether a person is a

Watandar and to evict an unauthorised holder under section 9 of the

Act. The contention raised by the appellants was that after abolition of

Watandari rights, Collector had no power firstly to recognise Vithu as

Watandar being adopted son of Ramabai and secondly the Collector

had no power to evict the respondents who were authorized holders of

14 suit lands pursuant to the order passed by the Deputy District

Collector dated 18.6.1941.

20) The High Court after referring to the relevant provisions has

concluded, that the decision of the Collector regarding a person being

Watandar or an adopted son of Watandar is made final and conclusive

and therefore, it is the Revenue Court alone which was competent to

decide the right of Vithu as a Watandar of the suit land being the

adopted son of Ramabai. Accordingly, has allowed the second appeal

and the writ petition, by setting aside the judgment and decree passed

by the trial court in O.S. No.2353 of 1979 dated 10.02.1984 and the

judgment of the lower appellate court in Appeal No.535 of 1984 dated

18.06.1995 and the order passed by Additional Commissioner dated

06.04.1985. The common judgment passed by the High Court is the

subject matter of these appeals.

21) We have heard learned counsel Shri Vinay Navare for the appellants

and Shri Shekhar Naphade, learned senior counsel for the

respondents. The learned counsel for the appellants has submitted,

that, the civil court in a properly constituted suit has decided that

Vithu is not the adopted son of deceased Watandar and that finding

15 has become final in view of the order passed by the High Court in the

regular second appeal filed by Vithu and, therefore, the revenue

authorities could not have examined and decided the issue of adoption

once over again. It is further submitted that the High Court was not

justified in relying on the order passed by the Mamlatdar in the year

1931, which was discarded both by the trial and the first appellate

court, on the ground that Vithu had failed to adduce oral and

documentary evidence in support of his claim that he is the adopted

son of the deceased Watandar. It is further contended that the Sub-

Divisional Officer had no jurisdiction under the Act, to review and

modify the regrant order passed by the Deputy District Collector

under Section 5(1) of Watan Abolition Act, 1958. It is further

submitted that the issue regarding adoption decided by the civil court

and confirmed by the High Court in the regular second appeal

between the same parties operates as res-judicata and, therefore, the

High Court was not justified in re-examining the same issue and

taking a different view in the matter. It is also submitted that the High

Court erroneously has come to the conclusion that the subject matter

of 1953 suit and 1979 was different and, therefore, Principles of re-

judicata are not attracted.

16

22) Per contra, learned senior counsel Shri Shekhar Naphade for the

respondents would submit, that, Vithu without proving the issue of

adoption, can still be Watandar in view of the specific provision

under the provisions of The Bombay Hereditary Offices Act, 1958.

The learned counsel would further contend that, the Bombay Revenue

Jurisdiction Act, 1876, the Bombay Hereditary Offices Act, 1958 and

the Bombay Inferior Village Watans Abolition Act, 1958, constitute

one code and therefore those Acts must be read together and not in

isolation. The learned senior counsel would also submit that the order

passed by the Mamlatdar dated 22.10.1931, on the application filed by

Vithu cannot be faulted, even assuming there was some defects in the

procedure adopted at the time of adoption of Vithu by his adopted

parents. In support of this contention, the learned counsel has placed

reliance on the observations made by this Court in the case of L. Devi

Prasad (Dead) by L.Rs. Vs. Smt. Triveni Devi and Others (AIR 1970

SC 1286). The learned senior counsel would further contend, that, the

order passed in the year 1931, is not annulled or modified by any

forum and, therefore, the full effect must be given to that order. It is

further contended that the order passed by the authorities under the

Bombay Hereditary Offices Act, 1874 sometime in the year 1941,

17 recognizes the order passed in the year 1931 and therefore, there is no

reason to disbelieve the existence of 1931 order passed by

Mamaltadar. It is further submitted that all the authorities have

decided against the respondent on the basis of the judgment and

decree passed by the trial court in the original suit filed by the

appellants in the year 1953, without realising the doctrine of principle

of res judicata is not attracted both on the procedural stand point as

well as substantive law point as the issue of recognition of Watandar

was within the exclusive jurisdiction of the authorities under Watan

Abolition Act, 1958, and other cognate Acts. Alternatively, it is

contended that since civil court had no jurisdiction to decide

Watandari rights, any decision rendered by the civil court on that issue

would not operate as res judicata in any subsequent proceedings.

While summing up his submissions, the learned senior counsel would

contend, that, since the reasoning adopted by the High Court is a

possible view, the same need not be interfered with by this Court in

exercise of its power under Article 136 of the Constitution of India.

23) Mr. Sushil Karanjkar, learned counsel appearing for some of the legal

representatives of deceased respondent would submit, that, the order

passed by the competent authority in the year 1931 was after

18 following the procedure prescribed under Section 15 and 18 of the

Bombay Hereditary Offices Act, 1874, and since that order has not

been challenged by the appellants in any proceedings at any point of

time, the same must be given effect to. It is further contended that

SDO in the year 1979 while reviewing the order passed in the year

1941, had relied upon xerox copies of the order recognizing the

respondent as Watandar in the year 1931 and since the appellants had

not objected to the production of the xerox copies and based on those

records and documents, the SDO has rightly passed an order in the

year 1979, recognizing the respondent as Watandar of the suit lands

and, therefore, the learned counsel submits that the High Court was

justified in setting aside the order passed by the Appellate Court and

also the Additional Commissioner.

24) Questions of Law :- The following questions of law would arise for

our consideration and decision:

i) Whether the provisions of Bombay Hereditary Offices Act, 1874 and Bombay Inferior Village Vatan Abolition Act, 1858, exclude the jurisdiction of the Civil Court under Section 9 of the Code of Civil Procedure to decide the plea of

19 adoption and, consequently, Watandari rights under the Act?

ii) Whether the Judgment and Decree in O.S. No.104/1953 holding that the respondent - Vithu was not the adopted son of the deceased Watandar would be binding on the parties in the subsequent suit and other proceedings?

iii) Whether the Judgment and Decree passed in O.S. No.104 of 1953 would operate as res judicata in subsequent proceedings, including the proceedings before the High Court in the second appeal and writ petition filed by the respondents?

iv) Whether the order passed in the year 1941, holding that the plaintiffs are the representatives of Watandars, accepted by the High Court in Regular Second Appeal No.962 of 1958, would debar the right of the respondent-Vithu in approaching the State Government in re-agitating the matter?

v) Whether the State Government disregarding the decision of the Civil Courts in earlier Suits and the Judgment and Decree passed therein was justified in directing the Sub-Divisional Officer (SDO) to decide the matter afresh?

20

vi) Whether the Sub-Divisional Officer was justified in passing the order dated 22.11.1989, despite the Judgment and Decree of the Civil Court in the year 1953 and the order of regrant passed in favour of the appellants under Section 5(1) of Watan Abolition Act, 1958 dated 03.6.1963?

25)Law regarding Watanland and Scheme of Bombay Hereditary Offices

Act, 1874 :- The Bombay Hereditary Offices Act, 1874 (the `Act' for

short) is an act to amend the law relating to Hereditary Offices. It extends

to the Regulation Districts and to all villages therein, whether alienated

or otherwise. Section 4 of the Act is the interpretation clause. Under the

Act, `Watandar' means a person having an hereditary interest in a watan.

It includes a person holding watan property acquired by him before the

introduction of the British Government into the locality of the watan, or

legally acquired subsequent to such introduction, and a person holding

such property from him by inheritance. It includes a person adopted by a

owner of a watan, subject to the conditions specified in Section 33 to 35

of the Act. Section 64 of the Act empowers the Collector subject to

general control of the State Government, to register the names of

individual Watandars as holders of the office or to register it as held by

the whole body of Watandars. The collector is also empowered to

21 amend the entry in the register, when he is satisfied that a person who

produces a decree or order of the competent court is entitled to have his

name entered in the register as nearest heir of a deceased Watandar in

preference to the name of a person already entered in the said register as

such heir, provided that the said order or decree is produced within six

years of the date of the entry in the said register sought to be amended.

Under sub-section (3) of Section 64, the Collector is empowered to

delegate to the Mamlatdar or Mamlakari to register the names of

individual Watandars as holders of the office. Apart from other

functions, the Mamlatdars or Mamlakaris are empowered to pass orders

in regard to the appointment, remuneration, period of office etc.

26)Scheme of the Bombay Inferior Village Watan Abolition Act, 1958: The

object of the Watan Abolition Act is to provide for abolition of inferior

village watans prevailing in certain parts of State of Bombay. Section

2(XI) of the Act, defines the meaning of the expression "Watandar" to

mean a person having hereditary interest in an inferior village watan

under the existing watan law. Section 3 of the Act empowers the

Collector to decide whether any land is watan land, whether any person

is Watandar, whether any person is an unauthorized holder after holding

an inquiry and after affording an opportunity of hearing to the parties

22 who may be affected by the order. Any person aggrieved by an order

passed under sub-section (1), may file an appeal to the State Government

within the time limit prescribed. The decision of the Collector, if not

appealed, and the decision of the State Government shall be final.

Section 4 of the Act provides for abolition of inferior watans together

with incidents thereof. Section 5 of the Act, provides for Regrant of

watanlands to holders of watan on fulfilling certain conditions by

Watandars.

27)Scheme of the Bombay Revenue Jurisdiction Act, 1876 : The object of

the Bombay Revenue Jurisdiction Act, 1876, is to limit the jurisdiction of

the civil courts throughout the Bombay Presidency in matters relating to

land revenue and for other purposes. Section 4 of the Act, specifically

puts an embargo on the civil courts in exercising its jurisdiction in

matters where claims against the government relating to any property

appertaining to the office of any hereditary officer appointed or

recognized under Bombay Act No. III of 1874. Section 5 of the Act, is

an exception to Section 4 of the Act. Section 5(b) of the Act authorizes

the civil courts from entertaining the suits between private parties for the

purpose of establishing any private right, although it may be affected by

any entry in any record of revenue survey or settlement or in any village

23 papers. However, the said suit can only be entertained in the districts

mentioned in Second Schedule.

28)Our Analysis :- Under Section 3 of the 1958 Act, the power is conferred

on the Collector to decide the rights regarding watanlands. Watandar

means a person having hereditary interest in an inferior village watan

under the existing watan law. The Collector can only decide whether a

person has got a hereditary interest in an inferior village of watan under

the existing watan law. The learned counsel for the appellant contends

that after the Bombay Inferior Village Watans Abolition Act, 1958 was

notified on 20.1.1959, the appellants had approached the Collector with a

request to regrant the watanlands, since they are holders of watan and

pursuant to the request made, the Collector had passed an order dated

03.6.1963 in exercise of his powers under Section 5(1) of the Act, and if

any person was aggrieved by that order, could have filed an appeal as

provided under the Act within the time limit prescribed. Since that was

not done by any person including Vithu, that order has become final and,

therefore, the Sub-Divisional Officer could not have entertained the

application filed by Vithu in the year 1979 and further could not have

passed any order under Section 5(1) of the Act.

24

29)We have seen the scheme of the Act. Section 3 of the Act authorizes

the Collector to decide any question as to whether any land is watan

land; whether any person is a Watandar; and whether any person is an

unauthorized holder. The order passed by the Collector can be subject

matter of appeal before the State Government. The order passed by the

Collector, if in case no appeal is filed, and in case appeal is filed then the

order passed by the State Government in the appeal, is final. Section 5 of

the Act speaks of regrant of watanlands to the holders of watan subject to

fulfillment of certain conditions provided in the Section itself. It has

come on record, that the appellants after the Act was notified had filed an

application for regrant of watanlands, since they were holders of watan

pursuant to an order passed by Deputy District Collector dated 18.6.1941

and the District Collector after necessary inquiry had passed an order of

regrant dated 03.6.1963 of the suit lands in favour of the appellants under

Section 5(1) of the Watans Abolition Act, 1958, and that order has

become final, since nobody had questioned the same before any forum.

The Act does not provide for the review of the regrant order nor it

provides denovo enquiry to decide whether any person is a Watandar.

Therefore, we agree with the submission of the learned counsel for the

appellants that the Sub-Divisional Officer could not have entertained the

25 application filed by the respondents in the year 1979 for regrant of

watanlands, since the Act does not provide for review of any earlier order

passed under Section 5(1) of the Act.

30)Question regarding adoption :- As regards whether there is valid adoption

or not, that question pertains to the status and legal character of an

individual, which falls within the purview of Section 34 of the Specific

Relief Act, 1963, and a suit for declaration before a civil court is

maintainable. Therefore, the question whether a particular person has

been given in adoption or not is different from whether a person has

hereditary interest or rights in respect of a watan property. If this

distinction is drawn, there is no exclusion of civil courts jurisdiction

under the Act. When a person claims on the basis of adoption, such an

adoption cannot be decided by the Collector as the same involves legal

status/character of a person which can only be decided by the civil court.

Whether Vithu is an adopted son or not is concluded and decided in O.S.

No.104 of 1953. A specific issue had been framed and a finding was

recorded though it was a suit for injunction and the findings on this issue

has been confirmed by the Appellate Court and by the High Court in

Regular Second Appeal.

26

31)Res-judicata and Code of Civil Procedure :- It is well known that the

doctrine of res- judicata is codified in Section 11 of the Code of Civil

Procedure. Section 11 generally comes into play in relation to civil suits.

But apart from the codified law, the doctrine of res-judicata or the

principle of the res-judicata has been applied since long in various other

kinds of proceedings and situations by courts in England, India and other

countries. The rule of constructive res-judicata is engrafted in

Explanation IV of Section 11 of the Code of Civil Procedure and in many

other situations also Principles not only of direct res-judicata but of

constructive res-judicata are also applied, if by any judgment or order any

matter in issue has been directly and explicitly decided, the decision

operates as res-judicata and bars the trial of an identical issue in a

subsequent proceedings between the same parties. The Principle of res-

judicata comes into play when by judgment and order a decision of a

particular issue is implicit in it, that is, it must be deemed to have been

necessarily decided by implications even then the Principle of res-

judicata on that issue is directly applicable. When any matter which

might and ought to have been made a ground of defence or attack in a

former proceeding but was not so made, then such a matter in the eye of

law, to avoid multiplicity of litigation and to bring about finality in it, is

27 deemed to have been constructively in issue and, therefore, is taken as

decided [See AIR 1978 SC 1283].

32)In Swamy Atmandanda vs. Sri Ramakrishna, Tapovanam [(2005) 10

SCC 51], it was held by this court :

"26. The object and purport of the principle of res judicata as contended in Section 11 of the Code of Civil Procedure is to uphold the rule of conclusiveness of judgment, as to the points decided earlier of fact, or of law, or of fact and law, in every subsequent suit between the same parties. Once the matter which was the subject-matter of lis stood determined by a competent court, no party thereafter can be permitted to reopen it in a subsequent litigation. Such a rule was brought into the statute-book with a view to bring the litigation to an end so that the other side may not be put to harassment.

27. The principle of res judicata envisages that a judgment of a court of concurrent jurisdiction directly upon a point would create a bar as regards a plea, between the same parties in some other matter in another court, where the said plea seeks to raise afresh the very point that was determined in the earlier judgment."

33)When the material issue has been tried and determined between the same

parties in a proper suit by a competent court as to the status of one of

them in relation to the other, it cannot be again tried in another suit

between them as laid down in Krishna Behari Roy vs. Bunwari Lal Roy

reported in [1875 ILR (IC-144)], which is followed by this Court in the

28 case of Ishwar Dutt Vs. Land Acquisition Collector & Anr. [(2005) 7

SCC 190], wherein the doctrine of `cause of action estoppel' and `issue

estoppel' has been discussed. It is laid down by this Court, that if there is

an issue between the parties that is decided, the same would operate as a

res-judicata between the same parties in the subsequent proceedings. This court in the case of Isher Singh vs. Sarwan Singh, [AIR 1965 SC

948] has observed :

"11. We thus reach the position that in the former suit the heirship of the respondents to Jati deceased (a) was in terms raised by the pleadings, (b) that an issue was framed in regard to it by the trial Judge, (c) that evidence was led by the parties on that point directed towards this issue, (d) a finding was recorded on it by the appellate court, and (e) that on the proper construction of the pleadings it would have been necessary to decide the issue in order to properly and completely decide all the points arising in the case to grant relief to the plaintiff. We thus find that every one of the conditions necessary to satisfy the test as to the applicability of Section 11 of the Civil Procedure Code is satisfied."

34)So far as the finding drawn in the suit for injunction in O.S. No.104 of

1953, regarding adoption would also operate as a res-judicata in view of

the judgment of this Court in the case of Sulochana Amma Vs.

Narayanan Nair [(1994) 2 SCC 14]. It is observed:

"The decision in earlier case on the issue between the same parties or persons under whom they claim

29 title or litigating under the same title, it operates as a res-judicata. A plea decided even in a suit for injunction touching title between the same parties, would operate as res-judicata.

It is a settled law that in a Suit for injunction when title is in issue, for the purpose of granting injunction, the issue directly and substantially arises in that suit between the parties when the same is put in issue in a later suit based on title between the same parties or their privies in a subsequent suit, the decree in injunction suit equally operates as a res-judicata."

35)The same view is reiterated in the case of Gram Panchayat of Village

Naulakha Vs. Ujagar Singh & Ors. [AIR 2000 SC 3272]. This Court has

stated, that, even in an earlier suit for injunction, there is an incidental

finding on title, the same will not be binding in the later suit or

proceedings, where title is directly in question, unless it is established,

that it was "necessary" in the earlier suit to decide the question of title for

granting or refusing injunction and that the relief for injunction was

found or based on the bindings of title. Even the mere framing of an

issue may not be sufficient as pointed out in that case.

36)The appellants had filed O.S. No.104 of 1953 before the civil court inter-

alia seeking an order of permanent injunction against respondent - Vithu

and others, on the ground that they are Watandars of suit lands and they

30 are in peaceful possession and enjoyment of the suit lands. Respondent -

Vithu had set up a defence that since he is the adopted son of the

deceased Watandar, he has the right, title and interest in the watanlands.

Therefore, the Trial Court had framed an issue, whether the defendants

prove that defendant No.1 was the adopted son of his grandmother and as

such was in possession of the suit property. The trial court after elaborate

discussion has answered the issue against Vithu and had concluded that

Vithu failed to prove that he was the adopted son of deceased Watandar

and, therefore, he cannot have any right, title or interest in the suit lands

as Watandar. In this case, though the suit was bare injunction, title to the

properties was put on issue by the defendant-Vithu claiming that he is the

adopted son of deceased Watandar and, therefore, he has Watandar rights

in the suit lands. In order to decide the prayers made in the suit, the issue

of adoption had to be decided. The issue falls within the exclusive

jurisdiction of the civil court. In the subsequent proceedings before the

Sub-Divisional Officer, the issue was whether Vithu was the adopted son

of deceased Watandar and, therefore, having hereditary interest in any

inferior village watan under Watan Abolition Act, 1958. To decide this

issue, the Sub-Divisional Officer firstly has to decide the issue, whether

Vithu is the adopted son of deceased Watandar. This issue is one which

31 does not fall within the jurisdiction of the revenue court but falls within

the exclusive jurisdiction of the civil court. Since the issue of adoption

was already decided between the same parties by a competent civil court,

the Sub-Divisional Officer cannot decide that issue and without giving

any decision on that issue could not have allowed the claim of the

respondent Vithu. Therefore, in our opinion, the Principles of Res-

judicata would apply to the proceedings before the Sub-Divisional

Officer.

37)In a suit for injunction, the issues and the decision would be confined to

possessory aspect. If the right to possession of property cannot be

decided without deciding the title to the property and a person who

approaches the Court, his status itself is to be adjudicated then without

declaring his status, the relief could not be granted. In earlier suit Vithu

claimed his right as an adopted son. Therefore, since he did not prove the

adoption, there was no subsisting right or interest over the immovable

property and as such the issue on adoption was a relevant issue in 1953

suit and, therefore, the said issue which has been decided in earlier suit

and which has been confirmed in the regular second appeal and the issue

decided therein was whether he was an adopted heir of Watandar was

32 binding on the parties. The similar question has to be decided by the

S.D.O. to decide the claim, right or interest in respect of the hereditary

office. Therefore, the issue was raised and it was decided and it is

binding on the parties.

38)Reference may be made to the decision of this court in the case of

Sulochana Amma vs. Narayanan Nair, [(1994) 2 SCC 14 Para 9] on the

issue between the same parties or persons under whom they claim title or

litigating under the same title, it operates as a res-judicata. A plea

decided even in suit for injunction touching the title between the same

parties, would operate as res judicata :

"It is a settled law that in a suit for injunction when title is in issue, for the purpose of granting injunction the issue directly and substantially arises in that suit between the parties. When the same is put in issue in a later suit based on title between the same parties or their privies in a subsequent suit, the decree in injunction suit equally operates as a res judicata."

39)To the same effect, the judgment of this court in the case of Sulochana

Amma vs. Narayanan Nair, [(1994) 2 SCC 14 Para 9] in which it has

been held that the issue between the same parties or persons under whom

they claim title or litigating under the same title, it operates as a res-

33 judicata. A plea decided even in suit for injunction touching the title

between the same parties, would operate as res judicata.

40)The learned senior counsel Sri Naphade by placing reliance on the

observation made by this court in the case of Syed Mohd Salie Labbai

(Dead) by LRS vs. Mohd. Hanifa (Dead) by LRS [(1976) 4 SCC 780],

that the best method to decide the question of res-judicata is first to

determine the case of parties as put forward in their respective pleadings

of their previous suits and then to find out as to what had been decided

by the judgments which operate as res-judicata. It is the contention of the

learned senior counsel that the pleadings of the suit of 1953 was not

available to the civil court while deciding the second suit of 1979 and,

therefore, the High Court was justified in holding that the finding of the

civil court in the second suit of 1979 and the appellate court against that

order regarding res-judicata cannot be upheld.

41)In Syed Mohd's case, this court has stated that before a plea of res-

judicata can be given effect the four conditions requires to be proved.

They are, that the litigating parties must be the same; that the subject

matter of the suit also must be identical; that the matter must be finally

decided between the parties; and that the suit must be decided by a court

34 of competent jurisdiction. This court while analyzing those conditions as

matter of fact found that the parties had not even filed the pleading of the

suits instituted by them. In that factual scenario, this court has to observe

that the pleadings cannot be proved merely by recitals of the allegations

mentioned in the judgment.

42)It is true that if an earlier judgment has to operate as res-judicata in the

subsequent proceedings, then all the necessary facts including pleadings

of the earlier litigation must be placed on record in the subsequent

proceedings. In the judgment and decree in O.S. No. 2353 of 1979, the

trial Judge in extenso has referred to the pleadings of the parties in the

earlier suit with reference to the copy of the judgment and decree passed

in O.S. No.104 of 1953 which was produced by the appellants along with

the other documents and it is only thereafter has observed that the issue

regarding adoption of Vithu was one of the issues framed in the 1953 suit

and the court after referring to the pleadings of both the parties and the

evidence adduced has specifically answered the issue by holding that

Vithu has failed to prove that he is adopted son of the deceased

Watandar. Therefore, we cannot accept the contention of learned senior

counsel Sri Shekhar Naphade. In fact, the High Court, while deciding on

this issue had observed that the pleadings of the parties in O.S. No.104 of

35 1953 were not available before the civil court in the subsequent suit and,

therefore, there is non-compliance of mandatory and basic requirements,

as laid down by this Court in the case of Syed Mohd. In our view, this

reasoning of the High Court is fallacious and we cannot agree. In our

view, each one of the conditions necessary to satisfy the test as to the

applicability of Section 11 of Civil Procedure Code is satisfied.

43)Validity of Direction for Enquiry:- Once 1941 proceedings is accepted

by the civil court and a decree was passed, the said decree becomes final

and binding on the parties. The respondent-Vithu was disentitled to

approach the State Government nearly after 14 years. The period of

limitation provided under Section 27 of the Limitation Act, if a right to

property is not exercised within 12 years from the date on which the

cause of action accrues to him, he would lose his right of remedy under

the Limitation Act. But in the instant case, the right of Vithu was

adjudicated and it was culminated in the decree in Second Appeal which

was decided in RSA on 20.10.1964 and after he suffered an order, he

remits three times assessment to the Government in the year 1966 and

his intention was to keep the issue alive, despite he suffered an order of

decree by the civil court which was also confirmed by the High Court

and again moves an application before the Government in 1978, and

36 obtains a direction in 1979 for the Sub-Divisional Officer to hold an

enquiry, whether he is Watandar or not. The Scheme of Watan Abolition

Act, 1958, does not empower the State Government to issue such

direction. What is not provided under the statute ought not to have been

exercised by the State Government. Therefore, the State Government

had no power to direct the Sub-Divisional Officer to hold an inquiry to

decide question of Watandar, notwithstanding the decree passed by a

competent civil court which has been affirmed by the High Court in

Regular Second Appeal. The abolition of watan is by a legislative decree

and not by executive action. Its consequences must be sought under the

Statute which effectuates the abolition. It is, therefore, resumption and

regrant must be within the statutory framework.

44)We, therefore, set aside the judgment of the High Court in all the

appeals. The result is that the appeals are allowed, but in the peculiar

circumstances of the case, there will be no order as to costs.

.......................................J. [ B.N. AGRAWAL ]

.......................................J.

37 [ G.S. SINGHVI ]

.......................................J. [ H.L. DATTU ]

New Delhi, October 9, 2009.

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