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TMI Blog1963 (4) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... t, the plaintiff put the defendants in possession of this two sir fields, viz., Khasra No. 21/9, area 7.28 acres, and Khasra No. 24/4, area 3.00 acres, both situate at mouza Rehuta, tahsil Mungeli, district Bilaspur, and also executed a formal deed of sale which, however, was never registered, as it was never intended to be an effective document; and that the defendants remained in possession for a few years; but when the plaintiff offered to repay the debt and claimed back possession of the land, they refused. He, therefore, inter alia, prayed that possession of the suit fields be ordered to be delivered to him on his paying to the defendants ₹ 600/-. The defendants contested the suit, chiefly on the ground that the transaction in suit was an out-and-out sale. They also pleaded protection under Section 53A of the Transfer of Property Act, in so far as their possession was under an unregistered deed of sale. The trial Court dismissed the suit, holding that the plaintiff could not be permitted to lead oral evidence to show that the suit transaction was as between a creditor and a debtor and not as between a vendee and a vendor, in view of the fact that there was a written do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the "Full Bench decision of this Court in Rahamatulla Khan v. Mahabir Singh 1956 NLJ 1 : (AIR 1956 Nag 132) wherein it had been held that a wrong recording of the land as occupancy would not alter the real character of the land. He further held that the land, being the plaintiff's sir, would not, under the circumstances be established in the case, become the defendant's occupancy by being wrongly recorded as such in the village papers of 1948-49. On remand, the lower appellate Court considered the appeal on merits and in view of the fact that the antecedent agreement pleaded by the plaintiff had been found proved, affirmed the judgment and decree of the trial Court and decreed the plaintiff's suit. The defendants again appealed. The appeal again came for hearing before T.C. Shrivastava, J. By that time, the decision of the Full Bench in Rahamatulla Khan's case 1956 NLJ 1 : (AIR 1956 Nag 132) (supra) had been overruled by the Supreme Court in Haji Sk. Subhan v. Madhorao, AIR 1962 SC 1230, and hence it was argued before him that his remand order was incorrect and, in so far as the land had vested in the State, the plaintiff, who was an ex-proprietor of the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igher Court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again, This principle of res judicata is embodied in relation to suits in section 11 of the Code of Civil Procedure; but even where Section 11 does not apply, the principle of res judicata has been applied by Courts for the purpose of achieving finality in litigation. The result of this is that the original Court as well as any higher Court must in any future litigation proceed on the basis that the previous decision was correct." "The principle of res judicata applies also as between two stages in the same litigation to this extent that a Court, whether the trial Court or a higher Court, having at an earlier stage decided a matter in one way, will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings." * * * * * "The very fact that in further litigation it will not be open to either of the parties to challenge the correctness of the decision on a matter finally decided in a past litigation makes it important that in the earlier litigation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been reconsidered in a subsequent appeal from the decision of the first Court after remand. In the present instance the remand order was under Order 41, Rule 23, and the appeal cannot be said to have been pending or undisposed of cm this Court's file. In our opinion, the whole case is not opened up on the present appeal from the decree after remand, and it is not open to us, therefore, to reconsider the remand order." Similar view was also taken in Kanhaya Singh v. Bhagwat Singh AIR 1954 Pat 326 and Lalbati Kuer v, Satchitanand, AIR 1960 Pat 418. The learned single Judge was, therefore, correct in holding that he could not reconsider his order of remand when hearing the appeal from the judgment and decree passed by the lower appellate Court after remand. The question then arises whether this Court, sitting as a Court of appeal against the judgment and the decree of the learned Single Judge under Clause (10) of the Letters Patent can reconsider the order of remand. The principle on which the Supreme Court held that the appellate Court is competent to do so proceeded on the principle that under Section 105(1) of the Code of Civil Procedure an interlocutory order which ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the question on which it proceeded to dismiss the suit after remand; and the second is whether the principle laid down by the Full Bench* of this Court in Rahamatulla Khan's case 195S NLJ 1 : (AIR 1956 Nag 132) and that laid down by the Supreme Court in AIR 1962 SC 1230 (supra) have any relevance to the problem involved in this case. As to the first, it has to be remembered that after the suit of the plaintiff-respondent had been dismissed by the Courts below on the ground that Section 92 of the Evidence Act precluded the plaintiff from leading oral evidence to prove the alleged antecedent agreement pleaded by him, wherefrom he claimed that the relationship between the parties was that of a debtor and a creditor and not that of a vendor and a vendee, nor that of a mortgagor or a mortgagee, an appeal was pending against its dismissal in the High Court, when the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act 1950 (Act No. I of 1951) came into force. Consequently, when the second appeal, No. 499 of 1947, was decided by B.P. Sinha, C. J. (as he then was) on 30-12-1952, the objection on the ground that the plaintiff's suit for possessio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the judgment under appeal but also to dispose of the case according to the requirements of justice, which means that we are bound to give effect to any change in the law which has come into existence after the judgment under appeal was given : (see Patterson v. State of Alabama (1935) 294 US 600, Minnesota v. National Tea Co. (1940) 309 US 551, Lachmeshwar Prasad v. Keshwar Lal, AIR 1941 FC 5 and Chhote Khan v. Mohammad Obedulla AIR 1953 Nag 361 (FB) The question, therefore, arises whether the Madhya Pradesh Abolition of Proprietary Rights Act, 1950 has any application to the facts of this case. The learned counsel for the defendants-appellants contends, on the authority of Haji Sk. Subhan's case, AIR 1962 SC 1230 (supra), that the said Act bars the right of the plaintiff-respondent to possession of the suit land on the ground that on and from the date of vesting he had lost his proprietary rights in respect of it and that it could not be saved to him as his 'home-farm' as it was not recorded as his sir or khudkasht in the khasra and jamabandi of the year 1948-49. In our opinion, the principle of law enunciated in Haji Sk. Subhan's case, AIR 1962 SC 1230 (supr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n agreement which was not, nor was it claimed to be, an agreement of tenancy. The suit, as held by Sinha, C. J. (as he then was) in the first remand order, was a suit between a debtor and a creditor in which in pursuance of a prior agreement the debtor had placed the creditor in possession of the suit land which he was claiming back on his offering to repay the debt The character of the land and the status of the plaintiff-respondent qua lambardar or a proprietor Was not germane to the suit. At best, the defence could be construed to be a plea of jus tertii which, as pointed out by Hidayatullah. J. (as he then was) in Chhotekhan's case AIR 1953 Nag 361 (supra) at n. 363, is no defence, unless the defendants-appellants could show that the act complained of was done by the authority of the true owner : (see Narayana Row v. Dharmachar ILR 26 Mad 514. Graham v. Peat (1801) 1 East 244, Chambers v. Donaldson (1809) 11 East 65 and B. Gangayya v. V. Satyanarayana, AIR 1925 Mad 1021). There is nothing to show that the State had authorized the acts when the cause of action arose, nor is there anything to show that it had approved of them or ratified them even today. He has also pointed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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