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TMI Blog2009 (10) TMI 983X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 in the record of rights fraudu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 nega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 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 Watan 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 ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tional 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 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 aggri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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. 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 Watan Abolition Act, 1958, The Bombay Hereditary Offices Act, 1874, and The Bombay Revenue Jurisdicti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded 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. 22. Per contra, learned senior counsel Shri Shekhar Naphade for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icle 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 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: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Village Watan 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivil 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 matt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 v. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son of deceased Watandar. This issue is one which 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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