# RAMCHANDRA DAGDU SONAVANE (DEAD) BY LRS. & ORS. ~ > v. • VITHU HIRA MAHAR (DEAD) BY LRS. & ORS

- **Citation:** [2009] 15 S.C.R. 222
- **Court:** Supreme Court of India
- **Decided:** 2009-10-09
- **Case number:** Civil Appeal No. 7184-7185 of 2001
- **Bench:** B.N. Agrawal, G.S. Singhvi, H.L. Dattu
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ramchandra-dagdu-sonavane-dead-by-lrs-ors-v-vithu-hira-mahar-dead-by-lrs-ors-25296
- **Pages:** 32

## Headnote

"
Bombay Inferior Village Watan Abolition Act, 1958 -
,\>'
\.
c s.3(1)(b) -
Suit against defendants for injunction from
interfering with possession of Watan Land - Plaintiffs claiming
to be Watandar declared by the competent authority in the
..
year 1941, being nearest relatives of deceased Watandar -
Defendants claiming to be Watandar on the basis of order of
D competent authority passed in the year 1931 declaring him
to be adopted son of the deceased Watandar - Suit decreed,
~
concluding that defendant was not the adopted son of
deceased Watandar - Re-grant of land to plaintiffs By
Revenue Authorities uls.5(1) of the Act -
Subsequently
/
E defendant initiated proceedings before Revenue Authorities
;.
(SDO) and was declared as Watandar on the basis that order
of 1931 proved that he was the adopted son - Plaintiffs'
...
second suit for declaration of order of SDO illegal ab initio -
Suit decreed and upheld by first appellate court - High Court
)
F setting aside the decree - On appeal, held: Defendant was
,_
precluded from raising the issue of adoption before SDO -
Issue of adoption having been decided in previous suit, would
..
l
operate as res-judicata - The finding in previous suit wa.~
'
binding on the defendant - Jurisdiction of c;ivil court not
.,.)_
G excluded as the claim before Revenue Authorities was based
on the factum of adoption - Issue of adoption was decided
by civil competent court, SDO could not have decided that +
issue -Land re-granted to plaintiffs u/s. 5(1 ), having become
final, cannot be reviewed de novo by SDO - Defendants'
H
222
RAMCHANDRA DAGDU SONAVANE (DEAD) BY LRS. & ORS. v.
223
VITHU HIRA MAHAR (DEAD) BY LRS. & ORS.
action was time\ barred in approaching the authority after 14
A
i::..
years from the date the decree in previous suit attained finality
- Code of Civil Procedure, 1908 - s. 11 - Principles of resjudicata - Jurisdiction - Jurisdiction of civil court vis-a-vis
Revenue Court - Limitation Act, 1963 - s. 27.
B
Appellants-plaintiffs filed a suit, against respondent
No. 1 and others for an order of permanent injunction.
Plaintiffs claimed that they being the nearest relatives of
.)
the Watandars of the suit land were their representatives.
+
Their right as Watandar was declared by the Collector in
C
the year 1941. Respondent No. 1 contested the suit
claiming that his right as Watandar had been established
in 1931 by Mamlatdar, on his application ulss. 15 and 18
of Bombay Hereditaryc-Office Act, 187 4, to recognize him
as Watandar, after declaring that respondent No. 1 was
the adopted son of the deceased Watandar. Trial Court D
decreed the suit concluding that plaintiffs were in
possession of the suit land; that respondent No. 1 was
not the adopted son of the deceased Watandar. The order
of trial court was confirmed in appeal. Second appeal
against the same was also dismissed.
E
During pendency of the second appeal, on
application by the appellants-plaintiffs under Bombay
Inferior Village Watans Abolition Act, 1958, the competent
authority, after inquiry, passed order u/s. 5 (1) of the Act
.F
in 1963 regranting the suit lands in favour of plaintiffs.
Respondent No. 1 made application in 1976, for
supply of certified copies of the order passed in 1931 by
Mamlatdar. He received xerox copy of the said order. In
a similar application made in 1941, respondent No. 1 was
G
informed that the relevant papers were not available as
the same were destroyed.
On the basis of the order of 1931, respondent No. 1
filed application before State Government for direction to
H
224 SUPREME COURT REPORTS [2009] 15 (ADDL) S.C.R.
A the competent authority to regrant the suit land to him as
in earlier proceeding in 1941, he was dispossessed on
the ground that he was not having relevant documents.
After direction of State Government, the competent
B authority (SDO}, after inquiry, u/s. 3(1 )(b) of Bombay
Inferior Village Watan Abolition Act, 1958, concluded that
the copy of the order of 1931 proved that he was the
adopt

## Text

_Characters 0–39,783 of 63,793. This is a partial read: ask again with offset=39783 for what follows._

[2009] 15 (ADDL.) S.C.R. 222
~..,·
A
RAMCHANDRA DAGDU SONAVANE (DEAD) BY LRS. &
ORS.
~ >
v.
•
VITHU HIRA MAHAR (DEAD) BY LRS. & ORS.
(Civil Appeal No. 7184-7185 of 2001)
~
B
....
OCTOBER 9, 2009
·-. L
[B.N. AGRAWAL, G.S. SINGHVI AND H.L. DATTU, JJ.]
"
Bombay Inferior Village Watan Abolition Act, 1958 -
,\>'
\.
c s.3(1)(b) -
Suit against defendants for injunction from
interfering with possession of Watan Land - Plaintiffs claiming
to be Watandar declared by the competent authority in the
..
year 1941, being nearest relatives of deceased Watandar -
Defendants claiming to be Watandar on the basis of order of
D competent authority passed in the year 1931 declaring him
to be adopted son of the deceased Watandar - Suit decreed,
~
concluding that defendant was not the adopted son of
deceased Watandar - Re-grant of land to plaintiffs By
Revenue Authorities uls.5(1) of the Act -
Subsequently
/
E defendant initiated proceedings before Revenue Authorities
;.
(SDO) and was declared as Watandar on the basis that order
of 1931 proved that he was the adopted son - Plaintiffs'
...
second suit for declaration of order of SDO illegal ab initio -
Suit decreed and upheld by first appellate court - High Court
)
F setting aside the decree - On appeal, held: Defendant was
,_
precluded from raising the issue of adoption before SDO -
Issue of adoption having been decided in previous suit, would
..
l
operate as res-judicata - The finding in previous suit wa.~
'
binding on the defendant - Jurisdiction of c;ivil court not
.,.)_
G excluded as the claim before Revenue Authorities was based
on the factum of adoption - Issue of adoption was decided
by civil competent court, SDO could not have decided that +
issue -Land re-granted to plaintiffs u/s. 5(1 ), having become
final, cannot be reviewed de novo by SDO - Defendants'
H
222
RAMCHANDRA DAGDU SONAVANE (DEAD) BY LRS. & ORS. v.
223
VITHU HIRA MAHAR (DEAD) BY LRS. & ORS.
action was time\ barred in approaching the authority after 14
A
i::..
years from the date the decree in previous suit attained finality
- Code of Civil Procedure, 1908 - s. 11 - Principles of resjudicata - Jurisdiction - Jurisdiction of civil court vis-a-vis
Revenue Court - Limitation Act, 1963 - s. 27.
B
Appellants-plaintiffs filed a suit, against respondent
No. 1 and others for an order of permanent injunction.
Plaintiffs claimed that they being the nearest relatives of
.)
the Watandars of the suit land were their representatives.
+
Their right as Watandar was declared by the Collector in
C
the year 1941. Respondent No. 1 contested the suit
claiming that his right as Watandar had been established
in 1931 by Mamlatdar, on his application ulss. 15 and 18
of Bombay Hereditaryc-Office Act, 187 4, to recognize him
as Watandar, after declaring that respondent No. 1 was
the adopted son of the deceased Watandar. Trial Court D
decreed the suit concluding that plaintiffs were in
possession of the suit land; that respondent No. 1 was
not the adopted son of the deceased Watandar. The order
of trial court was confirmed in appeal. Second appeal
against the same was also dismissed.
E
During pendency of the second appeal, on
application by the appellants-plaintiffs under Bombay
Inferior Village Watans Abolition Act, 1958, the competent
authority, after inquiry, passed order u/s. 5 (1) of the Act
.F
in 1963 regranting the suit lands in favour of plaintiffs.
Respondent No. 1 made application in 1976, for
supply of certified copies of the order passed in 1931 by
Mamlatdar. He received xerox copy of the said order. In
a similar application made in 1941, respondent No. 1 was
G
informed that the relevant papers were not available as
the same were destroyed.
On the basis of the order of 1931, respondent No. 1
filed application before State Government for direction to
H
224 SUPREME COURT REPORTS [2009] 15 (ADDL) S.C.R.
A the competent authority to regrant the suit land to him as
in earlier proceeding in 1941, he was dispossessed on
the ground that he was not having relevant documents.
After direction of State Government, the competent
B authority (SDO}, after inquiry, u/s. 3(1 )(b) of Bombay
Inferior Village Watan Abolition Act, 1958, concluded that
the copy of the order of 1931 proved that he was the
adopted son of the deceased Watandars; and that order
of the civil court would not have any bearing on the
,;
proceedings under the Act.
)
c
Appellants filed an appeal before appellate authority
as well as a suit for declaration that the order of SDO was
illegal ab initio and for permanent injunction.
D
Trial court decreed the suit, holding that issue of
adoption having been decided conclusively in the
previous suit, the order therein would operate as res
judicata precluding respondent No. 1 from raising the
issue of adoption before SDO. In view of the decision in
E the suit, appellate authority allowed the appeal.
First appeal against the judgment of trial court was
dismissed. Respondents filed second appeal against the
order of first appellate court and a writ petition
challenging the order passed by the appellate ~uthority.
F High Court allowed the appeal and the writ petition.
Hence the present appeals.
Allowing the appeals, the Court
G
HELD: 1. Appellants were holders of Wetan 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 of the suit lands
-+'
in their favour u/s. 5(1) of Bombay Inferior Village Watans
Abolition Act, 1958, and that order has become final, since
H
RAMCHANDRA DAGDU SONAVANE (DEAD) BY LRS. & ORS. v.
225
VITHU HIRA MAHAR (DEAD) BY LRS. & ORS.
4..
nobody had questioned the same before any forum. The
A
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, the Sub-Divisional
,(-
Officer could not have entertained the application filed by
the respondents in the year 1979 for regrant of Watan
B
lands, since the Act does not provide for review of any
earlier order passed u/s. 5(1) of the Act. [Para 29] [245-8-
~
E]
2. The question regarding validity of adoption c
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
D
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 makes a claim
on the basis of adoption, such an adoption cannot be
decided by the Collector as the same involves legal
E
status/character of a person which can only be decided
by the civil court. Whether respondent No. 1 is an
•
adopted son or not, is concluded and decided in the
previous suit. A specific issue had been framed and a
finding was recorded though it was a suit for injunction
F
and the findings on this issue has been confirmed by the
appellate court and by the High Court in Regular Second
Appeal. [Para 30] [245-E-H; 246-A]
~
3.1 The Principle of res-judicata comes into play when G
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
H
226
SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.
A 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 deemed to have been
constructively in issue and, therefore, is taken as decided.
s 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. If there is an issue between the parties that is
c decided, the same would operate as a res-judicata
between the same parties ·in the subsequent
proceedings. [Paras 31 and 33] [246-D-F; 247-C-E]
Workmen of Cochin Port Trust vs. The Board of Trustees
of the Cochin Port Trust AIR (1978) SC 1283; Swamy
D Atmandanda vs. Sri Ramakrishna, Tapovanam (2005), 10
SCC 51; Krishna Behari Roy v~. Bunwari Lal Roy 1875 ILR
(IC-144); lshwar Dutt vs. Land Acquisition Collector and Anr.
(2005) 7 SCC 190; /sher Singh vs. Sarwan Singh, AIR 1965
SC 948, relied on.
E
3.2 In the instant case, the finding drawn in the suit
for injunction in the earlier suit regarding adoption would
also operate as a res-judicata. In this case, though the suit
)
was bare injunction, title to the properties was put on
F issue by the defendant no. 1 claiming that he is the
adopted son of the 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
G jurisdictior1 of the civil court. In the subsequent
proceedings before the Sub-Divisional Officer, the issue
was whether respondent No. 1 was the adopted son 1 of
+
' the deceased Watandar and, therefore, having hereditary
interest in any inferior village Watan under Watan
H Abolition Act, 1958. To decide this issue, the Sub-
RAMCHANDRA DAGDU SONAVANE (DEAD) BY LRS. & ORS. v.
227
VITHU HIRA MAHAR (DEAD) BY LRS. & ORS.
/
Divisional Officer firstly has to decide the issue, whether
A
..
respondent No. 1 is the adopted son of the 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
B
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
respondent No. 1. Therefore, the Principles of res-judicata
would apply to the proceedings before the Sub-Divisional c
Officer. [Paras 34 and 36] [248-8, 249-C-H]
Su/ochana Amma vs. Narayanan Nair (1994) 2 SCC 14;
Gram Panchayat of Village Naulakha vs. Ujagar Singh and
Ors. AIR 2000 SC 3272, relied on
D
°I"
3.3 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
E
then without declaring his status, the relief could not be
granted. In earlier suit respondent no. 1 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
F
adoption was a relevant issue in the earlier suit and,
therefore, the said issue which has been decided in
I
earlier suit and which has been confirmed in the regular
second appeal and the issue decided therein whether he
~ -
was an adopted heir of Watandar was binding on the
....
G
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. [Para 37]
[250-A-D]
H
228. ,SUPREME COURT REPORTS [2009) 15 (ADDL.) S.C.R.
.
...
A
Syed Mohd Salie Labbai (Dead) by Lrs. vs. Mohd.
~·
Hanifa (Dead) by Lrs. (1976) 4 SCC 780, referred to
Sulochana Amma vs. Narayanan Nair (1994) 2 SCC 14
Para 9, relied on
B
3.4 The ple.adings cannot be proved merely by
recitals of the allegations mentioned in the judgment. It
is true that if an earlier judgment has to operate as resjudicata in the subsequent proceedings, then all the
,.
necessary facts including pleadings of the earlier
c litigation must be placed on record in the subsequent
proceedings. In the judgment and decree in the present
suit, 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 therein
D y.thich was produced by the appellants along with the
""!
other documents and it is only thereafter, he has
observed that the issue regarding adoption of respondent
No. 1 was one of the issues framed in the earlier suit and
the court after referring to the pleadings of both the
E parties and the evidence adduced has specifically
answered the issue by holding that respondent No. 1 has
failed to prove that he is adopted son of the deceased
Watandar. Each one of the conditions necessary to
)
satisfy the test as to the applicability of Section 11 CPC
F is satisfied. [Paras 41 and 42) [251-F-H, 252-A-B-D]
4. Once proceedings initiated-at the instance of the
appellant in 1941, is accepted by the civil court and a
decree was passed, the said decree becomes final and
..
binding on the parties. Respondent No. 1 was disentitled
_._
G 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
H
-
RAMCHANDRA DAGDU SONAVANE (DEAD) BY LRS. & ORS. v.
229
VITHU HIRA MAHAR (DEAD) BY LRS. & ORS.
(..
the Limitation Act. [Para 43] [252-E-F]
A
5. 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 B
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 re-grant must be within the statutory c
framework. [Para 43] [253-B-C]
Case Law Reference :
AIR 1978-SC 1283
Relied on
Para 31
JI
¥
(2005) 1 o sec 51
Relied on
Para 32
D
1875 ILR (IC-144)
Relied on
Para 33
c2005) 1 sec 190
Relied on
Para 33
AIR 1965 SC 948
Relied on
Para 33
E
(1994) 2 sec 14
Relied on
Paras 34 & 38
AIR 2000 SC 3272
Relied on
Para 35
(1976) 4 sec 1ao
Referred to
Para 40
F
CIVIL APPELLATE JURISDICTION : Civil Appeal No(s).
7184-7185 of 2001.
From the Judgment & Order dated 01.07.1999 of the High
Court of Judicature at Bombay in Writ Petition No. 3667 of G
1985 and Second Appeal No. 87 of 1986.
Vinay Navare, Kailash Pandey, V.B. Joshi, for the
Appellants.
"'
Shekhar Naphade, Mahesh Agaiwal, Rishi Agrawala, E.C.
H
230
SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.
A Agrawala, Amit Kumar Sharma, Sushil Karanjkar, Dr. Nafis A.
~
Siddiqui, for the Respondents.
The Judgment of the Court was delivered by
8
H.L. DATTU, J. 1.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 _
• r
respondents herein are allowed and the order passed by
c Additional Commissioner in Appeal No. A/WIN/SR/9/80 dated
6.4.1985 and th·e 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.
~ .
D
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
E Radhabai Vlfife 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 s,hort 'Vithu') had no
F right, title or interest in the watanlands, how~ver, 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
G
14.08.1940, was filed befqre 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 fraudulently after the
death of Ramabai. They had further contended that Vithu is an
•:-
H
....
'RAMCHANDRA DAG DU SONAVANE (DEAD) BY LRS. & ORS. v.
231
VITHU HIRA MAHAR (DEAD) BY LRS. & ORS. [H.L. DATTU, J.]
'
outsider and belongs to different family and as such his name
could not have been entered in the Peta Account Book. After
A
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
B
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 c
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
t'
be investigated.
D
3. Vithu (respondent no.1) was the grandson 9f Ramabai.
.l
It is his assertion that he had filed an application on16.07.1931
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
E
passed an order dated 22.10.1931 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.
F
4. Sometime in the year 1953, the appellants had filed a
suit, O.S. No.104of1953, 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
G
from interfering with their peaceful possession of the suit land,
-f
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
H
of Pune in his order dated 18.6.1941, that they were the
232
SUPREME COURT REPORTS [2009] 15 (AOOL.) S.C.R.
A representative of Watandars with respect to the suit land. Vithu
'4
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
8 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
r
c 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
D consideration and decision. They were:
't
(i) Do the plaintiffs prove that they were in possession of
the suit property <::5 Watandars as alleged?
j.
(ii) Do defendants prove that defendant no.1 (Vithu) was
E
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
F
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
G adoption, the same was never produced, and the testimony 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
H
RAMCHANDRA DAGDU SONAVANE (DEAD) BY LRS. & ORS. v.
233
,-'
VITHU HIRA MAHAR (DEAD) BY LRS. & ORS. [H.L. DATIU, J.]
respondents from obstructing the Vahiwat of the plaintiffs/
A
'
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 Courtt
B
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.
•
J,
7. Being aggrieved by the said order, Vithu had
approached the High Court in Second Appeal No.962 of 1958. c
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
D
t'
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 court and the same cannot be permitted to be raised
and argued for the first time in second appeal, since the issue
E
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
F
~
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
G
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
H
-
234
SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R. ·
I
A or not and since there was concurrent finding by the trial court
and first appellate court and since that finding does not appear
4,
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.
tf
B
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
;..- -4c 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.
D
9. It is pertinent to note at this stage itself, that, Vithu had
.,, __
made an application dated 24. 5.1941 to the Mamlatdar,
'1
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
E 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,
'1
F 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 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
•
G 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 proceeding~ to regrant and restore possession of suit
land.
H
,.
RAMCHANDRA DAGDU SONAVANE (DEAD) BY LRS. & ORS. v.
235
...
VITHU HIRA MAHAR (DEAD) BY LRS. & ORS. [H.L. DATTU, J.]
""'
11. Pursuant to the direction issued by the State
A
..
i
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 Yillage Watan Abolition
Act, 1958 (hereinafter referred to as the Watan Act) to decide
t
~s to who was the rightful Watandar with respect to the suit land.
B
~
he 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 c
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
D
'·
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.
E
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
F
....
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
G
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-judic~ta and thereby preclude
Vithu from raising the issue of adoption again before the Sub
H
.....
l
t-:
236 SUPREME COURT REPORTS (2009) 15 (ADDL.) S.C.R.
""".1'
A
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
it:
not the adopted son of deceased watandar.
B
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.
•
c
15. Being aggrieved, the respondents had filed first appeal
before District Court, Pune, in Civil Appeal No.535of1984.·Th~
primary contention of the respondents was that, the order
• fl
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
>
D
~~
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,
...
E
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.
;.
16. Being aggrieved by the findings of the lower appellate
)
F 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.
"
G
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
H Mamlatdar who had recognized Vithu as watandar of the suit
~?!"
.
'f-i
RAMCHANDRA DAGDU SONAVANE (DEAD) BY LRS. & ORS. v.
237
VITHU HIRA MAHAR (DEAD) BY .LRS. & ORS. [H.L. DATTU, J.]
lands, being the adopted son of Ramabai and since the Deputy
A
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
B
Suit filed in the year 1953, the only relief that was sought for
was permanent injunction, restraining Vithu and others from
.-l
obstructing peaceful possession of the appellants and the relief
,
that was prayed in the Suit filed in the year 1979 was to set
aside the order passed by Sub-Divisional officer dated c
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
D
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
E
,..
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
F
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.
G
-t
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, 187 4, and The
H
-
.'.;,.F:H'"
238
SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R
A 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
B 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 b!3 final.
The contention by the counsel for the respondents was that even
l.
if a watanship is abolished by this Act, the Collector was still
I
'
c 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
D adopted son of Ramabai and secondly the Collector had no
"ipower to evict the respondents who were authorized holders
.-
of 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
E has concluded, that the decision of the Collector regarding a
person being Watandar or an adopted son of Watandar is
1:'.i
made final and conc_lusive 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.
F 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.4353 of 1979 dated 10.02.1984 and
.
the judgment of the lower appellate court in Appeal No.53i:: of
~-.
1984 dated 18.06.1\995 and the order passed by Additional
G 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
... ~
.i"M..:: ... ,
...
the appeUants and Shri Shekhar Naphade, learned senior
'-'
. ·'\.~
counsel for the respondents. The learned counsel for the
.~
H
1'~~+11
( •
·"
RAMCHANDRA DAGDU SONAVANE (DEAD) BY LRS. & ORS. v.
239
VITHU HIRA MAHAR (DEAD) BY LRS. & ORS. [H.L. DATIU, J.]
'
appellants has submitted, that, the civil court in a properly
A
..
constituted suit has decided that Vithu is not the adopted son
of deceased Watandar and that finding 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 B
adoption once over again. It is further submitted that the High
Court was not justified iri 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 c
_(
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
D
the issue regarding adoption decided by the civil court and
confirmed by the High Court in the regular second appeal
K.
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
E
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
F
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
G
~
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
H
240 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.
-.,
A 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, (he
learned counsel has placed reliance on the observations made
by this Court in the case of L. Devi Prasad (Dead) by L.Rs.
'
B 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
;. ;(
c under the Bombay Hereditary Offices Act, 1874 sometime in
the year 1941, 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
D 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
E
exclusive jurisdiction of the authorities under Watan Aboli_tion
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
F senior counsel would contend, that, since the reasoning
..
adopted by the High Court is a possible view, the same need
fnot be interfered with by this Court in exercise of its power
under Article 136 of the Constitution of India.
G
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,
H 1874, and since that order has not been challenged by the
RAMCHANDRA DAGDU SONAVANE (DEAD) BY LRS. & ORS. v.
241
VITHU HIRA MAHAR (DEAD) BY LRS. & ORS. [H.L. DATTU, J.]
1
appellants in any proceedings at any point of time, the same
A
must be given effect to. It is further contended thatSDO in the
year 1979 while reviewing the order passed in the year 1941 ,
had-reli~d 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
B
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 c
the Additional Commissioner.
t
24.