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2002 DIGILAW 572 (RAJ)

Mukesh v. Murti Shri Badi Mathureshji

2002-03-14

H.S.PUNIA, SUDHIR VERMA

body2002
Verma, Chairman.–This ia an appeal under Section 225 of the Rajasthan Tenancy Act, 1955 (in short, ``the Act) against the judgment passed by the learned Revenue Appellate Authority, Kota dated 3.4.95, whereby the first appeal preferred by the respondents No.1 & 2 was partly allowed and judgment and decree dated 27.7.87 passed by the learned Asstt. Collector (Head Quarter) Kota were set aside and case was remanded back to the learned trial Court to decide the case on merits. (2). The brief facts giving rise to this appeal are that a suit was filed by the respondent No.1 through Sajjan Dass and Santosh and Pal under Section 180 and other provisions of the Act for possession of the disputed land bearing khasra No.212 to 227 known as ``Gulab Bari with the averment that fruit trees were planted on the said land and it was given to father of the appellants on 8.8.42 on the contract basis for a period of ten years on the annual rent of Rs.80/- per annum. It was also stated hat the conditions of the contract have been mentioned in Annexure `k and as per condition No.7 appellants-defendants father could have grown only those crops, which could be grown on the grove land. It was further alleged that the appellants father violated the conditions on which the grove land was given to him on contract basis. The plaintiff filed a suit under Section 198(3) of the Act on earlier occasion on the allegations that the appellants father committed breach of the conditions of the contract, but that suit was dismissed by the trial Court and the matter was pending before the board of Revenue. It was further stated that the appellants-defendants have committed breach of the conditions of the contract and they are cultivating the land as an agriculture land and further the defendants did not pay the amount of annual contract since Smt.2014. It was also alleged that the defendants have also denied the plaintiffs title for the dispute land. The defendants contested the suit, although they admitted that they are cultivating the land on an annual premium of Rs.80/- but denied other allegations of the plaint. It was further stated that the defendants are in possession of the land in the capacity of sub-tenant. The defendants contested the suit, although they admitted that they are cultivating the land on an annual premium of Rs.80/- but denied other allegations of the plaint. It was further stated that the defendants are in possession of the land in the capacity of sub-tenant. the plaintiff filed earlier suit under Section 198(3) of the act, which was dismissed on 22.4.63 and second appeal, filed before the Board of Revenue was also dismissed on 20.3.67. The defendants have been recorded as sub-tenants of the disputed land in the revenue records and they became entitled for khatedari rights under Sec.19 of the Act. It was further contended that earlier suit filed by the plaintiff was dismissed by the trial Court and appeal preferred by the plaintiff before Revenue Appellate Authority and the Board of Revenue have been dismissed and the judgment passed in earlier suit operates as res-judicata, thus the present suit was not maintainable. It was also alleged that the suit filed by the plaintiff is also barred by limitation. (3). The trial court framed nine issues and after recording evidence of the parties and affording an opportunity of hearing to both the parties dismissed the suit on the sole ground that the suit filed by the plaintiff was barred by the principle of res-judicata and did not decide all the issues framed by the trial Court. The respondents No.1 & 2 filed first appeal before the learned Revenue Appellate Authority, Kota which was partly allowed by the impugned judgment and it was held that the disputed land belonged to the deity and it was being cultivated by the respondents on annual premium and they were in permissible possession of the disputed land. (4). We have heard the learned counsel for both the parties and perused the impugned judgment as well as the material available on record. (5). The learned counsel for the appellants has contended that the respondent No.1 filed earlier suit on the basis of the contract that the disputed land was given on contract basis to father of the appellants and that the defendants committed beach of the conditions of the contract. A perusal of the plaint of the second suit filed by the respondent No.1 shows that the cause of action is the same and parties are the same, therefore, the principle of res-judicata is fully applicable in the facts and circumstances of the case. A perusal of the plaint of the second suit filed by the respondent No.1 shows that the cause of action is the same and parties are the same, therefore, the principle of res-judicata is fully applicable in the facts and circumstances of the case. The first appellate court has committed error in allowing the appeal on the ground that the cause of action in both the suits are different. The issued involved in both he suits is directly and substantially is the same and the respondents-plaintiffs raised the same issues by filing suit u/Sec.180 of the Act. The earlier suit filed by the respondents plaintiffs was dismissed by the trial court and the judgment of the trial court was upheld by both the appellant courts. Therefore, appellant courts decisions operate as res-judicata. In support of the above arguments reliance has been placed upon Alisher Khan vs. State of Rajasthan (1), J.T.O. Forum & Ors. vs. Union of India (2) & (Head Note ``K) Most Rev. P.M.A. Metropolitan & Ors. vs. Moran Mar Marthoma & Anr. (3). (6). As against this, the learned counsel for the respondents No.1 & 2 has argued that the disputed land was given to the appellants on contract basis and the plaintiffs produced and proved ``Thekanama, Exhibit-I. Earlier suit filed by the plaintiffs was under Section 198 of the Act, that is applicable only for grove lands. Initially the disputed land was a grove land but the plaintiffs failed to get it recorded as the grove land and the appellants-defendants started cultivating crops on the disputed land and they have changed the nature of the land. In these facts and circumstances, the earlier suit filed by the plaintiffs was held to be not maintainable and it was also held that the plaintiffs failed to prove that the appellants father committed breach of the contract/agreement and on that ground earlier suit was dismissed. The second suit filed by the plaintiffs was under Section 180 of the Act and the appellants have admitted in written statement that they are sub-tenants of the disputed land and they have not denied the title of the plaintiffs. Therefore, the second suit is simply for ejectment of sub-tenants and the principle of res-judicata could not be attracted in he facts and circumstances of the case. Therefore, the learned first appellate Court has committed no error in allowing the appeal. (7). Therefore, the second suit is simply for ejectment of sub-tenants and the principle of res-judicata could not be attracted in he facts and circumstances of the case. Therefore, the learned first appellate Court has committed no error in allowing the appeal. (7). We have considered the rival contentions of the parties. (8). In the present appeal, the crucial point for consideration is that whether the decision rendered in earlier suit filed by the respondents-plaintiffs operates as res-judicata in the present case or not. (9). The appellant filed the certified copy of page No.1 and 3 of the judgment dated 20.3.67 delivered by the Board of Revenue in appeal No.11/65, which reveals that the earlier suit filed by the plaintiffs was under Section 198(3) of the Act with the averments that a grove land was under Section 198(3) of the Act with the averment that a grove land was given to father of the defendants on contract basis for a period of ten years on an annual rent of Rs.80/- and that even after expiry of the said period of defendants are not handing over the possession of the same and they had also committed breach of the conditions enumerated in the agreement and thus they have become trespassers. Section 198(3) of the Act makes a provision for ejectment of a sub-tenant of a grove holder on any of the grounds mentioned in Section 175, 177, 180 and 183 of the Act and provisions of Chapter XI shall apply, so far as may be. The Board of Revenue held in the earlier judgment that the suit filed by the plaintiffs was filed under Section 177 of the Act. Section 177 of the Act provides for ejectment of a tenant on the ground of detrimental act or breach of condition. It is thus clear that the earlier filed by the respondents-plaintiffs was under Section 198(3) read with Section 177 of the Act, whereas the present suit was filed by the respondents-plaintiffs under Section 180 of the Act mainly on the ground that the appellants-defendants did not pay the amount of annual premium or amount of ``Theka since Smt.2014 and alleged that the defendants also committed breach of condition of the agreement and they have denied the title of the plaintiffs. The appellants-defendants have admitted in their written statement that they are cultivating the disputed land as sub-tenants and they have not denied the title of the respondents-plaintiffs. In these facts and circumstances of the case, the learned first appellate court has held that the appellants-defendants are in permissive possession of the disputed land and the disputed land belongs to the deity. The question whether the deity is the recorded khatedari of the disputed land or not has not been decided by the learned trial court and the first appellate court has remanded the case back to the learned trial court for deciding the case on merits and this question can be agitated before the learned trial Court. The earlier suit filed by the respondents-plaintiffs was on the sole ground that the plaintiffs are grove holders and the grove land was given to father of the appellants on the contract basis and that the defendants had committed breach of the conditions of the contract, whereas the present suit has been filed under Section 180 of the Act for possession of the disputed land. The plaintiffs failed to prove in the earlier suit that the disputed land was recorded as grove land either in the settlement or in the revenue record. Therefore, the suit filed under Section 177 of the act was held to be barred by limitation. The written statement filed by the appellants in the present suit shows that the appellants have admitted that they are sub-tenants of the disputed land. Therefore, the learned first appellate court has committed no error in holding that the appellants-defendants are in permissive possession of the disputed land. Therefore, the suit for possession of the disputed land cannot be held to be barred by the principle of res judicata because the issue involved in the former suit directly and substantially was not the same. (10). We have also gone through the case law cited by the learned counsel for the appellants. In the case of P.M.A. Metropolitan, it has been held that where a suit is decided both on merits and on technical grounds by the trial court, and the appellate courts maintain it on technical grounds of limitation or suit being not properly instituted, then the decision rendered on merits by the trial Court ceases to have finality. In the case of P.M.A. Metropolitan, it has been held that where a suit is decided both on merits and on technical grounds by the trial court, and the appellate courts maintain it on technical grounds of limitation or suit being not properly instituted, then the decision rendered on merits by the trial Court ceases to have finality. The rationale is that if the suit was disposed of in appeal not on merits but for want of jurisdiction or for being barred by time or for being defectively constituted, then the finality of the finding recorded by the trial court on merits stands destroyed as the suit having been found to be bad for technical reasons. Thus, the ratio decided in above case is not helpful to the appellants. In the present case the learned trial court has not decided the case on merits but the suit has been dismissed on technical grounds. The former suit was also dismissed on technical grounds that the plaintiffs did not produce any documentary proof of the grove land either in the settlement or in the revenue records and it was also not proved that the grove land either in the settlement or in the revenue records and it was also not proved that the grove land was given on contract for the purpose of planting a grove. (11). The case of JTO Forum & Ors. vs. Union of India is distinguishable on facts. Similarly, the case of Alisher Khan is also distinguishable on facts. In that case, holding of wife purchased by her without assistance of her husband was excluded from holding of family of her husband under Sec.30-B of the Ceiling Act. It was finally decided that the land separately held by Mst.Bhag Hussain was not liable to acquisition under the Old Ceiling Law. The order of the Board of Revenue was not challenged by the State. In these facts and circumstances of the case, it was held that even erroneous decision on point of law also operates as res judicata. This decision is also not helpful for the appellants. (12). The order of the Board of Revenue was not challenged by the State. In these facts and circumstances of the case, it was held that even erroneous decision on point of law also operates as res judicata. This decision is also not helpful for the appellants. (12). In view of the fore-going discussion we do not find any force in the arguments of the learned counsel for the appellants and the learned trial Court had committed an error of law in holding that the judgment passed in former suit operates as res judicata in the present case and the decision given by the learned first appellate court seems to be perfectly lawful and the case has been remanded back to the trial Court for passing judgment on merits. Therefore, this appeal is found to be devoid of any merit and it is hereby dismissed with costs. Pronounced in the open Court.