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2010 DIGILAW 401 (GUJ)

Samji Shivji v. Devji Valji

2010-08-31

K.A.PUJ

body2010
Judgment K.A. Puj, J.—The appellant - original defendant has filed this Second Appeal under Section 100 of the Code of Civil Procedure challenging the judgment and order passed by the learned Assistant Judge, Kutch at Bhuj in Regular Civil Appeal No. 432 of 1980 on 30.07.1983 setting aside the judgment and decree passed by the learned Joint Civil Judge (J.D.), Bhuj in Regular Civil Suit No. 39 of 1976 dated 26.09.1980. 2. This Second Appeal was admitted by this Court on 25.01.1984 and following substantial question of law was framed for determination and consideration of this Court:— “Whether the suit is barred by principles of res judicata in as much as the provisions of Section 11 of the Code of Civil Procedure, a Central Act, will override the provisions of Section 22 of the Mamlatdars Courts Act which is a Bombay Act, an Act of State ?” 3. The brief facts giving rise to the present Second Appeal are that the original plaintiff - present respondent had filed suit alleging therein that he is the owner of field situated in the sim of village Jambudi. There is a field of the defendant - present appellant on the southern side of his land. The way for going to the land of defendant is through a Chella (water course) going towards village Jambudi. There is also an entrance for bullock cart since decades at the southern boundary of the land of defendant. The defendant was going to his land by that way for the last several years. The defendant has no right to pass through the land of plaintiff for the purpose of going to his land. Still, however, the defendant filed the suit before the Mamlatdar under Section 5 of Mamlatdars Courts Act, alleging that he has a right of way through the land of plaintiff. The suit was dismissed by the Mamlatdar. 4. Being aggrieved by the said decision, the revision application was filed before the Deputy Collector, which was allowed and the suit was remanded back to the Mamlatdar. The Mamlatdar, Bhuj allowed the suit and the revision application filed by the plaintiff against that decision of Mamlatdar was rejected by the Deputy Collector. Though the decision of the Mamlatdar was confirmed, all proceedings under the Mamlatdars Courts Act are summary proceedings and are not of conclusive nature. The Mamlatdar, Bhuj allowed the suit and the revision application filed by the plaintiff against that decision of Mamlatdar was rejected by the Deputy Collector. Though the decision of the Mamlatdar was confirmed, all proceedings under the Mamlatdars Courts Act are summary proceedings and are not of conclusive nature. The plaintiff, therefore, filed Regular Civil Suit No. 39 of 1976 for a declaration that the defendant has no right of way through his land and to get permanent injunction restraining him from passing his land. The defendant resisted the suit by written statement at Exh.19. It was the case of the defendant that both the fields belonging to the plaintiff as well as to him were of ownership of one person and subsequently, he had mortgaged each portion to different mortgagees. The northern portion ultimately came in the hands of plaintiff and southern portion ultimately came in the hands of defendant. The way leading to village Kotda is on the northern side, and hence for going to his land of southern side, he has to pass through the land of the plaintiff. There was no other way for going to his land. The way which passes through the land of the plaintiff is outcome of easement of necessity. The defendant and his predecessor-in-title were using the way for the last several years and the way is also shown in the map prepared by the Survey department. It is further alleged in the written statement that the revision application filed by the plaintiff before the Deputy Collector and before this Court were rejected and hence, the decision of Mamlatdar has become final and the present suit filed by the plaintiff is barred by the principles of res judicata. The plaintiff is, therefore, not entitled to any declaration or permanent injunction against the defendant. 5. The Trial Court framed the issues at Exh.28 and one of the issues framed was as to whether the suit is barred by the principles of res judicata. After recording evidence of both the sides, the Trial Court came to the conclusion that it was not proved that the defendant has got right of way through the land of plaintiff as alleged by him. But the decision of Mamlatdar is in favour of the defendant and it is binding to the plaintiff. After recording evidence of both the sides, the Trial Court came to the conclusion that it was not proved that the defendant has got right of way through the land of plaintiff as alleged by him. But the decision of Mamlatdar is in favour of the defendant and it is binding to the plaintiff. So, the suit is barred by the principles of res judicata and the plaintiff is not entitled to get the reliefs claimed by him. Accordingly, the suit came to be dismissed by the Trial Court. 6. Being aggrieved by the said judgment and decree passed by the Trial Court, the plaintiff filed Regular Civil Appeal No. 432 of 1980 before the learned Assistant Judge, Kutch at Bhuj. The lower Appellate Court after framing the points for its decision and after considering the relevant statutory provisions as well as the decided case law on the subject, came to the conclusion that the suit is not barred by the principles of res judicata and hence, the judgment and decree passed by the Trial Court dismissing the suit on the ground that the same is barred by the principles of res judicata cannot be said to be legal and proper. The lower Appellate Court, therefore, allowed the appeal and set aside the judgment and decree passed by the Trial Court. The lower Appellate Court declared that the defendant has no right of way through Survey No. 255/A of the plaintiff for going his land bearing Survey No. 254 and he is permanently restrained from passing through the land of the plaintiff. 7. It is this order which is under challenge in the present Second Appeal. 8. Mr. B. Y. Mankad, learned Advocate appearing for the appellant has submitted that the judgment and decree passed by the lower Appellate Court is against the provisions of law and usages having the force of law. He has further submitted that the lower Appellate Court has grievously erred in holding that the suit was not barred by the principles of res judicata by relying upon the Proviso to Section 22 of the Mamlatdars Courts Act which is a State Act. He has further submitted that the lower Appellate Court has grievously erred in holding that the suit was not barred by the principles of res judicata by relying upon the Proviso to Section 22 of the Mamlatdars Courts Act which is a State Act. He has further submitted that the lower Appellate Court has overlooked the amended provisions of Section 11 wherein Explanation VIII is added by Amendment Act of 1976 which clearly provides that the issue heard and finally decided by a Court of limited jurisdiction competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised. Thus, earlier the Mamlatdar’s Court, Deputy Collector and this Court in revision have decided the issue that the defendant has a right of way and hence, the principles of res judicata would apply to this issue. The Central Act overrides the State Act when there is repugnancy between the two. In support of this proposition, Mr. Mankad relied on the decision of the Apex Court in the case of Rajlaxmidasi vs. Banamalisen, AIR 1953 SC 33 wherein it is held that in order successfully to establish a plea of res judicata or estoppel by record, it is necessary to show that in a previous case, a Court, having jurisdiction to try the question, came to a decision necessarily and subsequently involving the determination of the matter in issue in the later case. The Court further held that the question of title to the four Annas share was necessarily and subsequently involved in the land acquisition proceedings and was finally decided by a Court having jurisdiction to try it and that decision thus operates as res judicata and estopes the sens and the mortgagees from re-agitating that matter in this suit. 9. Mr. Mankad further submitted that the whole approach of the lower Appellate Court is erroneous in as much as the Court has considered that because the field is in sim of Jambudi, the way is from the Naliya to the south. 9. Mr. Mankad further submitted that the whole approach of the lower Appellate Court is erroneous in as much as the Court has considered that because the field is in sim of Jambudi, the way is from the Naliya to the south. This is wrong because the parties reside in Kotda and the way from house in Kotda to field is to be considered and the main public road is on the north and from that road alone, the way can be through the field of the respondent. There is no other way and hence, it is an easement of necessity. He has further submitted that on the south, it is not Naliya but it is Vokla and it is not permanent way. In the Vokla, during the monsoon, there is water and there is no way to go to that field. It is in the monsoon that one has to go to the field so Vokla cannot be a way. 10. Mr. Mankad further submitted that it is an evidence that the appellant used the way for a number of years since he purchased the field in the year 1962. The plaintiff has tried to prevent the defendant from using the said way and he fought up to this Court. He has further submitted that the appellant has proved his Title Deed dated 07.08.1982 Exh.93 wherein this right of way is specifically shown. His predecessor-in-title also had this right which was conveyed. He has further submitted that the judgment of Mamlatdar’s Court Exh.69 is a judgment between the same two parties after full-fledged evidence of both the sides. It should not have been discarded. The issue is already clinched. The Lower Appellate Court has wrongly discarded the oral evidence of the witnesses, namely, Shri Nanji Mavji and Chandulal Maneklal. Shri Chandulal is the executant of plaintiff’s documents and predecessor-in-title. He in terms said that the way is from north. Considering the facts and circumstances of the case and relying upon the settled legal position, Mr. Mankad has strongly urged that the impugned order passed by the lower Appellate Court deserves to be quashed and set aside. 11. Mr. Mankad further relied on the decision of this Court in the case of State of Gujarat & Ors. Considering the facts and circumstances of the case and relying upon the settled legal position, Mr. Mankad has strongly urged that the impugned order passed by the lower Appellate Court deserves to be quashed and set aside. 11. Mr. Mankad further relied on the decision of this Court in the case of State of Gujarat & Ors. vs. R.R. Lalaji, (1999) 40 (2) GLR 1348 wherein it is held that any decision given under Article 226 of the Constitution of India by this Court, it will certainly operate as a binding decision between the parties and has to be taken as if matter has finally been concluded and decided between the parties. So, the relief as prayed for by the plaintiff in the suit is clearly barred by the principles of constructive res judicata. The Court further held that secondly, on this cause of action, this Court has already concluded the matter against the plaintiff, no further cause of action does arise and this suit deserves to be dismissed under Order VII, Rule 11 of the Civil Procedure Code. The Court has gone one step further and observed that there is yet another reason for which the Court is satisfied that the suit has to be dismissed by the Court exercising its suo-motu power of the revision under Section 115 of the Civil Procedure Code as this is the case where the plaintiff clearly made an attempt to abuse the process of the Court and he got the benefit of the interim relief granted by the Courts below. 12. Mr. C.H. Vora, learned Advocate appearing for the respondent - original plaintiff, on the other hand, has strongly supported the order passed by the lower Appellate Court. He has submitted that the orders of the Authorities under the Mamlatdars Courts Act are without lawful jurisdiction. They have no jurisdiction to entertain and decide the disputes between the parties. The dispute between the parties is of such nature that it would only be decided by the Civil Court. The dispute in question is not covered by the provisions of the Mamlatdars Courts Act and hence, the decision of the said authorities are per-se lacking inherent jurisdiction and competency to adjudicate the dispute between the parties. The dispute between the parties is of such nature that it would only be decided by the Civil Court. The dispute in question is not covered by the provisions of the Mamlatdars Courts Act and hence, the decision of the said authorities are per-se lacking inherent jurisdiction and competency to adjudicate the dispute between the parties. He has further submitted that the suit of the plaintiff is legally maintainable and not barred by rule of res judicata for the obvious reason that the decision of the authorities under the Mamlatdars Courts Act is not conclusive one. On the contrary, the said decision of the Mamlatdar is subject to the result of the Regular Civil Suit by a Civil Court as per Section 22 of the Mamlatdars Courts Act. He has further submitted that the lower Appellate Court has rightly passed the decree in terms of prayer when it is proved by the plaintiff that there is no bullock cart way or right of way through the field of the plaintiff. He has further submitted that it is evident from the Second proviso to Section 22 of Mamlatdars Courts Act that the Mamlatdar’s decision respecting the enjoyment of any use shall not be held to be conclusive. The Statute itself has expressed in so many words that Mamlatdar’s decision is not of conclusive nature and subsequent suit can be filed in a Civil Court. In view of such clear statutory provision permitting the party to file a subsequent suit in Civil Court, the principles of res judicata cannot be invoked. 13. In support of his submissions, Mr. Vora relied on the decision of the Calcutta High Court in the case of Nibin Majhi vs. Tela Majhi and Others, AIR 1978 CALCUTTA 440 wherein it is held that the principal question is whether the present suit is barred by res judicata. One of the condition that must be fulfilled before the doctrine of res judicata as embodied in Section 11 of Code of Civil Procedure can be invoked is that the Court in which the former suit was instituted must be competent to try the subsequent suit. The Mamlatdar is not competent to try the subsequent suit filed in Civil Court and hence, the Trial Court has wrongly relied on the case law. 14. Mr. The Mamlatdar is not competent to try the subsequent suit filed in Civil Court and hence, the Trial Court has wrongly relied on the case law. 14. Mr. Vora further submitted that even the Apex Court judgment in the case of Rajlaxmidasi vs. Banamalisen (Supra) relied upon by the appellant also makes it clear that when a plea of res judicata is found on general principles of law, all that is necessary to establish is that the Court that heard and decided the former case was a Court of competent jurisdiction. It dose not seem necessary in such cases to further prove that it has jurisdiction to hear the later suit. A plea of res judicata on general principles can be successfully taken in respect of judgments of Courts of exclusive jurisdiction, like Revenue Courts, Land Acquisition Courts, Administration Courts etc. These Courts are not entitled to try a regular suit and they only exercise special jurisdiction conferred on them by the Statute. These observations made by the Appellate Court are to be viewed in the context of the 2nd Proviso to Section 22 of the Mamlatdars Courts Act. When there is no clear statutory provision that the judgment of the Revenue Court is not of conclusive nature and a subsequent suit can be filed in a Civil Court, the observations of the Apex Court could not have helped the plaintiff. 15. In the above view of the matter, Mr. Vora has strongly urged that the second appeal filed by the appellant against the judgment and decree passed by the lower Appellate Court deserves to be dismissed with cost. 16. Having heard learned Advocates appearing for the parties and having considered their rival submissions in light of the relevant statutory provisions and the decided case law on the subject and having gone through the judgments and decrees passed by the Courts below, the Court is of the view that before considering the rival submissions of the parties, it is necessary to have a Close look at the provisions contained in Section 22 of the Mamlatdars Courts Act, 1906. Section 22 deals with possession to be given without prejudice to rights of parties. Section 22 deals with possession to be given without prejudice to rights of parties. It states that subject to the provisions of Section 23 Sub-section (2), the party in favour of whom the Mamlatdar issues an order for removal of an impediment from the party to whom the Mamlatdar gives possession or restores a use, or in whose favour an injunction is granted, shall continue to have the surface water upon his land flow unimpeded on the adjacent land or continue in possession or use, as the case may be, until otherwise decreed or ordered or until or outset, by a competent Civil Court. However, there are two exceptions to this Section which are contained in the two provisos. The first proviso says that nothing in this Section shall prevent the party against whom the Mamlatdar’s decision is passed from recovering by a suit in a competent Civil Court mesne profits for the time he has been kept out of possession of any property or out of enjoyment of any use. The second proviso states that in any subsequent suit or other proceeding in any Civil Court between the same parties, or other persons claiming under them, the Mamlatdar’s decision respecting the title to or valuation of any crop dealt with under the proviso to Sub-section (1) of Section 21, shall not be held to be conclusive. For the purpose of deciding the issue regarding res judicata, a Close scrutiny of second proviso is necessary. The second proviso talks of two aspects. One regarding the title and second regarding valuation of any crop dealt with under the proviso to Sub-section (1) of Section 21. This shall not be held to be conclusive. Here in the present suit, there is no question of title of the suit property nor there is any question of valuation of crop and hence, for other issues, Mamlatdar Court’s decision can be said to be conclusive. Thus, the proviso operates only in respect of these two things. If the suit is filed by the plaintiff for his easementary right, the defendant is justified in invoking the principle of res judicata. Thus, the proviso operates only in respect of these two things. If the suit is filed by the plaintiff for his easementary right, the defendant is justified in invoking the principle of res judicata. If the Legislature invests a Revenue or Rent or settlement Court with the power of deciding the question of title in certain cases and when such Court decides a question of title against a party, he is barred by the rule of res judicata from reopening the question of title in a Civil Court. However, Section 22 read with second proviso does not prohibit a party from filing a suit in Civil Court in raising an issue regarding title to the suit property or valuation of crop even if it is earlier decided by the Mamlatdar’s Court. The decision of Mamlatdar’s Court on easementary rights of the parties cannot be re-agitated or challenged before the Civil Court. 17. Even otherwise, Explanation VIII added to Section 11 of the Civil Procedure Code by the amending Act of 1976 makes it now clear that if the Court, in the prior suit was competent to try the particular issue in question, the finding on that issue would operate as res judicata in the subsequent suit even though the former Court was not competent to try the subsequent suit under the Code. Before its amendment by Act 104 of 1976, it was necessary that the Court trying the former suit should have been competent to try the whole of the subsequent suit itself and not a part of it or a material issue arising in it. Otherwise, the rule of res judicata under Section 11 would not apply. The Court is, therefore, of the view that when Section 11 is read in combination and harmony with Explanation VIII, the result that flows is that a decision on an issue heard and finally decided by a Court of limited jurisdiction will operate as res judicata in a subsequent suit notwithstanding the fact that such Court of limited jurisdiction was not competent to try the subsequent suit. 18. In view of the above discussion, the appellant - original defendant succeeds in this Second Appeal. The judgment and decree passed by the lower Appellate Court is set aside and that of the trial Court is restored. However, there shall be no order as to costs.