SUPREME COURT OF INDIA
Dhanvanthkumariba
Vs
State of Gujarat
Civil Appeal No.1908 of 1999
(Shivraj V.Patil and B.N.Srikrishna)
01/10/2004
JUDGMENT
SHIVARAJ V. PATIL, J.
1. The appellants are the legal representatives of Padhiar Jagdevsinhji
Ramsinhji who was ex-ruler of erstwhile State of Umeta which comprised of five
villages including Umeta. According to him, the lands of these villages
belonged to him. In the year 1948, the State of Umeta was merged into India
under the Merger Agreement dated 24.05.1948. The land bearing Survey No.410
which is the disputed land is situated at village Umetra. By virtue of Merger
Agreement, this land was also given to ex-ruler as Talukdar. The land bearing
Survey No.410 comprised of large area - 742 acres and 32 guntas. The Bombay
Talukdari Tenure Abolition Act, 1949 (for short 'the Act') came into force on
15.8.1950. According to the respondent-State, the said land bearing Survey
No.410 vested in the Government by virtue of Section 6 of the Act. The Government
transferred 560 acres out of this land to the District Panchyat, Kheda. Hence,
the ex-ruler filed Civil Suit O.S. No. 5 of 1970 contending that the transfer
of the land by the Government in favour of the District panchyat was wrong as
it belonged to him and Government had no authority to transfer the land when
the said land had not vested in the Government. In that suit, reliefs of
declaration, possession and permanent injunction were sought. The trial court
decreed the said suit. The first appeal filed by the respondent against the
decree of the trial court was allowed by learned Single Judge of the High
Court, reversing the decree passed by the trial court. The original plaintiff
filed LPA before the High Court questioning the validity and correctness of the
order made by the learned Single Judge. The Division Bench of the High Court,
by the impugned judgment, dismissed the appeal concurring with the findings
recorded by learned Single Judge. Hence, this appeal by the legal
representatives of the original plaintiff, as already stated above.
2. The State of Bombay on 1.4.1952 took possession of about 30 acres out of the
land in Survey No.410 from the possession of the plaintiff on the ground that
it was a waste land and, therefore, vested in the Government under Section 6 of
the Act. Challenging the action of the Government, the original plaintiff filed
regular Suit No.185/1953 against the State seeking declaration that he was the
owner of 30 acres of land which was part of Survey No.410; it was not waste land;
it did not vest in the Government and that the order dated 1.4.1952 vesting the
land in the Government was null and void. When the said suit, was pending,
Mahendrsinhji, brother of the original plaintiff, made a claim of ownership to
the extent of 147 acres and 15 guntas of land in the same Survey No.410. The
State Government after making enquiry under Section 37(2) of the Bombay Land
Revenue Code by its order dated 27.11.1958 held that Mahendersinhji was the
owner of that piece of land measuring 147 acres 15 guntas. By the same order,
it also declared that the remaining 590 acres and 30 guntas in Survey No.410
was a waste land and, therefore, it vested in the Government. The trial court
decreed the said regular Civil Suit No.185/53 and declared that the original
plaintiff was the full owner of 30 acres of land and ordered for delivery of
possession to him. In the judgment, the trial court recorded that five villages
in the State of Umeta were private properties of the original plaintiff. The
trial court also recorded a finding that the original plaintiff was the owner
of the 'Wanta' situated in Umeta and that Survey No.410 formed part of the
'Wanta' of Umeta. The Government of Bombay filed first appeal No.60 of 1960,
aggrieved by the judgment and decree passed in the said suit No.185/53. The
first appellate court dismissed the appeal on 16.7.1962. The State Government
pursued the matter further by filing second appeal in the High Court of
Gujarat. Pursuant to the decree passed by the trial court, possession of 30
acres of land was handed over to the original plaintiff on 5.12.1969 in
Execution Application No. 34/69. The High Court by its judgment dated 12.3.1970
dismissed the second appeal also.
3. On the basis of the pleadings of the parties in Regular Civil Suit
No.185/53, as many as 17 issues were framed. Issue Nos.4 and 6 read as under:-
"4. Whether the five Talukdari villages of Umeta, Kuthiskhad, Sankhyad,
Anmrol and Asarms are of plaintiff's private ownership as alleged by plaintiff?
6. Whether the plaintiff is the owner of the Wanta situated in Umeta? If yes,
whether Survey No.410 forms part of the Wanta of Umeta? *
4. Both the issues were answered in favour of the original plaintiff holding
that five villages of Umeta were of the private ownership of the original
plaintiff as Talukdar; he was the owner of the 'wanta' situated in Umeta and
the entire land bearing Survey No.410 formed part of 'wanta' of Umeta. In Civil
Appeal No.60/1960 filed against the decree in Regular Civil Suit No.185/53, the
appellate court in para 4 has recorded thus:-
"4. During the arguments, the learned Government Pleader conceded that the
plaintiff was the owner of Talukdari village Umeta and S.No. 410 was within the
limits of village Umeta." *
5. In the said appeal, the following three points arose for determination:-
"1. Whether the suit land is a part of the bed of Mahl River?
2. Whether the suit land is waste land?
3. Whether the suit land for uncultivated land when the Bombay Talukdari Tenure
Abolition Act, 1949 came into operation?" *
6. All the three points were answered in the negative against the
defendant-State. A finding was recorded that Government failed to prove that
suit land was part of the bed of Mahi river or that the suit land was waste
land or the suit land was uncultivated on the date when the Act came into
Force. Further, it was held that the land bearing Survey No. 410 belonged to
the original plaintiff and that the suit had been rightly decreed. The
defendant-State filed second appeal against the judgment and decree passed in
the said appeal. The High Court, by its order dated 12.3.1970, dismissed the
second appeal affirming the findings recorded by the two courts below. In the
said judgment, it is noticed that although several contentions were urged by
the State in the trial court resisting the suit of the plaintiff but in the
second appeal the only point that was urged was that whether the lower
appellate court had committed an error of law in forming the opinion as regards
the category of the land in dispute. After a detailed discussion, the High
Court concluded thus:-
"This not having done, the lower appellate court came to the conclusion
that the defendant-State failed to show that the disputed land was river bed
land. In this view of the matter, the lower appellate court has formed the
opinion that the disputed land does not fall within one of the three categories
specified in Section 6 of the Act as claimed by the defendant-State." *
7. By this, it followed that the land bearing Survey No.410 did not vest in the
Government under Section 6 of the Act.
8. In the present suit O.S. No.5/1970, on the basis of the pleadings of the
parties, several issues were framed. The relevant issues which are required to
be seen for
the purpose of disposal of this appeal are issue nos.4, 5 and 6 which read:-
"4. Whether the plaintiff proves that his ownership of the five villages
mentioned in para 2 of the plaint, was acknowledged and admitted by the
Government?
5. Whether it is proved that Survey No. 410 is of Wanta land of Umeta village?
6. Whether Survey No.410 is proved to be of the ownership of the
plaintiff?" *
9. The trial court answered these issues in the affirmative in favour of the
original plaintiff.
10. In the first appeal No. 914/77 filed against the judgment and decree in
O.S. No. 5/1970, learned Single Judge of the High Court held that the suit O.S.
No. 5/1970 filed in respect of rest of 560 acres of land bearing Survey No. 410
of Umeta was not hit by the principles of res-judicata on the ground that the
subject matter of the dispute in O.S. No.185/1953 was only in relation to 30
acres of land bearing Survey No.410 and not in regard to the remaining area of
the land. He also held that the suit land stood vested in Government under
Section 6 of the Act. The High Court, by the impugned judgment, as already
stated above, dismissed the L.P.A. affirming the order of the learned Single
Judge.
11. The learned Senior Counsel for the appellants contended that the judgment
in the second appeal No. 826/62 decided on 12.3.1970 by the High Court
affirming the decree made in O.S. No.185/53 concludes the case against the
respondents-State inasmuch as in the said judgment, appellants are held to be
the owners and that the land in question did not vest under Section 6 of the
Act; the said judgment operated as res-judicata against the respondent-State in
the present case; the trial court was right in holding so; learned Single Judge
and Division Bench of the High Court committed error in reversing the decree of
the trial court. In support of his submissions, the learned Senior Counsel
relied on the decision of this Court in Mahisagar Bhatha Cooperative
Agriculture Cooperative Society Ltd. Borsad and Ors. vs. Thakore Shree
Jagdevsinhji Ramsinhji (dead by L.Rs. & Anr. 3]
12. In opposition, the learned counsel for the respondent-State made
submissions supporting the impugned judgment. He urged that learned Single
Judge was right in holding that the decision in O.S. No.185/1953 did not operate
as res-judicata in deciding the present O.S. No.5/1970, adopting the same
reasons given in the judgment of the learned Single Judge. He further urged
that during the pendency of O.S. No.185/1953, brother of the original plaintiff
Mahendrsinhji had made a claim for ownership of a portion of land measuring 147
acres and 15 guntas in the same land in Survey No.410 under Section 37(2) of
the Bombay Land Revenue Code. The competent authority, after making enquiry by
the order dated 27th November, 1958 held that Mahendrsinhji was the owner of
the said portion of the land; the original plaintiff did not take any action
against the said order dated 27th November, 1958 declaring 590 acres of Survey
No.410 to be Government wasteland. Hence, the original plaintiff having failed
to take action for nearly 12 years from the date of the said order, the relief
of ownership claimed by him in O.S. No.5/1970 being inconsistent with the order
of 27th November, 1958 was not maintainable and the suit could not have been
decreed.
13. We have considered the submissions made by the learned counsel for the
parties.
14. In the case of Mahisagar Bhatha Cooperative Agriculture Cooperative Society
Ltd. Borsad and Ors. (supra), this Court had occasion to consider as to the
ownership of plaintiff as Talukdar of Umeta State itself in respect of another
village. In the said decision, it is held that the plaintiff as Talukdar of
Umeta State was entitled to full ownership, use and enjoyment of the said five
villages. It was further held that suit land in that case which formed the part
of one such village, did not fall within the ambit of Section 6 of the Act and
it did not vest in the State. The original plaintiff in the present case
namely, Shri Jagdevsinhji was the plaintiff in that case also. He was the
ex-ruler of Umeta State and he was also a registered Talukdar and owner of five
villages, namely, Umeta, Kuthiyakhad, Sankhyad, Anmrol and Asarms. In that
case, he was concerned with village Kothiyakhad. He filed a suit for
declaration and for possession that he was the owner of suit land in Survey
No.247 measuring 100 acres and 30 guntas situated at village Kithiyakhad. The
trial court, by its judgment dated March 30, 1971 declared that he was the
owner of the said land. The State of Gujarat filed appeal to the High Court
which was dismissed. Thereafter, they filed appeal in this Court. This Court in
paragraph 4 has held thus:-
"4. We have heard learned counsel for the parties and have thoroughly
perused the record. It was contended on behalf of the defendant/appellants that
the land came to be vested in the State of Gujarat under the provisions of
Section 6 of the Talukdari Abolition Act. We do not find any force in this
contention. Ex.102 merger agreement dated May 24, 1948 has been placed on
record which clearly mentioned that the plaintiff as the Talukdar of Umeta
State was entitled to the full ownership use and enjoyment of all the private
properties. An inventory of such private properties which formed part of such
merger agreement clearly mentioned five Talukadari villages in Borsad Taluka of
Kaira district. Ex.129 letter dated January 31,1949 written by the Collector
and Chief Administrator, Kaira to the plaintiff clearly mentions that the
matter regarding the five Talukdari village in Borsad Taluka had been referred
to Government for orders. The Government then vide Ex. 128 dated April 11, 1950
clearly admitted the five Talukdari villages as the private property of the
plaintiff. The letter Ex. 128 reads as under:
D.C. No.3449/46/13034G
Political and Services Deptt.
Bombay Castle, dated 11th April, 1950
My dear Thakore Saheb,
I am to say that the inventory of private property securities and cash balances
furnished by you in accordance with Article 3 of the instrument of merger executed
by you has been considered. A copy of the inventory as finally accepted, is
attached for your information. The decisions submitted therein have the
approval of the Government of India in the Ministry of State. As regards the
five Talukdari villages claimed by you as your private property, I am to say
that Government has agreed to concede your claim to these villages but as the
revenues of these villages have been included in the average annual revenues of
Umeta State of purposes of calculation of your privy purse, the same (i.e. the
revenues of these villages) have now been excluded from the average revenues of
the State and your privy purse has been finally fixed at Rs. 14, 450 per annum
instead of 16,200 per annum as previously communicated to you.
* I am to request you to acknowledge the receipt of this letter and copy of the inventory enclosed herewith.
Yours sincerely,
Sd/-
M.D. Bhatt" *
15. Having stated so in paragraph 4 as extracted above, this Court observed
that the Government had agreed to the claim of the plaintiff to the five
villages as his private property as part of the Merger Agreement and there was
no escape from the conclusion that the land in question which lies in one of
the five villages being the personal private property of the plaintiff, could
not fall within the ambit of Section 6 of the Act. The Merger Agreement dated
May 24, 1948 and the letter of the Government dated April 11, 1950 equally
cover the legal position in regard to the land in Survey No.410 of Umeta in
question. To this judgment, State of Gujarat was a party. In other words, this
judgment, being inter-parties between the original plaintiff and the State of
Gujarat, is binding on the State of Gujarat.
16. In O.S. No.185/53, the trial court held that five talukdari villages
including Umeta were of private ownership of the plaintiff as Talukdar.
Although the suit was confined to a portion of 30 acres of land in Survey
No.410, the issue No.6 as already noticed above while narrating the facts, as
framed was whether the plaintiff was the owner of Survey No.410 of Umeta and
the issue was answered in favour of the plaintiff holding that the plaintiff
was the owner of the entire land in Survey No.410. Even under issue No.5 in
that suit, a finding was recorded that the rights of the plaintiff as owner of
the five villages were kept intact under the Merger Agreement. In the second
appeal No.826/1962 filed against the judgment passed in Civil Appeal
No.60/1960, the High Court, after extracting Section 6 of the Act, elaborately
considered as to whether the land in Survey No.410 fell in any one of the
categories so as to vest in the State under Section 6 of the Act. Having
considered the evidence and looking to the findings recorded by the courts
below, the High Court concluded that an area of 30 acres of land in Survey
No.410 did not vest with the State under Section 6 of the Act. In the said
judgment, it is stated thus:
"Numerous contentions were raised by the defendant-State in the trial
court for resisting the plaintiff's suit. It is not necessary to refer to any
of those contentions as the only point that is urged before this Court is that
the lower appellate court had committed an error of law in forming the opinion
as regards the category of the land in dispute. The learned Assistant
Government Pleader for the appellant-State has argued that the disputed land
falls within one or the other of the three categories namely, river-bed or
waste or land which was not cultivated for three years immediately preceding
August 15, 1950, the date on which the Act came into force. Appellate court
ought to have come to the conclusion that the disputed land had vested unto the
State Government inasmuch as it fell within one or the other of the aforesaid
three categories envisioned by Section 6 of the Act. The only question that
arises for decision in the present appeal, therefore, is whether the lower
appellate court has committed any error of law in rejecting the contention of
the State as regards the category of the land." *
17. The High Court in the said second appeal, as already stated above looked
into oral and documentary evidence, concluded that the lower appellate court
was right and no exception could be taken thereto in forming the opinion that
the disputed land did not fall within any one of the three categories specified
in Section 6 of the Act as claimed by the respondent-State. Under the
circumstances, second appeal was also dismissed by the High Court.
18. Thus, in the light of the judgment in Mahisagar Bhatha Cooperative
Agriculture Cooperative Society Ltd. Borsad and Ors. (supra) and also the
judgment of the High Court in second Appeal No.826/62 arising out of O.S.
No.185/1953 in regard to the very Survey No.410, it can be safely concluded
that the land in Survey No.410 of Umeta as claimed by the original plaintiff
did not vest in the State under Section 6 of the Act and the plaintiff was the
owner of the said land, it being his private property. This apart, in O.S.
No.185/1953, it was not the case of the respondent-State that the remaining
area in Survey No.410, after excluding area of 30 acres which was the subject
matter of that suit was either river bed area or a wasteland or uncultivated
land. On the other hand, the issue framed in the said suit covered the entire
land in Survey No.410 about which the reference is made already in relation to
the issues and findings. The trial was right in the present suit in holding
that the judgment and decree passed in O.S. No.185/1953 were binding on the
parties and they operate against the respondent-State on the principle of
res-judicate. The first appellate court committed an error in taking a contrary
view on this question merely on the ground that in the earlier suit, subject
matter was confined to only 30 acres of land in Survey No.410 without looking
to the issues raised in the earlier suit. The issue raised in earlier suit as
regards ownership of the land in Survey No. 410 or vesting of the said land
under Section 6 were not confined to an area of 30 acres. On the other hand,
they covered the entire land in Survey No.410. The Division Bench also
committed the same error in affirming the judgment of the learned Single Judge.
The contention that the plaintiff did not challenge the order dated 27th
November, 1958 passed under Section 37(2) of the Bombay Land Revenue Code in
the proceedings initiated by his brother Mahendrsinhji has no force for the
reasons more than one. The original plaintiff was not a party to those
proceedings; it was confined to an area of 147 acres and 15 guntas; the
ownership of the original plaintiff in regard to Survey No.410 and it not
vesting in the State under Section 6 of the Act were specifically decided in
the O.S. No.185/1953; the judgment and decree passed in that suit attained
finality when the High Court dismissed the second appeal filed by the State
affirming the decree passed in the said suit. This decree binds the
respondent-State as it was a party to the said suit. In this view, the order
passed under Section 37(2) in the proceedings initiated by the brother of the
plaintiff cannot override or take away the effect of the above-mentioned civil
court decree. #
19. Thus, viewed from any angle, we find it difficult to sustain the impugned judgment passed by the Division Bench affirming the judgment passed by the learned Single Judge in the first appeal. Hence, the appeal is allowed, the impugned judgment is set aside and the judgment and decree passed by the trial court is restored.
No costs.