IMPORTANT POINT
Where one M died intestate without heir and in escheat proceeding appellant (M s tenant) claiming title by adverse possession is an abuse of the process of the court.

Headnote:(i) Civil Procedure Code, 1908-Section 24-General Power of Transfer and withdrawal of High Court-Nature of power-Whether withdrawal of suit by High Court in this case was without jurisdiction? (No).
       Held : It may be true that normally the High Court does not pass an order under Section 24 of the Code of Civil Procedure in a disposed of proceeding. However, in terms of Section 24 of the Code of Civil Procedure, indisputably the High Court had the requisite jurisdiction to withdraw any suit pending in any court subordinate to it and try or dispose of the same inter alia on its own motion, wherefor even no notice is required to be issued. (Para 17)
       (ii) Civil Procedure Code, 1908-Order XIV Rule 1-Disposal of suit on preliminary issue-High Court withdrawing the suit in peculiar facts and deciding it-Whether illegal? (No).
       Held : For the purpose of disposal of the suit on the admitted facts, particularly when the suit can be disposed of on preliminary issues, no particular procedure was required to be followed by the High Court. In terms of Order XIV Rule 1 of the Code of Civil Procedure, a Civil Court can dispose of a suit on preliminary issues. It is neither in doubt nor in dispute that the issues of res judicata and/constructive res judicata as also the maintainability of the suit can be adjudicated upon as preliminary issues. Such issues, in fact, when facts are admitted, ordinarily should be decided as preliminary issues. (Para 22)
       Held thereafter : In the peculiar facts and circumstances of the case, therefore, if the learned Single Judge of the High Court had withdrawn the suit and disposed of the same on the admitted facts; we do not find any illegality therein. The learned Single Judge as also the Division Bench have held that the suit was not maintainable, inter alia, on the ground that the appellant herein had no locus standi to question the relationship of the 1st Respondent with the admitted owner of the property, namely, Mangal Singh. (Para 29)
       (iii) Jurisdiction of Revenue Court-Determination of question of status-Application of principles of res-judicata under Section 11 CPC-Whether appellant is guilty of abuse of process of law on issue of adverse possession? (Yes)-Result-No appeal under Article 136-Appeal dismissed.
       Held : The contention of the appellant that the revenue court could not have determined the question of status of the 1st Respondent herein may be viewed from another angle. The issue as regards the status of the 1st Respondent has never been raised before the revenue authorities. As the appellant herein claimed himself to be a tenant of Mangal Singh, there was no reason as to why he could not be said to be aware of the relationship between the 1st Respondent and the said Mangal Singh. He allowed the proceedings of the Board of Revenue to be determined against him. The decision of the Board of Revenue attained finality. His writ petition was also dismissed. Be it also noted that the civil suit was filed three years after the adjudication of the rights of the parties in the mutation proceedings. In the aforementioned situation, in our opinion, the appellant must be held to have taken recourse to abuse of process of court underlying the principle that the litigation should be allowed to attain finality in public interest. Although the concept of issues estoppel or estoppel by records are distinct and separate from the concept of abuse of process in public interest, the court may refuse the plaintiff from pursuing his remedy in a court of law. See Johnson v. Gore Wood & Co. [(2002) 2 AC 1]. In this case, we are also satisfied that having regard to the fact that the appellant himself was the tenant of Mangal Singh, he could not have raised the plea of adverse possession. As a tenant he could not have questioned the title of Mangal Singh. The very fact that escheat proceedings were initiated at the instance of the State also points out that the State proceeded on the premise that Mangal Singh had the right title in relation to the land in question and as he died intestate without leaving behind him any legal heir/representative, the same vested in the State. The appellant, as noticed hereinbefore, was allotted the land in question admittedly on the aforementioned premise, namely, Mangal Singh at the time of his death had title to the land in question or the suit property, but he died intestate. He, therefore, cannot be permitted to prevaricate from his stand at this stage. We are, further, of the opinion that no case has been made out for interference with the impugned judgment in exercise of jurisdiction of this Court under Article 136 of the Constitution of India, even it be held that the High Court had committed some irregularities in withdrawing the suit and disposing the same. We do not find any merit in this appeal. The appeal is accordingly dismissed with costs. (Paras 31 to 35)

JUDGMENT

S.B. Sinha, J.-Leave granted.

2. Mangal Singh (since deceased) and the 1st Respondent herein, were originally residents of Pakistan. As a displaced person in India, Mangal Singh was allotted land measuring 11 bighas 16 biswas in Village Shorba, Tehsil Kishangarhbas, District Alwar. The said Mangal Singh died, whereafter a report was made by the village Patwari on or about 31.3.1978 to the effect that he had died intestate without any heir. Pursuant thereto and in furtherance thereof, escheat proceedings were initiated by the Tehsildar, Kishangarhbas on or about 12.3.1979. The possession of the land in question was taken by the Patwari from the 1st Respondent on 28.3.1979. A part of the land in question was allotted to the appellant by the Tehsildar on 11-5-1979. The 1st Respondent herein questioned the said allotment of land made in favour of the appellant herein. The Additional Collector by his order dated 24.8.1979 set aside the order of taking possession and restored possession thereof to Prasony Bai, the 1st Respondent herein, and cancelled the allotment of land to the appellant. Against the said cancellation order dated 24.8.1979 made in favour of the 1st Respondent, an appeal was preferred by the appellant herein before the Board of Revenue. The Board of Revenue by its order dated 28.11.1985 while maintaining the said order of cancellation of allotment observed that:

"(1) the order was passed behind the back of the party i.e. Parsony Bai, (2) that Tehsildar should not have allotted the land to Abdul Rahman without giving notice to persons in whose name the land already stood; (3) that it was therefore, clear that Tehsildar, Kishangarhbas Harish Chandra had acted in most irresponsible manner while allotting the land to Abdul Rahman; and (4) that for the highhandedness the disciplinary proceedings should be initiated against the Tehsildar."

3. The appellant herein questioned the said order of the Board of Revenue before the High Court by way of filling a writ petition which was marked as S.B. Civil Writ Petition No. 2274 of 1985 which was dismissed.

4. A mutation proceeding was also initiated for mutating the name of the 1st Respondent which was also contested by the appellant. The name of the 1st Respondent was ultimately directed to be mutated by order dated 31.5.1993 by the Board of Revenue. An application for review was filed thereagainst by the appellant but the same was also dismissed by order dated 14.6.1999. Although it does not appear from the records, the appellant herein in his written submissions, (although not contended in oral argument) alleges that the escheat proceeding is still pending.

5. Some time in the year 1999, the appellant herein filed a suit in the Court of the Civil Judge (Junior Division), Kishangarhbas, which was marked as Civil Suit No. 17 of 1999, praying, inter alia, for the following reliefs:

(1) to declare that Prasony Bai is not the daughter of Mangal Singh;

(2) that the plaintiff is in adverse possession even during the life of Mangal Singh;

(3) permanent injunction.

6. In the said suit, having regard to the pleadings of the parties thereto the following three issues were framed:

(1) Whether the dispute of the civil suit in question had already been decided and adjudicated upon by the courts and where it is hit by the principles of res judicata?

(2) Whether the suit is beyond limitation?

(3) Whether the plaintiff had no locus standi to file the suit?

7. An additional issue was framed on 10-8-1999 by the trial court as regards the jurisdiction of the Civil Court to try the said suit. Being aggrieved by and dissatisfied therewith, the appellant filed a civil revision application before the High Court as regards the legality of the order of the trial Court framing the 4th issue. By an order dated 24.10.2000, the said civil revision application was allowed by the High Court. The said order

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2002 Supreme(SC) 1135

IMPORTANT POINTWhere one M died intestate without heir and in escheat proceeding appellant (M s tenant) claiming title by adverse possession is an abuse of the process of the court.

Cases Referred (3)

IMPORTANT POINT
Where one M died intestate without heir and in escheat proceeding appellant (M s tenant) claiming title by adverse possession is an abuse of the process of the court.