2004 Supreme(SC) 1223

2004(8) Supreme 391
SUPREME COURT OF INDIA
(From Gujarat High Court)
Shivaraj V. Patil & B.N. Srikrishna, JJ.
Dhanvanthkumariba & Ors. -Appellants
versus
State of Gujarat -Respondent
Civil Appeal No. 1908 of 1999
Decided on 1-10-2004
Counsel for the Parties :
For the Appellants : D.A. Dave, Sr. Advocate, Ms. Meenakshi Arora, Advocate.
For the Respondent : Maulik Nanavati, Ms. Sadhana Sandhu and Ms. Hemantika Wahi, Advocates.

Headnote:Bombay Talukdari Tenure Abolition Act, 1949-Section 6-Vesting of Talukdari land in the Government-Merger Agreement-State of Umeta merged into India-Disputed land was given to ex-ruler as Talukdar-Land bearing Survey No.410 comprised of large area-742 acres and 32 gunthas-On enforcement of Talukdari Tenure Abolition Act, according to respondent State, the said land vested in the Government by virtue of Section 6 of the Act-Government transferred 560 acres out of this land to District Panchayat-Ex-ruler filed civil suit contending that transfer of land by the Government was wrong as it belonged to him-Trial Court decreed the suit-High Court reversing the decree in appeal-State of Bombay took possession of about 30 acres out of the land in Survey No. 410 from the possession of plaintiff on ground that it was a waste land and, therefore, vested in the Government-Original plaintiff filed suit against the State seeking declaration that he was the owner of 30 acres of land and that it was not waste land-Trial Court decreed the suit recording that five villages in State of Umeta were private properties of original plaintiff-Possession of 30 acres of land was handed over to plaintiff-Order passed u/s 37(2) of Bombay Land Revenue Code, in proceedings initiated by brother of plaintiff cannot override or take away effect of civil court decree in favour of plaintiff.

       Held : 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. 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. (Paras 14 and 15)

       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 court 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-judicata. 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. (Para 17)