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1981 Supreme(Bom) 81
IN THE HIGH COURT OF BOMBAY
D.P. Madon S.P. Kurdukar, JJ.
Sadashiv Rangnath.... Petitioner.
Versus
Shaikh Biban Shaikh Balambhai others.... Respondents.
Special Civil Application No. 561 of 1978, decided on 10-3-1981.
Advocates appeared :
R.M. Agrawal, for petitioner.
A.V. Savant with R.N. Dhorde, for respondent No. 1.
The principles of res judicata bar a party from filing a fresh application for the same relief in respect of the same subject matter after a competent court has already decided the matter on merits.
Headnote:
HYDERABAD ABOLITION OF INAMS AND CASH GRANTS ACT, 1954 - SECTION 2-A(4), 3, 6 - RES JUDICATA - OCCUPANCY RIGHTS - TENANCY - INAM LANDS - SUMMARY
Fact of the Case:
The petitioner, an Inamdar, had his land vested in the Government under the Hyderabad Abolition of Inams and Cash Grants Act, 1954. The respondent, claiming to be a tenant, filed three applications for occupancy rights under section 6 of the Act. The first two applications were dismissed, and the third was allowed by the Appellate Authority on remand. The petitioner challenged the Appellate Authority's order.
Finding of the Court:
The court held that the Appellate Authority's order was illegal and set it aside. It also quashed the Deputy Collector's order passed pursuant to the Appellate Authority's order and restored the Tahsildar's order rejecting the respondent's third application. The court held that the respondent was not entitled to occupancy rights as he was not in possession of the land on July 1, 1960, the cut-off date under the Act. The court also held that the respondent's third application was barred by the principles of res judicata.
Issues: 1. Whether the Appellate Authority's order was illegal? 2. Whether the respondent was entitled to occupancy rights? 3. Whether the respondent's third application was barred by res judicata?
Ratio Decidendi: 1. The Appellate Authority's order was illegal because it failed to consider the relevant provisions of the Act and the principles laid down by the Full Bench and Division Bench of the court. 2. The respondent was not entitled to occupancy rights because he was not in possession of the land on July 1, 1960, the cut-off date under the Act. 3. The respondent's third application was barred by res judicata because the Tahsildar had already dismissed his second application on merits.
Final Decision: The court quashed and set aside the Appellate Authority's order and the Deputy Collector's order passed pursuant to the Appellate Authority's order. It also restored the Tahsildar's order rejecting the respondent's third application.
2. Few admitted facts which gave rise to this petition may be narrated as under: The land in dispute bears survey No. 33 situate at village Godhegaon, Taluka Gangapur, District Aurangabad. The petitioner was the original Inamdar in respect of this land. The nature of the inam was Madad Mash. This provisions of the Hyderabad Abolition of Inams and Cash Grants Act, 1954 (hereinafter referred to as "the said Act") were brought into force in the erstwhile State of Hyderabad on July 20, 1955. The land in dispute is situated in the erstwhile State of Hyderabad and, therefore, the provisions of the said act are applicable to the said land. According to the provisions of section 3 of the said Act, all such inams would vest in the Government on July 20, 1955 and, thereafter the provisions of the said Act would be made applicable to all such inam lands.
3. The respondent No. 1 claims to be the tenant of the disputed land. The Deputy Collector by his order dated September 7, 1961 granted the occupancy rights under section 6 of the said Act in favour of the petitioner. It appears that this order was passed ex parte and the respondent No. 1 was not party to the said proceedings. On June, 30, 1962, the respondent No. 1 made an application to the Deputy Collector contending inter alia, that he therefore, he is entitled for occupancy rights. On September 24, 1962, the application filed by the respondent No. 1 was dismissed for default. We are told that no proceedings were taken out by the respondent No. 1 against the order dated September 24, 1962 and thus the same became final. On October 2, 1966, the respondent No. 1 filed second application to the Tahsildar contending, inter alia, that he has been in possession of the disputed land as a tenant of the petitioner for 1957 and he continued to be in possession on July 1, 1960. The respondent No. 1 further stated that by reason of his possession over the disputed land on July 1, 1960 he is entitled to become occupant under the provisions of the said Act and occupancy rights be conferred on him. This application was opposed by the petitioner on several grounds and it is not necessary to state in details the challenges given by the petitioner to the said petition. Upon hearing both the parties, the Tahsildar, by his order dated January, 4, 1967, rejected the second application filed by the respondent No. 1 on merits. The Tahsildar in his judgment observed that since the occupancy rights were already conferred on the petitioner, he has no jurisdiction to entertain this second application. The Tahsildar accordingly dismissed the application. It is also admitted position that no appeal was carried by the respondent No. 1, the aggrieved party, to the Appellate Authority and, therefore, the order passed by the Tahsildar on January, 4, 1967 on merits became final.
4. On February, 16, 1967 the third application was filed by the respondent No. 1 to the Tahsildar alleging inter alia, that he was in actual possession of the disputed land from 1959-60 onwards and by virtue of his possession on July 1,1960, he is entitled for occupancy rights under section 6 of the said Act. This application was opposed by the petitioner on several grounds. The main contention raised by the petitioner is that the present application is barred by the principles analogous to res judicata and the Tahsildar has no jurisdiction to entertain this application. The petitioner also contended that the respondent No. 1 was never in possession of the disputed land on July 20, 1955 as also on July 1, 1960. As the respondent No. 1 was not in possession on bo
