Vithu Hira Mahar (More) @ Vithu Pandu Sonawane,since deceased by his heirs and others vs State of Maharashtra and others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1999 Supreme(Bom) 443

IN THE HIGH COURT OF BOMBAY
D.G. Deshpande, J.
Vithu Hira Mahar (More) @ Vithu Pandu Sonawane,
since deceased by his heirs others ..... Petitioners.
Versus
State of Maharashtra others..... Respondents.
Writ Petition No. 3667 of 1985 along with Second Appeal No. 87 of 1986, decided on 1-7-1999.
Advocates appeared :
M.K. Nesari, for the petitioners/appellants.
R.M. Nakhawa, for respondent Nos. 3, 4, 6 and 7.
Ms. A.R.S. Baxi, for respondent Nos. 5(1) to 5(6).
V.P. Malvankar, for the State in writ petition No. 3667 of 1985.
K.K. Tated, for the State respondents in Second appeal No. 87 of 1986.

Headnote:Section 11-Res judicata Availability of plea of-Suit of 1953 for permanent injunction-Second suit of 1979 for declaration-Matters being different in both suits-Plea of res judicata not available.-The 1953 suit clearly shows that the question of Vithu being a watandar was not directly and substantially involved. It was a suit for permanent injunction and question of Vithu being an adopted son was incidentally raised as defence. Admittedly that issue had nothing to do with the factum of possession of the suit land by the plaintiff and the injunction which he had claimed. Further the issues that Vithu is a watandar could only be decided by authorities under the Hereditary Offices Act, 1974 and not by Civil Court or Revenue Authorities under the policy of Watans Abolition Act, 1958 and not by the Civil Court. Therefore, the entire objection of Mr. Nakhwa that the respondents were entitled to raise the plea of res judicatc. before this Court or before the Court deciding 1979. Suit or before the Revenue Authorities is required to be rejected Consequently, it has to be held that the plea of res judicata is not available to the respondents before this Court or before the Court deciding the Second Suit c 1979 or before the Revenue Authorities against whose order the writ petition has been filed. As a result the Judgments of the Civil Court in 1979 an the judgment of the appellate Court arising from that decree as well as judgment of the Revenue Authorities which be challenged in the writ petition wherein the objection of a judicata was raised by the responder was held are required to be held as legal and improper.
       Section 100 and Proviso Second appeal-Maintainability - Substantial question of law at time of admission along with other substantial question of law incidentally arising being involved-Held, appeal maintainable and to be decided on merits.-Proviso to Section 100 is as under:
       Provided that nothing in this subsection shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it if it is satisfied that the case involves such question.
       In the instant case at the time of admission, the Court has held substantial question i.e. whether appellant proves that he is a watandar as defined in Watans Abolition Act, 1958 and, therefore, incidental other substantial questions which have been raised by Mr. Nesari and referred to above made during the submissions and reproduced above are required to be considered, Court, therefore, holds that the appeal involves a substantial question of law as formulated at the time of admission as well as other substantial questions hence the appeal as well as writ petition is required to be decided on merits.

JUDGMENT

D.G. DESHPANDE, J.:---Both the petition and the second appeal were filed by the one and the same person, namely, Vithu Hira Mahar. It appears that he died during the pendency of this petition and his legal heirs have been brought on record.

2. In writ petition petitioner Vithu challenged the Order of the Additional Commissioner, dated 6-4-1985 as per Exhibit 'K' to the petition and in the second appeal appellant Vithu had challenged the Order of the District Judge, Pune, (P.V. Kakadae) dated 18-6-1985 in appeal filed by him. This appeal before the Additional District Judge was filed by Vithu against the order of the trial Court in Civil Suit No. 2353 of 1979 by which the trial Court had decreed the suit of the respondents - plaintiffs.

3. Though the writ petition and the second appeal are arising out of different orders, common questions of fact and law are involved in both of them and hence they were tagged together and were heard together.

4. There is a chequered history to the litigation pending between the parties. However, for the purpose of brevity convenience and understanding it would be better to start from RTS/Watan Appeal No. 107/19/9 decided by Sub Divisional Officer, Baramati Division. Baramati on 22-11-1979 because it was this order that was challenged by the respondents in their civil suit before the Civil Judge, Senior Division, Pune, vide Suit No. 2353 of 1979 and it was this order which was simultaneously challenged by the respondents before the Additional Commissioner, Pune in their Appeal bearing No. A/WTN/SR/9/80.

5. Original petitioner Vithu (Vithoba) initiated proceedings before the Sub Divisional Officer (SDO) vide his application dated 11-4-1978 (RTS/Watan Appeal No. 107/1979). It was alleged by Vithu that he was duly adopted son of Ex. Watandar Ramabai Pandu Mahar and all the relevant papers of the enquiry into adoption which were made by Mamlatdar in the year 1931 were not available to him earlier and particularly in 1941 but since in 1979, he had obtained those necessary documents he was entitled to get a declaration and finding that he was Watandar of the Mahar Watan of village Pimpre, Khurd and consequently the suit lands should be regranted in his name.

6. It is clear from the record that original petitioner Vithu was required to refer to some happenings or order of 1941 in his Appeal No. RTS/Watan/Appeal No. 107/1979 because it was in 1941 that the District Deputy Collector, Pune (DDC) passed an order on 18-6-1941 in connection with the same land, on an application being made in that regard by the present respondent. This order of the DDC, Pune is annexed at Exhibit 'H' to the writ petition. The respondents had applied for possession of the land on the ground that original petitioner Vithu was an outsider and had no right to possess the land, the DDC in his short order considered the contentions of the respondents and also that of the original petitioner Vithu. It is clear from his order that Vithu was claiming to be an adopted son of Ramabai and he was basing his claim on the basis of the entry in the Peta Khate Wahi in 1931 and has brought it to the notice of the DDC that all the relevant and necessary documents which were in existence to support his contention regarding his being an adopted son of Ramabai, were not traceable when the matter came for decision before the DDC. Order of the DDC shows that DDC had no alternative in the absence of any documentary evidence being produced on behalf of the petitioner Vithu but to allow application of the respondents and restore the possession of the suit land to the respondents. However, before doing that the DDC had observed as follows:

"The circumstances in which the name of Vithoba came to be entered to the c.a. should be once more investigated and a separate correspondence started for its restoration to the R.Ws. if necessary and justified."

It appears from his observations that the issue whether petitioner Vithu was an adopted son and in what ci

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1999 Supreme(Bom) 443

Cases Referred (3)