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IN THE HIGH COURT OF BOMBAY
(V.S. Deshpande and A.R. Shimpi JJ.)
RATANLAL KISANDAS - Petitioner
Versus
BAJIRAO GANPAT MAHALASNE and 2 others - Respondents
Advocates appeared
For petitioner - I.N. Chandurkar.
For respondents Nos. 1 and 2 - C.P. Kalele.
TENANCY ACT - SECTION 38 (7) - REMAND ORDER - RES JUDICATA - INTERLOCUTORY ORDERS - HIGH COURT'S POWER TO RECONSIDER REMAND ORDER - APPLICABILITY OF SECTION 38 (7) TO PARTITION OF JOINT FAMILY PROPERTY - INTERPRETATION OF AMENDMENT ACT 44 OF 1964.
Fact of the Case:
The petitioners, tenure-holders, applied for possession of land from their protected lessees for personal cultivation under section 36 read with section 38 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (Tenancy Act). Their claim was barred under section 38 (7) as amended by Amendment Act 44 of 1964, which included partition of joint family property within the mischief of the provision. The High Court and Revenue Tribunal remanded the cases for reconsideration in light of Salubai v. Chandu, which held that the word 'partition' in section 38 (7) did not cover partition of joint family property. However, the Full Bench of the High Court in Smt. Radhabai v. State of Maharashtra overruled Salubai's case, holding that partition of joint family property was included in section 38 (7). The Tribunal, following Radhabai's case, held that the claims were barred under section 38 (7). The petitioners challenged this order in Special Civil Applications.
Finding of the Court:
The High Court held that the remand order did not operate as res judicata and the Tribunal was bound to follow the law laid down in Radhabai's case. The Court found that exceptional circumstances existed, namely, the Full Bench's different interpretation of the law, which justified reconsideration of the remand order. The Court also held that the High Court could reconsider its own remand order in a pending matter when the same case came before it in continuation of the proceedings.
Issues: 1. Whether the remand order operated as res judicata and precluded the Tribunal and the High Court from following the dicta in Radhabai's case. 2. Whether the High Court could reconsider its own remand order in a pending matter when the same case came before it in continuation of the proceedings.
Ratio Decidendi: 1. The principle of res judicata is a rule of procedure based on public policy to prevent harassment of litigants, waste of time of the Courts, and to keep the confidence of litigants in the machinery of justice unimpaired. However, remand orders are interlocutory and cannot terminate the case finally. In exceptional circumstances, such as the discovery of fresh evidence, unforeseen developments, or a change in law with retrospective effect, the remand order can be reconsidered by the remanding Court to ensure complete justice and prevent multiplicity of litigation. 2. The High Court has the power to reconsider its own remand order in a pending matter when the same case comes before it in continuation of the proceedings, especially when the law underlying the remand order is differently interpreted by a larger Bench or by the Supreme Court.
Final Decision: The Court answered the formulated question in the negative, holding that the remand order did not operate as res judicata and the Tribunal was bound to follow the law laid down in Radhabai's case. The Court discharged the rules without any order as to costs.
DESHPANDE J.- The petitioners in both these applications are tenure-holders. Each of them applied for possession of land from their protected lessees for personal cultivation, under section 36 read with section 38 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958, (hereinafter referred to as the 'Tenancy Act'). They claim title to the pieces of lands in dispute under partition of their joint family property dated 28-3-1959. Tenure-holders acquiring title to the lands after 1-8-1953 are prevented from claiming such possession under section 38 (7) if their tenant happens to be protected lessee. It was a moot point originally whether acquisition of title under a "partition" after 1-8-1953abo fell within the mischief of this provision. However, it was so expressly included therein under Amendment Act 44 of 1964. Scope of this amended section 38 (7) came up for consideration before this Court in the case of Smt. Salubai v. Chandu1. It was held that the word 'partition' in section 38 (7) did not cover partition of the joint family property, as such member cannot be said to have acquired title to the property for the first time under such partition. Several cases then pending before the High Court and Revenue Tribunal (hereinafter referred to as the Tribunal) involving this point were remanded to the Tahsildar for enquiry, holding on the authority of Salubai's case that claims for possession of such tenure-holders were not barred under section 38 (7). These two cases were also remanded accordingly by the Tribunal on 17-1-1966. By the time the litigation reached the Tribunal thereafter in revision, after orders passed in compliance with such remand orders, Salubai's case (supra) was overruled by the Full Bench of this Court in the case of Smt. Radhabai v. Stale of Maharashtra2. It is held that the word 'partition' in section 38 (7) includes partition of the joint family property and acquisition of the title to the land under such partition after 1-8-1953 also is hit by sub-section 7 of section 38. Following this judgment of the Full Bench, the Tribunal, inter-alia, held that claims in these applications were barred under section 38 (7) of the Tenancy Act and were liable to be rejected. It is the validity of this order that is challenged in these Special Civil Applications.
2. In all such cases coming up in second round of litigation, the High Court and the Tribunal is faced with a vexed question as to its compentency to ignore its remand order based on Salubai's case, to give effect to the law laid down in Radhabai's case. There has been no unanimity in finding out an answer to the same. In the case of Shenphad Sadashiv v. Maharashtra Revenue Tribunal3, Chandurkar J. held that such remand order operated as res judicata and precluded the Tribunal and also the High Court from following the dicta in Radhabai's case. This view was followed by him in his unreported judgment dated 2-8-1972 in Special Civil Application No. 156 of 1970 between Gowardhandas v. Amjadbeg and also in his judgment dated 4-2-1971 in Special Civil Application No. 867 of 1968 (Laxman v. Sk. Munir) in a slightly different context holding that remand order based on the earlier High Court view as to the applicability of section 38 to the leases already terminated under section 8 of the Berar Regulation of Agricultural Leases Act ofI95l precluded the Revenue Tribunal from following Supreme Court, overruling the same, at subsequent stage after remand. Masodkar J. on the other hand, in the case of Pandurang v. Maharashtra Revenue Tribunal4, held that such remand order of the High Court based on Salubai's case cannot preclude it from giving effect to the dicta in Radhabai's case if the matter comes before it again after the remand. This conflict necessitated reference of these cases to this Bench.
3. The question, therefore, that arises for consideration is:
Would remand order operate as res-judicata and preclude the remanding Court from re-o
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