Point of Law : It is important to note at this juncture that the respondents were also simultaneously claiming to be in possession of the suit property on the basis of their claim of being permanent tenant.

JUDGMENT :

This is a second appeal by the original plaintiffs who have failed to obtain a decree for declaration of they being the owners of the suit property and for possession based on title with consequential relief of their entitlement to claim the periodical income derived by way of leasing out of the suit property by the revenue officials during the period it was in their control and power in view of section 145 of the Code of Criminal Procedure. They also claimed a declaration that the decisions rendered by the courts in earlier rounds of litigation between the parties are null and void.

2. Shorn of verbiage, the dispute can be encompassed as follows :

(a) The predecessor of the appellants by name Ramshashtri was a pattedar of the suit property. It was a watan land. Since abolition of watan, it was re-granted to him and he became the owner in possession of the suit property. After his demise, they continued to occupy the suit property as its owners till the year 1975-1976. It was averred that the widow of the original owner - Sitabai was in need of money and by way of an oral mortgage she raised an amount of Rs.3,000/- from Rampratapsingh - the predecessor of the respondents. Name of Rampratapsingh was mutated in the revenue record and in spite of the loan amount having been repaid, it continued to appear in the revenue record. On such repayment being made, possession was delivered back by Rampratapsingh’s son – respondent – Laxmansingh to the successor of Ramshastri – appellant – Laxman. However, taking advantage of the revenue entries, a dispute was raised regarding possession of the suit property.

(b) The Taluka Executive Magistrate took over its possession under section 145 of the Code of Criminal Procedure. Respondent – Laxmansingh and his mother Mandodaribai filed Regular Civil Suit no. 199 of 1976 for possession of the suit property on the premise that they were the protected tenants. They also claimed that Sitabai had agreed to sell the suit property to them for a consideration of Rs.15,000/- and by accepting earnest amount of Rs.13,500/-, they were put in possession. Conspicuously, they did not claim any specific performance.

(c) The appellants failed to contest and Regular Civil Suit no. 199 of 1976 was decreed. They challenged it by preferring an appeal and second appeal but failed to get the judgment and decree reversed.

(d) On the basis of such decree, the respondents got back possession of the suit property from the revenue authorities. They also filed Regular Civil Suit no. 47 of 1991 against the revenue authorities restraining them from auctioning the suit property as was being done previously.

(e) Faced with the situation the appellants filed Regular Civil Suit no. 12 of 1998 i.e. the present suit.

(f) Both the courts have concurrently held that the appellants are the owners of the suit property. The respondents were not the tenants. However, the respondents were entitled to a protection under section 53-A of the Transfer of Property Act and also held that the decision in Regular Civil Suit no. 199 of 1976 would operate as res judicata. Hence this second appeal.

3. It is necessary to note at the inception that with the consent of both the sides, I have heard the second appeal finally by hearing their arguments on the following substantial questions of law which arise in this second appeal :

I) Whether the decision in Regular Civil Suit no. 199 of 1976 operates as res judicata ?

(II) Whether the respondents are entitled to protection under section 53-A of the Transfer of Property Act ?

4. The learned Senior Advocate Mr. Dixit for the appellants would vehemently submit that the decision in Regular Civil Suit no. 199 of 1976 was not a decision on merits and was a decision in default. The appellants had not contested that suit and the decision was rendered in all probability by invoking powers under Order VIII Rule 10 of the Code of Civil Procedure. He would further submit that since it was not a decision on merits,