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2010 (3) GCD 1989 (Guj)
Hon’ble Mr. Justice K.A. Puj
Samji Shivji
Versus
Devji Valji
Second Appeal No. 374 of 1983—Decided on 31/08/2010
Mamlatdar’s Courts Act — Sections 5, 22 and Proviso, 23(2), 21(1) Proviso — Civil Procedure Code, 1908 — Sections 11 and 11 Explanation VIII, 115, Order 7 Rule 11 — Res Judicata — Principle of — Applicability — Easementary right of way decided in favour of defendant in a suit filed by him against plaintiff respondent under Mamlatdar Court’s Act — Subsequent regular civil Suit by plaintiff for the same right of way — Court held that principle of res judicata applicable to plaintiff suit — Court dismissed plaintiff suit on that ground.
Held :
Section 22 deals with possession to be given without prejudice to rights of parties. It states that subject to the provisions of Section 23 Sub-section (2), the party in favour of whom the Mamlatdar issues an order for removal of an impediment from the party to whom the Mamlatdar gives possession or restores a use, or in whose favour an injunction is granted, shall continue to has the surface water upon his land flow unimpeded on the adjacent land or continue in possession or use, as the case may be, until otherwise decreed or ordered or until or outset, by a competent Civil Court. However, there is two exceptions to this Section which is contained in the two provisos. The first proviso says that nothing in this Section shall prevent the party against whom the Mamlatdar’s decision is passed from recovering by a suit in a competent Civil Court mesne profits for the time he has been kept out of possession of any property or out of enjoyment of any use. The second proviso states that in any subsequent suit or other proceeding in any Civil Court between the same parties, or other persons claiming under them, the Mamlatdar’s decision respecting the title to or valuation of any crop dealt with under the proviso to Sub-section (1) of Section 21, shall not be held to be conclusive. For the purpose of deciding the issue regarding res judicata, a Close scrutiny of second proviso is necessary. The second proviso talks of two aspects. One regarding the title and second regarding valuation of any crop dealt with under the proviso to Sub-section (1) of Section 21. This shall not be held to be conclusive. Here in the present suit, there is no question of title of the suit property nor there is any question of valuation of crop and hence, for other issues, Mamlatdar Court’s decision can be said to be conclusive. Thus, the proviso operates only in respect of these two things. If the suit is filed by the plaintiff for his easementary right, the defendant is justified in invoking the principle of res judicata. If the Legislature invests a Revenue or Rent or settlement Court with the power of deciding the question of title in certain cases and when such Court decides a question of title against a party, he is barred by the rule of res judicata from reopening the question of title in a Civil Court. However, Section 22 read with second proviso does not prohibit a party from filing a suit in Civil Court in raising an issue regarding title to the suit property or valuation of crop even if it is earlier decided by the Mamlatdar’s Court. The decision of Mamlatdar’s Court on easementary rights of the parties cannot be re-agitated or challenged before the Civil Court. [Para 16]
The Court is, therefore, of the view that when Section 11 is read in combination and harmony with Explanation VIII, the result that flows is that a decision on an issue heard and finally decided by a Court of limited jurisdiction will operate as res judicata in a subsequent suit notwithstanding the fact that such Court of limited jurisdiction was not competent to try the subsequent suit. [Para 17]
Law Laid Down :
The decision of Mamlatdar’s Court on easementary rights of parties cannot be re-agitated or challenged before civil Court.
K.A. Puj, J.—The appellant - original defendant has filed this Second Appeal under Section 100 of the Code of Civil Procedure challenging the judgment and order passed by the learned Assistant Judge, Kutch at Bhuj in Regular Civil Appeal No. 432 of 1980 on 30.07.1983 setting aside the judgment and decree passed by the learned Joint Civil Judge (J.D.), Bhuj in Regular Civil Suit No. 39 of 1976 dated 26.09.1980.
2. This Second Appeal was admitted by this Court on 25.01.1984 and following substantial question of law was framed for determination and consideration of this Court:—
“Whether the suit is barred by principles of res judicata in as much as the provisions of Section 11 of the Code of Civil Procedure, a Central Act, will override the provisions of Section 22 of the Mamlatdars Courts Act which is a Bombay Act, an Act of State ?”
3. The brief facts giving rise to the present Second Appeal are that the original plaintiff - present respondent had filed suit alleging therein that he is the owner of field situated in the sim of village Jambudi. There is a field of the defendant - present appellant on the southern side of his land. The way for going to the land of defendant is through a Chella (water course) going towards village Jambudi. There is also an entrance for bullock cart since decades at the southern boundary of the land of defendant. The defendant was going to his land by that way for the last several years. The defendant has no right to pass through the land of plaintiff for the purpose of going to his land. Still, however, the defendant filed the suit before the Mamlatdar under Section 5 of Mamlatdars Courts Act, alleging that he has a right of way through the land of plaintiff. The suit was dismissed by the Mamlatdar.
4. Being aggrieved by the said decision, the revision application was filed before the Deputy Collector, which was allowed and the suit was remanded back to the Mamlatdar. The Mamlatdar, Bhuj allowed the suit and the revision application filed by the plaintiff against that decision of Mamlatdar was rejected by the Deputy Collector. Though the decision of the Mamlatdar was confirmed, all proceedings under the Mamlatdars Courts Act are summary proceedings and are not of conclusive nature. The plaintiff, therefore, filed Regular Civil Suit No. 39 of 1976 for a declaration that the defendant has no right of way through his land and to get permanent injunction restraining him from passing his land. The defendant resisted the suit by written statement at Exh.19. It was the case of the defendant that both the fields belonging to the plaintiff as well as to him were of ownership of one person and subsequently, he had mortgaged each portion to different mortgagees. The northern portion ultimately came in the hands of plaintiff and southern portion ultimately came in the hands of defendant. The way leading to village Kotda is on the northern side, and hence for going to his land of southern side, he has to pass through the land of the plaintiff. There was no other way for going to his land. The way which passes through the land of the plaintiff is outcome of easement of necessity. The defendant and his predecessor-in-title were using the way for the last several years and the way is also shown in the map prepared by the Survey department. It is further alleged in the written statement that the revision application filed by the plaintiff before the Deputy Collector and before this Court were rejected and hence, the decision of Mamlatdar has become final and the present suit filed by the plaintiff is barred by the principles of res judicata. The plaintiff is, therefore, not entitled to any declaration or permanent injunction against the defendant.
5. The Trial Court framed the issues at Exh.28 and one of the issues framed was as to whether the suit is barred by the principles of res judicata. After recording evidence of both the sides, the Trial Court came to the conclusion that it was not proved that the defen
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