Exceptions to principle of res judicata.

D. Raju, J.

1. The above second appeals were placed before us under the orders of the Honourable the Chief Justice pursuant to the order of reference dated 24. 1989 made by K. Venkataswami, J.,(as the learned Judge then was), in view of an apparent conflict said to have been noticed by the learned Judge on account of diametrically opposite views found to have been taken in two decisions reported in Kannammal v. G. Panchakshara chetty, 1988 (2) L.W. 11 rendered by E.J.Bellie, J. and in Ramanujam Kavirayar v. Sri-La-Sri Sivaprakasa Pandara Sannathi Avargal, 1988 (2) L.W. 513 rendered by M. Srinivasan, J., (as the learned Judge then was). The relevant portion of the order of reference, which explained the need and justification for making the reference reads as follows: -

"Justice Srinivasan has taken the view that the Notification under Section 3 will not have the effect of extinguishing the right in the land, but it recognises the pre- existing right. This is what the learned Judge has said on this aspect: -

"...On the other hand, a reading of the provisions of the Act makes it clear that there is a recognition of the pre- existing rights. The proviso to S.3 (d) of the Minor Inams Act protects the possession of any person who is considered prima facie to be entitled to a ryotwari patta under the Act pending the decision of the appropriate authority. If the Act is to be construed as one wiping out all the pre-existing rights and starting with a clean slate, there would have been no necessity for the inclusion of the aforesaid proviso. Again, S.8(1) of the Minor Inams Act declares that every person who will be lawfully entitled to the kudivaram in an inam land immediately before the appointed day, shall be "entitled to ryotwari patta in respect of the land. The exception thereto is provided in S.8 (2). The provisions of S. 11 of the Abolition Act. (sic.) In all cases which are not covered by S.8(2) of the Minor Inams Act, the Settlement officer will have to decide the question as to who is lawfully entitled to the kudivaram immediately before the appointed day. This necessarily involves a recognition of a pre- existing right".

7. Likewise, Justice Bellie hastaken the view on the question of civil courts jurisdiction as follows:-

"...As stated above, under the provisions of the Act on and from the date of notification the title of the land stands transferred to and vested in the Government. Therefore, without any fresh conferment of title by the Government, no title subsists in the landholder. Hence no question of declaration of title arise. But if he is the person lawfully entitled to patta, for declaration of that entitlement he may file a suit. This is because there is no clear provision in the Act to decide a question who is entitled to patta as between rival contenders and therefore the Civil Courts jurisdiction to decide such an issue is not ousted."

"According to Bellie, J., no suit for title can be maintained in civil court in matters arising out of the provisions of Tamil Nadu Act 30 of 1963. On the other hand, Srinivasan, J. has taken a view to the following effect:-

"...It has to be held that the finality conferred by S.46 of the Minor Inams Act on the orders passed by the authorities constituted under the Act will not oust the jurisdiction of the Civil Court to decide questions of title. S.46 of the Minor Inams Act which deals with res judicata correspondents to S.64-A of the Abolition Act. S.3(d) of the Minor Inams Act contains the same language as S.3(d) of the Abolition Act. The ratio of the decision of the Supreme Court in State of Tamil Nadu v. Ramalinga Swamigal Madam, AIR 1986 SC 794 will apply to cases arising under Minor Inams Act." From the above, it is clear that there is a clear conflict between the two decisions. Therefore, in the interest of all concerned, particularly the Subordinate Judiciary, the issue must be authoritatively decided by the larger Bench, preferably by a Full Bench in view