A declaration under Section 38-G does not attract res-judicata if its validity was not previously contested.

ORAL JUDGMENT :

1. Heard.

2. The proceedings were initiated by the present Respondent No.1 before the Civil Court by filing a suit for partition and separate possession. The decree was passed in favour of the present Respondent No.1 that he has 1/4th share in the suit property. In execution the present petitioners filed objections contending that they are protected tenants and declaration U/s 38-G has been made in their favour. The matter came upto this Court. This Court in W.P.No.100/1983 held that so long as declaration US 38-G is in force, it is conclusive evidence of the fact that the present petitioners are the owners of the suit land. The declaration of ownership is not challenged by anybody, anywhere and the question of validity of the declaration U/s 38-G can not be gone into this petition. After the aforesaid decision, the present Respondent No.1 filed appeal/proceedings before the Deputy Collector, Land Reforms, Latur on 16.3.1988. The same was dismissed. The matter was taken up before the MRT who remanded it to the Deputy Collector. After remand the Deputy Collector vide its judgment dated 28.2.1991, dismissed the appeal on the ground that the matter is barred on the principle of res-judicata in view of the judgment of the High Court in W.P.No.100/1983. The present Respondent No.1 challenged the said judgment before the MRT, Aurangabad who allowed the said revision vide its judgment and order dated 3.4.1992 and held that the present petitioners are not the tenants of the disputed land. Aggrieved thereby, the present Writ Petition is filed.

3. Mr.Bora, learned counsel for the petitioners submits that in fact, the appeal challenging the declaration U/s 38-G itself was not maintainable before the Deputy Collector. The declaration U/s 38-G is an administrative/ministerial act and as such no appeal lies. For the said purpose the learned counsel relies on the judgment of the learned Single Judge of this Court in a case of " Bharatlal Hemraj Vs. Kondiba Govinda Jadhav and others " reported in 2002 (Supp.) Bom.C.R.216 and another judgment of the learned Single Judge of this Court in a case of " Babusing Vithalsing Rajput Vs. Bhagirathibai Bhagwansing Thakur " reported in 2004 LawSuit(BOM) 1669.

4. The learned counsel further contends that the proceedings were barred by res-judicata in view of the judgment of the High Court in W.P.No.100/1983. It was further contended that if the Revisional Court was of the view that the matter was not hit by principle of res-judicata then it should have remanded the matter back to the authority.

5. Per contra, Mr.Mete, learned counsel for the Respondent No.1 submitted that the MRT rightly came to the conclusion that the proceedings before the Deputy Collector did not operate as res-judicata in view of the judgment of the High Court in W.P.No.100/1983, inasmuch as in the said Writ Petition No.100/1983, the validity of the declaration U/s 38-G was not an issue and the declaration U/s 38-G was assailed before the Deputy Collector. Even the High Court had observed that the validity of the declaration U/s 38-G is not an issue before it. According to the learned counsel, the tenant is defined U/s 34 of the Hyderabad Tenancy and Agricultural Lands Act . Yeshwanta was not the owner of the property, as such the certificate issued showing Yeshwanta as the owner of the property can not be said to be legal and proper. The notified date for getting declaration U/s 38-G is 21.6.1965. The certificate which is issued and relied by the petitioners could not have been issued for declaration U/s 38-G of the Act. The certificate is shown to have been issued in form No.13 under Rule 22. If the decla