Full Judgment Text
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CASE NO.:
Appeal (civil) 1908 of 1999
PETITIONER:
Dhanvanthkumariba & Ors.
RESPONDENT:
State of Gujarat
DATE OF JUDGMENT: 01/10/2004
BENCH:
SHIVRAJ V. PATIL & B.N. SRIKRISHNA
JUDGMENT:
J U D G M E N T
Shivaraj V. Patil J.
The appellants are the legal representatives of Padhiar
Jagdevsinhji Ramsinhji who was ex-ruler of erstwhile State
of Umeta which comprised of five villages including Umeta.
According to him, the lands of these villages belonged to
him. In the year 1948, the State of Umeta was merged
into India under the Merger Agreement dated 24.05.1948.
The land bearing Survey No. 410 which is the disputed land
is situated at village Umeta. By virtue of Merger
Agreement, this land was also given to ex-ruler as
Talukdar. The land bearing Survey No. 410 comprised of
large area \026 742 acres and 32 guntas. The Bombay
Talukdari Tenure Abolition Act, 1949 (for short ‘the Act’)
came into force on 15.8.1950. According to the
respondent-State, the said land bearing Survey No. 410
vested in the Government by virtue of Section 6 of the Act.
The Government transferred 560 acres out of this land to
the District Panchyat, Kheda. Hence, the ex-ruler filed Civil
Suit O.S. No. 5 of 1970 contending that the transfer of the
land by the Government in favour of the District panchyat
was wrong as it belonged to him and Government had no
authority to transfer the land when the said land had not
vested in the Government. In that suit, reliefs of
declaration, possession and permanent injunction were
sought. The trial court decreed the said suit. The first
appeal filed by the respondent against the decree of the
trial court was allowed by learned Single Judge of the High
Court, reversing the decree passed by the trial court. The
original plaintiff filed LPA before the High Court questioning
the validity and correctness of the order made by the
learned Single Judge. The Division Bench of the High
Court, by the impugned judgment, dismissed the appeal
concurring with the findings recorded by learned Single
Judge. Hence, this appeal by the legal representatives of
the original plaintiff, as already stated above.
The State of Bombay on 1.4.1952 took possession of
about 30 acres out of the land in Survey No. 410 from the
possession of the plaintiff on the ground that it was a waste
land and, therefore, vested in the Government under
Section 6 of the Act. Challenging the action of the
Government, the original plaintiff filed regular Suit No.
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185/1953 against the State seeking declaration that he was
the owner of 30 acres of land which was part of Survey No.
410; it was not waste land; it did not vest in the
Government and that the order dated 1.4.1952 vesting the
land in the Government was null and void. When the said
suit was pending, Mahendrsinhji, brother of the original
plaintiff, made a claim of ownership to the extent of 147
acres and 15 guntas of land in the same Survey No. 410.
The State Government after making enquiry under Section
37(2) of the Bombay Land Revenue Code by its order dated
27.11.1958 held that Mahendersinhji was the owner of that
piece of land measuring 147 acres 15 guntas. By the same
order, it also declared that the remaining 590 acres and 30
guntas in Survey No. 410 was a waste land and, therefore,
it vested in the Government. The trial court decreed the
said regular Civil Suit No. 185/53 and declared that the
original plaintiff was the full owner of 30 acres of land and
ordered for delivery of possession to him. In the judgment,
the trial court recorded that five villages in the State of
Umeta were private properties of the original plaintiff. The
trial court also recorded a finding that the original plaintiff
was the owner of the ‘Wanta’ situated in Umeta and that
Survey No. 410 formed part of the ‘Wanta’ of Umeta. The
Government of Bombay filed first appeal No. 60 of 1960,
aggrieved by the judgment and decree passed in the said
suit No. 185/53. The first appellate court dismissed the
appeal on 16.7.1962. The State Government pursued the
matter further by filing second appeal in the High Court of
Gujarat. Pursuant to the decree passed by the trial court,
possession of 30 acres of land was handed over to the
original plaintiff on 5.12.1969 in Execution Application No.
34/69. The High Court by its judgment dated 12.3.1970
dismissed the second appeal also.
On the basis of the pleadings of the parties in Regular
Civil Suit No. 185/53, as many as 17 issues were framed.
Issue Nos. 4 and 6 read as under:-
"4. Whether the five Talukdari villages of
Umeta, Kuthiskhad, Sankhyad, Anmrol and
Asarms are of plaintiff’s private ownership as
alleged by plaintiff?
6. Whether the plaintiff is the owner of the
Wanta situated in Umeta? If yes, whether
Survey No. 410 forms part of the Wanta of
Umeta?
Both the issues were answered in favour of the
original plaintiff holding that five villages of Umeta were of
the private ownership of the original plaintiff as Talukdar;
he was the owner of the ‘wanta’ situated in Umeta and the
entire land bearing Survey No. 410 formed part of ‘wanta’
of Umeta. In Civil Appeal No. 60/1960 filed against the
decree in Regular Civil Suit No. 185/53, the appellate court
in para 4 has recorded thus:-
"4. During the arguments, the learned
Government Pleader conceded that the plaintiff
was the owner of Talukdari village Umeta and
S.No. 410 was within the limits of village
Umeta."
In the said appeal, the following three points arose for
determination:-
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"1. Whether the suit land is a part of the bed
of Mahi River?
2. Whether the suit land is waste land?
3. Whether the suit land for uncultivated
land when the Bombay Talukdari Tenure
Abolition Act, 1949 came into operation?"
All the three points were answered in the negative
against the defendant-State. A finding was recorded that
Government failed to prove that suit land was part of the
bed of Mahi river or that the suit land was waste land or the
suit land was uncultivated on the date when the Act came
into Force. Further, it was held that the land bearing
Survey No. 410 belonged to the original plaintiff and that
the suit had been rightly decreed. The defendant-State
filed second appeal against the judgment and decree
passed in the said appeal. The High Court, by its order
dated 12.3.1970, dismissed the second appeal affirming the
findings recorded by the two courts below. In the said
judgment, it is noticed that although several contentions
were urged by the State in the trial court resisting the suit
of the plaintiff but in the second appeal the only point that
was urged was that whether the lower appellate court had
committed an error of law in forming the opinion as regards
the category of the land in dispute. After a detailed
discussion, the High Court concluded thus:-
"This not having done, the lower appellate court
came to the conclusion that the defendant-State
failed to show that the disputed land was river
bed land. In this view of the matter, the lower
appellate court has formed the opinion that the
disputed land does not fall within one of the
three categories specified in Section 6 of the Act
as claimed by the defendant-State."
By this, it followed that the land bearing Survey No.
410 did not vest in the Government under Section 6 of the
Act.
In the present suit O.S. No. 5/1970, on the basis of
the pleadings of the parties, several issues were framed.
The relevant issues which are required to be seen for the
purpose of disposal of this appeal are issue nos. 4, 5 and 6
which read:_
"4. Whether the plaintiff proves that his
ownership of the five villages mentioned in
para 2 of the plaint, was acknowledged and
admitted by the Government?
5. Whether it is proved that Survey No. 410 is
of Wanta land of Umeta village?
6. Whether Survey No. 410 is proved to be of
the ownership of the plaintiff?"
The trial court answered these issues in the
affirmative in favour of the original plaintiff.
In the first appeal No. 914/77 filed against the
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judgment and decree in O.S. No. 5/1970, learned Single
Judge of the High Court held that the suit O.S. No. 5/1970
filed in respect of rest of 560 acres of land bearing Survey
No. 410 of Umeta was not hit by the principles of res-
judicata on the ground that the subject matter of the
dispute in O.S. No. 185/1953 was only in relation to 30
acres of land bearing Survey No. 410 and not in regard to
the remaining area of the land. He also held that the suit
land stood vested in Government under Section 6 of the
Act. The High Court, by the impugned judgment, as
already stated above, dismissed the L.P.A. affirming the
order of the learned Single Judge.
The learned Senior Counsel for the appellants
contended that the judgment in the second appeal No.
826/62 decided on 12.3.1970 by the High Court affirming
the decree made in O.S. No. 185/53 concludes the case
against the respondent-State inasmuch as in the said
judgment, appellants are held to be the owners and that
the land in question did not vest under Section 6 of the Act;
the said judgment operated as res-judicata against the
respondent-State in the present case; the trial court was
right in holding so; learned Single Judge and Division
Bench of the High Court committed error in reversing the
decree of the trial court. In support of his submissions, the
learned Senior Counsel relied on the decision of this Court
in Mahisagar Bhatha Cooperative Agriculture
Cooperative Society Ltd. Borsad and Ors. Vs. Thakore
Shree Jagdevsinhji Ramsinhji (dead by L.Rs. & Anr.
[1993 (2) Supp. SCC 540]
In opposition, the learned counsel for the respondent-
State made submissions supporting the impugned
judgment. He urged that learned Single Judge was right in
holding that the decision in O.S. No. 185/1953 did not
operate as res-judicata in deciding the present O.S. No.
5/1970, adopting the same reasons given in the judgment
of the learned Single Judge. He further urged that during
the pendency of O.S. No. 185/1953, brother of the original
plaintiff Mahendrsinhji had made a claim for ownership of a
portion of land measuring 147 acres and 15 guntas in the
same land in Survey No. 410 under Section 37(2) of the
Bombay Land Revenue Code. The competent authority,
after making enquiry by the order dated 27th November,
1958 held that Mahendrsinhji was the owner of the said
portion of the land; the original plaintiff did not take any
action against the said order dated 27th November, 1958
declaring 590 acres of Survey No. 410 to be Government
wasteland. Hence, the original plaintiff having failed to take
action for nearly 12 years from the date of the said order,
the relief of ownership claimed by him in O.S. No. 5/1970
being inconsistent with the order of 27th November, 1958
was not maintainable and the suit could not have been
decreed.
We have considered the submissions made by the
learned counsel for the parties.
In the case of Mahisagar Bhatha Cooperative
Agriculture Cooperative Society Ltd. Borsad and Ors.
(supra), this Court had occasion to consider as to the
ownership of plaintiff as Talukdar of Umeta State itself in
respect of another village. In the said decision, it is held
that the plaintiff as Talukdar of Umeta State was entitled to
full ownership, use and enjoyment of the said five villages.
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It was further held that suit land in that case which formed
the part of one such village, did not fall within the ambit of
Section 6 of the Act and it did not vest in the State. The
original plaintiff in the present case namely, Shri
Jagdevsinhji was the plaintiff in that case also. He was the
ex-ruler of Umeta State and he was also a registered
Talukdar and owner of five villages, namely, Umeta,
Kuthiyakhad, Sankhyad, Anmrol and Asarms. In that case,
he was concerned with village Kothiyakhad. He filed a suit
for declaration and for possession that he was the owner of
suit land in Survey No. 247 measuring 100 acres and 30
guntas situated at village Kithiyakhad. The trial court, by
its judgment dated March 30, 1971 declared that he was
the owner of the said land. The State of Gujarat filed appeal
to the High Court which was dismissed. Thereafter, they
filed appeal in this Court. This Court in paragraph 4 has
held thus:-
"4. We have heard learned counsel for the
parties and have thoroughly perused the record.
It was contended on behalf of the
defendant/appellants that the land came to be
vested in the State of Gujarat under the
provisions of Section 6 of the Talukdari Abolition
Act. We do not find any force in this contention.
Ex. 102 merger agreement dated May 24, 1948
has been placed on record which clearly
mentioned that the plaintiff as the Talukdar of
Umeta State was entitled to the full ownership
use and enjoyment of all the private properties.
An inventory of such private properties which
formed part of such merger agreement clearly
mentioned five Talukadari villages in Borsad
Taluka of Kaira district. Ex. 129 letter dated
January 31, 1949 written by the Collector and
Chief Administrator, Kaira to the plaintiff clearly
mentions that the matter regarding the five
Talukdari village in Borsad Taluka had been
referred to Government for orders. The
Government then vide Ex. 128 dated April 11,
1950 clearly admitted the five Talukdari villages
as the private property of the plaintiff. The
letter Ex. 128 reads as under:
D.C. No. 3449/46/13034G
Political and Services Deptt.
Bombay Castle, dated 11th April, 1950
My dear Thakore Saheb,
I am to say that the inventory of private
property securities and cash balances furnished
by you in accordance with Article 3 of the
instrument of merger executed by you has been
considered. A copy of the inventory as finally
accepted, is attached for your information. The
decisions submitted therein have the approval of
the Government of India in the Ministry of State.
As regards the five Talukdari villages claimed by
you as your private property, I am to say that
Government has agreed to concede your claim to
these villages but as the revenues of these
villages have been included in the average
annual revenues of Umeta State for purposes of
calculation of your privy purse, the same (i.e.
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the revenues of these villages) have now been
excluded from the average revenues of the State
and your privy purse has been finally fixed at Rs.
14,450 per annum instead of 19,200 per annum
as previously communicated to you.
I am to request you to acknowledge the
receipt of this letter and copy of the inventory
enclosed herewith.
Yours sincerely,
Sd/-
M.D. Bhatt"
Having stated so in paragraph 4 as extracted above,
this Court observed that the Government had agreed to the
claim of the plaintiff to the five villages as his private
property as part of the Merger Agreement and there was no
escape from the conclusion that the land in question which
lies in one of the five villages being the personal private
property of the plaintiff, could not fall within the ambit of
Section 6 of the Act. The Merger Agreement dated May 24,
1948 and the letter of the Government dated April 11, 1950
equally cover the legal position in regard to the land in
Survey No. 410 of Umeta in question. To this judgment,
State of Gujarat was a party. In other words, this
judgment, being inter-parties between the original plaintiff
and the State of Gujarat, is binding on the State of Gujarat.
In O.S. No. 185/53, the trial court held that five
talukdari villages including Umeta were of private ownership
of the plaintiff as Talukdar. Although the suit was confined
to a portion of 30 acres of land in Survey No. 410, the issue
No. 6 as already noticed above while narrating the facts, as
framed was whether the plaintiff was the owner of Survey
No. 410 of Umeta and the issue was answered in favour of
the plaintiff holding that the plaintiff was the owner of the
entire land in Survey No. 410. Even under issue No. 5 in
that suit, a finding was recorded that the rights of the
plaintiff as owner of the five villages were kept intact under
the Merger Agreement. In the second appeal No. 826/1962
filed against the judgment passed in Civil Appeal No.
60/1960, the High Court, after extracting Section 6 of the
Act, elaborately considered as to whether the land in
Survey No. 410 fell in any one of the categories so as to
vest in the State under Section 6 of the Act. Having
considered the evidence and looking to the findings
recorded by the courts below, the High Court concluded
that an area of 30 acres of land in Survey No. 410 did not
vest with the State under Section 6 of the Act. In the said
judgment, it is stated thus:
"Numerous contentions were raised by the
defendant-State in the trial court for resisting
the plaintiffs’ suit. It is not necessary to refer to
any of those contentions as the only point that is
urged before this Court is that the lower
appellate court had committed an error of law in
forming the opinion as regards the category of
the land in dispute. The learned Assistant
Government Pleader for the appellant-State has
argued that the disputed land falls within one or
the other of the three categories namely, river-
bed or waste or land which was not cultivated for
three years immediately preceding August 15,
1950, the date on which the Act came into force.
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Appellate court ought to have come to the
conclusion that the disputed land had vested
unto the State Government inasmuch as it fell
within one or the other of the aforesaid three
categories envisioned by Section 6 of the Act.
The only question that arises for decision in the
present appeal, therefore, is whether the lower
appellate court has committed any error of law
in rejecting the contention of the State as
regards the category of the land."
The High Court in the said second appeal, as already
stated above looked into oral and documentary evidence,
concluded that the lower appellate court was right and no
exception could be taken thereto in forming the opinion that
the disputed land did not fall within any one of the three
categories specified in Section 6 of the Act as claimed by
the respondent-State. Under the circumstances, second
appeal was also dismissed by the High Court.
Thus, in the light of the judgment in Mahisagar
Bhatha Cooperative Agriculture Cooperative Society Ltd.
Borsad and Ors. (supra) and also the judgment of the High
Court in second Appeal No. 826/62 arising out of O.S. No.
185/1953 in regard to the very Survey No. 410, it can be
safely concluded that the land in Survey No. 410 of Umeta
as claimed by the original plaintiff did not vest in the State
under Section 6 of the Act and the plaintiff was the owner
of the said land, it being his private property. This apart, in
O.S. No. 185/1953, it was not the case of the respondent-
State that the remaining area in Survey No. 410, after
excluding area of 30 acres which was the subject matter of
that suit was either river bed area or a wasteland or
uncultivated land. On the other hand, the issue framed in
the said suit covered the entire land in Survey No. 410
about which the reference is made already in relation to the
issues and findings. The trial court was right in the present
suit in holding that the judgment and decree passed in O.S.
No. 185/1953 were binding on the parties and they operate
against the respondent-State on the principle of res-
judicata. The first appellate court committed an error in
taking a contrary view on this question merely on the
ground that in the earlier suit, subject matter was confined
to only 30 acres of land in Survey No. 410 without looking
to the issues raised in the earlier suit. The issue raised in
earlier suit as regards ownership of the land in Survey No.
410 or vesting of the said land under Section 6 were not
confined to an area of 30 acres. On the other hand, they
covered the entire land in Survey No. 410. The Division
Bench also committed the same error in affirming the
judgment of the learned Single Judge. The contention that
the plaintiff did not challenge the order dated 27th
November, 1958 passed under Section 37(2) of the Bombay
Land Revenue Code in the proceedings initiated by his
brother Mahendrsinhji has no force for the reasons more
than one. The original plaintiff was not a party to those
proceedings; it was confined to an area of 147 acres and 15
guntas; the ownership of the original plaintiff in regard to
Survey No. 410 and it not vesting in the State under
Section 6 of the Act were specifically decided in the O.S.
No. 185/1953; the judgment and decree passed in that suit
attained finality when the High Court dismissed the second
appeal filed by the State affirming the decree passed in the
said suit. This decree binds the respondent-State as it was
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a party to the said suit. In this view, the order passed
under Section 37(2) in the proceedings initiated by the
brother of the plaintiff cannot override or take away the
effect of the above-mentioned civil court decree.
Thus, viewed from any angle, we find it difficult to
sustain the impugned judgment passed by the Division
Bench affirming the judgment passed by the learned Single
Judge in the first appeal. Hence, the appeal is allowed, the
impugned judgment is set aside and the judgment and
decree passed by the trial court is restored. No costs.