Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8
CASE NO.:
Appeal (civil) 7497 of 2002
PETITIONER:
Abdul Rahman
RESPONDENT:
Prasony Bai & Anr.
DATE OF JUDGMENT: 20/11/2002
BENCH:
Ruma Pal & S.B. Sinha.
JUDGMENT:
J U D G M E N T
S.B. SINHA, J:
Leave granted.
Mangal Singh (since deceased) and the 1st Respondent herein, were
originally residents of Pakistan. As a displaced person in India, Mangal
Singh was allotted land measuring 11 bighas 16 biswas in Village
Shorba, Tehsil Kishangarhbas, District Alwar. The said Mangal Singh
died, whereafter a report was made by the village Patwari on or about
31.3.1978 to the effect that he had died intestate without any heir.
Pursuant thereto and in furtherance thereof, escheat proceedings were
initiated by the Tehsildar, Kishangarhbas on or about 12.3.1979. The
possession of the land in question was taken by the Patwari from the 1st
Respondent on 28.3.1979. A part of the land in question was allotted to the
appellant by the Tehsildar on 11.5.1979. The 1st Respondent herein
questioned the said allotment of land made in favour of the appellant
herein. The Additional Collector by his order dated 24.8.1979 set aside the
order of taking possession and restored possession thereof to Prasony Bai,
the 1st Respondent herein, and cancelled the allotment of land to the
appellant. Against the said cancellation order dated 24.8.1979 made in
favour of the 1st Respondent, an appeal was preferred by the appellant
herein before the Board of Revenue. The Board of Revenue by its order
dated 28.11.1985 while maintaining the said order of cancellation of
allotment observed that :
"(1) the order was passed behind the back
of the party i.e. Parsony Bai; (2) that Tehsildar
should not have allotted the land to Abdul Rahman
without giving notice to persons in whose name
the land already stood; (3) that it was therefore,
clear that Tehsildar, Kishangarhbas Harish
Chandra had acted in most irresponsible manner
while allotting the land to Abdul Rahman; and (4)
that for the highhandedness the disciplinary
proceedings should be initiated against the
Tehsildar."
The appellant herein questioned the said order of the Board of
Revenue before the High Court by way of filing a writ petition which was
marked as S.B. Civil Writ Petition No.2274 of 1985 which was dismissed.
A mutation proceeding was also initiated for mutating the name of
the 1st Respondent which was also contested by the appellant. The name of
the 1st Respondent was ultimately directed to be mutated by order dated
31.5.1993 by the Board of Revenue. An application for review was filed
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8
there-against by the appellant but the same was also dismissed by order
dated 14.6.1999. Although it does not appear from the records, the
appellant herein in his written submissions, (although not contended in oral
argument) alleges that the escheat proceeding is still pending.
Some time in the year 1999, the appellant herein filed a suit in the
Court of the Civil Judge (Junior Division), Kishangarhbas, which was
marked as Civil Suit No.17 of 1999, praying, inter alia, for the following
reliefs :
1) to declare that Prasony Bai is not the daughter
of Mangal Singh;
2) that the plaintiff is in adverse possession even during
the life of Mangal Singh;
3) permanent injunction.
In the said suit, having regard to the pleadings of the parties thereto the
following three issues were framed :
1) Whether the dispute of the civil suit in question had
already been decided and adjudicated upon by the
courts and whether it is hit by the principles of res
judicata ?
2) Whether the suit is beyond limitation ?
3) Whether the plaintiff had no locus standi to file the
suit ?
An additional issue was framed on 10.8.1999 by the trial court, as
regards the jurisdiction of the Civil Court to try the said suit. Being
aggrieved by and dissatisfied therewith, the appellant filed a civil revision
application before the High Court as regards the legality of the order of the
trial court framing the 4th issue. By an order dated 24.10.2000, the said
civil revision application was allowed by the High Court. The said order
was passed, inter alia, on the ground that counsel for the 1st the Respondent
stated that his clients who are ladies were being harassed on one or the other
count and they had no objection if Issue No.4 in regard to jurisdiction of
the civil court is deleted.
However, thereafter the 1st Respondent filed an application that
suitable direction be issued to the Civil Judge, (Junior Division),
Kishangarhbas, Alwar to decide Suit No.17 of 1999 as expeditiously as
possible and the order dated 24.10.2000 be modified to the said extent.
Although the said petition was dismissed, the High Court having noticed
that the previous litigations between the parties also related to the property
in suit observed in its order dated 21.12.2000, as under:
"For the reason that the judicial process be
not abused by one or the other party. I deem it
proper that the trial court issue required to decide
the case at the earliest. Counsel for the petitioner
states that the plaintiff would take at least 18
months 2 years for leading his evidence.
Before parting with the order, I suo motto
(sic for ’suo motu’) order that the record of the
trial court of suit No.17/99 be summoned
immediately through special messenger on or
before 4.1.2000 for passing necessary orders in the
circular (sic) of the case.
At this stage Mr. Khutetia states that he has
no instruction from his client.
Counsel for both the parties undertakes to
inform the counsel for the plaintiff who is
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8
conducting the case of plaintiff in the trial court of
the next date."
Case be listed on 4.1.2001."
On or about 6.8.2001, the parties appeared in person before the
learned Judge with their respective counsel. It is not disputed that the
appellant herein did not question the jurisdiction of the High Court to
withdraw the said suit on its own file. It also appears that during the
pendency of the said proceedings, the 1st Respondent herein expressed her
desire to sell the property in suit in favour of the appellant, whereupon the
Tehsildar, Kotkasim, District Alwar, was directed by order dated 6.8.2001
to submit a report as regards the market price of the agricultural land in the
said village. The relevant portion of the aforesaid order is as under :
"The parties are present in person along
with their counsel.
Even though, in my opinion, there is hardly
any equity in favour of respondent, but the
petitioner is prepared to sell the land to
respondent on market price/reasonable price. Both
the parties agree that Tehsildar, Kotkasim, District
Alwar, shall submit his report in regard to market
price of agriculture land in village Shorba, Tehsil
Kotkasim after verifying the same on spot. The
report shall be submitted by the Tehsildar in
person in court on 27.8.2001. The order shall be
complied with literally by Tehsildar."
The Tehsildar submitted his report on 27.8.2001, on which date the
following order was passed :
"As per the previous order the Tehsildar
concerned is present in person and he has
submitted his report.
He need not appear again.
Record of the trial court has been received.
Let the case be listed for final decision and
further agreements (sic) on 12.9.2001."
The learned Single Judge thereafter by order dated 29.11.2001, upon
hearing the counsel for the parties, dismissed the said suit inter alia,
holding :
"After having lost in two bouts in the
revenue courts and right upto the High Court, the
present plaintiff Abdul Rahman is still perhaps not
satisfied and has filed the present suit virtually on
the same facts and for the same relief which
already stood adjudicated by the courts below for
which a preliminary issue has already been framed
by the court.
In my opinion, it is a fit case where the
inherent powers u/s 151 r/w Section 24 CPC are
required to be invoked by this court. The suit
record has already been received in this court.
After going through the pleadings and the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8
admitted documents i.e. judgment and decree
placed on record, I find that the matter is fully
covered by the principles of res judicata. Parties
have been litigating right from 1979 and it had
culminated into two bouts of cases right upto High
Court and again review application of the plaintiff
was dismissed by the Board of Revenue in 1999.
The plaintiff is definitely misusing the process of
law in the said case by filing and approaching the
courts repeatedly on the same issues.
The preliminary issue to the effect whether
the dispute to the present civil suit in question has
already been decided and adjudicated by the court
and is barred by the principles of res judicata, is
fully answered by various orders and judgment
passed by various courts and upheld right upto the
High Court and, therefore, the issue stands decided
against the plaintiff. It has already been decided
by the court that Parsony Bai etc. were legally
entitled to retain the land in their possession being
the daughter of Mangal Singh. The escheat
proceedings illegally initiated against Parsony Bai
in regard to property of her father Mangal Singh
have been rightly dropped and land restored to her.
It was also decided by the courts that the present
appellant was not entitled to the part of the land
out of the land allotted to him in question. The
present plaintiff despite having lost two times on
the same issue in regard to same property is still
dropping the petitioner in the third round of
litigation in the civil suit for declaration as
mentioned above."
A letters patent appeal filed by the appellant herein being D.B. Civil
Special Appeal (Civil) No.191 of 2001 was dismissed by a Division Bench
of the High Court by order dated 4.12.2001 holding :
"We find that in the facts of the case, the
learned Single Judge has rightly applied the
principle of constructive res judicata. The real
controversy was with regard to the same property
and the same parties were litigating throughout.
The present appellant having failed to establish
his claim of allotment and such allotment having
been cancelled by the orders of the competent
courts, which was upheld by the High Court has
again restored to file a suit afresh against
respondent Prasony Bai, this time in the guise of
showing that she was not the daughter of Mangal
Singh. This issue was also substantially involved
in the revision petition. Once it is found that
present appellant was entitled to have allotment in
his name, the allotment had been cancelled, he
admittedly has no locus standi now to challenge
the fact that Smt. Prasony Bai was not the
daughter of Mangal Singh.
In the facts and circumstances of the case,
we find that the learned Single Judge has rightly
exercised the powers under Section 151 read with
Section 24 of Code of Civil Procedure so as to put
an end to the abuse of process of the court and to
bring end of the frivolous litigation. In our
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8
opinion, such an approach was necessary in the
facts and circumstances of the present case. Facts
of the present case depict a very dismal state of
affairs in which party having litigious
perseverance has already been able to prolong the
matter had to keep the controversy alive for more
than 24 years by move and is still desirous to
continue third round of litigation. Litigious
perseverance is not to be rewarded rather it is to be
discouraged. In our opinion learned Single Judge
has rightly exercised the power under Section 151
read with Section 24 of Code of Civil Procedure.
In the facts and circumstances such an approach
is the need of the hour. There is no merit in this
special appeal. The same is hereby dismissed."
Hence, this petition for grant of special leave to appeal to this Court
has been filed questioning the said order.
Mr. Amarendra Sharan, learned senior counsel appearing on behalf
of the appellant, had raised the following contentions in support of this
appeal :
1) The High Court had no jurisdiction to withdraw the
suit and dispose of civil revision application purported
to be in exercise of its power under Section 24 of the
Code of Civil Procedure;
2) In any event, the procedure for determining the issues
in the suit having not been followed by the High Court,
the impugned order must be held to be without
jurisdiction;
3) As the revenue court had no jurisdiction to adjudicate
upon the question of status, the principles of res judicata
cannot be said to have any application whatsoever.
Mr. Sharan submitted that the appellant herein was a tenant of
Mangal Singh. According to the learned counsel, although it is not
disputed that the said Mangal Singh was the original allottee, as the
appellant had been cultivating the land in question, he acquired title by
adverse possession. According to the learned counsel, the proceedings for
cancellation of allotment could not have been initiated by the 1st
Respondent as she was an imposter.
In the aforementioned situation, it was urged that the Board of
Revenue could not have determined the said question as regards the status
of the 1st Respondent vis--vis the original allottee, Mangal Singh, and thus
the impugned judgment cannot be sustained.
It may be true that normally the High Court does not pass an order
under Section 24 of the Code of Civil Procedure in a disposed of
proceeding. However, in terms of Section 24 of the Code of Civil
Procedure, indisputably the High Court had the requisite jurisdiction to
withdraw any suit pending in any court subordinate to it and try or dispose
of the same inter alia on its own motion; wherefor even no notice is
required to be issued.
Section 24 of the Code of Civil Procedure reads as under :
"24, General power of transfer and
withdrawal. (1) On the application of any of the
parties and after notice to the parties and after
hearing such of them as desired to be heard, or of its
own motion, without such notice, the High Court or
the District Court may, at any stage
(a) transfer any suit, appeal or other proceeding
pending before it for trial or disposal to any Court
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8
subordinate to it and competent to try or dispose of
the same; or
(b) withdraw any suit, appeal or other proceeding
pending in any Court subordinate to it; and
(i) try or dispose of the same; or
(ii)transfer the same for trial or disposal to any Court
subordinate to it and competent to try or dispose of
the same; or
(iii) re-transfer the same for trial or disposal to the
Court from which it was withdrawn.
(2) Where any suit or proceeding has been transferred
or withdrawn under sub-section (1), the Court which
is thereafter to try or dispose of such suit or
proceeding may, subject to any special directions in
the case of an order of transfer, either retry it or
proceed from the point at which it was transferred or
withdrawn.
(3) For the purposes of this section
(a) Courts of Additional and Assistant Judges shall
be deemed to be subordinate to the District Court;
(b)"proceeding" includes a proceeding for the
execution of a decree or order.
(4) The Court trying any suit transferred or withdrawn
under this section from a Court of Small Causes
shall, for the purposes of such suit, be deemed to be a
Court of Small Causes.
(5) A suit or proceeding may be transferred under this
section from a Court which has no jurisdiction to
try it.
A bare perusal of the said provision leaves no manner of doubt that
the High Court had the requisite jurisdiction to suo moto withdraw a suit to
its file and adjudicate itself all or any of the issues involved therein.
The records of the case furthermore clearly demonstrate that the
appellant did not raise any question as regards the lack of jurisdiction of the
High Court to pass such an order in terms of Section 24 of the Code of Civil
Procedure. In fact, the appellant not only without any demur submitted
himself to the jurisdiction of the High Court by taking part in the
proceedings, but as noticed hereinbefore, he even made an offer to purchase
the property in question. Eventually, despite a report as regards the market
value of the land in question has been submitted by the Tehsildar, the
appellant appears to have backtracked therefrom.
We, therefore, in the aforementioned premise, do not find any
substance in the contention of Mr. Saran that the High Court had no
jurisdiction to withdraw the suit on its own file for its disposal.
For the purpose of disposal of the suit on the admitted facts,
particularly when the suit can be disposed of on preliminary issues, no
particular procedure was required to be followed by the High Court. In
terms of Order XIV Rule 1 of the Code of Civil Procedure, a Civil Court
can dispose of a suit on preliminary issues. It is neither in doubt nor in
dispute that the issues of res judicata and/constructive res judicata as also
the maintainability of the suit can be adjudicated upon as preliminary
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8
issues. Such issues, in fact, when facts are admitted, ordinarily should be
decided as preliminary issues.
As noticed hereinbefore, the parties did not deny or dispute two
earlier proceedings, namely, (1) the proceedings for cancellation of
allotment in favour of the appellant and (2) the mutation proceedings, were
initiated and adjudicated upon by the revenue authorities.
A proceeding to grant settlement of a land can be initiated by the
revenue department of the State. Similarly, the mutation proceedings can
also be subject-matter of revenue proceedings before the revenue authorities
of the State.
The question as to whether the property in question could have been
the subject-matter of a grant depended on the jurisdictional question,
namely, whether Mangal Singh died intestate without leaving any heir. If
Mangal Singh died leaving his heir or legal representative, the question to
treat a property as ’escheat’ would not arise. Such a jurisdictional question,
therefore, could have been raised only before the revenue authorities in the
said proceedings. Once it is held that the revenue authorities had the
requisite jurisdiction to determine the said question subject, of course, to
adjudication of the legality or validity thereof in an appropriate civil suit,
the issues which could and ought to have been raised in the said
proceedings but not raised would be barred by the principles of constructive
res judicata; particularly when the validity or legality of the said
proceedings had not been questioned in the civil suit, as a result whereof,
the same attained finality.
A matter may not strictly speaking be the subject-matter of the suit
itself as brought out, yet it may relate thereto. A question as to whether the
First Respondent was the daughter of Mangal Singh, thus, is a matter
relating to both the cancellation of allotment proceedings as also mutation
proceedings in the matter heard and adjudicated upon by the Board of
Revenue.
There cannot further be any doubt or dispute whatsoever that the
appellant in the first proceedings was entitled to question the locus of the 1st
Respondent herein on the ground that she was not the daughter of the
aforementioned Mangal Singh. Admittedly, no such contention was raised
by the appellant. In the aforementioned situation, the application for
cancellation of allotment made in favour of the appellant herein was
entertained by the revenue authorities at the instance of the 1st Respondent
as it was found that she was interested in the subject-matter of the land in
question and she had a right of hearing before an order of allotment could
be passed in favour of the appellant. Furthermore, the right of the 1st
Respondent to get back the possession of the land as also to get her name
mutated in relation thereto, has been upheld by the Board of Revenue on
two occasions. Even the appellant’s prayer for review of the order of the
Board of Revenue was dismissed.
It may be true that only because the property in dispute had been
mutated in the name of one of the parties to the suit, the same would not be
conclusive and binding between the parties. But although by reason of entry
in the record of right one does not derive any title in relation to the property
in dispute, as has been held in State of U.P. v. Amar Singh & Ors.[(1997) 1
SCC 977] and [(1997) 7 SCC] & Balwant Singh & Anr. v. Daulat Singh
(Dead) by L.Rs. (1997) 7 SCC 137] whereupon Mr. Sharan placed strong
reliance, but in the instant case, as noticed hereinbefore, the title of Mangal
Singh vis--vis the First Respondent herein had never been in dispute. The
question which has been raised in the suit is as to whether the appellant
herein had acquired any right, title or interest in the property by adverse
possession. As the appellant claims acquisition of title by prescription, it
would necessarily lead to the conclusion that Mangal Singh had title in
respect of the property in dispute.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8
In the peculiar facts and circumstances of the case, therefore, if the
learned Single Judge of the High Court had withdrawn the suit and disposed
of the same on the admitted facts; we do not find any illegality therein.
The learned Single Judge as also the Division Bench have held that the suit
was not maintainable, inter alia, on the ground that the appellant herein had
no locus standi to question the relationship of the 1st Respondent with the
admitted owner of the property, namely, Mangal Singh.
Mr. Sharan has strongly relied upon a decision of this Court in
Khushro S. Gandhi & Ors. v. N.A. Guzder (dead) by L.Rs. & Ors. [AIR
1970 SC 1468] but the said decision is not applicable to the facts of the case
inasmuch as therein no order in terms of Section 24 of the Code of Civil
Procedure was passed. The question which arose for consideration in the
said case was as to whether an interim order could be passed in a pending
civil revision application which had nothing to do with the issue involved
therein.
The contention of the appellant that the revenue court could not
have determined the question of status of the 1st Respondent herein may be
viewed from another angle. The issue as regards the status of the 1st
Respondent has never been raised before the revenue authorities . As the
appellant herein claimed himself to be a tenant of Mangal Singh, there was
no reason as to why he could not be said to be aware of the relationship
between the 1st Respondent and the said Mangal Singh. He allowed the
proceedings of the Board of Revenue to be determined against him. The
decision of the Board of Revenue attained finality. His writ petition was
also dismissed. Be it also noted that the civil suit was filed three years after
the adjudication of the rights of the parties in the mutation proceedings.
.
In the aforementioned situation, in our opinion, the appellant must
be held to have taken recourse to abuse of process of court underlying the
principle that the litigation should be allowed to attain finality in public
interest. Although the concept of issues estoppel or estoppel by records
are distinct and separate from the concept of abuse of process in public
interest, the court may refuse the plaintiff from pursuing his remedy in a
court of law. See Johnson v. Gore Wood & Co. [(2002) 2 AC 1].
In this case, we are also satisfied that having regard to the fact that
the appellant himself was the tenant of Mangal Singh, he could not have
raised the plea of adverse possession. As a tenant he could not have
questioned the title of Mangal Singh. The very fact that escheat
proceedings were initiated at the instance of the State also points out that
the State proceeded on the premise that Mangal Singh had the right title in
relation to the land in question and as he died intestate without leaving
behind him any legal heir/representative, the same vested in the State. The
appellant, as noticed hereinbefore, was allotted the land in question
admittedly on the aforementioned premise, namely, Mangal Singh at the
time of his death had title to the land in question or the suit property, but he
died intestate. He, therefore, cannot be permitted to prevaricate from his
stand at this stage.
We are, further, of the opinion that no case has been made out for
interference with the impugned judgment in exercise of jurisdiction of this
Court under Article 136 of the Constitution of India, even it be held that the
High Court had committed some irregularities in withdrawing the suit and
disposing the same.
We do not find any merit in this appeal. The appeal is accordingly
dismissed with costs.