Full Judgment Text
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(s).652 OF 2020
(arising out of SLP (Civil) No(s). 17418 of 2018)
VAIJINATH S/O YESHWANTA JADHAV
DECEASED BY L.R. AND OTHERS ...APPELLANT(S)
VERSUS
AFSAR BEGUM, WIFE OF
NADIMUDDIN, DECEASED BY
L.Rs. AND OTHERS ...RESPONDENT(S)
JUDGMENT
NAVIN SINHA, J.
The appellant assails the order dated 01.02.2010 dismissing
his writ application and the affirmation of the same by the Division
Bench dated 19.03.2018, in appeal.
2. The predecessor of the appellant was granted the status of a
statutory tenant under Section 38E(1) of the Hyderabad Tenancy
and Agricultural Lands Act, 1950 (hereinafter referred to as ‘the
Signature Not Verified
Digitally signed by
ARJUN BISHT
Date: 2020.01.30
16:09:36 IST
Reason:
Act’) with regard to Survey No.189 and 202/AA in village Ghat
Nandur on 01.02.1959. The original land owner Nadimuddin,
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predecessor of the respondents nos.1 and 2 (hereinafter referred to
as ‘respondents’), filed an application under Section 44 of the Act for
resuming the lands for personal cultivation. It was rejected on
22.04.1960. Nadimuddin did not challenge the rejection till his
death on 21.01.1962. The statutory certificate was then issued to
the appellant predecessor on 24.03.1970 after examination by the
Agricultural Land Tribunal Ambajagai under Section 38E(2) of the
Act. The respondents, sons of Nadimuddin, laid a fresh challenge to
the certificate dated 24.03.1970 after the latter’s death. It was
rejected by the Deputy Collector on 19.04.1971, affirmed by the
Maharashtra Revenue Tribunal (hereinafter referred to as “the
Tribunal”) on 09.11.1971. The respondents then filed Regular Civil
Suit No.73/1972 for declaration of title with regard to the suit lands
and that the certificate issued to the predecessor of the appellant by
the Land Tribunal was null and void. The suit having been decreed,
was reversed in appeal by the Extra Assistant Judge, Beed in
Regular Civil Appeal No.122/1976 inter alia rejecting the challenge
that the Land Tribunal did not follow the procedure before issuance
of the certificate. The dismissal of the suit attained finality as the
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respondents, legal heirs of Nadimuddin, did not challenge it before
any superior forum.
3. On 26.05.1981, Afsar Begum, wife of Nadimuddin and mother
of the respondents, filed a fresh appeal before the Deputy Collector
challenging the certificate dated 24.03.1970 only with respect to
Survey No.202/AA contending that she was unaware till January
1981 of the mutation entries in the name of the appellants. The
Deputy Collector by order dated 20.01.1983 remanded the matter to
the Additional Tehsildar. The Additional Tehsildar on 23.12.1987
held that in absence of proper entries in the tenants register, the
predecessor of the appellant could not be held to be a protected
tenant. The Deputy Collector in the appeal preferred by the
appellant, on 30.12.1988 set aside the order of the Additional
Tehsildar and ruled in favour of the appellant upholding the
declaration of ownership rights under Section 38E(1) of the Act.
Afsar Begum preferred a revision which was allowed by the Tribunal
on 21.09.1990, affirmed by the Single Judge and the Division
Bench, and which are impugned in the present proceedings.
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4. Shri Vinay Navare, learned senior counsel appearing on behalf
of the appellant, submitted that the status of the appellant as a
protected tenant having achieved finality by the order of the
Tribunal dated 09.11.1971 at the behest of the respondents read
along with the dismissal of Regular Civil Suit No. 73/1972, it was
not open for the wife of the deceased, who was none other than the
mother of the respondents, to challenge the very same certificate
24.03.1970 by subterfuge, eleven years after its grant and ten years
after the order of the Tribunal. Even if for the sake of argument,
though not conceding, the order of the Tribunal dated 09.11.1971
was erroneous, it having attained finality, the Tribunal could not
have virtually sat over its own earlier order as an appellate forum to
arrive at a contrary finding. The appellant could not be vexed twice
on the same issue, once by the sons of Nadimuddin and then
belatedly by his wife Afsar Begum. The latter has since been
deceased, and has been substituted by the respondents. The effect
of the impugned order is that what was denied to the respondents
directly will now be made available to them indirectly by virtue of
litigation which was not at all bonafide. Reliance was placed on
Cheeranthoodika Ahmmedkutty and another vs. Parambur
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(2000) 2 SCC 417,
Mariakutty Umma and others, R.
Unnikrishnan and another vs. V.K. Mahanudevan and others,
(2014) 4 SCC 434.
5. It was next submitted that the dismissal of the appeal
preferred by respondents in their own status as legal heirs of
Nadimuddin by the Tribunal on 09.11.1971, albeit on the grounds
of limitation, nonetheless is a final order on merits relying on
(2005)
Shyam Sunder Sarma vs. Pannalal Jaiswal and others,
1 SCC 436.
6. Shri Vivek C. Solshe, learned counsel appearing on behalf of
the respondents, submitted that the order of the Tribunal dated
21.09.1990 as affirmed by the High Court is well considered and
reasoned. Merely because a certificate may have been issued
erroneously to the appellant, nothing precluded the Tribunal from
correcting that wrong as obviously the certificate was not properly
obtained and procedures for issuance and enquiries were not
followed. The High Court has essentially exercised supervisory
jurisdiction in view of the perversity of findings upholding an
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erroneous certificate. The mere fact that the errors were discovered
on a fresh appeal preferred by the widow of the deceased does not
detract or lend validity to the earlier certificate as the name of the
appellant did not find place in the register of tenants.
7. We have considered the submissions on behalf of the parties
and have been taken through the various orders passed in the two
rounds of litigation preferred first by the respondents and then by
Afsar Begum. The respondents do not dispute the status of the
appellant as a tenant. The attempt at restoration of the lands by
Nadimuddin for personal cultivation was rejected on 22.04.1960
and was never questioned by Nadimuddin till his demise on
21.01.1962. What is sought to be disputed by the respondents, the
legal heirs of Nadimuddin, is the appellant’s status as a protected
statutory tenant. Originally the respondents questioned the same
with regard to the Survey Nos. 202/AA and 189. Subsequently Afsar
Begum confined the challenge to the former only acknowledging the
status of the appellant as a protected tenant on the latter. The
appellants’ predecessor was granted statutory status as far back as
01.02.1959 under Section 38E(1). Final certificate under Section
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38E(2) was then granted to the appellant on 24.3.1970 by the Land
Tribunal and deposit of the necessary amount was made before the
Land Tribunal. It is considered proper to set out Section 38E (2)
and (3) of the Act as follows:
“(2) A certificate in the prescribed form declaring
him to be owner shall be issued by the Tribunal to
every such protected tenant and notice of such
issue shall simultaneously be issued to the
landholder. Such certificate shall be conclusive
evidence of the protected tenant having become the
owner of the land with effect from the date of the
certificate as against the landholder and all other
persons having any interest therein:
xxxxx
(3) Within 90 days from the date specified in a
notification under subsection (1) every landholder
of lands situated in the area specified in such
notification shall file an application before the
Tribunal for the determination of the reasonable
price of his interest in the land which has been
transferred to the ownership of a protected tenant
under subsection (1) [and if an application is not
so filed within such period by a landholder but a
certificate under subsection (2) has been issued,
the Tribunal may suo motu proceed to determine
such price and thereupon] all the provisions of
subsections (4) to [(9)] of section 38 shall mutatis
apply to such application:
mutandis
xxxxx”
8. Subsequent to the issuance of the statutory certificate, the
respondents on 08.07.1970 preferred an appeal before the Deputy
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Collector with the plea that Nadimuddin was a sick man and was
therefore unable to challenge the declaration in due time. The
Deputy Collector by his order dated 09.11.1971 after consideration
of documentary evidence concluded that no such ailment of
Nadimuddin had been presented which may have prevented him
from pursuing his remedies evident from the application preferred
by him under Section 44 of the Act and which stood rejected with
finality on 22.04.1960. The dismissal of the appeal on grounds of
limitation was upheld by the Tribunal. The respondents did not
assail the orders. Two years later they filed Regular Civil Suit No.
73/1972 for declaration that they were the owners of the lands in
Survey No. 202/AA and that under Section 38E certificate granted
to the appellant was a nullity. The suit was decreed but the
Appellate Court reversing the decree held that the findings of the
Land Tribunal leading to the certificate dated 24.03.1970 could not
be examined by the Civil Court and that no case has been made out
by the respondents that the Land Tribunal had failed to follow the
procedure under the Act and the Rules in awarding the certificate.
The respondents did not prefer any challenge to the dismissal of
their suit.
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9. Ten years after the dismissal of the appeal filed by
respondents, by the Deputy Collector on 09.11.1971, Afsar Begum,
the widow of Nadimuddin and mother of the respondents, filed a
fresh appeal before the Deputy Collector to challenge the statutory
status order dated 01.02.1959 and the statutory certificate dated
24.03.1970. She did not assail the status of the appellant as a
protected tenant with regard to Survey No.189. It is necessary to
take note that the Land Tribunal had granted a composite certificate
as protected tenant to the appellant on 24.03.1970 for both Survey
Nos. 189 and 202/AA. The assertion that it was issued behind the
back of Nadimuddin is falsified by the application preferred by
Nadimuddin under Section 44 for resumption of the lands and
which was rejected on 22.01.1960, but which finds no mention in
her memo of appeal. The appeal asserted that she became aware
only in 1981 of the mutation entries in the name of the appellant.
We consider it proper to take notice of the fact that it was not the
case of Afsar Begum that she was living separately from her two
sons, and was therefore unaware of all facts to the knowledge of the
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respondents not only with regard to Nadimuddin but also the
applications preferred by the respondents and rejection of the same.
10. The Additional Tehsildar, Land Reforms, by his order dated
23.12.1987 held that the declaration of the appellant as protected
tenant was procedurally defective because the name of the appellant
did not find place in the tenants register. In the appeal preferred by
the appellant, the Deputy Collector took notice of the original order
of the Additional Tehsildar dated 29.04.1972 on an application
preferred by the respondents admitting the status of the appellant
as a protected tenant but that they had failed to pay the rent only.
The Deputy Collector also held that the declaration of ownerships
rights of the appellant over Survey No. 202/AA was therefore
binding on the legal heirs of Nadimuddin and which included his
widow, which could not be reopened. The Tribunal upholding the
order of the Additional Tehsildar dated 23.12.1987 virtually sat over
its own earlier order dated 09.11.1971 as an appellate forum, to
arrive at a contrary finding that the grant of protected tenant status
to the appellant was erroneous in view of the errors in the tenancy
register, notwithstanding the findings in the civil suit also that there
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appeared no irregularity in procedure by the Land Tribunal. The
Land Tribunal being a statutory body, there shall be a presumption
of correctness of the orders passed by it.
11. It was not the case of the respondents that the statutory
certificate had been obtained by any fraud or misrepresentation by
the appellant in which case undoubtedly it would have been open
for reconsideration. The conclusion of the High Court that the
issuance of the certificate was “fictitious, unfounded and useless” by
reasons of being null and void is therefore completely
unsustainable. The decisions on the earlier occasion had been
rendered by a proper competent forum, after hearing the parties and
on perusal of records. An erroneous decision by a proper forum,
unless assailed before a superior forum will attain finality inter
parties.
12. In the facts of the present case, we find it very difficult to allow
the appellant to be vexed twice, once by the sons of the land owner,
then by his widow. We also cannot loose sight of the facts in the
present case that the ultimate beneficiary of the fresh orders shall
11
be the respondents even though they have lost their own challenge.
Resultantly what was denied to the respondents directly shall now
be available to them indirectly as Afsar Begum has since been
deceased. The fresh round of litigation started by Afsar Begum was
a mere subterfuge and an abuse of the process of law and courts by
essentially what is a proxy litigation.
13. In R. Unnikrishnan and another (supra), it was observed as
follows:
“19. It is trite that law favours finality to binding
judicial decisions pronounced by courts that are
competent to deal with the subjectmatter. Public
interest is against individuals being vexed twice over
with the same kind of litigation. The binding
character of the judgments pronounced by the courts
of competent jurisdiction has always been treated as
an essential part of the rule of law which is the basis
of the administration of justice in this country. We
may gainfully refer to the decision of the Constitution
Bench of this Court in Daryao v. State of U.P. where
the Court succinctly summed up the law in the
following words: (AIR p. 1462, paras 9 & 11)
“ 9 . … It is in the interest of the public at large
that a finality should attach to the binding
decisions pronounced by courts of competent
jurisdiction, and it is also in the public interest
that individuals should not be vexed twice over
with the same kind of litigation.
*
11 . … The binding character of judgments
pronounced by courts of competent jurisdiction
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is itself an essential part of the rule of law, and
the rule of law obviously is the basis of the
administration of justice on which the
Constitution lays so much emphasis.”
20. That even erroneous decisions can operate as res
judicata is also fairly well settled by a long line of
decisions rendered by this Court. In Mohanlal
Goenka v. Benoy Kishna Mukherjee this Court
observed: (AIR p. 72, para 23)
“ 23 . There is ample authority for the proposition
that even an erroneous decision on a question of
law operates as ‘res judicata’ between the parties
to it. The correctness or otherwise of a judicial
decision has no bearing upon the question
whether or not it operates as ‘res judicata’.”
21. Similarly, in State of W.B. v. Hemant Kumar
Bhattacharjee this Court reiterated the above
principles in the following words: (AIR p. 1066, para
14)
“ . … A wrong decision by a court having
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jurisdiction is as much binding between the
parties as a right one and may be superseded
only by appeals to higher tribunals or other
procedure like review which the law provides.”
14. At this juncture we also consider it appropriate to take note of
the submissions that the dismissal of the appeal by the respondent
on grounds of limitation on 09.11.1971 gave a quietus to the matter
on merits also as observed in (supra) as
Shyam Sunder Sarma
follows :
“9.1. In v. rendered
Sheodan Singh Daryao Kunwar
by four learned Judges of this Court, one of the
questions that arose was whether the dismissal of an
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appeal from a decree on the ground that the appeal
was barred by limitation was a decision in the
appeal. This Court held: (SCR pp. 308 H309 B)
“We are therefore of opinion that where a
decision is given on the merits by the trial court
and the matter is taken in appeal and the appeal
is dismissed on some preliminary ground, like
limitation or default in printing, it must be held
that such dismissal when it confirms the
decision of the trial court on the merits itself
amounts to the appeal being heard and finally
decided on the merits whatever may be the
ground for dismissal of the appeal.”
15. The impugned orders are therefore held to be unsustainable
and are set aside. The appeal is allowed.
.……………………….J.
(Ashok Bhushan)
………………………..J.
(Navin Sinha)
New Delhi,
January 30, 2020.
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