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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.