Bombay High Court
Vithu Hira Mahar (More) @ Vithu Pandu ... vs State Of Maharashtra & Others on 1 July, 1999
Equivalent citations: 2000(1)BOMCR89, 1999 A I H C 4295, 1999 BOM LR 3 275, (2000) 1 MAHLR 190, (2000) 1 BOM CR 89
Author: D.G. Deshpande
Bench: D.G. Deshpande
ORDER D.G. Deshpande, J.
1. Both the petition and the second appeal were filed by the one and the same person, namely, Vithu Hira Mahar. It appears that he died during the pendency of this petition and his legal heirs have been brought on record.
2. In writ petition petitioner Vithu challenged the Order of the Additional Commissioner, dated 6-4-1985 as per Exhibit 'K' to the petition and in the second appeal appellant Vithu had challenged the Order of the District Judge, Pune, (P.V. Kakadae) dated 18-6-1985 in appeal filed by him. This appeal before the Additional District Judge was filed by Vithu against the order of the trial Court in Civil Suit No. 2353 of 1979 by which the trial Court had decreed the suit of the respondents - plaintiffs.
3. Though the writ petition and the second appeal are arising out of different orders, common questions of fact and law are involved in both of them and hence they were tagged together and were heard together.
4. There is a chequered history to the litigation pending between the parties. However, for the purpose of brevity convenience and understanding it would be better to start from RTS/Watan Appeal No. 107/19/9 decided by Sub Divisional Officer, Baramati Division. Baramati on 22-11-1979 because it was this order that was challenged by the respondents in their civil suit before the Civil Judge, Senior Division, Pune, vide Suit No. 2353 of 1979 and it was this order which was simultaneously challenged by the respondents before the Additional Commissioner, Pune in their Appeal bearing No. A/ WTN/SR/9/80.
5. Original petitioner Vithu (Vithoba) initiated proceedings before the Sub Divisional Officer (SDO) vide his application dated 11-4-1978 {RTS/Watan Appeal No. 107/ 1979). It was alleged by Vithu that he was duly adopted son of Ex. Watandar Ramabai Pandu Mahar and all the relevant papers of the enquiry into adoption which were made by Mamlatdar in the year 1931 were not available to him earlier and particularly in 1941 but since in 1979, he had obtained those necessary documents he was entitled to get a declaration and finding that he was Watandar of the Mahar Watan of village Pimpre, Khurd and consequently the suit lands should be regranted in his name.
6. It is clear from the record that original petitioner Vithu was required to refer to some happenings or order of 1941 in his Appeal No. RTS/Watan/ Appeal No. 107/ 1979 because it was in 1941 that the District Deputy Collector, Pune (DDC) passed an order on 18-6-1941 in connection with the same land, on an application being made in that regard by the present respondent. This order of the DDC, Pune is annexed at Exhibit 'H' to the writ petition. The respondents had applied for possession of the land on the ground that original petitioner Vithu was an outsider and had no right to possess the land, the DDC in his short order considered the contentions of the respondents and also that of the original petitioner Vithu. It is clear from his order that Vithu was claiming to be an adopted son of Ramabai and he was basing his claim on the basis of the entry in the Peta Khate Wahi in 1981 and has brought it to the notice of the DDC that all the relevant and necessary documents which were in existence to support his contention regarding his being an adopted son of Ramabai, were not traceable when the matter came for decision before the DDC. Order of the DDC shows that DDC had no alternative in the absence of any documentary evidence being produced on behalf of the petitioner Vithu but to allow application of the respondents and restore the possession of the suit land to the respondents. However, before doing that the DDC had observed as follows:
"The circumstances in which the name of Vithoba came to be entered to the c.a. should be once more investigated and a separate correspondence started for its restoration to the R.Ws. if necessary and justified."
It appears from his observations that the issue whether petitioner Vithu was an adopted son and in what circumstances his name came to be entered was kept open by the DDC inspite of ordering restoration of land in favour of the respondents. (The order of SDO in RTS/Watan Appeal No. 107/1979 shall be referred hereinafter as "an order in RTS/Watan Appeal No. 107/1979" and order of DDC Pune dated 18-6-1941 shall be referred to as "the order of DDC Pune")
7. It was this order of the DDC Pune that petitioner Vithu had referred to when he has filed his appeal before the SDO for grant of Watandari rights. Vithu has obviously relied upon the observation made by the DDC that the circumstances in which the name of Vithoba came to be entered should be once more investigated. In his order before the SDO original petitioner Vithu also relied upon the observations of the DDC that all those papers of 1931 regarding enquiry into adoption of petitioner Vithu by Ramabai were not traceable. It was in this background and on the basis of these circumstances that the SDO in RTS/Watan Appeal No. 107/1979 appears to have passed the order granting Watandari rights in favour of the original petitioner Vithu.
8. However, the order of the SDO in appeal in favour of the petitioner Vithu was challenged by the respondents by filing their appeal before the Additional Commissioner, Pune vide Appeal No. A/WTN/SR/9/80. This appeal came to be decided on 6-4-1985. Side by side or simultaneously when this appeal before the Additional Commissioner was filed the respondents had filed a civil suit before the Civil Judge, Senior Division, Pune, vide Civil Suit No. 2353 of 1979 for a declaration that the decision in RTS/Watan Appeal No. 107/1979, which is referred to hereinabove as appeal before the SDO, should be held as illegal, void and ab initio and for perpetual injunction restraining the defendants from taking possession of the suit land from the plaintiff. It is to be noted here that in that civil suit State of Maharashtra and Sub Divisional Officer, Baramati, were respondent Nos. 1 and 2 and petitioner Vithu was respondent No. 3. This suit which was filed in 1979 was decided by the Civil Judge, Senior Division, Pune by his judgment and decree dated 10-2-1984. Original petitioner Vithu who was defendant No. 3 in that suit, filed an appeal being Civil Appeal No. 535 of 1984 before District Judge, Pune, and the same came to be dismissed by the IXth Additional District Judge, Pune by his order dated 18-6-1985. The order of the Additional Commissioner, Pune is dated 6-4-1985. It will therefore be clear that before the Additional Commissioner decided the appeal filed by the respondents against the order of SDO, the civil suit was decided.
9. In the Civil Suit No. 2353 of 1979 challenging the order of the SDO, respondents mainly contended that respondent Dagdu had filed in 1953 a suit for permanent injunction against Vithu vide Civil Suit No. 104 of 1953. In that suit of 104 of 1953 Vithu has raised contention that he was adopted son of Ramabai but the trial Court i.e. Civil Court, Saswad, deciding Civil Suit No. 104 of 1953 rejected the contention of Vithu that he was adopted son of Ramabai and decreed the suit for permanent injunction in favour of original plaintiff Dagdu. This judgment and decree in Civil Suit No. 104 of 1953 was confirmed by the High Court in Second Appeal No. 962 of 1958 and therefore in this background Dagdu the plaintiff in that suit contended that since the issue regarding the status of Vithu as an adopted son of Ramabai was already decided and finally concluded upto the High Court against Vithu, it was not open to the SDO in RTS/Watan Appeal No. 107/ 1979 to hold and decide that Vithu was the adopted son of Ramabai and was consequently entitled for all the Watandari rights.
10. Plaintiff Dagdu had further contended in his Suit No. 2353 of 1979 that order of the SDO in RTS/Watan Appeal No. 107/ 1979 was illegal, void, ab initio and not binding upon the plaintiff Dagdu.
11. Judgment of the trial Court in Suit No. 2353 of 1979 shows that amongst other issues following important issues were framed:
1) Do plaintiffs prove that the contentions of the defendant No. 3 that he is the adopted son of Rama Kom Pandu Sonavane (Mahar) was her and finally decided against defendant No. 3 in Saswad Court in Reg. Civil Suit No. 104/53 and that decision was upheld in Dist. Court Poona. Civil Appeal No. 578/55 and Honourable High Court in Second Appeal No. 962/58 so it barred by res judicata and estopped by recall ?
2) Do defendants Nos. 1 to 3 proved that the issue about adoption of defendant No. 3 has not become res judicata and due to the statements of predecessors of the plaintiffs before Mamlatdar Purandhar, the plaintiffs are estopped from contending that defendant No. 3 is not adopted son of Ramabai Kom Pandu Sonavane ?
12. In para 22 of his judgment the Civil Judge Senior Division deciding Suit No. 2353 of 1979 held that the judgment of the Civil Court in Civil Suit No. 104 of 1953 and which was subsequently confirmed in the First Appeal before the District Judge Poona and in the Second Appeal No. 962 of 1958 before this High Court undoubtedly operate as res judicata against Vithu More and that therefore Vithu was precluded and prohibited from any such dispute that he was adopted by his grand mother Ramabai wife of Pandu Sonavane.
13. Consequently the judgment of the trial Court in the Suit No. 2353 of 1979 went in favour of the respondent. The trial Court gave findings in favour of the respondent and against the petitioner Vithu. Vithu thereafter filed an appeal against the said judgment and decree before the District Judge, Pune and the Appellate Court adopting the reasonings given by the trial Court dismissed the appeal. The second appeal is therefore outcome of that order.
14. It has been already pointed out that when SDO passed an order in RTS/Watan Appeal No. 107/1979 in favour of Vithu the present respondent also filed simultaneously and along with civil suit an appeal against the said order before the Additional Commissioner, Pune and Additional Commissioner, Pune decided the appeal in favour of the present respondent on the strength of the fact that Vithu had failed to prove adoption in Suit No. 104 of 1953 and since the Civil Suit had decided that point against Vithu, it was not open to the SDO to give any finding in favour of Vithu. It is this order of the Additional Commissioner, Pune i.e. challenged in the present writ petition. 15. Before going to the submissions made by both the advocates it is necessary to note that in the second civil suit filed by the respondents vide Civil Suit No. 2353 of 1979 both the plaintiff i.e. present respondent and original defendant No. 3 i.e. Vithu agreed to proceed on the basis of pleadings and documents and both of them agreed that there was no necessity of recording oral evidence. It is also a matter of record, of which a note has to be made at this juncture, that defendant Vithu had tendered and produced all the documents which were with him regarding the proceedings, in 1931 by which he was held to be an adopted son of Ramabai and which proceedings or the record of which proceedings was not available before the DDC when he passed order of restoration of land to the respondent on 18-6-1941. It is also necessary to note that those documents relied upon by the petitioner Vithu were the copies of the Government documents or public documents and even though State Government was defendant No. 1 and SDO was defendant No. 2, from whom the documents had in fact originated and they were parties to that suit, neither the Government nor the SDO questioned authenticity of those documents nor the present respondent questioned the admissibility of those documents,
16. At this juncture it is also necessary to take into consideration an important litigation between the parties. In 1953 Dagdu Rama Sonavane, Shripati Hari Sonavane, Maruti Malhari Sonavane and Keshav Bali Sonavane filed a Regular Civil Suit No. 104 of 1953 against Vithu Hira More and his son for injunction in respect of the land now in dispute alleging that Vithu and his son were obstructing the plaintiffs in that suit from cultivating the suit land. In that suit Vithu raised contention that he was an adopted son of Ramabai wife of Pandu Sonavane. In that suit an issue was framed regarding adoption of Vithu by Ramabai and further issue as to who were the nearest watandars and title holders of the suit land. The suit came to be decided on merits in favour of the plaintiffs and the contention of Vithu that he was adopted son of Ramabai was negated. Vithu thereafter filed Appeal No. 578 of 1955, against that decree and judgment before the District Judge, Pune, but the same was dismissed. Vithu also filed second appeal in this Court vide Appeal No. 962 of 1958 and the second appeal was also dismissed.
17. It is also pertinent to note here that when the present respondents filed their Suit No. 2353 of 1979 challenging the order of the Prant Officer, Baramati Division, Baramati, on 26-4-1978 for declaration to that effect, the respondents contended that the SDO Baramati could not decide afresh the status of Vithu as a Watandar as an adopted son of Ramabai on the principles of res judicata and the principles of estoppel i.e. this question that is the question of Vithu being the adopted son being finally concluded in the first Civil Suit of 1953 which was decreed in favour of the present respondents and the decree was confirmed in the High Court in second appeal.
18. The Civil Judge, Senior Division deciding the Second Suit No. 2353 of 1979 framed the two issues referred to above amongst other issues and held that since Vithu had failed to prove that he was adopted son of Ramabai in the Civil Suit No. 104 of 1953, Issue No. 5 was answered in the affirmative and in favour of the plaintiffs respondents before this Court.
19. It was in this background that the common arguments in extenso were heard by me both in the writ petition and in the second appeal. It was firstly contended by Mr. Nesari for the petitioner Vithu or his legal heirs that firstly the judgment in Suit No. 104 of 1953 will not operate as res judicata in the Second Civil Suit No. 2353 of 1979 because in the first suit the question was whether Vithu was adopted and in the second suit the question was whether Vithu was a watandar. Mr. Nesari contended that the question whether Vithu was watandar could not be decided by Civil Court as it was exclusively within the province of the authorities created by The Bombay Inferior Village Watans Abolition Act, 1958 and The Bombay Revenue Jurisdiction Act, 1876. Secondly, he contended that before deciding the question of res judicata it was incumbent on the Civil Judge, Senior Division, deciding Suit No. 2353 of 1979 to call upon the plaintiff in that suit to file the plaint and written statement of the first Suit No, 104 of 1953 in order to find out what were the actual pleadings of the parties in the first suit and since the plaintiff in the second suit did not file the copy of the pleadings of the first suit, the lower Court committed an error in deciding the point of res judicata against Vithu. Mr. Nesari also contended that question of. Vithu being an adopted son and the question of his being a watandar, consequent to his adoption by Ramabai were two different questions coining respectively under the general Civil law and The Bombay Inferior Village Watans Abolition Act, 1958 and The Bombay Revenue Jurisdiction Act, 1876, the judgment of the first Civil Suit No. 104 of 1953 could not operate as res Judicata in Civil Suit No. 2353 of 1979. Because according to him the jurisdiction conferred upon the revenue authorities under The Bombay Revenue Jurisdiction Act, 1876 and the Bombay Inferior Village Watans Abolition Act, 1958 and the jurisdiction of the Civil Court were completely separate and independent jurisdictions. He also relied upon some authorities in support of his contention, namely, judgment reported in Bom.L.R.(XIV) 1912 page 395 Jivaji Sambhaji Kambli v. Fakir Sabaji Kambli.
20. Mr. Nesari also further contended that first Civil Suit No. 104 of 1953 was merely a suit for injunction and no relief of declaration regarding the status of Vithu was claimed and as such any finding given by the Court in the first suit could not operate as res judicata in Second Suit No. 2353 of 1979 which was a suit for declaration effecting status of Vithu as watandar.
21. On this point it was contended by Mr. Nakhwa for the respondents that in the first Suit No. 104 of 1953 Vithu has specifically alleged that he was the adopted son of Ramabai and therefore the Civil Court was required to frame an issue and give its finding which ultimately went against Vithu and since the judgment in first Suit No. 104 of 1953 rejecting Vithu's contention was upheld up to High Court, it was not open to Vithu to claim any watandari right in respect of the suit land on the basis of his adoption by Ramabai and therefore the Civil Judge, Senior Division, deciding the second Suit No. 2353 of 1979 was perfectly justified in upholding the objection of res judicata raised by the plaintiff in the second suit. Mr. Nakhwa also contended that once this Court upheld the finding of the Civil Court in Suit No. 104 of 1953 and rejected the claim of Vithu as being adopted son of Ramabai it was also not open for the SDO to entertain the application of Vithu and allow the same.
22. Mr. Nesari further contended that even though the DDC passed an order on 18-6-1941 and ordered that possession of the suit land be handed over to the respondent, the said order could not come in the way of Vithu in establishing that he was the watandar of the suit land as being adopted by Ramabai because the DDC had in his order dated 18-6-1941 taken note of the fact that Vithu had certain important and old documents pertaining to the proceedings of 1931 held by the Mamlatdar regarding the status of Vithu as adopted son and Watandar and that inspite of the Vithu's efforts those proceedings could not be traced and produced before him. Mr. Nesari therefore contended whether Vithu was adopted son of Ramabai and consequently watandar was an issue kept open by the DDC and therefore the respondents could not contend that order of the DDC finally decided the rights of Vithu in negative.
23. As against this, it was contended by Mr. Nakhwa that the DDC in his order dated 18-6-1941 finally negatived and rejected the contention of the Vithu that he was adopted son of Ramabai and then only had ordered delivery of possession of the land from Vithu to the respondents and therefore it was not open to Vithu to raise the same point again either in the Second Civil Suit No. 2353 of 1979 or raise the contention before the SDO in his RTS/ Watan Appeal No. 107/1979.
24. Further, it was contended by Mr. Nesari that right from 1953 i.e, when Suit No. 104 of 1953 initiated by the respondents against the Vithu, Vithu has been contending that he had documents and proceedings before the Mamlatdar in 1931 but he could not get the originals from the Government office or from the office of the Mamlatdar and therefore he was unable to prove his adoption. Mr. Nesari pointed out the observations made by Justice Chandrachud in Second Appeal No. 962 of 1958 (arising out of first Civil Suit No. 104 of 1953) wherein Justice Chandrachud has taken note of the submissions made on behalf of Vithu about the non-availability of those important and vital documents i.e. proceedings before the Mamlatdar. It was therefore contended by Mr. Nesari that the judgment in Suit No. 104 of 1953 could not operate as res judicata because at the time of the Second Suit No. 2353 of 1979 those documents were made available to the Civil Court and they were filed on record. Mr. Nesari also pointed out that in the second Civil Suit parties did not adduce evidence and the documents produced by Vithu were taken on record by consent of the plaintiff in the second suit, who are the respondents before this Court.
25. As against this, it was contended by Mr. Nakhwa that even though in the second suit Vithu had produced documents pertaining to proceedings before the Mamlatdar in 1931 those documents were not exhibited by the trial Court. He also contended that since those documents were xerox copies and were neither the original nor the certified copies they could not be taken into consideration by the trial Court and were rightly rejected therefor. He also contended that absence of those documents in 1953 at the time of First Suit No. 104 of 1953 and availability of those documents at the time of Second Suit No. 2353 of 1979 or at the time of moving the SDO in RTS/Watan Appeal No. 107/1979 would not affect the principles of res judicata and those documents could not be used in favour of Vithu.
26. This objection of Mr. Nakhwa was tried to be repelled by Mr. Nesari on the ground that in the second Suit No. 2353 of 1979 State Government and the SDO were parties and when Vithu had produced xerox copies of the important documents of Government record of 1931 it was open to the Government and SDO - the respondents to deny the genuineness or correctness of the documents, but since this was not done by the contesting defendants i.e. the government and the SDO, it was not now open to the respondents before this Court to contend that those documents being xerox copies could not be taken into consideration by the trial Court.
27. So far as the Writ Petition is concerned, it was contended by Mr. Nesari that when Vithu initiated proceedings before the SDO for grant of watandari rights vide his Application No. RTS/Watan Appeal No. 107/1979 Vithu had in his possession the documents about the proceedings before the Mamlat-
dar in 1931 which included the order of Mamlatdar that Vithu was watandar being adopted son of Ramabai and since the DDC had in his order dated 18-6-1941 kept open the issue regarding status of Vithu, the SDO was perfectly justified in allowing the application of Vithu and conferring upon Vithu the rights of watandar in respect of the suit land. According to Mr. Nesari the approach of the Commissioner against the order of the SDO in RTS/Watan Appeal No. 107/1979 being based merely on the ground of res judicata was totally wrong.
28. As against this, it was contended by Mr. Nakhwa that if claim and contention of Vithu of his being adopted son of Ramabai was negatived by the Civil Court in First Civil Suit No. 104 of 1953, then even though Vithu got those documents of 1931 proceedings, it was not open to the SDO in RTS/ Watan Appeal No. 107/1979 to reopen the whole matter, take those documents on record as authentic and grant watandari rights to Vithu on the basis of those documents. According to Mr. Nakhwa therefore the order of the SDO in RTS/Watan Appeal No. 107/1979 was rightly set aside and quashed by the Commissioner in Appeal and also by declaration by the Civil Court in that regard which the respondents had claimed in their Second Civil Suit No. 2353 of 1979.
29. Mr. Nakhwa in addition to his above submissions also contended that no substantial question of law was raised in the second appeal and therefore the second appeal was not maintainable. He also contended that Civil Court was the last and final Court about giving declaration regarding the status of the person vis-a-vis certain property and therefore if the Civil Court had in Suit No. 104 of 1953 held that Vithu was not an adopted son of Ramabai the said finding was binding not only on the Civil Court but also on the SDO who decided RTS/Watan Appeal No. 107/1979. He also contended that when Vithu challenged the judgment and decree of Suit No. 104 of 1953 he did not file those documents in the appeal before the Appellate Court and therefore for all these reasons according to him the writ petition as well as second appeal were liable to be dismissed.
30. In reply Mr. Nesari contended that section 100 of the C.P.C. gives powers to the Court to deal with any other substantial question arising out of the matter apart from substantial question of law formulated at the time of the second appeal. Mr. Nesari also contended under section 3 of the Bombay Revenue Jurisdiction Act, the jurisdiction to decide watandari rights was an exclusive of the revenue authorities and since the SDO in RTS/Watan Appeal No. 107/1979 has exercised that jurisdiction, the same could not be interfered with by the Civil Court on the ground of res judicata.
31. Alternatively, it was contended by Mr. Nakhwa that since the respondents are in possession of the suit property from 1941 pursuant to the order of the DDC their possession could not be disturbed by the petitioners except by due process of law. He therefore contended that even if alternatively petitioners succeed in this petition, they will have to adopt proceedings for getting back the possession of the land from the respondents and any order in this petition cannot have the effect of dispossessing the respondents. The submissions will have to be considered in the background of the reliefs prayed by the respondents in their Second Suit No. 2353 of 1979.
32. Before considering the aforesaid rival submissions, it is necessary to go through the provisions of (1) The Bombay Inferior Village Watans Abolition Act, 1958 (hereinafter referred to as "Watans Abolition Act, 1958"), (2) The Bombay Revenue Jurisdiction Act, 1876 (hereinafter referred to as the "Revenue Jurisdiction Act, 1876") and The Bombay Hereditary Offices Act, 1874 (hereinafter referred to as the "Hereditary Offices Act, 1874").
33. The Watans Abolition Act, 1958, which came into force on 20-1-1959 was for abolition of hereditary village offices, in public interest, of lower degree than that of revenue of Police Patel of village accountant and the watans appointing thereto prevailing in the Pre-Reorganisation State of Bombay. This Act has 20 sections in all, including section 2 which is devoted to definitions. Section 2 defines amongst other words and phrases, "the inferior village hereditary office", "the watandar" and "watan land and property". There is no dispute between the parties that the Mahar Watan about which Vithu is making claim is of a lower degree.
34. Section 3 of this Act lays down that if a question arises, whether any land is watan land, whether any person is a watandar or whether any person is an unauthorised holder, the Collector shall decide the question after holding an inquiry. As per sub-section (2) right of appeal is provided to the State Government and sub-section (3) lays down that the decision of the Collector, subject to an appeal shall be final. (This is the summary of section 3).
35. The Bombay Revenue Jurisdiction Act, 1876 was brought on the Statute book with a view to limit the jurisdiction of Civil Courts throughout the Bombay Presidency in matters relating to the land revenue, and for other purposes. Section 4 of this Act lays down that no Civil Courts shall exercise jurisdiction as to any of the following matters, namely,
a) claims against the Government relating to any property appertaining to the office of any hereditary officer appointed or recognised under Bombay Act No. 111 of 1874 or any other law for the time being in force, or of any other village officer or servant, or
b) claims to perform the duties of any such officer or servant, or in respect of any injury caused by exclusion from such office or service, or
c) suits to set aside or avoid any order under the same Act or any other law relating to the same subject for the time being in force passed by the State Government or any officer duly authorised in that behalf;
There is however section 5 which is an exception to section 4 and Civil Court can entertain suits for exercising their jurisdiction over the claim against Government relating to
(a) any property pertaining to the office of any hereditary officer appointed or recognised under the Bombay Act No. III of 1874 or any other law for the time being in force or any other village officer or servant.
However, the said suit can only be entertained in the districts mentioned in Second Schedule. The second schedule mentions the district of Ahmedabad, district of Kaira, exclusive of the Panch Mahals, the district of Broach, Surat, Thane, Colaba, Ratnagiri and Kanara (the suit land in the present petition or second appeal is not situated in any of the districts mentioned in the Second Schedule reproduced above).
36. Hereditary Offices Act, 1874 extends to the Regulation Districts and to all villages therein, whether alienated or otherwise. The word "Watandar" has been defined in section 4 of this Act and it means a person having a hereditary interest in a Watan including a person adopted by an owner of a Watan or part of a Watan, subject to the provisions of section 33 which provides that if a widow adopts an heir, before coming into force of this Act, notice thereof shall be given to the Collector. Section 34 provides that if a adoption is made by widow after coming into force of this Act, report of such adoption shall be made to the Collector within three months by such watandar, or by his widow or in case of their death by the adopted heir. Section 35 provides that after such notice or report of adoption, the Collector shall not recognise the same without the production of a certificate of heirship or final decree of competent Court establishing validity of adoption. Section 36 empowers the Collector to register the names of new watandars. Section 72 provides that the investigation made by the Collector under this Act shall be judicial proceedings.
37. In the instant case Vithu is claiming to be the adopted son of Ramabai. When however the provisions of the Watans Abolition Act, 1958 were brought to the notice of Mr. Nesari and Mr. Nakhwa by me, it was contended by Mr. Nesari that even if a watanship is abolished by this Act, the Collector was still empowered to make an enquiry under section 3(1)(b) as to whether a person is a watandar and to evict an unauthorised holder under section 9. Therefore, according to him in 1941 when a decision was given that Vithu was the adopted son under the Hereditary Offices Act, 1874, the Collector could under the provisions of Watans Abolition Act, 1958, evict an unauthorised person.
38. As against this, it was contended by Mr. Nakhwa that after abolition of watandari rights, Collector had no power firstly to recognise Vithu as watandar being adopted son of Ramabai and secondly the Collector had no power to evict the respondents who were not authorised holders or occupants pursuant to the order of 1941.
39. In this background it is necessary now to consider the respective submissions. The first question that will have to be decided is regarding the objection raised by Mr. Nakhwa that since there is a concurrent finding of the fact against the petitioner and since no substantial question of law is involved in the second appeal, the same was not maintainable. For this purpose, Mr. Nakhwa relied upon a judgment of the Supreme Court Panchugopal Barua & others v. Umesh Chandra Goswami & others. It has been held by the Supreme Court in this case in para 7 as under:
"A bare look at section 100 C.P.C. shows that the jurisdiction of the High Court to entertain a second appeal after the 1976 amendment is confined only to such appeals as involve a substantial question of law, specifically set out in the memorandum of appeal and formulated by the High Court."
The Supreme Court has further held in para 8 that:
"Generally speaking, an appellant is not to be allowed to set up a new case in second appeal or raise a new issue (otherwise than a jurisdictional one), not supported by the pleadings or evidence on the record and unless the appeal involves a substantial question of law, a second appeal shall not He to the High Court under the amended provisions."
As against this, it was contended by Mr. Nesari that while admitting the second appeal, the High Court found that the substantial question of law was involved in this matter and the question was formulated as :
"Whether appellant proves that he is a watandar as defined in Watans Act ?
Raises a question of law."
Mr. Nesari therefore contended that the appeal involves a substantial question and apart from this question as formulated by the High Court there was substantial questions of law based on the pleadings and evidence and proviso to section 100 empowers this Court to allow those questions to be raised and decided even though they were not formulated at the admission of the appeal.
40. In view of the proviso to section 100 objection raised by Mr. Nakhwa cannot be accepted. Proviso to section 100 is as under :
"Provided that anything in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question."
41. In the instant case at the time of admission, the Court has held substantial question i.e. whether appellant proves that he is a Watandar as defined in Watans Abolition Act, 1958 and therefore incidental other substantial questions which have been raised by Mr. Nesari and referred to above made during the submissions and reproduced above are required to be considered. I, therefore, hold that appeal involves a substantial question of law as formulated at the time of admission as well as other substantial questions hence the appeal as well as writ petition is required to be decided on merits.
42. Further, objection of Mr. Nakhwa was based on the principles of res judicata. According to him, the judgment in first civil suit of 1953 operated as res judicata therefore and in the second suit of 1979 Civil Judge, Pune, has rightly given finding in favour of the respondents.
43. It is true that in 1953 suit the Court gave a finding that Vithu was not the adopted son of Ramabai, but that judgment cannot operate as res judicata in the subsequent suit of 1979 or any other proceedings for the following reasons. Firstly, as rightly argued by Mr. Nesari the suit of 1953 was merely a suit for injunction. No relief of declaration that Vithu was not the adopted son of Ramabai was claimed by the respondents in that suit. Further, in a suit for injunction the only question that was relevant and important was about the possession and as such the other questions raised by Vithu in defence was an incidental question.
44. It is true that the finding of the civil suit in the first suit of 1953 that Vithu was not the adopted son of Ramabai were confirmed upto the High Court. However, Mr. Nesari contended that even before the High Court, Vithu had repeatedly asserted that he was declared to be an adopted son by competent revenue authorities in proceedings initiated in 1931 but the documents were not available at the relevant time. Mr. Nesari relied upon a judgment of Supreme Court Syed Mohd. Salie Labbai (Dead) by L.Rs. and others v. Mohd. Hanifa (Dead) by L.Rs. and others. As per which before giving finding on the objection of res judicata the pleadings in the earlier suit must be placed before the trial Court or before the Court which gave such finding. But according to Mr. Nesari when the Civil Judge in 1979 suit gave a finding of res judicata on the basis of suit of 1953, the Civil Court had not before it, the pleadings of 1953 suit. In this case the Supreme Court has held that before a plea of res judicata can be given effect, the following questions must be proved:
(a) that the litigating parties must be the same;
(b) that the subject matter of the suit also must be identical;
(c) that the matter must be finally decided between the parties; and
(d) that the suit must be decided by a Court of competent jurisdiction.
45. The Supreme Court further held the best method to decide the question of res judicata is first to determine the case of the parties as put forward in their respective pleadings of their previous suits, and then to find out as to what had been decided by the judgments which operate as res judicata. The Supreme Court also held that pleadings cannot be proved merely by recitals of the allegations mentioned in the judgment. When the Civil Court decided the second suit of 1979 as filed by the respondents and came to the conclusion that the findings in the 1953 suit operated as res judicata, the Civil Court, Pune, did not have before it the pleadings of the parties in 1953 suit i.e. the first suit. Mr. Nakhwa could not point out that pleadings of 1953 suit were made available to the Civil Judge, Pune, in the second suit. There is therefore no compliance to the mandatory and basic requirement as laid down by the Supreme Court. It is clear that in second civil suit the point of res judicata was decided against the petitioner - Vithu on the basis of the recitals in the judgment of 1953 suit or the Appellate Court judgment or the High Court judgment and in the absence of pleading of the 1953 civil suit.
46. Secondly, let us apply the conditions laid down by the Supreme Court to the facts of the second suit of 1979 and the first suit of 1953 in order to find out whether the principles of res judicata could be attracted.
47. (a) That the litigating parties must be the same:---There cannot be a dispute that the litigating parties in 1953 suit and 1979 suit were same even though in the 1979 suit the Government of Maharashtra and SDO were additional parties.
48. (b) That the subject matter of the Suit also must be identical:---
Earlier suit was filed for permanent injunction against Vithu to prevent him from disturbing the possession of the plaintiff in that suit who are the respondents before this Court. Whereas, the subject matter of the second suit was a declaration that the order of the SDO granting watandari rights to Vithu was illegal, void ab initio and not binding on the plaintiff and whether defendant No, 2 i.e. SDO had jurisdiction to reopen defendant No. 3's theory of adoption as has been done in RTS/Watan Appeal No. 107/1979. That suit of 1953 was a suit for injunction and in that suit Vithu had raised plea that he is an adopted son of Ramabai. But if the pleadings of the second suit are considered and scrutinised it will be clear that the second suit was based on the order passed by the SDO in RTS/Watan Appeal No. 107/1979 and the suit to challenge the competency and jurisdiction of the SDO to pass such an order. It is true at the same time that in this second suit also Vithu claimed to be an adopted son and consequently watandar but that plea was taken, as is revealed by the record, not as an independent plea but as a plea based on the order of the SDO in RTS/Watan Appeal No. 107/1979 and on the basis of the record and documents of 1931 proceedings (which Vithu got hold) wherein findings were given in favour of Vithu.
49. It will be clear from the pleadings of 1953 suit (gathered from judgments) that whether Vithu was a watandar of the suit land, was not a question, directly involved in that suit and the same question of Vithu being Watandar could be raised by Vithu in the second suit of 1979 only after he got the papers and proceedings of 1931 and got the order of the SDO in RTS/ Watan Appeal No. 107/1979 in his favour. Therefore, strictly speaking the subject matter of the first suit of 1953 and the subject matter of the suit of 1979 were not identical: This is inspite of the fact that in the suit of 1953 Vithu had raised a plea that he is an adopted son of Ramabai.
50. At this juncture, it is necessary to consider the provisions of Hereditary Offices Act, 1974, Revenue Jurisdiction Act, 1876 and Watans Abolition Act, 1958. I have quoted the relevant provisions of this Act in the earlier part of my judgment and from those provisions it is clear that it was only the Revenue Court which was competent to decide as to whether a particular person is a watandar or whether a particular person is an adopted son of watandar and is entitled to get his name entered in the revenue record in that capacity and in that regard. The aforesaid provisions also show that the decision of the Collector regarding a person being watandar or an adopted son of watandar is made final and conclusive. Prom those provisions, therefore, it will be clear that the Revenue Court alone were competent to decide the right of Vithu as a watandar of the suit land being an adopted son of Ramabai.
51. Since exclusive jurisdiction of deciding the watandari rights is given to the Revenue Court, and since in 1953 suit no findings were given by the Civil Court that Vithu was not watandar of the suit land, the findings of 1953 suit cannot operate as res judicata for the 1979 suit.
52. It is true that Vithu lost his appeal as well as Second Appeal No. 962 of 1958 filed before this Court. However, it is pertinent to note that right from beginning Vithu has been asserting that he was declared to be an adopted son by the competent revenue Court in proceedings in 1931 but those documents could not be produced by him because they were not available. Justice Chandrachud while deciding the Second Appeal Ho. 962 of 1958 arising out of 1953 suit has taken note of these circumstances.
53. Considering all these circumstances and considering the narrow frame work of section 9 of the C.P.C. and the judgment of the Supreme Court laying down the aforesaid four conditions it has to be held that the plea of res judicata was not available to the respondents when they filed the second suit in 1979.
54. (c) That the matter must be finally decided between the parties :---I have already made it clear that whether Vithu was a watandar or not was a matter that could only be decided by the Revenue Court and secondly in the suit of 1953 there was no issue that Vithu was a watandar and therefore it can not be said that Vithu's right as watandar were finally decided between the parties in the suit of 1953.
55. (d) That the suit must be decided by a Court of competent jurisdiction :---As rightly argued by Mr. Nesari the first suit of 1953 was only for permanent injunction with no relief of declaration against Vithu. That suit is in personam and the right of Vithu as a watandar was a question involving rights in rem, and since the rights in rem of Vithu were not the subject matter of the first suit of 1953, the decision in that suit cannot be held as res judicata in the second suit.
56. Lastly, the pleadings of the suit of 1953 were not available to the Civil Court deciding the second suit of 1979 and therefore on that ground also the finding of the Civil Court in the second suit of 1979 and the Appellate Court against that order regarding res judicata cannot be upheld.
57. At this juncture, it is necessary to refer to the authorities relied upon by Mr. Nesari and Mr. Nakhwa. Mr. Nakhwa relied upon a judgment of Supreme Court reported in 1962 Bom.L.R. (Vol. LXV) 321 Vithal Yeshwant Jathar v. Shikandarkhan Makhtumkhan Sardesai, therein the facts of that case are rather complicated and they cover a dispute involved between watandar and a person in party in possession covering wide area, therefore a summary of the facts can only be given to appreciate the arguments of Mr. Nakhwa. In proceedings under the Land Acquisition Act, compensation Rs. 35,000/- and odd was awarded for two plots of land, which formed part of watandar. There was a dispute between watandar and person in actual possession about the apportionment of compensation. Watandar was given 10:6 shares and remainder was given to the tenant i.e. person in actual possession. This was challenged in appeal. The High Court in appeal made the assessment in the proportion of 55 to 45 between the landlord and the tenant and therefore parties went to the Supreme Court. The question was whether on that date of acquisition the landlord had right to enhance the rent in respect of these lands. There were some earlier proceedings between the tenant and the watandar therein Government of Bombay made an order fixing the rent payable for the lands covered by the lease at Rs. 1,245-4-0. Watandar moved for further increase of rent and therefore the Government in 1927 fixed the rent at Rs. 4,300/-. In 1928 tenant brought a suit against the Secretary of State and claimed other reliefs i.e. government resolutions of 1911 and 1927 were ultra virus. The Judge held that the government resolution of 1927 was ultra virus. This order was challenged by the Secretary of State before the High Court. The High Court dismissed the appeal but upheld the order that the Government's order of 1927 was ultra vires and they also held that order of Government in 1911 was not an order under section 9 of the Hereditary Offices Act, 1974. When the matter about apportioning of compensation went to the High Court, it was urged that the finding of the High Court in the earlier litigation that the order of Government fixing the rent of Rs. 1245/-was not an order under section 9 operated as res judicata between the parties. The High Court, however, rejected this contention. The correctness of this decision was challenged before the Supreme Court and therefore the Supreme Court held that it is well settled that if the final decision in any matter at issue between the parties is based by the Court on its decision on more than one point-each of which by itself would be sufficient for the ultimate decision - the decision on each of these points operate as res judicata between the parties.
58. Mr. Nakhwa relied upon this decision and contended that when in 1953 suit the question of Vithu's adoption was finally decided against Vithu, the said decision operated as res judicata for all the litigations subsequently started.
59. Mr. Nakhwa also relied upon the judgment of Supreme Court Prahlad Singh v. Col. Sukhdev Singh. In that case an ex parte decree for eviction was passed against the tenant. The tenant applied for setting aside the decree on the ground that the landlord had met him and had in the meanwhile, discussed with him and has promised to withdraw the case and thereafter the landlord had received cheques of the rent from the tenant. The Court accepted the tenant's case and set aside the ex parte decree and the eviction proceedings. Thereafter the landlord filed proceedings against the tenant on the ground of default of rent. A decree came to be passed in favour of the landlord and was confirmed by the High Court. In that background, the Supreme Court held that decision given by Court at an earlier stage of a case was binding at the later stage.
60. As against this, Mr. Nesari contended that rights of a person as watandar could only be decided under the Hereditary Offices Act, 1874, by the revenue authorities and not by Civil Court and since in 1953 suit the question of Vithu being watandar was not directly or indirectly involved, these two judgments cannot be of any help to the respondents nor can the 1953 judgment operate as res judicata. Mr. Nesari relied upon the judgment of Supreme Court Smt. Gangabai v. Smt. Chhabubai, wherein the Supreme Court held that in order to operate res judicata the finding must be one disposing of a matter directly and substantially in issue in the former suit and the issue should have been heard and finally decided by the Court trying such suit. A matter which is collaterally or incidentally in issue for the purpose of deciding the matter which is directly in issue in the case cannot be made the basis of a plea of res judicata. Mr. Nesari relied upon a judgment of the Bombay High Court reported in 1912 Bom.L.R. Vol. XIV 395 Jivaji Sambhaji Kambli v. Fakir Sabaji Kambli. In that case the plaintiff filed a suit for declaration that plaintiff is the head of the family of the Watandar and has in consequence to a proportional share of a watan and, for a correction of Government record accordingly. The defendant pleaded that a suit was barred under the Watan Act, 1876 and was not maintainable. The Subordinate Judge dismissed the suit holding that the policy of Bombay Act 111 of 1874 seems to be to cause disputes about Watans to be decided by the Collector and not by the Civil Court. This decree was confirmed by the District Judge and when the matter went to the High Court, it was contended by the advocate for the plaintiff that the Civil Court had jurisdiction to entertain the suit because what was asked by the plaintiff was not any relief which was prohibited by section 67 of the Watan Act but a mere declaration that he is a member of Sambhu's branch and he has 2/3rd share in the watan belonging to that branch. The High Court held that suit was filed to get the defendant out of the way and for having plaintiff's name recorded as the head of the branch in the Collector's register, and since this was substantially the nature of the suit and such a relief was beyond the scope of Civil Court. The Court held a suit of this character fall under the ban of Clause (d) of section 67 of the Hereditary Offices Act and consequently the suit was not competent.
61. As against the judgments referred to by Mr. Nesari and Mr. Nakhwa, the 1953 suit clearly shows that the question of Vithu being a watandar was not directly and substantially involved. It was a suit for permanent injunction and question of Vithu being an adopted son was incidentally realised as defence. Admittedly that issue had nothing to do with the factum of possession of the suit land by the plaintiff and the injunction which he had claimed. Further the issues that Vithu is a watandar could only be decided by Authorities under the Hereditary Offices Act, 18/4 and not by Civil Court or revenue authorities under the policy of Watans Abolition Act, 1958 and not by the Civil Court. Therefore, the entire objection of Mr. Nakhwa that the respondents were entitled to raise the plea of res judicata before this Court or before the Court deciding 1979 suit or before the revenue authorities is required to be rejected. Consequently, it has to be held that the plea of res judicata is not available to the respondents before this Court or before the Court deciding the second suit of 1979 or before the revenue authorities, against whose order the writ petition has been filed. As a result, the judgments of the Civil Court in 1979 and the judgment of the Appellate Court arising from that decree as well as the judgment of the revenue authorities, which he challenged in the writ petition wherein the objection of res judicata was raised by the respondents was held are required to be held as illegal and improper.
62. Once the objection of res judicata as raised by the respondents is rejected for the aforesaid reasons, then obviously the findings of the Civil Court deciding the second suit and that of the Appellate Court, deciding the appeal arising out of that judgment in that regard cannot be maintained or upheld.
63. Secondly, it is a matter of record that in the suit of 1979, the parties did not adduce oral evidence and they agreed that the suit be decided on the basis of pleadings and documents that were filed before the Court. It is an admitted fact that Vithu had filed all the necessary documents of the proceedings in 1931 before the Civil Court in the second suit in order to substantiate his contention that he was a watandar of the suit land. It was contended by Mr. Nakhwa in this regard that documents were neither original nor certified copies and they were proved documents and therefore they were not admissible and could not be considered by the Court. This objection is required to be negatived because SDO and the Government of Maharashtra were parties to the second suit when Vithu filed and relied upon the proceedings of 1931, it was open to the SDO or Government to deny and dispute the genuineness or correctness of those documents. However, none of these authorities who were directly concerned with that record took any objection regarding the authenticity and genuineness of the documents and secondly the documents were required to be taken into consideration by the Court deciding second suit of 1979.
64. Even if for the sake of argument the objection of Mr. Nakhwa regarding admissibility of documents for want of proper proof is upheld under the provisions of Evidence Act, the same has to be rejected on other ground i.e. once it is held that it was the Revenue Court alone who was competent to decide the question of person being a watandar and once it is found that SDO deciding RTS/Watan Appeal No. 107/1979 had seen these documents and has accepted these documents and had given a finding in favour of Vithu that he was the 'Watandar then neither the respondents who were the plaintiffs in 1979 suit nor the civil suit had right to question the status of Vithu as watandar.
65. The next objection of Mr. Nakhwa was that the DDC while passing his order in 1941 has turned down the contention of Vithu that he was the adopted son of Ramabai and has placed the respondents in possession and therefore the respondents were firstly persons in authorised possession and secondly they were entitled to retain possession on account of rejection of Vithu's claim and thirdly, this order of 1941 closed all the avenues of Vithu to get back his watandari rights and consequently the order in favour of Vithu in RTS/Watan Appeal No. 107/1979 was illegal and was rightly held to be so by the appellate authority whose orders are challenged by the petitioner in the writ petition.
66. Even this contention of Mr. Nakhwa cannot be upheld or accepted. But for that it is necessary to see the order of the DDC in 1941 which is very short order.
"Section Nos. 195/A 5, 205 A/3, 205 B/3, 206/3 of Pimpre kdg. are Mahar Inam Lands assigned for the remuneration of the officiators. They were gifted away by R.W. Ramai to her daughter Chimai in 1902. Both are dead and the lands are now in the possession of Vithoba Hira, son of Chimai. He is evidently an outsider. The present R.Ws. rightly claim possession of the land. Vithoba says he is in rightful possession. He basis his claim on the fact that his name has been entered in the Peta Khate Vahi in 1931 in respect of a cash allowance of Rs. 16.12.6 which is payable to R.W. Ramai on account of Mahar remuneration. The correspondence on his subject is not traceable and it is therefore not clear how & why the name of Vithoba, who is evidently an outsider, came to be entered to the cash allowance. This does not however justify alienation of the Inam lands to him. I accordingly order that they be taken out of the possession of Vithoba and restored to the R.Ws. for remuneration of the officiators section 11 of the Watan Act.
The circumstances in which the name of Vithoba came to be entered to the c.a. should be once more investigated and a separate correspondence started for its restoration to the R.Ws. if necessary and justified."
This order will clearly show that even before the DDC Vithu had raised a plea that he was in rightful possession of the property and that his name as Watandar was entered into Peta Khate Vahi in 1931 and had also contended that correspondence on his subject is not traceable.
67. The DDC therefore observed it was not clear how and why the name of Vithoba came to be entered in the Peta Khate Vahi. DDC's order shows that DDC thought it necessary to enquire and investigate into the circumstance in which the name of Vithoba came to be entered into Peta Khate Vahi in 1931 and he therefore ordered that separate correspondence should be started for restoration of the rent to the R.Ws., if necessary and justified.
68. The entire argument of Mr. Nakhwa on the basis of this order of the DDC stands nullified, firstly, because DDC did not reject the claim of Vithoba as the watandar. Secondly, the documents of 1931 were not available before the DDC and thirdly the DDC deferred a detailed investigation in future. The order of resoration passed by the DDC can not therefore be said to be an order based on his finding against Vithoba. To the contrary from the tone and tenor of the order, it is clear that DDC ordered restoration of possession in favour of the respondents only because of the absence of any documentary proof about the insertion of Vithoba's name in the Peta Khate Vahi. This order therefore has to be termed and regarded as interim order or a temporary order or order till the investigation in that regard is undertaken and completed. At any rate this order of the DDC is not a final order rejecting the claim of Vithoba and upholding the claim of the respondents.
69. Once it is held that the order of the DDC in 1941 was not a final order nor it decided the rights of Vithoba as watandar then SDO or the authority deciding RTS/Watan Appeal No. 107/1979 was fully justified in entertaining Vithu's application in that regard and deciding the same on the basis of the documents made available by Vithu and which documents were the government record or copies of government record.
70. The objection of Mr. Nakhwa that in the second suit of 1979 Vithu did not produce original or certified copies of the documents of 1931 proceedings and that only copies were produced before the authority deciding RTS/Watan Appeal No. 107/1979 cannot also be upheld because it was open to the authority deciding RTS/Watan Appeal No. 107/1979 to verify the documents filed by Vithoba with the government record or public record. However, that authority did not challenge or questioned the authenticity of those documents and gave an order in favour of Vithoba granting him watandari rights.
71. In view of these facts, the finding of the Civil Court in second suit of 1979 that the judgment of 1953 suit operated as res judicata can not be upheld and it is required to be rejected. Similarly, the finding of the appellate authority deciding the appeal arising out of the second suit of 1979 on the same footing is also required to be rejected.
72. So far as the writ petition is concerned, Additional Commissioner, Pune, by his order dated 6-4-1985 allowed the appeal of the respondents against the decision in RTS/Watan Appeal No. 107/1979 therein Vithu was declared as Watandar. The Additional Commissioner allowed the appeal and set aside the SDO's order mainly on the ground that the Civil Court has in the suit of 1979 decided the issue against Vithoba. This order of the Additional Commissioner, Pune, is challenged in the present writ petition. Since, I have held that the Civil Court deciding the 1979 suit and the Appellate Court deciding the appeal arising from that judgment and decree, both erred in decreeing the suit of the respondents on the ground of principles of res judicata naturally and consequently the finding of the Additional Commissioner, Pune, in his order dated 6-4-1985 based on the same reasoning of res judicata can not be upheld and are required to be set aside and quashed.
73. It was further argued by Mr. Nakhwa that it pursuant to the DDC's order of 1941 the respondents have been placed in possession then they can not be termed as unauthorised holders and cannot be firstly evicted from the property and if at all they can be evicted, the petitioner must follow the due process of law. Even this submission of Mr. Nakhwa can not be accepted. Firstly, because the order of the DDC in 1941 as observed and held by me was a time gap arrangement i.e. it was passed in favour of the respondents only because Vithu could not produce the documents of 1931. Secondly, the DDC has kept the issue of Vithu's watandari rights open and therefore handing over possession by DDC to the respondents cannot confer rights of authorised ownership on them. Thirdly, the SDO deciding RTS/ Watan Appeal No. 107/1979 has ordered that the suit land should be handed over to the appellant Vithu under section 9 of Watans Abolition Act, 1958. This order of the SDO clearly shows that so far as possession of property is concerned, due process of law has already been followed by the SDO. The suit of the plaintiff- respondent in 1979 was for a declaration that this order of the SDO was void, ab initio etc., and for injunction restraining the authorities from interfering with the possession. Since the decree and the appellate judgment arising out of the decree are liable to be set aside, the consequences must follow i.e. respondents must hand over possession of the suit property to the petitioners.
74. The sum up it is to be held that:
(1) So far as the right of Vithu as watandar was concerned, Civil Court was not competent ;
(2) The suit of the respondents in 1953 did not and could not operate as res judicata for the second suit in 1979;
(3) That order of the DDC in 1941 did not finally decide and reject the right of Vithu;
(4) The Commissioner, Pune, deciding the appeal arising out of RTS/Watan Appeal No. 107/1979 erred in relying upon the judgment of the Civil Court and accepting as binding judgment on the revenue authorities;
(5) There is no illegality in the order of the SDO deciding RTS /Watan Appeal No. 107/1979 in accepting and conferring watandari rights in favour of Vithu.
(This summing up may not cover all the points decided in the judgment)
75. For all these reasons, I pass the following order ORDER
76. Writ Petition No. 3667 of 1985 allowed. Rule made absolute. Order dated 6-4-1985 of the Additional Commissioner, Pune is set aside. Order of the SDO dated 22-11-1979 in RTS/Watan Appeal No. 107/1979 is restored. However, there shall be no order as to costs.
77. Second Appeal No. 87 of 1986 is allowed. Rule made absolute. Judgment of the trial Court and the Appellate Court are set aside; the suit filed by the respondent is dismissed. However, there shall be no order as to costs.
78. After this order was pronounced, Counsel for the respondent Nos. 3 and 4 prayed for staying operation of this order for eight weeks. Operation of this order is stayed for eight weeks.
Mentioned:---22-7-1999.
79. In this case stay to the operation of the order was granted for eight weeks. However, Counsel for the respondents received a copy of the order two days back and as such prays for extension for three weeks more. By consent, stay to the operation of this order is further extended by three weeks. In all it will be eleven weeks stay from the date of the order.
80. Petition allowed.