Gauhati High Court
M. Chummi Ahmed Lrs. Of Zeenat Ahmed vs Kelis Thabah And Anr. on 24 July, 2007
Equivalent citations: 2007(4)GLT98
Author: H.N. Sarma
Bench: H.N. Sarma
JUDGMENT B.P. Katakey, J.
1. This Letters Patent Appeal has been filed by the appellant against the Judgment and order dated 4.6.1997 passed in First Appeal No. 8 (SH) of 1996, filed by the present respondent No. 1, where by and where under the said appeal has been allowed by setting aside the order dated 3.4.1996 passed by the learned Additional Deputy Commissioner, East Khashi Hills District, Shillong. In Title Suit No. 8(T) of 1995 dismissing the suit filed by the appellant, on the ground that the said suit is barred by the principle of res judicata because of the Judgment and order dated 6.11.1990 passed by the Additional Deputy Commissioner, East Khashi Hills District, Shilling in Title Civil Appeal No. 4(T) 1989 confirmed by the High Court vide Judgment and order dated 26.5.1995 passed in Civil Revision No. 9(SH) of 1991.
2. The facts in brief, relevant for the purpose of disposal of the present appeal, are noted here in below:
(i) The suit being Title Suit No. 9(T) of 1982 was filed by the predecessor-in-interest of the present appellant, namely, Smti Zeenat Ahmed against the present respondents and others praying for a decree (a) for declaration that the defendant No. 1 and/or defendant No. 2 had and has no authority to sell the suit land to the defendant No. 3 against the terms of agreements, the Deed of Release dated 11.4.1978 and the compromise decree dated 20.5.1989 passed in T.C. Appeal No. 2(T) of 1974; (b) declaration that the registered Sale Deed dated 9.4.1980 executed by the defendant No. 1 in favour of the defendant No. 3 is illegal, inoperative without sanction of the appropriate authority and against the terms of the said agreements, release Deed dated 11.4.1978 and the decree in T.C. Appeal above and therefore void; (c) declaration that since the suit land is a Govt. leased land, the Govt. sanction contained in Govt. Memo No. RDS 173/77/78, dated 15.2.78 and communicated by defendant No. 5 under Memo No. L-14/11/1/73/38, dated 21.3.78 is the requisite sanction to transfer the plot of land (i.e. suit land) to the plaintiff and shall be deemed to be so for the said purpose; (d) for a perpetual injunction against the defendant No. 3, her servants, agents, workers and persons claiming through and under defendant No. 3 from entering upon the suit property and from making any construction of any kind on the said land or in any part thereof; (e) for a mandatory injunction directing the defendant No. 3 for opening the existing road running across the suit land for use of the plaintiff and the public by removing the obstruction and the diversion; (f) for restoration of the undisturbed possession of the suit land by the plaintiff and (g) fall cost of the suit and such other relief or reliefs to which the plaintiff is found entitled, inter alia, on the ground that Smti Zeenat Ahmed has obtained a consent decree dated 20.05.1978 in Title Suit No. 42(T) of 1966 against Oxford Mission Trust Association under which decree, she is entitled to get a deed of relinquishment in respect of land involved in the suit, which has since been executed by the said Oxford Mission Trust Association on 11.4.1978 and hence, the execution of the sale deed in favour of the present respondent No. 1 (defendant No. 2 in the said suit) was fraudulent. The said suit was contested by the present respondents on the ground, inter alia, that the plaintiff being a non-tribal, the land in the suit cannot be transferred to her in view of the ban imposed by the provisions of the Meghalaya Transfer of Land (Regulation) Act 1971 (hereinafter referred to as "the Act of 1971") and hence the deed of relinquishment obtained by the plaintiff is not liable to be registered as it did not confer any title or right in her favour. The said suit was dismissed by the trial Court i.e. the learned Assistant to the Deputy Commissioner, East Khasi Hills District, Shillong, vide Judgment and decree dated 3.10.1988, passed in Title Suit No. 9(T) of 1982, against which Title Civil Appeal No. 4(T) of 1989 was preferred by Smti Zeenat Ahmed (predecessor-in-interest of the present appellant), which was allowed by the learned Additional Deputy Commissioner, East Khasi Hills District, Shillong, vide Judgment and decree dated 6.11.1990 decreeing the suit of the predecessor-in-interest of the present appellant by directing the Sub-Registrar to cause registration of the deed of relinquishment and issued permanent injunction restraining the present respondent No. 1, Kelis Thabah, from interfering with the right and title of the plaintiff (predecessor-in-interest of the present appellant). The said proceeding was taken to the High Court by the present respondent No. 1, in Civil Revision No. 9(SH) of 1991, which was disposed of vide Judgment and order dated 26.5.1995 by a learned single Bench of this Court by upholding the said Judgment and decree dated 6.11.1990 by holding that the sanction for transfer of land in favour of the non-tribal was deemed to have been accorded under Sub-section (4) of Section 4 of the Act of 1971.
(ii)The respondent No. 1 herein, who was the defendant No. 3 in the earlier proceeding, namely, Title Suit No. 9(T) of 1982 and respondent No. 3 in Appeal No. 4(T) of 1989 arising out of the said suit, filed a Title Suit, being No. 8(T) of 1995 against said Smti Zeenat Ahmed, predecessor-in-interest of the present appellant and also against the Oxford Mission Trust Association (defendant No. 2 in Title Civil Appeal No. 9(T) of 1982 and respondent No. 2 in Suit Appeal No. 4(T) of 1989) in the Court of the learned Deputy Commissioner, East Khasi Hills at Shillong, praying for the following decree:
(a) For a declaration that the Judgment and order dated 26.5.1995 passed in Civil Revision No. 9(SH) of 1991 is not binding on the plaintiff being based on a question of law and contrary to the mandatory provisions of Meghalaya Transfer of Land (Regulation) Act, 1971 as amended up to date prohibiting all transfer of land in favour of Non-Tribal within the tribal area of Meghalaya; (b) for a further declaration that the Judgment and order dated 26.5.1995 allowing the registration in favour of the defendant No. 2 is without jurisdiction and incapable of being enforced and implemented, in view of the mandatory provisions of the Meghalaya Transfer of Land (Regulation) Act, 1971 as amended up to date and notifications made there under; (c) perpetual injunction restraining the defendants Nos. 1 and 2 or their agents, attorneys and/or representatives from executing, presenting and getting the Deed of Relinquishment/Transfer of the land in question described in the schedule here in below, registered in favour of the defendant No. 1 and further injunction restraining the defendants Nos. 1 and 2 from possession of the land in question, by the plaintiff more specifically described in the schedule here in below, which she has been occupying by virtue of the Registered Deed of Conveyance dated 8.4.1980 and the mutation order passed in Mutation Case No. 15 of 1980; (d) full cost of the suit together with (e) such other relief or reliefs to which the plaintiff may be entitled to in law and equity.
The present respondent No. 1 who is the plaintiff in Title Suit No. 8(T) of 1995, also filed an application for grant of temporary injunction, registered as Misc. Case No. 7(T) of 1995, for restraining the defendants therein from executing any deed of relinquishment for transfer of the suit land and also from disturbing the peaceful possession of the plaintiff.
(iii) Smti Zeenat Ahmed, defendant/opposite party No. 1 in the said case filed an application on 19.9.1995 raising the question of maintainability of the suit being Title Suit No. 8(T) of 1995 contending inter alia that the suit is hit by the principle of res judicata in view of the Judgment and decree dated 6.11.1990 passed in Title Civil Appeal No. 4(T) of 1989 as confirmed vide Judgment and order dated 26.5.1995 passed by the High Court in Civil Revision No. 9(SH) of 1991 and prayed for dismissal of the said suit as well as injunction petition. The present respondent No. 1, who was the plaintiff in the said suit filed the objection to the said application contending that the said Judgment and decree dated 6.11.1990 as well as the Judgment and order dated 26.5.1995 were obtained by misrepresentation and suppression of facts and as the same were passed by misinterpreting the law applicable and being contrary to the mandatory provisions of Act of 1971 and the notification issued therein, is not binding on the plaintiff and therefore, the suit cannot be regarded as barred by the principle of res judicata.
(iv) The Trial Court, namely, the Court of the learned Additional Deputy Commissioner vide order dated 3.4.1996 disposed of the said application dated 19.9.1995 filed by the defendant No. 1 in the suit (the predecessor in interest of the present appellant), by dismissing the suit as not maintainable by holding that it is hit by the principle of res judicata, on the ground that the rights over the suit land and the registration of the deed of transfer in the name of the defendant, Smti Zeenat Ahmed, have been decided vide Judgment and decree dated 6.11.1990 passed in Title Civil Appeal No. 4(T) of 1989 and confirmed by the High Court vide Judgment and order dated 26.5.1995 passed in Civil Revision No. 9(SH) of 1991.
(v) The respondent No. 1 herein preferred First Appeal being No. 8(SH) of 1996 before the Shillong Bench of this Court challenging the said order dated 3.4.1996 dismissing the suit, which was allowed vide Judgment and order dated 4.6.1997 passed by another single Bench of this Court by holding that the Judgment and decree dated 6.11.1990 in Title Civil Appeal No. 4(T) of 1989 and Judgment and order dated 26.5.1995 in Civil Revision No. 9(SH) of 1991 were passed "in complete ignorance of the Notification dated 7.6.1978" by which complete ban on transfer of land to the non-tribal was imposed and hence such a Judgment will not have binding effect on the concerned parties and the same is per in curium. It has further been held that as the transfer of the land involved in the suit to a non-tribal has been prohibited by the said notification dated 7.6.1978 and the suit in question being Title Suit No. 8(T) of 1995 was filed by the plaintiff (present respondent No. 1) seeking implementation of the mandatory provisions contained in the said notification dated 7.6.1978 and the decree passed in the former suit has the effect of defeating and frustrating the said amended provisions of law, the said decree would not stand as a bar to entertain of the later suit and hence the principle of res judicata is not applicable. Hence, the order dated 3.4.1996 passed by the learned trial Court dismissing the Title Suit No. 8(T) of 1995 was set aside by restoring the suit to its original number and directed the learned trial Court to decide the same on merit. It may be noted that during pendency of the appeal the original defendant No. 1 Smti Zeenat Ahmed died and in her place, the present appellant has been substituted. Being aggrieved, the appellant filed the present appeal on 7.4.1999. It may also be noted here that during pendency of the present appeal, the appellant filed the written statement in Title Suit No. 8(T) of 1995.
3. We have heard Mr. B.N. Dutta, learned Senior Counsel for the appellant and Mr. S.R. Sen. and learned Senior Counsel for the respondents.
4. Mr. Dutta, the learned Senior Counsel for the appellant in support of the challenge to the order dated 4.6.1997 passed by the learned Single Judge of this Court in First Appeal No. 8(SH) of 1996 has contended that as the matter in issue in Title Suit No. 8(T) of 1995 was directly and substantially in issue in the fanner suit, namely, Title Suit No. 9(T) of 1982, which was decreed in appeal being Title Appeal No. 4(T) of 1989 vide Judgment and decree dated 6.11.1990 wherein the plaintiff, was a party, which was upheld by the High Court in Civil Revision No. 9(SH) of 1991, the learned trial Court has rightly dismissed the Title Suit No. 8(T)of 1995 vide order dated 3.4.1996 as barred by the principle of res judicata, which principle is based on public policy to achieve two objectives, namely, (i) that there must be finality to the litigation and (ii) that the individual should not be harassed towards the same kind of litigation.
5. It has been contended by the learned Senior Counsel that the present respondent No. 1 by filing Title Suit No. 8(T) of 1995 has sought to set at naught the Judgment and decree dated 6.11.1990 passed in Title Appeal No. 4(T) of 1989 decreeing the Title Suit No. 9(T) of 1982 and also the Judgment and order passed by a single Bench of this Court dated 26.5.1995 in Civil Revision No. 9(SH) of 1991 affirming the said Judgment and decree dated 6.11.1990, though the rights and liabilities of the parties in the letter suit i.e. Title Suit No. 8(T) of 1995 has been decided in the former suit i.e. Title Suit No. 9(T) of 1982. Therefore, according to the learned Senior Counsel, the Judgment passed by another single bench of this Court on 4.6.1997 in First Appeal No. 8(SH) of 1996 is hit by the principle of res judicata. Mr.Dutta, the learned Senior Counsel has further contended that the doctrine of per in curium has been wrongly applied by the learned single Judge in its Judgment and order dated 4.6.1997 as the said doctrine is not at all applicable in the present case.
6. Mr. Dutta has further submitted that as in the former suit i.e. Title Suit No. 9(T) of 1982, the rights of the predecessor-in-inter of the present appellant vis-a-vis the respondents have been declared, granting decree as prayed for in the suit and directing the Sub-Registrar to cause registration of the deed of relinquishment and issuing permanent injunction restraining the defendant No. 3 in the said suit (the present respondent No. 1) from interfering with the right and title of the predecessor-in-interest of the present appellant (the plaintiff in the said suit), upon consideration of the provisions of Act of 1971, which has been affirmed by a single bench of this Court vide Judgment and order dated 26.5.1995 passed in Civil Revision No. 9(SH) of 1991 filed by the present respondent No. 1, by upholding the right of the predecessor-in-interest of the present appellant to get the deed registered in her favour in view of the provisions of Section 4(4) of the Act of 1971, and against which no appeal has been preferred, the learned single Judge erred in law in passing the impugned Judgment dated 4.6.1997 by allowing the first Appeal No. 8(SH) of 1996 by holding that the decision in Title Appeal No. 4(T) of 1989 and Civil Revision No. 9(SH) of 1991 being per in curium is not binding on the present respondent (appellant in the said appeal), as in the present suit the present respondent sought to raise the question of permissibility of transfer of the land under the provisions of the Act of 1971 which was in issue in the former suit and was decided in favour of the predecessor-in-interest. of the present appellant.
7. It has further been contended that as because possible aspect of the matter was not considered or not raised before the Court or more aspect should have been gone into by the Court in deciding the earlier case, that would not be a reason to hold that the decision in the earlier proceeding was rendered per in curium and was liable to be ignored. The Judgment passed in the earlier proceeding, more particularly in Civil Revision No. 9(SH) of 1991 by the learned single bench of this Court may be incorrect but the same would not be sufficient to render such decision per incurium as has been done in the present case. The learned Senior Counsel has further submitted that judicial propriety demands that a decision of a bench of co-ordinate strength should not be ignored and should not be held to be not binding by another bench of co-ordinate strength and in the event the later bench does not agree with the decision of the earlier bench, it ought to have been referred to a larger bench to examine the issue, which has not been done in the instant case. In support of his contention, learned Senior Counsel has placed reliance on the decision in Lonakutty v. Thomman ; in Gulam Abbas v. State of Uttar Pradesh ; in State of A.P. v. V.C. Subbarayudu ; in State of Bihar v. Kalika Kuer @ Kalika Singh .
8. Per contra, Mr.Sen, the learned Senior Counsel appearing on behalf of the respondents has submitted that the decision of the learned single Judge in Judgment and order dated 26.5.1995 passed in Civil Revision No. 9(SH) of 1991 as well as Judgment and decree dated 6.11.1990 passed in Title Civil Appeal No. 4(T) of 1989 decreeing suit in Title Suit No. 9(T) of 1982, have rightly been rendered per in curium by the learned single Judge vide Judgment and order dated 4.6.1987 passed in FA No. 8(SH) of 1996, as the total ban imposed vide notification dated 7.6.1978 amending the provisions of the Act of 1971, had either not been placed before the Court at the time of passing such Judgment and order or was ignored. It has further been submitted that since a total ban was imposed on transfer of land to a non tribal by amending the provisions of the Act of 1971 vide the notification dated 7.6. 978, the Judgment and decree as well as the order passed in the former proceeding including the suit as well as the Civil Revision, declaring that the sanction deemed to have been granted for such transfer on a date subsequent to 7.6.1978 and directing registration of the deed transferring the title to a non tribal, were contrary to the provisions of the Act of 1971 and hence the learned single Judge, vide Judgment and order dated 4.6.1997 passed in FA No. 8(SH) of 1996, has rightly rendered the earlier decision per in curium and held to be not binding and consequently rightly held that the later suit being Title Suit No. 8(T) of 1995 is not hit by the principle of res judicata. The learned Senior Counsel in support of his contention has placed reliance on the decision of the Apex Court in Municipal Corporation of Delhi v. Gurnam Kaur .
9. In Title Suit No. 9(T) of 1982, the present respondent Nos. 1 and 2 were the defendant Nos. 3 and 2 respectively. As noticed above, the predecessor-in-interest of the appellant, Mrs. Zeenat Ahmed, filed the said suit for declaration that Shri Shushil Kumar Dutta, defendant No. 1 therein, has no authority to sale the suit land to the defendant No. 3 (respondent No. 1 herein),in view of the agreement dated 11.1.1978 and the deed of relinquishment dated 4.11.1978 as well as the compromise decree passed in the earlier proceeding being Title Suit No. 42(T) 1966 and Title Appeal No. 2(T) 1974 and for declaration that the registered deed of sale executed in favour of defendant No. 3 is illegal and inoperative, apart from praying for a declaration that the Govt. sanction in the communication dated 15.2.1978 is deemed to have been the requisite sanction for transfer of the land by the defendant No. 2 (respondent No. 2 herein) to the plaintiff, who is a non-tribal, and also for perpetual injunction.
10. The present respondent No. 1 (defendant No. 3 there in) contested the suit by filing written statement contending that the plaintiff being a non-tribal, the land cannot be transferred in her name in view of the provisions contained in the Act of 1971 and also contending that the defendant No. 1 therein (Shri Shushil Kumar Dutta) attorney of the defendant No. 2 (respondent No. 2 herein) had the authority to transfer the land in her favour and the sale deed executed in favour of the defendant No. 3 cannot be termed as illegal and inoperative, as the land cannot be transferred to a non-tribal under the provisions of the Act of 1971. The learned trial Court vide Judgment and decree dated 3.10.1988 has decided the issue relating to the legality or otherwise of the sale deed executed in favour of the defendant No. 3 (respondent No. 1 herein) by the defendant No. 1 by holding that before transfer of the land in favour of the defendant No. 3, no permission, as required under the Assam Land and Revenue Regulation, adopted by the Govt. of Meghalaya, was obtained and the defendant No. 1 cannot sale or transfer the suit land in favour of the defendant No. 3 in view of the agreement dated 11.1.1978 and by such sale no right and title can be conferred on the said defendant, irrespective of the fact that the sale deed has been duly registered and mutation thereon has been affected. The learned trial Court, however, has dismissed the suit being premature, as the permission for registration of the deed of relinquishment was not accorded. The predecessor-in-interest of the present appellant being aggrieved by the said Judgment and decree preferred in Title Appeal No. 43 of 1989. The present respondents, who were the defendants No. 3 and 2 respectively in the suit did not file any appeal or cross-objection against the aforesaid finding recorded by the learned trial Court. The learned appellate Court decreed the suit of the plaintiff (predecessor-in-interest of the present appellant) vide Judgment and decree dated 6.11.1990 by holding that the permission/requisite sanction deemed to have been granted Under Section 4(4) of the Regulation of 1971 and directed the Sub-Registrar to cause registration of the deed of relinquishment and further injuncted respondent No. 1 herein from interfering with the title of the plaintiff-appellant. The learned appellate Court has also upheld the finding of the learned trial Court relating to the sale deed executed by the defendant No. 1 (Shri Shushil Kumar Dutta) being the attorney of the defendant No. 2 (respondent No. 2 herein), in favour of defendant No. 3 (respondent No. 1 herein) as illegal and inoperative and also the finding that no right and title can be passed on the basis of such sale deed. The said Judgment and decree was challenged by the present respondent No. 1 (defendant No. 3 in the said suit) before the High Court in Civil Revision No. 9(SH) of 1991, which has been disposed of by affirming the Judgment and decree dated 6.11.1990 passed in Title Appeal No. 4(T) of 1989. The present respondent No. 1 did not challenge the said Judgment and order dated 26.5.1995 before the Higher Court.
11. As noticed above, the present respondent No. 1, who was the defendant in Title Suit No. 9(T) of 1982, the respondent in Title Appeal No. 4(T) of 1989 and the petitioner in Civil Revision No. 9(SH) of 1991, without challenging the legality and validity of the Judgment and order passed in the said proceeding filed another title suit being Title Suit No. 8(T) of 1995 in the Court of the Additional Deputy Commissioner, East Khasi Hills District, Shillong, praying for the decree as noted above, for declaration that the Judgment dated 26.5.1995 passed by the High Court in Civil Revision No. 9(SH) 1991 is bad in law and also the right to posses the land in question on the basis of the sale deed dated 8.4.1980, which has already been declared as invalid by the trial Court in Title Suit No. 9(T) 1982 and T.A. No. 4(T) 1989, which suit has been dismissed by the learned trial Court on the ground of res judicata. However on appeal being FA No. 8 (SH) of 1996, the same has been allowed by a single bench of this Court vide Judgment and order dated 4.6.1997, by rendering the Judgment and orders passed in Title Appeal No. 4(T) of 1989 and Civil Revision No. 9(SH) of 1991 per in curium, on the ground that the total ban imposed for transfer of the land to a non-tribal under the provision of the Regulation of 1971 had either not been brought to the notice of the Court in the earlier proceedings or was ignored and consequently such decision will not operate as res judicata.
12. Before going to the question of per in curium, we shall first deal with the relevant provisions of the Act of 1971. The Govt. of Meghalaya enacted the Act of 1971 to regulate the transfer of land for protection in the interest of the scheduled tribe therein, which came into effect on 4.1.1972. Sub-section (1) of Section 3 of the said Act provides that no land in the State of Meghalaya shall be transferred to by a tribal to a non-tribal or by a non-tribal to another non-tribal except with previous sanction of the authority. Sub-section (2) provides that any transfer of land made in contravention with the provisions of Section 3 shall be void and shall not be enforceable in any Court. Section 3 of the said Act provides the manner of disposal of the application for grant of sanction as required Under Section 3. Sub-section (3) of Section 4 requires the competent authority to dispose of every application filed for sanction as early as possible as and not later than six months. Sub-section (4) of that section provides a deeming Clause. It provides that if no order is passed by the competent authority on such application for sanction within six months, it shall be deemed that the sanction has been accorded. The Act of 1971 was amended by the Meghalaya Transfer of Land (Regulation) (Amendment) Act, 1977 (in short 1977 Amendment Act), which received the ascent of the President of India on 24.9.1976 and published in the Gazette of Meghalaya on 30.3.1978. By the said 1977 Amendment Act, a proviso to Sub-section (1) of Section 3 has been inserted empowering the Govt. of Meghalaya to issue notification prohibiting transfer of land within such area or areas as may be specified in the notification. It has further been provided in the said proviso that the competent authority, on issuance of such notification prohibiting transfer of land, shall not sanction any transfer of land under the provisions of the said Act and within such area or areas.
13. The Govt. of Meghalaya, pursuant to the power conferred by the proviso to Sub-section (1) of Section 3 of the Act of 1971, as inserted by the 1977 Amendment Act, issued a notification dated 7.6.1978 prohibiting transfer of land by a tribal to a non-tribal or by a non-tribal to an another non-tribal within the: (i) areas within the East Khasi Hills District except the areas to which the Act of 1971 does not apply (ii) the areas within the Jaintia Hills District and (iii) the areas within the West Khasi Hills District.
14. In the case in hand, there is no dispute to the fact that the land involved in the suit falls within the area notified vide aforesaid notification dated 7.6.1978. The present appellant filed Title Suit No. 9(T) of 1982 claiming right under the deed of release dated 11.4.1978 (deed of relinquishment) as wells the compromise decree dated 20.05.1978 passed in T.C. Appeal No. 2(T) of 1974 and also for declaration that the registered deed of sale dated 8.4.1980 executed by the Oxford Mission Trust in favour of the present respondent No. 1, namely, Smti Kelish Thebans illegal, in operative and without sanction from the appropriate authority and against the term of the said agreement i.e. the deed of relinquishment dated 11.4.1978. As noticed above, the suit has ultimately been decreed in the appeal and affirmed in the civil revision.
15. The case of the present respondent No. 1 before the learned single Judge in F.A. No. 8(SH) 1996 and also in this appeal is that there being total ban imposed for transfer of land vide notification dated 7.6.1978 issued by the Govt. of Meghalaya, pursuant to the power conferred by the proviso to Section 3(1) of the Act of 1971, the learned single Judge vide Judgment and order dated 4.6.1977 passed in the said appeal has rightly rendered the Judgment and orders dated 6.11.1990 passed in Title Appeal No. 4(T) 1989, dated 26.5.1995 passed in Civil Revision No. 9(SH) 1991 by another single bench of this Court per in curium, as according to the present respondent No. 1, the said Judgment are contrary to the provisions of the Act of 1971, as amended. The further contention of the respondent No. 1 is that the registered sale deed dated 8.4.1980 executed in her favour confers title on her.
16. As discussed above, the present appellant's claim is based on the deed of relinquishment dated 11.4.1978 and the Judgment and order dated 6.11.1990 passed by the learned Additional Deputy Commissioner in Civil Appeal No. 4(T) 1989 decreeing the suit in favour of the predecessor-in-interest of the present appellant being Title Suit No. 9(T) of 1982 by directing the Sub-Registrar to cause registration of the said deed of relinquishment dated 11.4.1978, by holding that the sanction for transfer of the land in favour of the non-tribal deemed to have been accorded as required under Sub-section (4) of Section 4 of the Act of 1971. Admittedly, such deed of relinquishment was made prior to the total ban imposed by the Govt. of Meghalaya by issuing the notification-dated 7.6.1978.
17. This leads us for consideration of the question as to whether the ban imposed vide notification dated 7.6.1978 prohibiting transfer of land within the areas specified therein will have any effect on the said deed of relinquishment dated 11.4.1978. There is no dispute to the fact that the predecessor-in-interest of the present appellant filed an application for grant of sanction on 16.6.1978, i.e. after issuance of notification dated 7.6.1978 imposing total ban on such transfer and the predecessor-in-interest of the present appellant in Title Suit No. 9(T) of 1982 prayed for decree declaring the Govt. sanction dated 15.2.1978 communicated by the Deputy Commissioner, East Khasi Hills District on 21.3.1978, as the requisite sanction, and also declaring that the sanction deemed to have been granted Under Section 4(4) of the Act of 1971, on the ground that the application filed by the predecessor-in-interest of the present appellant before the Chief Executive Member of the Khasi Hills Autonomous District Council, Shillong, on 16.6.1978 has not been disposed of within six months. The suit though was dismissed by a learned trial court, however was decreed in the aforesaid appeal, which has been affirmed in the aforesaid civil revision by the single bench of this Court. There is no dispute to the fact on the basis of the application filed by the Oxford Mission Trust (respondent No. 2) seeking permission for transfer of the land to a non-tribal, namely, the predecessor-in-interest of the present appellant (Zeenat Ahmed), the Govt. of Meghalaya vide communication dated 15.2.1978, expressed its no objection for such transfer but imposing a specific condition to the effect that they must approach the competent authority for permission of such transfer as provided under the Act of 1971. The predecessor-in-interest of the present appellant thereafter filed an application before the District Council Authority, which at the relevant point of time, was the competent authority for grant of sanction by virtue of the notification dated 10.8.1974, on 16.6.1978 i.e. after issuance of the notification dated 7.6.1978 prohibiting transfer of land. It also appears that apart from the said notification dated 15.2.1978, no order was passed by the competent authority under the Act of 1971 granting sanction for transfer of the land in favour of the present respondent No. 1, prior to issuance of the notification dated 7.6.1978 and as required under the Act of 1971.
18. The Govt., as noticed above, vide notification dated 7.6.1978, issued pursuant to the power conferred by proviso to Sub-section (1) of Section 3 of the Act of 1971 prohibited transfer of land by a tribal to a non-tribal or by a non-tribal to another non-tribal within the areas specified therein. The amendment to Section 3(1) of the Act of 1971 by 1977 Amendment Act and also issuance of notification dated 7.6.1978 by the Govt. of Meghalaya, have the effect of imposing total ban on transfer of land by a tribal to a non-tribal or by a non-tribal to another non-tribal in the specified areas. This was done by the Legislature with definite object and purpose behind it. Hence, there is no question of granting sanction for transfer of land by a tribal to a non-tribal or by a non-tribal to another non-tribal within the specified area. Consequently, the deeming provision contained in Sub-section (4) of Section 4, which deals with the disposal of the application for transfer of land, ceased to operate in respect of the land notified by that notification dated 7.6.1978; otherwise the very purpose of the prohibition imposed by Legislature would be frustrated. A Court of law does not appear such an action.
19. As discussed above, Section 3(1), as stood prior to 1977 Amendment, provides for granting permission for transfer by the competent authority. In the present case, the learned Court below decreed the suit filed by the predecessor-in-interest of the present appellant by holding that in view of non disposal of such application within the period of six months as required under the provisions of Section 4(4) of the Act of 1971, the permission deemed to have been accorded. The said view has also been taken by a single bench of this Court in Civil Revision No. 9(SH) 1991 in its order dated 26.5.1995, by ignoring the fact that on the date when the application was filed before the competent authority, there was a total ban imposed for transfer of the land in question, to any non-tribal, which falls within the notified area as notified vide notification dated 7.6.1978. Therefore the deeming provisions as contained in Sub-section (4) of Section 4 of the Act of 1971 has no effect and cannot be taken aid of in this case. In any case, the communication dated 15.2.1978 issued by the Govt. expressing no objection for granting sanction by the competent authority for transfer of the land to a non-tribal, cannot be treated as sanction under the Act of 1971, on two counts: firstly, the said Act provides for filing application as well as for grant of sanction by the competent authority notified by the Govt., for transfer of land to a non-tribal Under Section 3, even prior to 1977 amendment and secondly, the Govt. communication dated 15.2.1978 clearly stipulates that the concerned person has to apply and obtain such sanction from the competent authority in accordance with the provisions of the Act of 1971, which has not been done by the predecessor-in-interest of the present appellant prior to issuance of notification dated 7.6.1978, imposing total ban on transfer of land to any non-tribal in the notified areas.
20. From the aforesaid discussion, it is evident that there being no sanction granted by the competent authority for transfer of land in favour of the non-tribal i.e. the predecessor-in-interest of the present appellant, prior to issuance of the notification dated 7.6.1978 imposing total ban on transfer of land to non-tribal in the notified area and the application for granting such sanction having admittedly filed on 16.6.1978 i.e. after coming into force of such ban on transfer of land, no transfer of land in favour of any non-tribal in the notified area, which includes the suit land, is permissible. The object of the Act of 1971 being to regulate the transfer of land in Meghalaya for the protection of the interest of the scheduled tribes therein, the court's duty is to facilitate towards achieving such object and not to frustrate the same.
21. In the case in hand, learned first appellate Court in Title Appeal No. 4(T) of 1989 passed the Judgment and decree dated 6.11.1990 decreeing the Title Suit No. 9(T) of 1982 filed by the predecessor-in-interest of the present appellant declaring that the sanction for transfer deemed to have been granted in view of the non-disposal of the application for grant of sanction filed on 16.6.1978. Similar view has also been taken by a single bench of this Court in Civil Revision Petition No. 9(SH) 1991 against the Judgment and order passed by the learned appellate Court in Title Civil Appeal No. 4(T) of 1989. The said Courts, as discussed above, while passing the Judgments and decree failed to take into consideration the prohibition imposed on transfer of land to a non-tribal, vide notification dated 7.6.1978 after amendment of the provisions of the Act of 1971 by 1977 Amendment. The related Judgments and decree were passed in ignorance of law, namely, the provisions of the Act of 1971 as amended and the notification issued there under.
22. A decision is rendered per in curium and consequently it will not have the binding precedent, when such decision is rendered in ignorance of law. The word "incuria" literally means "carelessness". 'Per in curia' is taken to mean 'per ignoratium'. The Judgment, which is rendered as per in curium is to be avoided and ignored. In the present case, the learned appellate Court in Title Civil Appeal No. 4(T) of 1989 as well as a single bench of this Court in Civil Revision Petition No. 9(SH) of 1991 have passed the decree and affirmed the same, as discussed above, in ignorance of the provisions of the Act of 1971 as amended and also the notification dated 7.6.1978. The Apex Court in Nirmal Jeet Kaur v. State of M.P. and Anr. has observed that: "to perpetuate an error is no heroism. To rectify it is the compulsion of the judicious conscience" the said view has also been reiterated in Moyuram Subramonium v. CBI .
23. The contention of the learned Senior Counsel for the appellant that as the rights and liabilities of the parties in respect of the suit land has already been decided in the earlier proceeding and there being no appeal preferred against the said Judgment and decree passed, the same attained finality and cannot be disturbed in a subsequent proceeding between the same parties, cannot be accepted as judicial conscience requires rectification of any illegal order passed. Section 11 of the Civil Procedure, which provide the principle of res judicata, the spirit of which is applicable in the present case, in view of the provisions contained in the Administration of Justice, Police in the Khasi and Jaintia Hills Rules, 1937, is the procedural law, which are hand-maids of justice and not the mistress of justice. In rectifying error, the procedural law would not come on the way of a Court, as no person can be allowed to suffer for any mistake of the Court. Therefore, the principle of res judicata, which founded on the public policy, would not stand on the way of a Court from entertaining the grievance and giving appropriate direction when it is brought to the notice of the Court that a grave injustice or error of law has been committed.
24. There is no dispute to the proposition of law that the principle of res judicata is applicable as and when the matter in issue in a suit have been in issue directly and substantially in issue in the former suit and between the same parties, as observed by the Apex Court in Lonakutty (supra). As already noticed above, the object of the principle of res judicata is to give finality to litigation and founded on consideration of public policy to achieve two objectives that-there must be finality to litigation and that individual should not be harassed twice in a similar kind of litigation as observed by the Apex Court in Golam Abbas (supra).
25. In the in stat case as indicated above, the earlier Judgment passed in the title suit was in total disregard to the provisions of the Act of 1971 as amended by 1977 Amendment and also the notification dated 7.6.1978 issued there under providing legislative embargo for transfer of land to a non-tribal. The decision in the former proceeding, in that regard, therefore, cannot have any binding effect; the same being contrary to law, and the Court had no jurisdiction to provide sanction for transfer by applying the deeming provision.
26. As discussed above, the learned first appellate Court in Title Appeal No. 4(T) of 1989 decreed the suit filed by the predecessor-in-interest of the present appellant in Title Suit No. 9(T) of 1982, which has been affirmed by the Judgment and order dated 26.5.1995 passed in Civil Revision No. 9(SH) of 1991 by a single bench of this court, ignoring the provisions of the Act of 1971 as amended by the 1977 Amendment as well as notification dated 7.6.1978 imposing total ban on transfer of land in favour of non-tribal, issued there under, thereby permitting some thing, which cannot be allowed under the law. Such a situation when brought to the notice of the Court has to be corrected even if no appeal was preferred by the present respondent against the Judgment and decreed passed in the said suit, as the Court's function is not to perpetuate the illegality but to rectify it, whenever it is brought to its notice. The Judgment and decree passed in ignorance of the provisions of law imposing total ban on transfer of land to a non-tribal was rendered per in curium and therefore cannot have any binding effect. However, it is true that the learned single Judge in FA No. 8(SH) of 1995 from which the present LPA arises, would have placed the matter before the Chief Justice for constitution of a larger bench, having not agreeing to the Judgment passed by another single bench in Civil Revision No. 9(SH) of 1991, as judicial discipline requires the same. Normally the decision rendered by a bench of co-equal strength is to be followed by another bench of co-equal strength. If a subsequent bench of co-equal strength expressed its opinion doubting the correctness of the view taken by the earlier bench of co-equal strength, the judicial propriety requires placing the matter before a bench consisting of a forum larger than one, which pronounces the decision laying down the law, the correctness of which is doubtful. (See State of Bihar v. Kalika Kuer @ Kalika Singh and State of A.P. v. V.C. Subbarayudu reported in (supra). However, as the matter is presently before the Division Bench of this Court, we have considered the Judgment and decree dated 6.11.1990 passed by the first appellate Court in Title Appeal No. 4(T) of 1989 and order dated 26.5.1995 passed by a single bench of this court in Civil Revision No. 9(SH) of 1991 and hold the said decision per in curium, as discussed above. Hence we are of the view that the Judgment and decree dated 6.11.1990, passed by the first appellate Court in Title Appeal No. 4(T) of 1989 as well as the Judgment and order dated 26.5.1995 passed in Civil Revision Petition No. 9(SH) of 1991 are not binding, the same having been passed in ignorance of the provisions of the Act of 1971 as amended and the notification issued there under and without noticing the provisions of the said Act.
27. The decision cited by the learned Senior Counsel for the respondents in Municipal Corporation of Delhi (supra) is not applicable in the case at hand as in the said case, the Supreme Court has observed that the order passed on consent of the parties have no judicious value and should not be followed as precedent, which is not the case in hand.
28. The next question, which requires our consideration, is whether the suit being Title Suit No. 8(T) of 1995 should be allowed to proceed.
29. As noticed above, the suit has been filed challenging the legality and validity of the Judgment and order passed on 26.5.1995 in Civil Revision Petition No. 9(SH) of 1991 and claiming right under registered deed of conveyance dated 8.4.1980 executed by the present respondent No. 2 in favour of the present respondent No. 1 (plaintiff in the suit) though in the earlier proceeding being Title Suit No. 8(T) of 1995, it has been held that the said registered deed of conveyance dated 8.4.1980 is not valid, against which no appeal has been preferred. Such a suit in our considered opinion cannot be allowed to proceed, as the same is not maintainable. The Judgment passed by the High Court, cannot be challenged by filing a suit. Moreover, the respondent No. 1 (plaintiff in the suit) cannot claim any right on the basis of the registered deed of conveyance dated 8.4.1980, which has already been declared as invalid in Title Suit No. 8(T) of 1995 and the same operate as res judicata.
30. In view of the above discussion, while holding that the Judgment and decree dated 6.11.1990 passed in Title Civil Appeal No. 4(T) of 1989 decreeing the Title Suit No. 9(T) of 1982 in so far as it relates to the direction to the Sub-Registrar to register the deed of relinquishment dated 11.4.1978 by invoking the deeming provisions of Section 4(4) of the Act of 1971 affirmed in Civil Revision Petition No. 9(SH) of 1991 in that regard, has no binding effect and does not confer rights upon the defendants, and is a decision per in curium, we dismiss the suit being Title Suit No. 8(T) of 1995 as being not maintainable for the reasons stated above.
31. The appeal is accordingly disposed of. No cost.