1. This is an appeal by the original plaintiff whose suit for declaration that a certain order passed by the Government was illegal and void and for certain other reliefs has been dismissed by the trial Court on preliminary grounds that the jurisdiction of the Civil Court to entertain the suit was barred under the provisions of Section 4 of the Revenue Jurisdiction Act and .the suit was also barred by res judicata in view of the decision of the High Court in Special Civil Application No. 1426 of 1962, D/- 8-12-1964 (Bom).
2. The facts giving rise to this litigation may now be summarised.
3. The suit property consists of 13 different pieces of agricultural land situate at Mamurabad in the District and Taluka Jalgaon. These lands altogether measure 18 acres 15 gunthas. One of these 13 lands bears Survey No. 491. It is not necessary to give the numbers of the other twelve lands.
4. It is common ground that these 13 lands were formerly held as 'Gao Hal' (inam land). Accordingly, the grantee of these lands was under an obligation to supply water to the villagers of Mamurabad which is a service useful to the village community.
5. It appears from the record that on September 29, 1881, a 'Sanad' was granted in the name of the Secretary of Statein Council in respect of these lands and from the register of alienation it appears that the same was granted in favour of one Keshav Devji Bhola.
6. It appears that in course of time the lands changed hands and ultimately they came into possession of the present defendant No. 2, Laxman Shama Dhake, since 1&36, pursuant to an order passed by the Prant Officer and these lands were also entered in the revenue records in the name of defendant No. 2. It appears that in 1947, a dispute arose between the villagers on one side and the present defendant No. 2 on the other. Ultimately, however, an agreement was reached between the Gram Panchayat as representing the villagers and defendant No. 2 on November 10, 1948. Under this arrangement, defendant No. 2 agreed to retain possession of Survey No. 491 while the remaining 12 pieces of land were surrendered by defendant No. 2 to the Gram Panohayat. Accordingly these lands were also entered in their respective names in the Record of Rights.
7. In 1953 the then Government of Bombay by an Act, called Bombay Service Inams (Useful to Community) Abolition Act, 1953 (Bombay Act No. LXX of 1953), (hereinafter called 'Bombay Inams Abolition Act'), abolished all service inams with effect from 1-4-1954 on which date the said Act came into force.
8. Section 4(1) of the said Bombay Inams Abolition Act made all service inam villages and service inam - lands which had been adjudicated under R. 8 of Sch. B to the Bombay Rent-free Estates Act, 1852, liable to payment of land revenue in accordance with the provisions of the Code (the Land Revenue Code of 1879) and the rules made thereunder and at the same tune the provisions of that Code and the rules relating to unaiienated lands were made applicable to such villages and lands.
9. It is common ground that the lands with which we are concerned in the present case do not fall in the category of lands to which Section 4 applies and, therefore, we need not dwell at great length on this section.
10. Under Section 5 (1) of the said Bombay Inams Abolition Act, all service inam lands which had not been adjudicated under R. 8 of Seh. B to the Bombay Rent-free Estates Act, 1852, were by that section resumed and were made liable to the payment of land revenue under the provisions of the aforesaidCode and the rules made thereunder and the provisions of the Code and the rules relating to the unaiienated lands were made applicable to such lands. Sub-section (2) of that section provides that a service inam land resumed under the provisions of sub-s. (1) shall be regretted to the holder on payment of the occupancy price equal to six times the amount of the full assessment of such land within 5 years from the appointed day, that is to say, the date on which the Act came into force, and the holder was to be deemed to be an occupant within the meaning of the Code in respect of such land and was made primarily liable to pay land revenue to the State Government in accordance with the provisions of the Code and the rules made thereunder.
11. Then there are two provisos to this sub-s. (2) of Section 5. The first proviso made provision for the contingency of failure to pay occupancy price by the holder as stated above by laying down that on failure to pay the occupancy price as stated above during the said period, he should be deemed to be unauthorised occupying the land and would be liable to be summarily ejected in accordance with the provisions of the Code. The second proviso laid down that where a service inam consisting of land was inalienable and was in the possession of a person other than the descendant of the original grantee, then for the purposes of regrant of land, the person in possession of land shall produce satisfactory documentary evidence to show that the alienation of the land in his favour or in favour of his predecessor-in-title was made with the sanction of the competent authority and was lawfully made. Sub-section (3) made the occupancy of the land regranted under sub-section (2) non-transferable and impartible by metes and bounds without the previous sanction of the Collector and except on payment of such amount as the State Government may by general or special order determine. It is not necessary to refer to other sections of the Act. Suffice it to state that Section 6 and the following sections made provisions for payment of compensation in case where the grant was of cash allowance to the holder either in whole or in part in addition to the grant of land or otherwise. Method of determination of compensation was also laid down in Section 7 and powers were conferred on different authorities to determine compensationhaving regard to the amount of compensation payable in each case. Then a provision was also made in one of the sections for an appeal to the Maharashtra Revenue Tribunal by a person who was aggrieved by the order of the award of compensation and in Section 9 it was provided that the award made by the Collector subject to an appeal to the Bombay Revenue Tribunal and the decision of the Maharashtra Revenue Tribunal on the appeal shall be final and conclusive and shall not be questioned in any suit or proceeding in any Court.
12. At this stage, it may be remembered that so far as the regrant was concerned, no provision has been made in the Act as to what authority should determine as to who was the holder entitled to regrant and no remedy was also provided to the aggrieved party against the order holding one of the two rival claimants as a person entitled to regrant.
13. Reverting to the facts of the present case, on the coming into force of the aforesaid Bombay Inams Abolition Act, present defendant No. 2 put forth his claim for regrant of the lands before the Collector of Jalgaon who rejected his claim by an order passed on October 11, 1956.
14. Defendant No. 2, however, seems to have approached the Government against the order of the Collector and by an order passed on February 1, 1958, the Government directed the Collector to regrant the lands to defendant No. 2. Accordingly. the Collector appears to have passed an order of regrant of all these lands in favour of defendant No. 2 and even a 'Kabulayat' was obtained from defendant No. 2 on February 5, 1959.
15. However, the Gram Panchayat of Mamurabad appears to have also put forth its claim and paid occupancy price for all the lands on March 23, 1959 and the Mamlatdar on receiving the occupancy price informed the Gram Panchayat on July 31, 1959 that Village panchayat should supply water to the village.
16. It appears that on the representation of the Village Panchayat, subsequently the order of regrant made by Government on February 1, 1958 was cancelled by the Government on June 16, 1961 and a fresh order was passed directing regrant to be made in favour of the Gram Panchayat.
17. Defendant No. 2 thereupon came to this Court under Article 226 of the Constitution in Special Civil Application No. 838 of 1961 and his grievance was that the subsequent order cancelling the previous order in his favour was passed by Government without even giving him an opportunity of being heard. This Special Civil Application was allowed by a Division Bench of this Court and the case was remitted back to the Government to pass fresh orders after giving a hearing to defendant No. 2.
18. Thereafter, Government after giving a hearing to defendant No. 2, passed a fresh order on August 28, 1962. It held that defendant No. 2 was not entitled to regrant and he was also by the self-same order directed to surrender possession to the Collector of Survey No. 491 which was in his actual possession at that time.
19. Against this second order passed by the Government, defendant No. 2 came to this Court again under Article 226 of the Constitution in Special Civil Application No. 1426 of 1962 (Bom). In this Special Civil Application, a Division Bench of this Court consisting of Kolwal J. (as he then was) and Bal J. passed an order on December 8, 1964 setting aside the order passed by the Government on August 28, 1962 cancelling the first order dated February 1, 1958 passed by the Government for regrant of the lands to defendant No. 2. The ground on which this Special Civil Application was allowed and the Government's subsequent order was cancelled was that in passing the first order of February 1, 1958, the Government exercised its revisional powers under Section 211 of the Land Revenue Code and, therefore, having once exhausted those powers, the Government had no jurisdiction to again exercise powers under that section and revise or review its earlier order passed on February 1, 1958.
20. Here it is necessary to state that in this Special Civil Application, initially defendant No. 2 had impleaded only the State of Maharashtra and the Collector of Jalgaon; but on the application of the Village Panchayat of Mamurabad, the Village Panchayat was also made respondent No. 3 and thereafter the Special Civil Application came to be disposed of.
21. In this application it appears to have been contended that defendant No. 2 could not become a holder within the meaning of Section 2 (1) (d) of the Bombay Inams Abolition Act so as to entitle him to regrant of the land. While rejecting this contention raised on behalf of the State, the Division Bench, however, observed that the 3rd respondent, that is, the Village Panchayat, was at liberty to challenge the aforesaid order of Government by filing a separate suit if such a remedy was available to the Village Panchayat; but upon the material placed before the Court at the time, there was no escape from the conclusion that the petitioner was the holder of the inam as defined in Section 2 (1) (d) of the Act.
22. Thereupon the suit in which the present appeal arises was instituted on June 29, 1965 by the Gram Panchayat of Mamurabad in which the State of Maharashtra was imploded as defendant No. 1 and Laxman Shama Dhake in whose favour order of regrant was made by the Government was impleaded as defendant No. 2. Ganpat Shivram Dhake was impleaded as defendant No. 3 by way of abundant caution because by two different agreements, defendant No. 2 was said to have entered into an agreement of sale of Survey No. 491 to defendant No. 3 and that, therefore, the latter should have no opportunity to obstruct the delivery of possession in execution.
23. The main contesting defendant was defendant No. 2. He raised several contentions. It is not necessary to set out all of them here, inasmuch as the suit has been dismissed only on preliminary grounds. In this respect the contentions raised by him were that the suit was barred under the provisions of Section 4 of the Revenue Jurisdiction Act, 1876 and that it was also barred by res judi-cata. Although it was not specifically stated as to how it was barred by res judicata or which previous decision operated as res judicata, it is clear from the judgment of the lower Court that defendant No. 2 contended that the decision of the High Court in Special Civil Application No. 1426 of 1962 had finally decided the dispute as to regrant and, therefore, it operated as res judicata. It was also contended that the Court had no jurisdiction to entertain the suit.
24. The learned Judge on the pleadings framed as many as 15 issues but took issues Nos. 6, 7 and 15 for consideration as preliminary issues. Issues Nos. 6, 7 and 15 are as follows :
6. Whether the suit is barred under Revenue Jurisdiction Act ?
7. Whether the Court has jurisdiction to try the present suit ?
15. Whether the present suit is barred by principle of res judicata in view of Spl. Civil Application No. 1426 of 1962 He came to the conclusion that the suit was barred under the provisions of Section 4 of the Revenue Jurisdiction Act, 1876 and it was also barred by res judicata in view of the decision in Special C.A. No. 1426 of 1962. On issue No. 7, viz. as to whether the Court had jurisdiction to try the present suit, however, the learned Judge recorded a finding in the negative without giving any reasoning in support of the finding. The plaintiff has therefore come in appeal.
25. On this appeal, the first contention raised on behalf of the appellant is that the view taken bv the Court below that the suit is barred under Section 4 of the Revenue Jurisdiction Act is incorrect. It was contended that Section 4 is not at all applicable in the present case inasmuch as the property involved in this litigation is not watan property and Section 4, Clause (a) applies only to watan property. Section 4 (a), so far as is relevant for our purpose, reads thus :
'Subject to the exceptions hereinafter appearing, no Civil Court shall exercise jurisdiction as to any of the following matters :
(a) claims against the Government relating to any property appertaining to the office of any hereditary officer appointed or recognised under Bombay Act No. III of 1874 or any other law for the time being in force, or of any other village officer or servant.....'
It was contended that the property involved in this litigation did not appertain to any office of any hereditary officer. In other words, it was contended that it was not watan property.
26. The expression 'Watan property' has been defined in Section 4 of the Bombay Hereditary Offices Act, 1874 as follows :
' 'Watan property' means the moveable or immovable property held, acquired or assigned for providing remuneration for the performance of the duty appertaining to an hereditary office. It includes a right to levy customary fees or perquisites, in money, or in kind, whether at fixed times or otherwise.
It includes cash payments in addition, to original Watan property made voluntarily by the State Government and subject periodically to modification or withdrawal.'
The expression 'Hereditary Office' also has been defined as follows :
' 'Hereditary office' means every office held hereditarily for the performance of duties connected with the administration or collection of the public revenue or with village police, or with settlement of boundaries, or other matters of civil administration. The expression includes such office even where the services originally appertaining to it have ceased to be demanded.
The watan property, if any, and hereditary office and rights and privileges attached to them together constitute the watan.'
27. Now, what was contended before us was that the service of supplying water to the villagers was not an office and that these lands were not attached to that office by way of remuneration.
28. This contention, however, must be rejected because the certified copy of he Sanad dated September 29, 1881 and the certified extract from the Alienation register make it clear that these properties were attached as remuneration to the office of 'Halkari' i. e. the person who was appointed to supply or provide water to the villagers of Mamurabad. The Sanad clearly states :
'It is hereby declared that the said land shall be continued, so long as the village community may require the services, as the service emolument appertaining to the office of Halkari on the following conditions :
That is to say, that the holders thereof shall perform the usual service to the community and shall continue faithful subject of the British Government. As this watan is held for the performance of service, it cannot be transferred and in consequence no Nazrana will be levied.'
29. The contents of the Sanad, therefore, place it beyond doubt that it was the grant of an office of Halkari in favour of the grantee Keshav Devji Bhola and the lands mentioned in the Sanad were attached to that office as a remuneration for the service, namely, of supplying water to the villagers to be performed by the grantee. There is, therefore, no substance in the contention that the property involved in this litigation was not watan property governed by the Bombay Hereditary Offices Act, 1874 (Bombay Act No. III of 1874).
30. The next branch of the argument based on para. 1 of Clause (a) of Section 4 of the Bomaby Revenue Jurisdiction Act was that although initially it was watan property, on the coming into force of the Bombay Inams Abolition Act, 1953, this property having ceased to be watan property any longer, para. 1 of Clause (a) wasnot attracted to this case at all. We see considerable substance in this argument. Under para. 1 of Clause (a) of Section 4 of the Bombay Revenue Jurisdiction Act, 1876, jurisdiction of the Civil Court is ousted in respect of claims against the Government relating to any property appertaining to the office of any hereditary officer appointed or recognised under Bombay Act No. III of 1874 or any other law for the time being in force, or of any of other village-officer or servant. As we have already discussed above, it is no doubt true that at one time this property appertained to the hereditary office of Halkari and was, therefore, watan property. But no sooner the Bombay Inams Abolition Act came into force on 1-4-1954, by virtue of the provisions contained in Section 3, automatically these properties lost their' character as watan properties and became ordinary unalienated lands which are in usual parlance called 'Rayatawa' or 'rayatawatl' lands.
31. Section 3 of the Bombay InamsAbolition Act provides-
'With effect from and on the appointed day, notwithstanding anything contained in any law, usage, settlement, grant, sanad or order-
(1) all service inams shall be deemed to have been abolished and all incidents appertaining thereto shall be deemed to have been extinguished;
(2) all rights to hold office and any liability to render service appertaining to the said inams are hereby extinguished.'
The expression 'appointed day' as defined in Section 2 (1) (a) means the day on which the said Act comes into force, that is to say, 1-4-1954. From the language of this section it is clear that the abolition of the inam character of the property and the rights and liabilities attached thereto automatically became extinguished the moment the Act came into force. The abolition of the inam character of the property and the rights and liabilities attached thereto were not made dependent on the happening of any other future contingency or happening of any event. No special order or notification was even required to be issued to put an end to the inam character of such properties.
32. Since, therefore, on the coming into force of this Act on 1-4-1954, theseproperties having ceased to be watan properties, on the date the Government passed the order of regrant, they were no longer watan properties, but had become ordinary 'rayatawa' properties and, therefore, the consequence of this is that Clause (a) of Section 4 of the Bombay Revenue Jurisdiction Act could not be attracted in the present case.
33. In taking this view we are fortified by the decision of a Division Bench of this Court in Ramijyabi Maktumsaheb v. Gudusaheb : AIR1952Bom387 . In that case also the property which was originally watan property was continued with the holder without having to render services and with the full levy of assessment from him, the effect of such continuance being that the property ceased to be watan property and was converted into rayatwari holding and the holder became an ordinary occupant thereof. It appears that thereafter the member of the family to whose Share the property had fallen gifted it to his grand-daughter. Thereupon the defendant who was the member of the family of the original Watandar applied to the revenue authorities to restore the property to him on the ground that it was japti sanadi inam land and was therefore inalienable under the Bombay Hereditary Offices Act, 1874. The Prant Officer to whom the application was made ordered restoration of possession.
34. The donee therefore filed a suit against the defendant to recover possession contending that although originally the property was watan property, it was converted into rayatwari holding in course of time by the commutation of service and by levy of full assessment and hence the land had become the private property of her grand-father. It was held that as the property was rayatwari property, the Watan Act was not applicable to it and, therefore, the plaintiff's claim was decreed by the High Court. The contention strenuously put forward by Mr. Warke for respondent No. 2, therefore, that under para. 1 of Clause (a) of Section 4 the present suit is barred is unacceptable to us.
35. There is also another reason why Clause (a) of Section 4 of the said Act is not attracted in the present case. That reason is that in the present suit there is no claim made against the Government relating to any property appertaining to the office but what is prayed in the suit is a declaration that the order passed bythe Government on 1-2-1958 is illegal and void and some other consequential reliefs have been claimed.
36. Then para. 2 of Clause (a) of Section 4 is also not applicable to the present case because it also refers to 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. .
37. The question then arises is whether the present suit would be governed by para. 3 of Section 4 (a) which says that no Civil Court shall exercise jurisdiction as to suits to set aside or avoid any order under the same Act (i. e. Bombay Act No. III of 1874) 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.
38. There can be no doubt that this is a suit to set aside or avoid an order passed by the State Government. The question, however, is whether this is a suit to set aside or avoid an order passed under the Bombay Act No. III of 1874 or any other law relating to the same subject for the time being in force. It is not the contention of respondent-defendant No. 2 that the impugned order has been passed under the same Act, i. e. Bombay Hereditary Offices Act No. III of 1874. What is, however, contended with considerable force is that this suit falls under the latter part of this section, in other words, what is submitted is this suit is to set aside or avoid an order passed under any other law relating to the same subject, that is to say, the Bombay Service Inams (Useful to Community) Abolition Act, 1953. It is urged that the said Bombay Inams Abolition Act is any other law relating to the same subject i. e. watan property inasmuch as it purports to abolish or extinguish such vatans or inams and, therefore, it is submitted that this would be a suit which would be squarely governed by para. 3 of Clause (a) of Section 4 and consequently the Civil Court is not a competent Court to take the cognizance of this suit.
39. This argument also, in our view, has no force. It is true that the Bombay Inams Abolition Act is intended and has been passed to abolish such service inams and all rights and liabilities appertaining-thereto. The important question, however, is whether the order which is sought to be challenged by the plaintiff in the present case can be said to be anorder passed under this Act, viz. Bombay Inams Abolition Act, 1953.
40. In this connection it is pertinent to point out that although, as we have pointed out above, the Act makes provision in Section 5 for resumption of such imams and for regrant thereof, there is no specific provision made in this Act as to how or in what manner the regrant is to be made and by what authority the order of regrant is to be made. At the same time, Section 4 as well as Section 5 of the said Bombay Inams Abolition Act specifically provide that such resumed lands shall be liable to the payment of land revenue under the provisions of the Code and the rules made thereunder and further that the provisions of the Code and the rules thereunder and further that the provisions fo the Code (i.e. the Land Revenue Code) and the rules relating to the unalienated lands shall apply to such lands. In the absence of any provision in the said Act, therefore, authorizing any authority or officer or prescribing the manner for regrant, it is obvious that in view of the aforesaid provisional applying the provisions of the Code and the rules made thereunder relating to unalienated lands, the provisions of the Land Revenue Code will have to be followed.
41. Chapter VI of the Land Revenue Code, 1879, which was in force at all material times, speaks of the grant, use and relinquishment of unalienated lands. In passing an order for regrant of the resumed land under the Bombay Inams Abolition Act, therefore, the provisions of this Chapter would be applicable and consequently the order of regrant that would be made would be deemed to have been made under the Land Revenue Code and not under the Bombay Service Inams Abolition Act. The argument that the order that is impugned in the present case should be deemed to have been made under any other law relating to the same subject is untenable.
42. Had there been any specific provision under the Bombay Inams Abolition Act prescribing the authority and the manner for regrant of the resumed land, :hen perhaps it would have been possible to countenance such an argument. But on the other hand, in the presence of an express provision making the provisions of the Land Revenue Code applicable in the matter of regrant of the resumed lands, the contention put forth by Mr. Warke for defendant No. 2 that under para. 3 of Section 4 (a) of the Revenue Jurisdiction Act the suit would be barred is also not acceptable.
43. In this connection it would not be out of place to point out that in the matter of determination and payment of compensation, the Bombay Inams Abolition Act has made detailed provisions under Ss. 6, 7 and 9 and the Government has also framed rules regarding this subject under the rule-making power on it by Section 13 of this Act. By Section 9 the award made by the Collector subject to an appeal to the Revenue Tribunal and the decision of the Maharashtra Re-venue Tribunal on the appeal have been declared to be final and conclusive. Not only this, but the section further provides that they shall not be questioned in any suit or proceeding in any Court. Now, if the Legislature intended to make special provision for regrant of lands under this Act, it was very easy for the Legislature to make similar provisions in the Act itself. But the Legislature did not make any provision with regard to the regrant of resumed lands, but made the provisions of the Land Revenue Code and the rules made thereunder applicable to the resumed lands. The reason is obvious. The Code and the rules made thereunder relating to unalienated lands contained ample provisions regarding grant of unalienated lands and, therefore, it was not necessary for the Legislature to make separate provisions under this Act.
44. For the same reasons, therefore, in our view the other argument advanced on behalf of respondent-defendant No. 2 that at any rate the jurisdiction of the Civil Court would be impliedly barred would have to be rejected. Mr. Warke contended that if under the Bombay Revenue Jurisdiction Act the jurisdiction of the Civil Court is not ousted, at any rate, impliedlythe jurisdiction of the Civil Court would be ousted in this case by virtue of the provisions of the Bombay Inams Abolition Act. In this connection, he invited oui attention to Section 9 of the Civil P. C., which is as follows :
'The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.
Explanation.-- A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.'
It is true that in order to oust the jurisdiction, it is not necessary tha the Legislature should expressly make a provision; by implication also it may oust or take away the jurisdiction of a Civil Court in certain matters. But in order to hold that the jurisdiction of a Civil Court is impliedly taken away, the particular enactment which is relied upon fo that purpose must contain provisions for determination of questions which would be taken away from the cognizance of a Civil Court.
45. In this connection it would, be worthwhile to refer to the decision in Dhulabhai v. State of M- P. : 3SCR662 , in which the Supreme Court has considered this question and has laid down seven principles regarding exclusion of jurisdiction of Civil Court. It is not necessary to reproduce all of them here. It would be sufficient to refer to the following observations laid down at .No. 2: (89 of the AIR)
'(2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the Civil Court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are prescribed by the said statute or not.'
46. As we have pointed out above, as the enactment with which we are presently concerned makes no provision in respect of the manner of regrant or the authority to regrant etc., it is obvious that even impliedly the jurisdiction of the Civil Court would not be barred.
47. Mr. Warke for respondent No. 2 referred us to the decision of the Mysore High Court in A. V. Dongarkar v. V. R. Deshpande AIR 1967 Mys 111, in support of his contention that the jurisdiction of the Civil Court is impliedly barred. . That was a case which arose under the Bombay Pargana and Kulkarni Watans (Abolition) Act (60 of 1950). It is true that in that case it was held that a Civil Court does not have jurisdiction to decide as to who is entitled to get regrant of the lands resumed to the Government under the Bombay Pargana and Kulkarni Watans (Abolition) Act, 1950 and consequently it cannot correct the decision of the Revenue authorities so passed under Section 4(1). Incidentally it may be pointed out that, generally speaking the provisions of that enactment and the enactment with which we are concerned in the present case are somewhat similar. But the enactment with which the Mysore High Court was concerned in that case, as appears from the report of the case, contained a specific provision for making an application under Section 4 (1) for regrant of land although it did not state expressly as to the manner in which the application shall be dealt with. In the Bombay Pargana and Kulkarni Watans (Abolition) Act, as it is applicable in this State, there is no such provision in Section 4 (1); perhaps, it seems that after the reorganization of th' States, the Legislature of that State has made such a provision by an amendment although that is not very clear from the report. In any case, however, the Bombay Service Inams Abolition Act, 1953, with which we are concerned does not contain any such provision for making an application for regrant.
48. it was argued in that case on behalf of the appellants that as the Watan Abolition Act did not contain any express provision for appeal against the order of any revenue authority making or refusing regrant of the land resumed under Section 3 of the Act, the Civil Court should be competent to examine the correctness of such order. This argument, however, was repelled by the Court on the ground that though there was no express provision for an appeal in the Act. under Section 203 of the Bombay Land Revenue Code an appeal would lie from any decision or order passed by a revenue officer under any law for the time being in force, to that officer's immediate superior, in the absence of any express provision to the contrary. It was on this ground held that as there was sufficient provision for appeal also, the jurisdiction of the Civil Court was barred. But. with respect, we wish to point out that the remedy which was available under the Land Revenue Code could by no stretch of imagination be said to be a remedy available under the Watan Abolition Act.
49. Mr. Warke further argued that although no specific provision has been made as regards the manner in which regrant should be made, Section 5 (2) of the Bombay Inams Abolition Act confers a right on the holder to obtain regrant. He, therefore, submitted that in this provision power to a regrant is implicit. It is, however, difficult to follow this argument, because all that Section 5 (2) does is only to confer a right on the holder of the watan property to obtain regrant in his favour; it does not confer power on any particular authority to make a regrant. But on the other hand, as already discussed above, in this respect it makes the provisions of the Code and the rules made thereunder applicable and, therefore, it cannot be said that Section 5 (2) makes ample provision as regards the determination of the person who is entitled to regrant or that it indicates the authority by whom the order of regrant can be passed.
50. In this view of the matter, therefore, in our opinion, the provisions of Clause (a) of Section 4 of Revenue Jurisdiction Act are not at all attracted in the pre-sent case. It is, therefore, clear that the lower Court was in error in holding that the suit was barred under S, 4 of the Revenue Jurisdiction Act.
51. The lower Court has in coming to the conclusion to which it did in this respect relied upon certain decisions such as Bhujangrao Daulatrao v. Malojirao : 1SCR402 , Radji v. Dagdu : AIR1916Bom166 and Balsingappa Gauda v. The Secretary of State for India : (1926)28BOMLR651 . But it is enough to point out that in all these cases the inam character of the property was not abolished but it was still subsisting and, therefore, those cases directly dealt with inams to which Section 4 of the Revenue Jurisdiction Act clearly applied. In fact, the learned Judge in the present case seems to have failed to notice the distinction between 'watan' and 'inam' and 'watan' which is in existence and 'watan' which has been abolished; 'Inam' is a generic term of which 'watan' is a specie. In other words, 'watan' is a class of 'inam'. There are several classes of 'inams' such as 'personal inam', 'jat inam', and 'watan' in particular is a grant of an office to which lands are attached by way of remuneration for the service to be rendered by the grantee. This distinction has been lost sight of by the lower Court.We are, therefore, unable to agree with the learned Judge in this respect.
52. The next question that was raised is whether the suit is barred by res judi-cata. Reliance was placed on behalf of defendant No. 2 in this respect on the decision of this Court in Special Civil Application No. 1426 of 1962. But it is only enough to point out that in that case the question which was considered was whether the Government was competent to pass the subsequent order cancelling its previous order to make a regrant in favour of the plaintiff and to pass a fresh order for making a regrant in favour of the Fanchayat. Obviously the first order was made in exercise of the revisional jurisdiction conferred on Government under Section 211 of the Land Revenue Code and the question that arose before this Court in that Special C. A. was whether once having exhausted that power, the Government was competent to exercise the revisional powers under Section 211 again and pass a different order. This Court held that once the Government exercised its revisional powers and passed an order, its powers under Section 211 were exhausted and it had no power to review or revise those orders in the absence of any specific provision. The Land Revenue Code, as it then stood, did not contain any provision for review of the order either by Government or by any other revenue officer passed by itself or himself.
53. The question whether defendant No. 2 was a 'holder' within the meaning of Section 5 of the Bombay Inams Abolition Act entitled to regrant was not gone into by this Court in that Special Civil Application. On the other hand, as already noted above, so far as the present plaintiff, who was the 3rd respondent in that application, was concerned, an observation was made that it was open to the 3rd respondent if it so desired to challenge the order of the Government by a separate suit, if the remedy was available to it. It is, therefore, clear that the question whether defendant No. 2 was a holder entitled to the regrant of the land was kept open so far as the present plaintiff was concerned. It is, therefore, difficult to see as to how the present suit would 'be barred by res judicata. It is true that if an issue or a question has already been decided in an application under Article 226 or 227 of the Constitution, that would no doubt operate as res judicata: but it is necessary that such an issue or a question should have been decided in such a proceeding. As alreadyobserved above, since the question that arises in this case was not only not considered by the High Court in Special Civil Application No. 1426 of 1962, but on the other hand it was kept open so far as the present plaintiff was concerned, the suit is not obviously barred by res judicata. In our view, therefore, on this point also the learned Judge below has taken an erroneous view.
54. In the result, the appeal succeeds and is therefore allowed. The suit is sent back to the trial Court for deciding it on merits on the remaining issues. Costs of this appeal would be costs in the cause.
55. Appeal allowed.