J.N. Patel, J.
1. This Letters Patent Appeal is directed against the judgment and order dated 3rd March, 1995, passed by the learned Single Judge of this Court in Writ Petition No. 1325 of 1990 wherein the orders passed by the Maharashtra Revenue Tribunal on 31-3-1990 affirming the order passed by the Sub-Divisional Officer, Washim on 31-10-1989 in a proceeding under Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short 'the Tenancy Act') came to be challenged.
2. The learned Single Judge of this Court dismissed the petition holding that the respondent/tenant was entitled to seek possession of the land by resorting to procedure provided under Section 120 of the Tenancy Act.
3. The respondent/tenant filed an application before the Sub-Divisional Officer, Washim under Section 120 of the Tenancy Act for claiming possession from the appellant/purchaser of Field S. No. 4/3, admeasuring 5.10 acres with all kinds of trees situated at village Dapuri, Tq. and Distt. Akola.
4. It was the case of the respondent/tenant that on 1-4-1963 he had acquired the rights of statutory owner under the Tenancy Act and during the subsistence of the tenancy the appellant purchased the property from his original owners Tulshiram and Sitabai on 16-1-1963 and thereafter the appellant Sitaram Deoba Kathole took forcible possession of the property from respondent/tenant in the month of December, 1963.
5. On earlier occasion the respondent/tenant has resorted to proceedings under Section 36(1) of the Tenancy Act and succeeded before the Naib Tahsildar as well as in the appeal preferred by the appellant/purchaser before the Sub-Divisional Officer and in the revision filed by before the Maharashtra Revenue Tribunal. The same came to be challenged by the respondent/tenant by preferring a writ petition in Spl. Civil Application No. 505 of 1972 decided on 4-3- 1975 Mh.LJ. 521 and the application of the respondent/tenant seeking possession of the property under Section 36(1) of the Tenancy Act was held to be not maintainable on the ground that the respondent/tenant having become statutory owner of the property he can resort to other provisions under the Tenancy Act i.e. under Section 120 of the said Act for seeking possession.
6. It was the case of the respondent/tenant that the sale deed by the owner in favour of non-applicant-Sitaram is void under the provisions of Tenancy Act and, therefore, his possession is unauthorised and illegal and he is not entitled to continue in possession of the property and therefore his possession of the said property be restored by initiating proceedings under Section 120 of the Tenancy Act.
7. The Sub-Divisional Officer held in favour of the respondent/tenant and by his order dated 31st October, 1989 ordered that the non-applicant should be evicted from the suit land and possession of the land should be restored to the applicant/tenant. The matter was carried before the Maharashtra Revenue Tribunal by preferring revision which also held in favour of the respondent/tenant and by his order dated 13-3-1990 found that the respondent/tenant is entitled for possession, by referring to previous litigation between the parties i.e. Sitaram v. Hawadya 1975 Mh.LJ. 521 and held that the contention of the appellant/purchaser that he has become owner of the suit field by adverse possession and the application under Section 120 of the Tenancy Act is not maintainable cannot be sustained and dismissed the revision application.
8. The learned Single Judge found that the challenge raised by the appellant/purchaser to the proceedings under Section 120 of the Tenancy Act cannot be sustained, as matter already stands concluded by the decision of this Court between the parties in a reported judgment i.e. Sitaram v. Hawadya 1975 Mh.LJ. 521 and dismissed the petition.
9. Mr. Deshpande, the learned Counsel appearing for the appellant/purchaser contended that the Revenue Authorities as well as the learned Single Judge fell into error that the respondent was the tenant though the question is not conclusively decided by the Revenue Authorities or any Court and it is still a matter in dispute and, therefore, ought to have reverted the parties either to approach the Revenue Authorities under Section 100 of the Tenancy Act or the Civil Court, which in turn could have referred the issue for decision of the Tahsildar and, therefore, the basis on which the Revenue Authorities and the learned Single Judge proceeded to grant relief in favour of the respondent/tenant cannot be sustained in Law.
10. The learned Counsel further submitted that in the matter of earlier proceedings between the parties under Section 36(1) of the Tenancy Act, the decision given by this Court did not in any manner prejudice the appellant/purchaser of the land, it cannot be held to operate as res judicata and that the Revenue Authorities as well as the learned Single Judge of this Court heavily placed reliance on the findings arrived at by Revenue Authorities and this Court, while dealing with the application of the tenant under Section 36(1) of the Tenancy Act rather held that such a proceeding was not maintainable and therefore the findings arrived at by the Court do not operate as res judicata.
11. In the alternative, it is submitted that the Revenue Authorities as well as the learned Single Judge has failed to appreciate that the application filed by the respondent/tenant under Section 120 of the Tenancy Act was barred by limitation, as it came to be filed after 12 years and therefore, the decision of the learned Single Judge deserves to be quashed and set aside and the appeal be allowed.
12. Mr. Zoting, the learned Counsel appearing for the respondent/tenant submitted that in the proceedings initiated by the respondent/tenant under Section 36(1) of the Tenancy Act, the Revenue Authorities as well as the Division Bench of this Court has held that the tenant Hawadya having become the owner under the provisions of Sections 46(1) and 49A(1) of the Tenancy Act by virtue of the legal fiction on 1st April, 1963 the remedy available to such a tenant/owner was to resort to Section 120 of the tenancy Act for seeking possession as the person does not remain a tenant and, therefore, his application under Section 36(1) of the Tenancy Act could not have been entertained which remedy is only available to a tenant.
13. Mr. Zoting, the learned Counsel for the respondent/tenant further submitted that it cannot be said that the appellant/purchaser has perfected his title by virtue of adverse possession, as claimed by the appellant/purchaser for the very reason that the respondent/tenant has been litigating against the appellant/purchaser for possession of the land and, therefore, his application under Section 120 of the Tenancy Act cannot be said to be filed after 12 years' interregnum period in which the parties were litigating to acquire possession and, therefore, the appeal deserves to be dismissed.
14. The controversy basically gives rise to the issue as to whether respondent No. 1 who was the tenant entitled to claim possession by resorting to remedy available under Section 120 of the Tenancy Act and whether the appellant/purchaser has become owner by virtue of adverse possession.
15. Mr. Deshpande, the learned Counsel appearing for the appellant/purchaser has placed reliance in the case of Pavan Kumar Gupta v. Rochiram Nagdeo : 2SCR767 in which it is emphasized that the findings in the earlier litigation between the parties in the application filed by the tenant under Section 36(1) of the Tenancy Act does not operate as res judicata. Insofar the contention of the learned Counsel for the appellant/purchaser is concerned, the very authority on which the appellant has placed reliance does not support his case. In Pavan Kumar Gupta's case, it was held that -
19. Thus the second legal position is this : If dismissal of the prior suit was on a ground affecting the maintainability of the suit any finding in the judgment adverse to the defendant would not operate as res judicata in a subsequent suit. But if dismissal of the suit was on account of extinguishment of the cause of action or any other similar cause a decision made in the suit on a vital issue involved therein would operate as res judicata in a subsequent suit between the same parties. It is for the defendant in such a suit to choose whether the judgment should be appealed against or not. If he does not choose to file the appeal he cannot thereby avert the bar of res judicata in the subsequent suit.
15A. Insofar as the first part of the observations made by the Supreme Court in Pavan Kumar Gupta's case is concerned, though it appears to be in favour of the appellant/purchaser but in the subsequent part it is made clear that the decision made in the suit on a vital issue involved therein would operate as res judicata in a subsequent suit between the same parties and it is for the defendant in such a suit to choose whether the judgment should be appealed against or not.
16. It is interesting to note that when the application under Section 36(1) of the Tenancy Act was being prosecuted by the respondent/tenant, the learned Counsel for the appellant/purchaser gave up three points, namely, that the remedy is barred by res judicata, that the findings that the respondent No. 1 is a tenant are perverse, and that the original application was barred by time and, therefore, the Division Bench of this Court observed in para 6 of the reported judgment 7975 Mh.LJ. 521, that the argument were confined only to the last point regarding nature of remedy available to a person in the position of respondent No. 1 that is the respondent/tenant. Since the entire petition was referred to the Division Bench and it is now being confined to the consideration of one point and Their Lordships decision on that point will dispose of this entire petition and it is thereafter that their Lordships, after considering the fact, which is reproduced in the impugned judgment of the learned Single Judge of this Court i.e. paras 9 and 15, examined the merits of the matter and came to the conclusion that the remedy available to the respondent/tenant, who becomes owner by virtue of provisions made Section 46(1) and 49A(1) of the Tenancy Act is by way of resorting to Section 120 of the Tenancy Act, in our view clearly forecloses the issues raised by the appellant/purchaser before us.
17. In Amalgamated Coalfields Ltd. and Anr. v. Janapada Sabha Chhindwara and Ors. : AIR1964SC1013 the Supreme Court held that the principle of res judicata comes into play not only when the issue has been directly and explicitly decided by the Court, but also when such issue has been implicitly and constructively decided. When any matter which 'might and ought' to have been made grounds of defence to attack in a form of proceedings but was not so made, such matter in the eye of law, to avoid multiplicity of litigation and to bring about finality is deemed to have been constructively in issue and is taken as decided. In the present case though the appellant in the proceedings under Section 36(1) of the Tenancy Act disputed the fact that respondent No. 1 was a tenant and the application was barred by time, the appellant before the Division Bench of this Court conceded that respondent No. 1 was a tenant and proceedings initiated by him were not barred by time thereby giving up his plea of adverse possession, and invited findings on the only issue -i.e. regarding nature of remedy available to a person i.e. the respondent No. 1 who was held to have become owner w.e.f. 1-4-1963 as per Section 49A(1) of the Tenancy Act. Therefore, now the appellant cannot be heard on the contention again raised in the proceedings initiated by respondent No. 1 for seeking possession of the agricultural land in question under Section 120 of the Tenancy Act being barred from raising such pleas, on the principle of res judicata.
18. Insofar as the second point agitated before us, it relates to the plea of adverse possession is concerned. In our view the facts on record clearly go to show that the appellant/purchaser has purchased the land of which the respondent was tenant at the time the respondent/tenant came to be dispossessed and by virtue of the legal fiction on 1st April, 1963 becomes owner as provided by Sub-section (1) of Section 49A of the Tenancy Act, which question has been specifically answered by the Division Bench of this Court in para 15 of the reported judgment.
19. In our view, the learned Single Judge has exhaustively considered the facts and legal issues and has rightly upheld the order of Revenue Authorities as well as Maharashtra Revenue Tribunal and dismissed the petition. We, therefore, do not find any merits in the matter. Appeal is dismissed with costs.
The interim orders passed by this Court, protecting the possession of the appellant stands vacated forthwith.