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Vora Salehbahi Gulambhai and anr. Vs. the State of Gujarat - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1968)9GLR340
AppellantVora Salehbahi Gulambhai and anr.
RespondentThe State of Gujarat
Cases ReferredFidali v. State of Bombay
Excerpt:
- - 150 but the trial court came to the conclusion that the jagirdars bad no right in respect of the trees in that survey number and accordingly the trial court dismissed the suit in respect of the survey no. it is material to note that amongst the contentions raised by the state, were the contentions (1) that the sale in favour of the plaintiffs is not admitted and (2) that the plaintiffs bad no title to the suit trees. the trial judge therefore came to the conclusion that the plaintiff had no right to the trees in the 60 survey numbers which have vested in the state, but that he bad a right to cut the trees in 20 of the survey numbers which were with the jagirdars as occupants. since this decision which is the basis of this part of the decree has become final and binding on the state.....y.r. shah, j.1. these two appeals are preferred against the decisions by this court (divan j.) in second appeals nos. 760 of 1960 and 757 of 1960 respectively. the question about the application of the principles of res-judicata arising in these two appeals was negatived by divan, j. in those two second appeals. the facts necessary to understand the points which arise in these appeals are as follows:2. the plaintiffs in civil suit no. 1224 of 1954, in the court of the joint civil judge, senior division, baroda who are appellants in letters patent appeal no. 1 of 1966 claimed to have obtained a right to cut certain trees standing on 32 survey numbers mentioned in the plaint and also on survey no. 200 of the village jinjarvani in chhotaudepur taluka by two documents dated 25th april, 1954,.....
Judgment:

Y.R. Shah, J.

1. These two appeals are preferred against the decisions by this Court (Divan J.) in Second Appeals Nos. 760 of 1960 and 757 of 1960 respectively. The question about the application of the principles of res-judicata arising in these two appeals was negatived by Divan, J. in those two Second Appeals. The facts necessary to understand the points which arise in these Appeals are as follows:

2. The plaintiffs in Civil Suit No. 1224 of 1954, in the Court of the Joint Civil Judge, Senior Division, Baroda who are appellants in Letters Patent Appeal No. 1 of 1966 claimed to have obtained a right to cut certain trees standing on 32 survey numbers mentioned in the plaint and also on survey No. 200 of the village Jinjarvani in Chhotaudepur Taluka by two documents dated 25th April, 1954, executed by the Jagirdars of the village. Jiajarvani was admittedly a proprietary Jagir village which would mean that the Jagirdars were the owners of the soil also. It is not disputed that these Jagirdars were the owners of the trees in the 32 survey numbers in respect of which the plaintiffs obtained their right by the document at Exh. 179. They obtained the light to cut trees in survey number 200 by the document at Exh. 150 But the trial Court came to the conclusion that the Jagirdars bad no right in respect of the trees in that survey number and accordingly the trial Court dismissed the suit in respect of the survey No. 200. The appeal of the plaintiffs in respect of mat survey number to the District Court was also dismissed. The right of the plaintiffs to the trees in Survey No. 200 is not further agitated in the second appeal and hence it is not necessary for us to consider the right of the plaintiffs in respect of the trees in Survey No. 200 The period during which the plaintiffs were required to cut the trees and take them away was 3 years from the date that they obtained authorisation from the Forest Officers of the State. The plaintiffs applied for such authorisation, but the same was refused to them. The plaintiffs, therefore, filed Suit No. 1224 of 1954 in the Court of the Civil Judge, Senior Division at Baroda for the reliefs of declaration of their title to the trees covered by the documents and for a prohibitory injunction restraining the State. and its officers from obstructing me plaintiffs cutting, felling and exploitation of me standing trees acquired by them from the Jagirdars and also for a mandatory injunction compelling the State and its officers to issue necessary authorisation for the transport of the cut material.

3. The State of Bombay, which has been subsequently substituted by the State of Gujarat, was joined as defendant No. 1 and the Jojguda Jungle Kamdar Sahakari Mandal Ltd. at Chhotaudepur was joined as defendant No. 2 to this suit. The defendant No. 2 was joined as a patty to the suit, because the State had auctioned the trees in about 100 acres of the land to that Mandal. The Mandal, however, did not appear in me proceedings.

4. The State of Bombay raised its contentions by its written statement which is filed at Exh. 32 in the suit. It is material to note that amongst the contentions raised by the State, were the contentions (1) that the sale in favour of the plaintiffs is not admitted and (2) that the plaintiffs bad no title to the suit trees. The learned trial Judge raised issues and it is material to note issues Nos. 2 and 3 which are as follows:

(2) If yes, whether the plaintiffs prove that their vendors had title over the suit trees?

(3) If yes, whether they prove the sale of the suit trees to mem?

The learned trial Judge, on a consideration of the evidence before him, came to a finding that the sale of the trees to the plaintiffs by the Jagirdars is proved. He also came to the conclusion that out of the 32 survey numbers, 23 survey numbers were uncultivated land within the meaning of the explanation to Section 8 of the Bombay Merged Territories and Areas (Jagir Abolition) Act (39 of 1954), (hereinafter referred to as the Jagir Abolition Act), and therefore they vested in the State with effect from the 1st of August 1954 and therefore the plaintiffs had no right to those trees. As regards remaining 9 survey numbers he came to the conclusion that by virtue of Section 5 of the Jagir Abolition Act, the Jagirdars became occupants of those survey numbers and therefore die plaintiffs continue to have their right to cut the trees in those 9 survey numbers. On the basis of this finding, the learned trial Judge dismissed the suit of the plaintiffs in respect of survey number 200 and also in respect of 23 survey numbers. He allowed the plaintiffs suit in respect of the trees standing in 9 survey numbers and issued requisite declaration in favour of the plaintiffs and the consequential prohibitory and mandatory injunctions against the State and its officers.

5. The plaintiffs filed an appeal being Appeal No. 207 of 1958 to the District Court at Baroda in so far as the learned trial Judge dismissed their suit in respect of survey number 200 and also in respect of 23 survey numbers. The State did not file any appeal or cross-objections in so far as the learned trial Judge has passed a decree against it in respect of the 9 survey numbers. The learned District Judge came to the conclusion that though the 23 survey numbers being uncultivated land vest in the State, the plaintiffs' right to cut the trees therein was saved by the provisions of Section 8 of the Jagir Abolition Act. He, therefore, came to the conclusion that the plaintiffs continued to have their right to cut the trees in those 23 survey numbers also even after coming into force of the Jagir Abolition Act on 1st August 1954. In respect of the trees in Survey No. 200, he agreed with the learned trial Judge that the plaintiffs have no right to cut those trees. He therefore allowed the appeal of the plaintiffs in respect of the trees in the 23 survey numbers and dismissed the plaintiffs appeal in respect of Survey No. 200.

6. The State filed Second Appeal No. 760 of 1960 against the decree of the District Court in Appeal No. 207 of 1958 in so far as the learned District Judge allowed the appeal of the plaintiffs in respect of the trees In the 23 survey numbers. In this Second Appeal, the State raised, for the first time, a contention that the documents executed by the Jagirdars In favour of the plaintiffs giving them the right to cut the trees, required registration and that being unregistered, the plaintiffs could not get any right to cut those trees. The plaintiffs replied to this argument by contending that since the State had not appealed against the decree of the trial Court granting them the relief in respect of the 9 survey numbers, the State was barred by the principles of res-judicata from raising this question about the requirement of registration in respect of the documents wherein they obtained the right to cut the trees. They also contended that the documents do not require registration.

7. The suit No. 36 of 1957 was filed by the plaintiff, who is the appellant in Letters Patent Appeal No. 13 of 1966, in the Court of the Civil Judge, Senior Division, Baroda on facts very similar to the facts in the previous case. The difference in the facts of this suit is that instead of 32 survey numbers this plaintiff obtained the right to cut trees in 80 survey numbers by the two documents which were dated 25th May 1953 and 25th June 1954. The period during which the trees were to be cut and taken away was four years instead of 3 years in the previous suit Similar contentions were raised by the State in this suit and similar issues were framed as stated above. In this suit also, the trial Court came to the conclusion that the sale in favour of the plaintiff is proved. It also came to the conclusion that out of 80 survey numbers, 60 survey numbers were uncultivated and therefore they vested in the State; while 20 survey numbers were cultivated in respect of which the Jagirdars became occupants. The trial Judge therefore came to the conclusion that the plaintiff had no right to the trees in the 60 survey numbers which have vested in the State, but that he bad a right to cut the trees in 20 of the survey numbers which were with the Jagirdars as occupants. The learned trial Judge, therefore, allowed the suit of the plaintiffs in respect of the 20 survey cumbers and dismissed the suit in respect of the remaining survey numbers. The plaintiff preferred an appeal to the District Court being Appeal No. 170 of 1958 and the learned District Judge came to the conclusion that the plaintiff continues to possess the right to cut the trees in 60 survey numbers also and on that finding he allowed the appeal, with the result the plaintiff got the declaration and injunctions in respect of the trees in all the 80 survey numbers. It should be noted that in this case also the State did not prefer any appeal or file any cross-objections against that part of the decree of the trial Court which was made in favour of the plaintiff in respect of 20 survey numbers. The State filed Second Appeal No. 757 of 1960 against the decree passed by the District Judge in Appeal No. 170 of 1958 and in this Second Appeal, the State raised, for the first time, the contention that the documents taken by the plaintiff from the Jagirdars required registration and being unregistered, the plaintiff does not acquire any right to any of the trees in these survey numbers. The same answers against the contention of the State are given by the plaintiff as in the previous case.

8. When these two Second Appeals were placed for hearing before Divan J. there was also a third appeal, being Second Appeal No, 756 of 1960 pending for hearing before him. That appeal also related to similar facts of a forest contractor having acquired a right to the trees from the Jagirdars. That Second Appeal arose from Suit No. 308 of 1957. However, in that case, the whole suit of the plaintiff was dismissed and therefore no question of res judicata arose in that case at the time when the Second Appeal was being beard. These three Appeals were heard by Divan J. together. In so far as the respondents in the Second Appeals, that is, the present appellants, raised a contention that the State was debarred by the principles of res judicata from taking a contention about the want of registration of the documents. Divan, J. delivered one judgment governing Second Appeals No. 760 of 1960 and 757 of 1960 The main judgment is delivered in Second Appeal No. 757 of 1960 and Divan J. came to the conclusion that the State is not barred by the principles of res judicata from urging the contention about the want of registration of the documents in question. The question whether the documents, In fact, were compulsorily registrable or not was considered by Divan J. in a judgment which he delivered in Second Appeal No. 756 of 1960 and that judgment also governed the decision on that point in so far as Second Appeals Nos. 757 of 1960 and 760 of 1960 were concerned. Divan J. came to the conclusion, on a consideration of the documents, that they were compulsorily registrable. He, therefore, came to the conclusion that the appellants in those two appeals did not acquire any right to the trees under the documents taken by them from the Jagirdars and on that basis he reversed the decrees passed by the District Judge in favour of the plaintiffs and restored the decrees passed by the trial Court in so far as it had dismissed the plaintiffs suits.

9. The respondents in Second Appeals Nos. 757 of 1960 and 760 of 1960 have filed those two Letters Patent Appeals Nos. 13 of 1960 and 1 of 1960 respectively. The appellants have urged before us that the decision of Divan J. on the question of res-judicata is not correct and that on a correct consideration of the principles applicable, the State is debarred from raising this contention about the want of registration of the docu ments for the first time in the Second Appeal. On behalf of the State, the learned Assistant Government Pleader (Mr. Nanavaty) not only pressed the contention that the principles of res judicata did not apply to the facts of this case, but also contended that in case the contention of the appellants on the point of res judicata were upheld, still, the plaintiffs right to the trees in these survey numbers has been extinguished by the operation of the Jagir Abolition Act, 1953. By common consent of the parties, we have left the question as to whether the documents are compulsorily registrable or not, to be decided in a separate judgment in letters Patent Appeal No. 12 of 1966 which is filed against the decision in Second Appeal No. 756 of 1960 and if necessary, the decision on that point in Letters Patent Appeal No. 12 of 1966 would govern the parties in these two appeals also.

10. The point about the applicability of the principles of res judicata against the contention of the State that the documents required registration was developed before us in the following manner.

11. In so far as the Suit No. 1224 of 1954 is concerned, the trial Court made a decree in favour of the plaintiffs in respect of the 9 survey numbers and dismissed the suit of the plaintiffs in respect of the 23 survey numbers. In the other case, the decree in favour of the plaintiff was for 20 survey numbers and the suit of the plaintiff was dismissed in respect of the 60 survey numbers. Since the State-that is, the respondent before us-did not file any appeal, against this part of the decree which was adverse to it and also did not file any cross-objections against this part of the decree when the plaintiffs filed an appeal to the District Court, in so far as the decree dismissed the suit for the remaining survey numbers, this decree made by the trial Court which was in favour of the plaintiffs, became final and binding on the State. It was next urged that when the decree becomes final, every decision which is necessary to support that decree also becomes final and binding on the parties; and after the decision has become final, no party to the decision can ever be permitted to challenge the correctness of that finding. This bar-prohibiting a party from challenging the correctness of a decision which has become binding on it-is the result of the application of the principles of res judicata. Applying that principle to the facts of this case, it was urged on behalf of the appellants that the trial Court passed the decree in respect of the 9 or 20 survey numbers in the two cases on the basis of a decision that the trees belonged to the Jagirdars and the Jagirdars have passed a document in their favour which is valid in law to pass to them the right to cut the trees in those 9 or 20 survey numbers. Therefore, as the argument goes, the basis of the decree in their favour in respect of the trees in those 9 or 20 survey numbers is that there is a valid sale deed in their favour made by the Jagirdars in respect of the trees in those 9 or 2) survey numbers. Since the document under which the plaintiffs acquired this right in respect of the trees in the 9 survey numbers at Exh. 179 in the case, is also a document relating to the trees in remaining 23 survey numbers, it is not permissible to divide this one document into two documents; one for 9 survey numbers and the other for 23 survey numbers. The document is one and indivisible and the transaction of sale of trees evidenced by it is a single and indivisible transaction. If this document is valid in law to create a right to the trees in the 9 survey numbers in favour of the plaintiffs, it must follow that this is a valid document to create the same right in favour of the plaintiffs in respect of the trees in the remaining 23 survey numbers. The argument is that the decree passed by the trial Court in favour of the plaintiffs is based on the validity of the sale-deed Exh. 179 and if this sale deed is valid in respect of the trees in the 9 survey numbers, it must be held valid in its entirety, that is, for all the 32 survey numbers. The decision by the trial Court therefore, in respect of the plaintiffs' right to trees in 9 survey numbers is based upon the finding that the sale-deed passed to them by the Jagirdars is a valid document and operative, enough to pass that right to the plaintiffs. Since this decision which is the basis of this part of the decree has become final and binding on the State because the State failed to prefer any appeal or to file any cross-objections against that decree, the State cannot now, be permitted to come forward and say that that document is not a valid document so as to transfer to the plaintiffs the right to cut the trees in all the survey numbers. If the State were allowed to do so, an absurd result would follow, namely, that though there is one document giving rise to one and indivisible transaction of sale of trees in 32 survey numbers, that document is valid in so far as the trees in 9 survey numbers are concerned, but at the same time it is invalid in so far as the trees in the remaining 23 survey numbers are concerned. It is urged that it is just to prevent such absurd result that the rule about bar of res judicata has been evolved on the principle that when once a decision has been reached in a fair trial between the parties, no party can thereafter be permitted to re-agitate that question and to re-open that decision in any future proceedings between the same parties. It is, therefore, urged that the State is debarred from raising the contention that the documents are invalid as they are compulsorily registrable, but are not registered. (In the other appeal, the relevant document is Exh. 62 which concerns 73 survey numbers and the trial Court has passed a decree in respect of 20 survey numbers mentioned therein.)

12. The main contention urged by the learned Asstt. Government Pleader Mr. Nanavaty before us was that this matter has arisen in a suit and that so far as the question of res judicata arises in a suit, the same is to be considered in accordance with the provisions of Section 11 of the Civil Procedure Code. It was, therefore, urged before us that under the provisions of Section 11, there must be two independent suits; one of which is former to the other and that it is only when an issue is raised in a former suit and has been finally heard by the Court, that the decision on that issue would give rise to a bar of res judicata in the subsequent suit. It was urged that, here, we are still at a stage where the first suit is not finally decided; there is no question of an issue having been raised in any subsequent suit. It is, therefore, urged that the conditions mentioned in Section 11 of the Civil Procedure Code are not fulfilled and, therefore, no question of res judicata debarring the State from putting forward this contention arises in this case. It was also urged that in this case, the plaintiffs preferred an appeal in so far as his suit for some of the survey numbers was dismissed. In so far as his suit was decreed in respect of certain survey numbers, the trial Court had came to the conclusion that those survey numbers remained with the Jagirdars as occupants and the State therefore did not feel any necessity to dispute that finding and therefore the State did not file any appeal or cross-objections as it was unnecessary for it to do so. It was urged that in view of the provisions of Order 41, Rule 22 of the Civil Procedure Code, the State is entitled to support the decree of the trial Court in its favour on any of the grounds decided against it and therefore, since the ground about the validity of the sale-deed is decided against it, it is entitled to urge that the sale-deed is invalid. Finally, it was urged that the State does not want to upset or reverse the decree for the survey numbers which is in favour of the appellants; that the State merely desires to show that the appellants are not entitled to any decree in respect of the survey numbers in respect of which the trial Court has dismissed their suit and that in order to enable the Court to do so, the State is supplying a legal basis to the Court. It was urged that the state is entitled to show that the plaintiffs have no right to the trees in the survey numbers in respect of which the trial Court has dismissed their suit and that the State is entitled to show for that purpose that the document on which the plaintiffs relied upon for that right, is not a valid document so as to confer that right upon them. Amplifying his argument, Mr. Nanavaty stated that if the Court agrees with him that the document, because of want of registration, is not valid at all, to give any right to any trees in any of the survey numbers and if the Court is satisfied about it the Court can certainly reject the plaintiffs' claim in respect of the trees in those survey numbers in respect of which the suit is dismissed, though the Court may not disturb the decree in favour of the plaintiffs which have become final and binding on the State. These are the main contentions urged on behalf of the appellants and the State before us. Various authorities have been cited to us on behalf of both the parties and we propose to refer to those authorities later on in this judgment.

13. There have been several weighty pronouncements by eminent Judges regarding the origin and the extent of the rule relating to res-judicata. The rule has its origin on a public ground namely that there should be finality to every litigation. When once the matter is fairly and finally decided by a competent Court and the points in dispute between the parties have been settled by it, no party can be permitted to re-open those points in dispute and to re-agitate them in any subsequent litigation between them. Unless there was such a rule in existence, there will be no end to the litigation and parties would be put to constant trouble, harrassment and expenses.

14. In a Full Bench case in Mt. Lachhmi v. Mt. Shulli A.I.R. 1927 Lahore 289 Tek Chand J. speaking for the majority, observed as follows in elucidation of this principle:

The spirit of the doctrine is succinctly expressed in the well known maxim neco debt bis vexart pro eaden cause (no one should be twice vexed for the same cause). At times the rule worked hardly on individuals (e.g. when the former decision was obviously erroneous), but its working was justified on the great principle of public policy. Interest rex public utait finis litium' (it is for the public good that there be an end of litigation).

Again on page 297 the following observations are made:

It is necessary to emphasize here what has been stated already, that res judicata is either estoppel by verdict or estoppel by judgment (or record), and there is no such thing as estoppel by 'decree.' As remarked by Gaspers in para 575 of his book on estoppel, 'the decree itself is not the test of what is or is not res judicata, but the question in each case is what did the Court decide.' The determining factor is not the decree but the decision of the matter in controversy.

The basis of the principles of res judicata has been re-affirmed by the Supreme Court in the case of Satyadhyan Ghosal and Ors. v. Smt. Deorajin Debt and Anr. : [1960]3SCR590 in the following words:

The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is Judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation. When a matter-whether on a question of fact or a question of law-has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher Court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again.' The same principle is stated by Bhagwati J. in the case of Haji Gulam-nabi Haji Safibhai v. Vora Abasbhai Alimahomed IV G.L.R. page 282, on pp. 301 and 302.

15. Bearing in mind these principles on which the rule of res judicata has been founded, it becomes necessary for us to examine the arguments advanced on behalf of the appellants. The appellants as plaintiffs came to the Court for a decision that on the basis of the sale-deeds obtained by them from the Jagirdars, they have obtained a right to cut the trees in these various survey numbers and that that right continues in them even after the operation of the Jagir Abolition Act from 1st August 1954. The State in reply to the claim of the plaintiffs contended that by reason of the sale-deeds the plaintiffs have not acquired any right to cut the trees and that because of the abolition of the Jagirdars interest by the Jagir Abolition Act, the plaintiffs, even if they have a right to cut the trees have lost it. On these pleadings the learned trial Judge found that the matters in issue between the two parties were (1) whether by the sale-deeds, the right to cut the trees has been transferred by the Jagirdars to the plaintiffs and (2) whether on account of the Jagir Abolition Act, that right continues in the plaintiffs at the date of suit. The learned trial Judge came to the conclusion that the sale-deeds in favour of the plaintiffs by the Jagirdars did confer on the plaintiff a right to cut the trees in these various survey numbers. The trial Judge also came to the conclusion on a consideration of the provisions of Jagir Abolition Act, 1953 that in respect of the certain survey numbers the right to cut the trees which the plaintiffs had already acquired, continued with them on the day of the suit; while that right in respect of the some other survey numbers became extinguished on the date when the Jagir Abolition Act came into force. In view of these findings arrived at by the learned trial Judge, he passed a decree in favour of the plaintiffs in respect of some of the survey numbers and in respect of the other survey, numbers he dismissed the plaintiffs' suit. Though one decree is passed by the trial Judge, in effect and substance that decree is a composite decree; a part of it being in favour of the plaintiffs and a part of it being adverse to the plaintiff. What is the decision in the matter by the Court in this case. The decision is that the sale-deeds are valid and effective enough to transfer the right to cut the trees from the Jagirdars to the plaintiffs. The second decision is that this right continues to the plaintiffs in respect of some of the survey numbers, but this right becomes extinguished in respect of the remaining survey numbers. The basis of that part of the decree which is In favour of the plaintiffs is necessarily the decision by the Court that the sale-deeds are valid and effective enough to pass a right to cut the trees from all the survey numbers. The decision of the Court is not that only a part of the sale-deed is valid, that is, that part which relates to the trees in the survey numbers for which the decree is given to the plaintiffs and that the remaining part of the sale-deed is invalid. The transaction of sale being one and indivisible, in respect of the trees in all the survey numbers, it must be held-and that is the express finding of the trial Court-that the sale-deeds are valid to pass the title in respect of the trees in all the survey numbers. This finding of the trial Judge is necessary for the trial Judge in order to make decree in favour of the plaintiffs in respect of same of the survey numbers. The decree which is adverse to the plaintiffs and therefore in favour of the State is not based on any finding that the sale deeds are invalid in respect of the trees in those survey numbers in respect of which the decree is adverse to the plaintiffs. That part of the decree which dismisses the plaintiffs suit in respect of the trees in certain survey numbers is based only upon a finding that because of the operation of the Jagir Abolition Act from 1st August 1954, the plaintiffs right to cut the trees in those survey numbers came to an end. Since no appeal was filed by the State against that part of the decision on which the decree in favour of the plaintiffs has been based, and no cross-objections were filed against that part of the decree during the pendency of the appeal by the plaintiffs, this decision of the trial Court which is the basis of the decree in favour of the plaintiffs, has become final and binding on the State. This decision of the matter is taken by a Court which was competent to make such a decision. There is no doubt that the matter has been decided fairly by the trial Court. Therefore, this decision of the matter has become final and binding on the parties to the litigation that is on the plaintiffs on the one band and the State on the other band. In these circumstances it appears to us clear that the principles of res judicata apply between them, and the State is now not competent to challenge that decision by the learned trial Judge namely that the sale-deeds are valid and effective enough to confer on the plaintiffs, the right to cut the trees in all the survey numbers.

16. The first contention on behalf of the State against this line of reasoning, was that where a suit is concerned, the law relating to res judicata is contained in Section 11 of the Civil Procedure Code and that the Court is not entitled to travel outside the four corners of that provision and apply general principles of res judicata to this case. It is clear and not disputed by the appellants that the provisions of Section 11 of the Civil Procedure Code are not complied with in this case, but they contend that this case is not governed by Section 11 of the Civil Procedure Code and therefore the application of general principles of res judicata, apart from Section 11, is not excluded. Reliance was placed very strongly by the learned Asstt. Government Pleader on the observations of the Supreme Court in the case ofNarhari and Ors. v. Shanker and Ors. : [1950]1SCR754 . The material observations relied upon were:

The question of res judicata arises only when there are two suits. Even when there are two suits, it has been held that a decision given simultaneously cannot be a decision in the former suit. When there is only one suit, the question of res judicata does not arise at all and in the present case, both the decrees are in the same case and based on the same judgment, and the matter decided concerns the entire suit. As such, there is no question of the application of the principle of res judicata.

In our opinion, these observations were not meant to lay down any general principle that where a suit is concerned, the contention about res judicata must be determined only with reference to Section 11 of the Civil Procedure Code and that the general principles of res judicata cannot apply. Section 11 of the Civil Procedure Code merely gives statutory form to a portion of the principles of res judicata, and it is limited to a case where the plea of res judicata is raised in a suit on the basis that the matter in issue in that suit was in issue in a former suit and has been heard and finally decided in that former suit. It is only when the plea of res judicata is based on such an allegation that Section 11 comes into play and if the conditions laid down in Section 11 are not satisfied, the plea of res judicata cannot be sustained. In Narhari's case there was only one suit filed in the trial Court and from the decree passed by the trial Court, two appeals were preferred. These two appeals were heard together and disposed of by a single judgment. Against that judgment, two separate appeals were preferred; one of which happened to be in time and the other happened to be barred by limitation. The appeal which happened to be in time, had on its record all the parties including the parties against whom the time barred appeal was filed and the prayer made in the appeal which was in time included the reliefs asked for against the respondents in the time barred appeal. The Supreme Court, therefore, held that the appeal which is in time covers the entire litigation between the parties. In fact, the Supreme Court held that the two decrees against which the two appeals were filed were in substance one. The Supreme Court also held that it was not necessary to file two separate appeals in that case. This was, not, therefore a case in which the plea of res judicata was based on a decision of the same matter in the previous suit. These observations of the Supreme Court, therefore, were not necessary for the decision of that case. In the case with which we are concerned at present, it is not the allegation of either party that the matter in respect of which bar of res judicata is sought to be raised was heard and decided in a former suit between the same parties. There is, therefore, no question of applying the provisions of Section 11 of the Code of Civil Procedure in this case. In the case of Badri Narayan Singh v. Kamdeo Prasad Singh and Anr. : [1962]3SCR760 the Supreme Court was referred to these observations in Narhari's case and with reference to these observations, the Supreme Court observed:

These observations do not apply to cases which are governed by the general principles of res judicata which rest on the principle that a judgment is conclusive regarding the points decided between the same parties and that the parties should not be vexed twice over for the same cause.

It should also be noted that the Supreme Court has observed that in the case of Narhari, the Supreme Court was dealing with the interpretation of Section 11 of the Code of Civil Procedure. The learned Asstt. Government Pleader also relied upon a decision in the case of L. Janakirama lyar and Ors. v. P.M. Nilakanta lyar and Ors. : AIR1962SC633 . He relied upon the observations in paragraph 16 as follows:

Where the plaintiffs in the earlier suit and the later suit are not the same or parties who claim through each other, Section 11 in terms cannot apply Where Section 11 is thus inapplicable it would not be permissible to rely upon the general doctrine of res judicata Where the Court is dealing with a suit the only ground on which res Judicata can be urged against such a suit can be the provisions of Section 11 and no other.

That was, however, a case where the plea of res judicata was sought to be made good by showing that the same matter has been decided in a former suit. It was, therefore, a case where the provisions of Section 11 become applicable and the case could not be brought within the four corners of that provision. In our opinion, since the plea of res judicata advanced by the appellants in this case is not sought to be based on a decision of this matter in a former suit between the parties, the provisions of Section 11 do not at all come into play. The next point to be decided is if Section 11 of the Civil Procedure Code does not apply to the facts of this case, whether the appellants are entitled to rely upon the general principles of res judicata. This point has been well settled by now by various decisions both of the Privy Council and the Supreme Court.

17. In Satyadhyan's case referred to above, the Supreme Court has laid down in paragraph 7 as follows:

This principle of res judicata is embodied in relation to suits in Section 11 of the Code of Civil Procedure; but even where Section 11 does apply, the principle of res judicata has been applied by Courts for the purpose of achieving finality in litigation. The result of this is that the original Court as well as any higher Court must in any future litigation proceed on the basis that the previous decision was correct.

18. In Srimati Raj Laxmi Dasi and Ors. v. Banamali Sen and Ors. : [1953]4SCR154 , the Supreme Court holding that the provisions of Section 11 of the Civil Procedure Code were inapplicable, applied the general principles of res judicata. In that case the matter which was in issue in the suit was decided previously in a land acquisition proceeding. Since the land acquisition proceedings was not a former suit, the provisions of Section 11 cannot apply. With respect to this matter, the Supreme Court observed as follows:

The binding force of a judgment delivered under the Land Acquisition Act depends on general principles of law and not upon Section 11 of the Act. If it were not binding, there would be no end to litigation.

Dealing further with the plea of res judicata the Supreme Court observed: 'When a plea of res judicata is founded on general principles of law, all that is necessary to establish is that the Court that heard and decided the former case was a Court of competent jurisdiction. It does not seem necessary in such cases to further prove that it has jurisdiction to hear the latter suit.

19. In the case of Hook v. Administrator General of Bengal and Ors. 48 Indian Appeals page 167, the Privy Council has held that in cases where provisions of Section 11 of the Civil Procedure Code are not applicable, general principles of res judicata apply.

20. It is well settled by now, that the general principles of res judicata have been applied to the proceedings in execution of decrees, even though, Section 11 does not apply to it. The Supreme Court applied the general principles of res judicata to an execution proceeding in Mohanlal Goenka v. Benoy Kishna Mukherjee and Ors. : [1953]4SCR377 . In view of these legal pronouncements by the Supreme Court, we are unable to accept the contention of the learned Assistant Government Pleader, that general principles of res judicata could not be applied to the facts of this case and that the case would be governed only by the provisions of Section 11 of the Civil Procedure Code.

21. The next question that now arises to be considered is whether the principle of res judicata can be applied when the matter is being agitated at a later stage in the same suit after the decree has been passed by the trial Court. On this point also the matter is concluded by authority. The Supreme Court has held in Satyadhyan's case referred to above, as follows:

The principle of res judicata applies also as between two stages in the same litigation to this extent that a Court, whether the trial Court or a higher Court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings.

In coming to this conclusion the Supreme Court has considered, among others, Hook's case decided by the Privy Council referred to above. Dealing with the question as to how far interlocutory orders in a suit give rise to the bar of res judicata, the Supreme Court has observed as follows:

Interlocutory orders which have the force of a decree must be distinguished from other interlocutory orders which are a step towards the decision of the dispute between parties by way of a decree or a final order. Moheshur Singh's case, Forbes Case and Sheonath's case dealt with interlocutory judgments and led up to a decree or final order. Ram Kirpal Shukul's Case, Bani Ram's Case and Hook's Case deal with judgments which though called interlocutory, had, in effect, terminated the previous proceedings.

In Mohanlal's case : [1953]4SCR377 the facts were that neither at the time when the execution application was made and a notice served upon the judgment-debtor, nor in the applications for setting aside the two sales made by him, the judgment debtor raised any objection to execution being proceeded with on the ground that the execution Court had no jurisdiction to execute the decree. After the property was sold, the judgment debtor sought to set aside the sale on the ground that the executing Court had no jurisdiction to execute the decree. The Supreme Court held that failure to raise this objection at the earlier stages of the execution proceeding debars the judgment debtor on the principles of res judicata from urging that objection at the time of setting the sale. In our opinion, there is no doubt that the plea of res judicata can be raised at a subsequent stage in the same suit, provided the earlier decision in the suit has become final and has the force of a decree or has terminated the proceedings in respect of that part of the case which is covered by the decision.

22. The learned Assistant Government Pleader also submitted that in this particular case, an appeal was filed by the plaintiff in so for as his suit was dismissed in respect of the trees in certain survey numbers and the State therefore as respondent had a right to show to the appellate Court that the decree passed by the trial Court against the plaintiff was correct and to request the appellate Court to dismiss the appeal of the plaintiff. It was, further submitted that in order to enable the State to do so, the State is competent to show to the appellate Court that the plaintiff has no right to the trees In those survey numbers and therefore, the State is at liberty to show that the document under which the plaintiff claims this right to cut the trees is invalid in law to vest that right in the plaintiff. It was urged that if the argument about the registration were accepted by the Court, it may be that the whole suit of the plaintiff would become liable to be dismissed including that part of the suit which has been decreed in his favour by the trial Court. It was, however, further pointed out that the State does not urge that the decree in so far as it is in favour of the plaintiff should be set aside or up-set. All that the State seeks to do is to show that the decree in so far as it is against the plaintiff may be sustained on this ground namely that the document on which the plaintiffs rely is invalid in law to confer that right on the plaintiff. It was also urged that the decision on which the trial Court has proceeded is itself subject to review in the appeal preferred by the plaintiff and therefore that decision has not become final merely because the State did not prefer any appeal against that part of the decree which was in favour of the plaintiff. These were the submissions made by the learned Assistant Government Pleader in support of his contention that the decision about the validity of the sale deeds has not become final.

23. The learned Assistant Government Pleader relied upon the decision of the Supreme Court in Narhari's case : [1950]1SCR754 referred to above. The facts of that case show that the appeal, which was in time, covered the entire matter in the suit and the appellants prayed for the reliefs against both the sets of defendants and the appellant had paid consolidated Court fees on their appeal memo in respect of the prayers against both the sets of defendants. Under these circumstances, the mere fact that the Second Appeal was held barred by limitation, did not make any difference in so far as the rights of the parties were concerened. The Supreme Court itself has held that Second Appeal was unnecessary because the two decrees were in substance one and therefore the appeal against one of the decrees would be an appeal against the whole of the decision in the suit. This decision, therefore, does not apply to the facts of the present case wherein the entire suit was not included in the appeal preferred by the plaintiffs.

24. The learned Assistant Government Pleader relied upon the observations of Bhagwati J. in the case of Haji Gulamnabi referred to above. In that case, an issue arose in the suit itself as to what should be the standard rent of the premises and it was specifically raised on account of the pleadings in that suit. That issue also specifically arose in the application to fix standard rent preferred by the defendant tenant. Both these proceedings were tried together by the trial Judge and a single judgment was delivered by him and as regards standard rent he came to the conclusion that it should be Rs. 51/- per month. The plaintiff preferred an appeal from the decree passed by the trial Judge in the suit and his appeal was against the finding that Rs. 51/-should be the standard rent, against the amount of arrears calculated on the basis of that standard rent and against the rejection by the trial Court of his claim for possession. The dispute about the standard rent was therefore specifically included in the appeal preferred by the plaintiff. The judgment which was given in the suit and on which the decree of the trial Court about fixation of standard rent was based was thus under appeal before the Assistant Judge. Bhagwati J. on these facts observed as follows:

If there was one trial and one judgment and that judgment was challenged in appeal before the learned Assistant Judge, it is difficult to see how any plea of res judicata could be successfully advanced before the learned Assistant Judge to preclude the learned Assistant Judge from entertaining the appeal x x x x. What constitutes res judicata is not the decree or order but the decision, express or implied, of the matter in controvery. x x x x. The plea of res Judicata in the present case was founded on the determination of the standard rent by the trial Court on the application of the defendant for fixation of standard rent but this determination was made by the same judgment which the plaintiff challenged in appeal before the learned Assistant Judge.

Haji Gulamnabi's case therefore relied upon by the learned Assistant Government Pleader is distinguishable from the facts in the present case on the ground that in that case the same issue was raised in two independent proceedings which were tried together and disposed of by a common judgment and in the appeal preferred by the plaintiff in one of the matters that determination about standard rent was challenged. The present case, in our opinion, is not governed by the ratio of the decision in Haji Gulamnabi's case. The Full Bench case of the Lahore High Court in A.I.R. 1927, Lahore at page 289 referred to above also does not help the learned Assistant Government Pleader because in that case two widows filed separate suits each contending to be the owner of the properties. Both the suits were tried together and one judgment disposed of both the suits. Two separate decrees were made in the two suits. The appellant whose claim was rejected, filed an appeal against the decree passed against her in her suit, but she did not file any appeal against the other decree which was passed against her. The plea of res judicata raised by the respondent in that appeal on the ground that the appellant has not preferred an appeal against the other decree was negatived by the majority of the Full Bench on the ground that there was one judgment, though two decrees were made and that by filing the appeal, the appellant has effectively challenged that whole judgment and therefore no question about res judicata arose in that case. The case with which we are dealing is obviously distinguishable from the facts of that case.

25. The learned Assistant Government Pleader also relied upon a decision of the Full Bench case in Gaddem Chinna Venkata Rao and Ors. v. Koralla Satyanarayanamutthy and Anr. A.I.R. 1943 Madras 668. In that case the plaintiff filed a suit to recover Rs. 1450-1-3 from the defendant. The defendant contended that he did not receive any monies in cash under the promissory note for Rs. 3000/-which he had passed on 12th December 1934. The suit of the plaintiff was based on the ground that he has paid cash amount under that promissory note. The defendant's contention was that he had earlier taken a loan for Rs. 2000/- by passing a promissory note in 1925 and if proper appropriations were made and as provided for under the Madras Agriculturists' Relief Act, nothing was due from him. The trial Court held that cash consideration was paid to the defendant under the promissory note dated 12th December 1934. After making appropriations as required by the Agriculturists' Relief Act, the trial Court passed a decree for Rs. 274-11-4. The plaintiff appealed in so far as his claim for the remaining amount was dismissed and at the hearing of that appeal, the defendant urged that no cash consideration was paid under the promissory note of 1934. The appellant objected to this contention being raised by the respondent-defendant, as the respondent had not preferred any appeal against the decree for Rs. 274-11-4 passed against him. The Full Bench considered the previous decisions of the Madras High Court which had held that in these circumstances the decision on which the decree against the defendant was made become final and he could not urge such a point. The Full Bench, however, interpreted the provisions of Order 41 Rule 22 of the Civil Procedure Code which allow the respondent to support the decree of the trial Court on any ground decided against him and came to the conclusion that the defendant as respondent was entitled to urge that ground because thereby he wanted to support the decree of the trial Court in his favour, though, if the contention were accepted, it would appear that the trial Court's decree against the defendant was also not correct, This case, therefore rests on the interpretation of the provisions of Order 41 Rule 22 and deals with rights of a respondent to an appeal. We do not desire to go into the question about the scope of the respondent's rights under the provisions of Order 41 Rule 22. There is a conflict of judicial opinions and in so far as Bombay High Court is concerned, it has taken a contrary view in the case of Secretary of State v. Chimanlal Jamnadas and Ors. A.I.R. 1942 Bombay 161. That decision is of a Division Bench and is binding on us. Apart from that fact, however, the State was not a respondent in the appeal before Divan J. when it sought to raise this question about registration. Therefore, the learned Assistant Government Pleader could not have any recourse to the provisions of Order 41 Rule 22 in this Case.

26. On behalf of the appellants before us, reliance was placed on the decisions in the case of Pichhi Konar v. Narasimha Rama Iyar A.I.R. 1930 Madras 471 and Narendra Nath Sen and Ors. v. Mahasay Ganesh Prasad Ray and Ors. A.I.R. 1946 Patna 408. In the Madras case it has been laid down as follows:

If a portion of a decree has become res Judicata, then the rest of the decree based on same reasoning would also become res judicata even with reference to the other portion of the decree which alone is brought for review before the appellate Court. Where, therefore, it is decided that a plaintiff is entitled to subrogation and there is no appeal to the lower appellate Court from that portion of the decree of the trial Court, it is not open to the defendant-appellant to appeal against some portion only of the decree in so far as subrogation is allowed and thus call in question the decision of the trial Court.

This decision of the Madras High Court was followed by the Patna High Court in the case referred to above. There, the plaintiff had brought a suit for a declaration of his title to certain properties and for possession thereof. The trial Court granted both the reliefs to the plaintiff. The defendant appealed against only the decree for declaration ignoring the decree for possession. It was found that the right to the relief of possession depended on the very same facts which gave rise to the plaintiff's title. The basis for the decree for possession was the same decision which was the basis for the decree for declaration. In these circumstances the Patna High Court held that the defendant is precluded by the principle of res judicata from challenging in appeal only the decree for declaration of title as the decree for possession which is not appealed against would operate as res judicata on the facts necessary to establish that title.

27. The appellants also relied upon the decision of the Supreme Court in Badri Narayan's case referred to above. In that case three persons A.B and C were candidates at an election. A obtained largest number of votes, B obtained less number of votes than A, but larger number than C.A was declared duly elected. C filed an election petition against both A and B. He alleged that A and B were not eligible for nomination because they held offices of profit under the State. C also further alleged against A that he was guilty of corrupt practice. He therefore asked for a declaration that the election of A was invalid and that as A and B were not eligible for nomination, he should be declared duly elected. The Election Tribunal came to the conclusion that A was guilty of corrupt practice and therefore A's election was declared invalid. The Election Tribunal further held that A and B did not held offices of profit and therefore they were not ineligible for nomination. The election Tribunal therefore refused the relief of C that he should be declared duly elected. A filed appeal No. 7 in so far as his election was declared invalid. C filed appeal No. 8 on the ground that A and B should have been held ineligible for nomination and he should have been declared elected. The High Court came to the conclusion that A and B held offices of profit in the State. The High Court also found that A was not proved to be guilty of corrupt practice. The High Court therefore, confirmed the order of the Election Tribunal declaring the election of A to be invalid, not on the ground on which the Election Tribunal did so, but on the ground that he was ineligible for nomination. The appeal No. 7 of A was therefore, dismissed by the High Court. Appeal No. 8 was allowed by the High Court and it was declared C to be duly elected as both A and B were ineligible for nomination. A filed an appeal by special leave to the Supreme Court against the order made by the High Court in appeal No. 8 filed by C. He did not prefer any appeal against the order of the High Court dismissing his appeal No. 7. When his appeal to the Supreme Court came up for hearing, a contention was raised on behalf of the respondent C that the appellant A was precluded by the principles of res judicata from urging the contention in his appeal before the Supreme Court that he did not hold an office of profit under the State. It urged before the Supreme Court that the High Court dismissed the appeal No. 7 of A on the ground that he held an office of profit under the State and was therefore ineligible for nomination. It was urged that the decision that he was holding an office of profit under the State and was therefore ineligible for nomination-became final and binding on him an therefore he could not raise this contention over again. It was urged a behalf of A that in deciding appeal No. 8, against which he had preferred the appeal to the Supreme Court, the High Court bad proceeded on finding that A and B held offices of profit under the State and therefore he was entitled to challenge this point in order to support his appeal The Supreme Court in its judgment noted that both the appeals Nos. 7 and 8 before the High Court arose out of one proceeding before the Election Tribunal, but that the subject matter of each appeal was however different. It was further noted by the Supreme Court that the claim of C for a declaration that he was duly elected would arise only after the election of A was declared invalid. It was remarked that If appeal No. 7 was allowed, the question in appeal No. 8 would not arise for consideration. The Supreme Court held that the decision of the High Court in the two appeals, though set out in one judgment, really amounted to two decisions and not to one decision common to both the appeals. The Supreme Court noted that the decision about A holding an office of profits under the State was common to both the decisions that is, the decision dismissing the appeal No. 7 and allowing appeal No. 8, but it came to the conclusion that the decision cannot be stated to be one decision In respect of both the appeals merely because it was common. The Supreme Court then observed as follows:

The High Court came to two decisions. It came to one decision in respect of the invalidity of the appellant's election in Appeal No. 7. It came to another decision in Appeal No. 8 with respect to the justification of the claim of respondent No. 1 to be declared as a duly elected candidate, a decision which had to follow the decision that the election of the appellant was invalid and also the finding that respondent No. 2, as Ghatwal, was not a properly nominated candidate. We are therefore of opinion that so long as the order in the appellant's appeal No. 7 confirming the order setting aside his election on the ground that he was a holder of an office of profit under the Bihar Government and therefore could not have been a properly nominated candidate stands, be cannot question the finding about his holding an office of profit, in the present appeal, which is founded on the contention that that finding is incorrect.

This decision of the Supreme Court is, no doubt, not in relation to a suit but to an election petition under the Representation of the People Act. However, the principle on which the Supreme Court has proceeded to decide that case is not peculiar to the provisions of the Representation of the People Act, but is a wider principle ofres judicata which applies to all kinds of litigation including the litigation initiated by a suit. The principle is that if at an earlier stage in a litigation, a competent Court or a tribunal of exclusive authority has given a decision on the matter in dispute and that decision has become final, it is not open to either party to challenge that decision at any later stage in the same proceeding.

28. In our opinion, the trial Judge in this suit gave one judgment wherein he came to two different decisions; one decision resulted in a decree in favour of the plaintiffs. That decision was that the sale deeds are valid and effective enough to confer the right to cut the trees on the plaintiffs and that this right continued in the plaintiffs in respect of the certain survey numbers even after the Jagir Abolition Act came into operation on 1st August 1954. The second decision, which resulted in the decree adverse to the plaintiffs proceeded on the basis that the remaining survey numbers vested in the Government on account of the Jagir Abolition Act and the plaintiffs' right to cut the trees in those survey numbers became extinguished from the date of operation of that Act that is, 1st August 1954. These are the two decisions which the trial Judge arrived at in one judgment that he gave disposing of the suit. These two separate decisions resulted in the two different decrees; one decree being in favour of the plaintiffs and the other decree being adverse to the plaintiffs. Since no appeal was preferred against the decree which was in favour of the plaintiffs, the decision which is the basis of that decree became final and binding on the State. The finding that the sale- deeds are effective and valid to confer a right to cut the trees on the plaintiffs, which is a part of the decision on which the decree in favour of the plaintiffs is based therefore became final and binding on the State and the State cannot be permitted now to challenge that finding. In our opinion, this decision of the Supreme Court supports the argument on behalf of the appellants and we accordingly accept that argument.

29. It now remains to consider some subsidiary points urged before us on behalf of the State. The first point was that no question about registration was raised in the trial Court and therefore the trial Court has not in fact considered any question about the registration and its decision therefore, does not include any decision as to whether the sale deeds required registration. It was, therefore, urged that it cannot be said that the decree of the trial Court relating to the survey number for which the plaintiff is declared to have a right to cut trees rested on a foundation that the document does not require registration. On this basis it was urged that it cannot be said that by raising the question about registration of the documents, the State is disturbing in any way, the foundation on which the decree in favour of the plaintiffs is based. It is true that the question about registration was not taken before the trial Court and therefore there is no decision on this point by the trial Court. However, the principle of constructive res judicata is a part of the general principles of res judicata. This principle of constructive res judicata is based on a requirement that the parties should put forth all grounds of attack or defence before the Court and if a party fails to do so, it will be presumed that the party did put forth that ground of attack or defence and that ground was rejected by the Court. This principle of constructive res Judicata is contained in explanation 4 of Section 11 of the Civil Procedure Code. In Mohanlal's case referred to about the Supreme Court, while applying general principles of res judicata to execution proceeding did apply this principle of contructive res judicata also. This argument of the learned Assistant Government Pleader the fore, cannot be sustained.

30. It was next urged that the learned trial Judge allowed the decree in favour of the plaintiffs in respect of certain survey numbers because after a consideration of the provisions of Jagir Abolition Act, the Court decided on merits that the plaintiffs right to cut the trees in those survey numbers continued. It was submitted that the State not being interested in claiming any further right or title in these survey numbers no appeal was preferred against the decision of the trial Court regarding these survey numbers. It is, no doubt, open to the State either to appeal against the decree adverse to it or to accept the same as binding upon it. However, if the State does not prefer any appeal against the decree in favour of the plaintiffs, the State cannot be heard thereafter to say' that the general principles of res judicata will not apply to it because it had no further interest in those survey numbers. As the decision in respect of that decree became final, the State will be debared from challenging any part of that final decision regardless of the question whether the State was interested in filing the appeal or not.

31. It was next urged that by deciding the point of registration the appellate Court was not upsetting the foundation of the decree of the trial Court regarding the survey numbers in respect of which the plaintiffs have got the decree and therefore there can be no bar in permitting the State to urge the point regarding registration. Since we hold that the decree in favour of the plaintiffs has for its basis the decision of the trial Court that the sale-deeds are effective and valid to transfer the right to cut trees from the Jagirdars to the plaintiffs, we fail to see how, by raising the point of registration now, the State can still say that it is not challenging that decision of the trial Court. What the State wants the Court to hold is that because the documents are not registered, the documents are, not valid and effective to confer the right to cut trees on the plaintiffs Obviously, this amounts to challenging the decision of the trial Court on this point.

32. We have dealt with all the points that were urged before us on behalf of both the sides. In our opinion, the State was barred by the principles of res judicata from urging, at the time of the hearing of the Second Appeal, the contention that the documents are compulsorily registrable and being unregistered, are not valid and effective enough to transfer the right to cut trees to the plaintiffs.

33. As regards Letters Patent Appeal No. 13 of 1966, the plaintiff I took a right to cut trees in 80 survey, numbers by two documents Exhs. 61 and 62. By Exh. 61, the plaintiff took 2 survey numbers 182 and 317. By the second document Exh. 62 the plaintiff took 78 other survey numbers. The 20 survey numbers in respect of which the trial Court has passed a decree in favour of the plaintiff are included in Exh. 62; no decree in favour of the plaintiff is passed in respect of the survey numbers included in Exh. 61. The trial Court's decree in favour of the plaintiff, therefore, proceeds upon the validity of Exh. 62 only and this part of the decree has nothing to do with the validity of Exh. 61. In so far as Exh. 61 is concerned, therefore, there has been no final decision by the trial Court, that it is a valid document because the decree in favour of the plaintiff does not require that decision to be made. Mr. Karlekar, who appeared for the appellants in this Appeal, conceded that in so far as Exh. 61 is concerned, no bar of res judicata would arise against the State. His arguments, therefore, were confined to the point of validity of Exh. 62 alone. Our decision, therefore, that the State is barred from raising a contention that the documents being compulsory registrable, would only apply in so far as Exh. 179 in Lettters Patent Appeal No. 1 of 1966 and Exh. 62 in Letters Patent Appeal No. 13 of 1966 are concerned.

34. The only other point which remains for decision in these appeals is about the contention raised on behalf of the State that these survey numbers in respect of which the plaintiffs right to cut the trees is negatived by the trial Court, vest in Government and therefore the right to cut the trees derived by the plaintiffs from Jagirdars also comes to an end. For this purpose, the State relied upon the provisions of Section 8 of the Jagir Abolition Act, 1954. It was pointed out that the trial Court has found, as a matter of fact, that these survey numbers were uncultivated land within the meaning of Section 8 of the Jagir Abolition Act. The learned Judge in the First Appellate Court did not decide whether the lands were waste or uncultivated lands within the meaning of Section 8 of the Jagir Abolition Act. He came to the conclusion that even if these lands were uncultivated or waste lands and vested in Government under the provisions of Section 8 of Jagir Abolition Act, the rights of the plaintiffs to cut the trees in those lands were saved and they continued to vest in the plaintiffs. He therefore, felt it unnecessary to decide whether these lands were uncultivated or waste lands. It was not urged before us on behalf of the plaintiffs that the lands are not waste or uncultivated lands within the meaning of Section 8 of the Jagir Abolition Act. The only contention that was canvassed by both the sides was whether the rights of the plaintiffs to cut trees in these lands continued to remain in the plaintiffs even after these lands vest in the Government.

35. It is an admitted position before us that the villages in which these survey numbers in these two appeals are situated are proprietary Jagir villages, which would mean that the Jagirdar of the village was the grantee of the soil and not of the land revenue only. By Section 3 of the Jagir Abolition Act, all rights of the Jagirdars in respect of the Jagir were abolished except to the extent to which contrary provisions was made in other provisions of the Jagir Abolition Act. Such a provision is made in Section 5 of the Act. Section 5 deals with certain categories of land viz. (1) Gharkhed land in. the possession of Jagirdars, (2) Land other than Gharkhed in the possession of the Jagirdars, (3) Land in possession of a permanent holder deriving his title from the Jagirdars and (4) Land in possession of a Court of the family of Jagirdars, to whom the land is given by way of JivaF. In respect of such lands, it is provided that the Jagirdars will be the occupants of these lands. Section 8 of the Act makes provision for vesting of the Jagirdars interest in the State. Among other items, Section 8 refers to waste or uncultivated lands and it says that these lands vest in the Government. What amounts to unculivated land is explained in the explanation to Section 8. Since it is not disputed before us that the lands were uncultivated, it is not necessary for us to enter into the question as to what land can be said to be uncultivated lands. It is the case of the plaintiffs that by the provisions of Section 8 of the Jagir Abolition Act, their rights to cut the trees in these survey numbers even if they vest In the State are saved and continued to them. It is the contention on behalf of the State that such rights are not saved. The material portion of Section 8 reads as follows:

8. All public roads, x x x x all waste lands and all uncultivated lands x x x shall, except in so far as any rights of any person other than the Jagirdar may be established in or over the same x x x vest in and shall be deemed to be, x x x the property of the State Government and all rights held by a Jagirdar in such property shall be deemed to have been extinguished x x x x.

36. Section 8 therefore vests in the State the waste or uncultivated lands but saves the rights of the persons, other than Jagirdars, established in or over these lands. The plaintiffs have acquired the right to cut trees in these survey numbers prior to the coming into operation of the Jagir Abolition Act. The right to cut the trees in these survey numbers irrespective of the question whether such right is an immovable property or movable property, is therefore saved by the express provision in Section 8 of the Jagir Abolition Act. It was urged that the right of the plaintiffs being derived from the right of the Jagirdars, it would come to an end on the termination of the right of the Jagirdar himself. In support of this argument the learned Assistant Government Pleader relied upon the observations of Bhagwati J. in the case of Vora Fidaali Badruddin Mtthi-bharwala v. The State of Bombay (now Gujarat) II G.I.R. page 343. That was a case decided by a Division Bench of this Court. In that case the Jagirdar was one Sardarsing Gajesing who had transferred the right to cut the trees in a forest to the appellant. The argument put forward before the Court was that on the coming into operation of the Jagir Abolition Act, the right of the Jagirdar to the forest including the trees therein came to an end and it was therefore urged that the appellant's right to cut the trees in the forest also came to an end. Dealing with this argument the Court observed that the question whether the appellant's right to cut the trees came to an end would arise only after it was held that the rights of the Jagirdar to the forest have come to an end. The Court followed the previous decision of the Bombay High Court in Thakor Madhavsinji Ghambirsinhji v. U.R. Mavinkurve (Special Civil Application No. 2146 of 1958) decided on 14th January 1959 and came to the conclusion that the Jagirdar's rights over the forest including the trees therein continue to remain with him and were not extinguished. It therefore, became unnecessary for the Division Bench to consider the question whether the plaintiffs rights to cut the trees in the forest were continued or not. The Division Bench, therefore did not address itself to the question with which we are concerned in these appeals. The High Court has expressly observed in that case that it has not entered on a consideration of the various provision of the Jagir Abolition Act. Therefore the observations of Bhagwati J. on page 357 expressing an opinion that 'if the effect of the said Act was to extinguish the rights of Jagirdar Sardar-sing Gajesing in respect of the trees standing in the Gotimda forest, the appellant's rights being derivative would also come to an end and the appellant would not be entitled to maintain the appeal. ' were unnecessary for the decision in the matter before the Division Bench. It appears from the report of the case itself that no provisions of the Jagir Abolition Act were considered in that case. In our opinion, the decision in Fidali v. State of Bombay does not lay down any binding decision for us to follow. We have therefore to examine the position on the basis that there has been no decision on this point which binds us. Though it may be the normal rule that the title derived from one person may become extinguished when that person's title becomes extinguished, still however, in view of the express words used in Section 8 of the Jagir Abolition Act, this normal rule does not have any operation. In view of the saving of the rights of the third party in the land that vests in the Government, we cone to the conclusion that even though these lands vest in the State on the basis that they are waste or uncultivated lands, still the rights of the plaintiffs to cut the trees in those lands are saved to them and therefore the plaintiffs are entitled to have their right declared against the State. In this view of the case, it is not necessary to consider whether the lands would remain with Jagirdars as occupants under Section 5 of the Jagir Abolition Act.

37. No other points were pressed in these appeals. We, therefore, allow Letters Patent Appeal No. 1 of 1966 and set aside the judgment and decree of this Court in Second Appeal No. 760 of 1960 and restore the decree of the first appellate Court in so far as the trees standing in remaining 23 survey numbers are concerned.

37.1 We also allow Letters Patent Appeal No. 13 of 1966 in so far as the right of the plaintiff to cut the trees in 58 survey numbers included in Exh. 62 is concerned. We set aside the judgment and decree of this Court in Second Appeal No. 757 of 1960 in respect of these 58 survey numbers and restore the decree of the first appellate Court in so for as the right of the plaintiff to cut the trees in these 58 survey numbers is concerned.

38. In so far as the remaining 2 survey numbers included in the case, out of which this Latters Patent Appeal No. 13 of 1966 arises are, concerned, we hold that the State is entitled to raise a plea that Exh. 61 is compulsorily registrable. The point whether the document Exh. 61 requires compulsory registration was heard along with similar points raised in Letters Patent Appeal No. 12 of 1966 and for the reasons given in the judgment of that appeal, we hold that Exh. 61 requires registration. It being unregistered, the plaintiff did not acquire any right to cut the trees in these 2 survey numbers included in the document Exh. 61. Therefore, the decree passed by the trial Court dismissing the suit of the plaintiff in respect of those two survey numbers was correct and the decree passed by the first appellate Court recognising the right of the plaintiff to the trees in those two survey numbers was incorrect. We, therefore, dismiss Letters Patent appeal No. 13 of 1966 in so far as the right of the plaintiff in respect of the trees in those two survey numbers included in the document Exh. 61 is concerned. The respondent-State of Gujarat-shall pay costs of the appellants in each of these two appeals as well as in each of the two Second Appeals.


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