1. This is an application by Panna under Article 226 of the Constitution for issue of a writ ofcertiorari.
2. The facts, which have led to this application, are briefly these. The applicant claimed to be a tenant of Bachan Singh, opposite party, in village Bobasar. He made an application on the 16th of June, 1950 under Section 7 of the Rajasthan (Protection of Tenants) Ordinance, 1949 thereinafter called the Ordinance) to the Assistant Collector, Ratangarh, alleging that he had been dispossessed forcibly from his holding on the 9th of June 1950 and praying that he should be reinstated.
On the 31st of August 1950, the Assistant Collector, after holding a summary enquiry, rejected the application under the Ordinance on the ground that it was not presented within three months of dispossession or within three months of the coming into force of the Ordinance. The Assistant Collector also seems to have found that the applicant had surrendered possession of his holding in March 1949. The applicant went in revision to the Board of Revenue against this order. His revision was rejected on the 11th of April 1951 on the ground that his application under section 7 of the Ordinance was barred by time.
Thereupon, the applicant filed a regular suit for possession of the holding. The suit was resisted by Bachansingh and his first objection was that the Court had no jurisdiction. He further objected that in view of the findings of the Assistant Collector and the Board of Revenue in the application under the Ordinance, the trial of certain issues raised in this suit was barred by the principle of res judicata. The revenue Court framed seven issues, one of which was regarding the maintainability of the suit.
It first decided the question of maintainability and held that the suit was maintainable in spite of the decision under the Ordinance. That matter was taken in appeal to the Commissioner by Bachansingh and the appeal wasdismissed. Thereupon, Bachansingh went in second appeal to the Board of Revenue and the Board also rejected the appeal; but the learned Members of the Board remarked in passing that the decision under the Ordinance might operate as res judicata. When the casecame back to the Assistant Collector, Bachansingh contended that the points raised in issues Nos. 4 and 5 in the suit had already been decided in the proceedings under the Ordinance between the same parties and, therefore, these two issues should be decided in his favour without any fresh evidence on the principle of res judicata.
The Assistant Collector rejected this contention. Thereupon, Bachansingh again went an' appeal to the Commissioner. The Commissioner held that issues Nos. 4 and 5 could not be reagitated and in consequence, the suit of the applicant was dismissed. Thereupon, the applicant went in second appeal to the Board of Revenue which held that the decision of the points involved in issues Nos. 4 and 5 was res judicata in view of the decision in the proceedings under the Ordinance and consequently dismissed the appeal. The applicant has thereupon come to this Court and his main contention is that there could be no res judicata arising out of the proceedings under the Ordinance and the Revenue Courts in holding that issues Nos. 4 and 5 were barred by the principle of res judicata were refusing to exercise jurisdiction vested in them to hear the parties, take their evidence and decide the issues according to law.
3. The application has been opposed onbehalf of Bachansingh and his objection is that the decision of the Board of Revenue is correct.
4. Now, S. 11 of the Code of Civil Procedure deals with res judicata in suits. It is well settled that where Section 11 applies in terms, a res judicata will bar the consideration of the same matter in the second suit, when it has been considered and decided in the first suit under the conditions mentioned in that section. It is equally well settled that section 11 is not exhaustive and principles of res judicata applyeven where Section 11 does not in terms apply.
It is not in dispute between the parties that Section 11 does not in terms apply to the present circumstances, for the proceeding under the Ordinance was not a suit. The contention of Bachansingh is that though Section 11 may not apply in terms, principles of res judicata do apply and this contention found favour with the Board of Revenue.
5. Now, the principles on which a decision in a former proceeding will on the principles of res judicata bar decision in a subsequent suit have been settled by the Privy Council in Babu Bhagwan Din v. Gir Har Saroop, AIR 1940 PC 7 (A). The facts of that case are that the appellants before the Privy Council had made an application under Section 3 of the Charitable and Religious Trusts Act, 1920 (Act No. XIV of 1920). The District Judge held that the temple in dispute was the subject ofa public trust and that the Goshains had failed to establish the opposite.
He consequently gave certain directions and when the Goshains did not comply with those directions, a suit was brought against them under Section 92 of the Code of Civil Procedure. Another suit was also brought by the Goshains claiming that the temple was their property and was not a public trust. The first suit was decreed on the ground that the decision given by the District Judge in proceedings under Act No. XIV of 1920 was conclusive. The second suit was not decided at that time. It was decided later by another Judge and he decreed it holding that the temple was not a public trust. There were appeals to the Chief Court of Oudh in both suits which were consolidated and the Chief Court held that the temple was not a public trust. Then came the appeals to the Privy Council.
6. The main question canvassed before the Privy Council was whether the order of the District Judge made under Act No. XIV of 1920 precluded the Goshains from disputing that the temple was the subject of a public trust. Their Lordships of the Privy Council held that the decision under Act No. XIV of 1920 could not be conclusive and would, therefore, not be res judieata and laid down the principles on which decisions in cases to which Section 11 of the Civil Procedure Code did not apply in terms would be res judicata.
7. Their reasons were as below:
1. The decision was in a summary proceeding which was not a suit nor of the same character as a suit.
2. There was no appeal from the decision, and 3. That the decision had not been made final by any provision in the Act.
7a. On these grounds, it was held that the doctrine of res judicata did not apply.
8. Learned counsel for Bachansingh, on the other hand, relied strongly on the decision of the Calcutta High Court in Krishna Chandra v. Manik Lal, AIR 1939 Cal 169 (B). In that case it was held that the doctrine of res judicata applied to proceedings which are in themselves final in the sense that they are conclusive between the parties even though the decisions in those proceedings may not be susceptible of appeals. Hence, question of res judicata can arise even in consequence of antecedent summary proceedings. Reliance was also placed on other decisions, namely, Kalipada De v. Dwijapada Das, AIR 1930 PC 22 (C); Mt. Bhagwati v. Mt. Ram Kali, AIR 1939 PC 133 (D) and Sinna Subba Goundan v. Rangai Goundan, AIR 1946 Mad 141 (E).
9. So far as Krishna Chandra Mukherjee's case (B) is concerned, it is enough to say that it must be held to have been shaken by the decision of the Privy Council in Babu Bhagwan Din's case (A). As for the other three cases on which learned counsel for Bachansingh relies, it is enough to say that the proceedings in them were of the nature of suits and appeals were provided by law from the judgment of the trial Court. Those decisions there-fore are in line with the principles laid down by the Privy Council in Babu Bhagwan Din's case (A). We have, therefore, to see on the principles laid down in Babu Bhagwan Din's case (A) whether proceedings under the Ordinance can be held to have the force of res judicata on general principles.
10. This brings us to the nature of the proceedings under the Ordinance. Section 7 of the Ordinance is in these terms:
'Any tenant who was in occupation of his holding on the first day of April 1948 and has thereafter been ejected therefrom, or dispossessed thereof or from or any part thereof-
(a) before the commencement of this Ordihance, otherwise than by process of law, or
(b) after the commencement of this Ordinance, in contravention of the provisions thereof,may, within three months from the date of such ejectment or dispossession or the commencement of this Ordinance, whichever happens to be later, apply to the Sub-Divisional Officer...
11. Then follows the procedure for dealing with such an application. The Sub-Divisional Officer gives notice to the land-holder and to the person in possession and holds such summary enquiry as he may consider necessary. If he comes to the conclusion after such summary enquiry that the applicant was ejected or dispossessed as aforesaid, he can order the applicant to be reinstated. Section 10 of the Ordinance provides that there shall be no appeal from the order of the Sub-Divisional Officer; but there is a provision that he Board of Revenue may of its own motion or on application made to it in that behalf, call for therecord of any case under this Ordinance and may pass such orders thereon as may appear to the Board to be just and expedient.
12. It is clear from a reading of Section 7 that if the Sub-Divisional Officer is of opinion that the application has not been made within three months from the date of ejectment, his power to order reinstatement comes to an end. Ho need not look into anything else at all, once he comes to the conclusion that the ejectment that taken place more than three months before the application. That is why the Ordinance provided that the enquiry will be summary and no appeal was provided. A limited power of superintendence was given to the Board of Revenue to see that the orders of the Sub-Divisional Officer were just and expedient.
13. Can it be said in these circumstances that the decision by the Sub-Divisional Officer in proceedings under the Ordinance would have the effect of res judicata on general principles in a subsequent suit? We have given the matter our earnest consideration and have come to the conclusion that any decision in proceedings under the Ordinance would not be res judicata in a subsequent suit and our reasons are these.
14. In the first place, the application before the Sub-Divisional Officer cannot be said to be of the nature of a suit. It is to our minda mere application for reinstatement on fulfilment of certain conditions, one of the most important of which is that such application should have been made within three months ofthe ejectment. Now, take the facts of this very case as an illustration to show that the proceedings cannot be of the nature of a suit.
In this case, the applicant was contending that he had been ejected on the 9th of June 1950, a few days before he brought the application. The landlord contended that he had been ejected or dispossessed in March 1949, i.e., much more than three months before the suit. The landlord also said that this was on the basis of a surrender. Now, what had the Sub-Divisional Officer to look into in this case? We are of opinion that all that he had to look into was whether the applicant had been ejected more than three months before the application. If he came to the conclusion that he was ejected more than three months before, he need not have gone into any other matter. Take the case of the alleged surrender in this case.
If the Sub-Divisional Officer found as a fact that some kind of surrender was made and because of that the applicant was dispossessed more than three months before the application, the Sub-Divisional Officer was bound to dismiss the application. It was no part of the duty of the Sub-Divisional Officer to scrutinise the nature of that surrender; for, whatever may be the nature of that surrender, if the dispossession had taken place more than three months before, that was enough so far as the Sub-Divisional Officer was concerned for the dismissal of the application.
Now, suppose that the alleged surrender was obtained by force or fraud. Would the Sub-Divisional Officer have to go into the question of force or fraud if he came to the conclusion that what ever the means employed for extracting the surrender, the dispossession had taken place more than three months before the application? It is obvious that it was no part of the duty of the Sub-Divisional Officer to enquire into the legality of the surrender, once he was satisfied that the dispossession, whatever the reasons for it, had taken place more than three months before the application. If on the other hand, these proceedings were in the nature of a suit, the Sub-Divisional Officer would have to look into the nature of the surrender also.
We are, therefore, of opinion that the proceedings under the Ordinance were not in the nature of a suit. There is no doubt that in a suit, the mere production of a surrender deed (though in this case, we are told that even the surrender deed is not forthcoming) would not be enough if, for example, the allegation was that the surrender deed had been obtained by force or fraud. The Sub-Divisional Officer will then have to go into the question whether the surrender deed had been obtained by force or fraud and if he came to the conclusion that it was so obtained, he would not act upon such a surrender deed.
But in proceedings under the Ordinance, he need not go into this question if he comes to the conclusion that dispossession had occurred more than three months before, whatever may 'be the circumstances in which that took place. Therefore, the proceedings under the Ordinance do not satisfy the first test laid down by the Privy Council, namely that the proceedings should be in the nature of a suit.
15. The other test laid down by the Privy Council is that the decision is open to appeal. Now, we understand this to mean that even if the proceedings were not in the nature of a suit, but the decision was open to appeal, it may be said that the decision would amount to res judicata on general principles, unless there was specific provision to the contrary. But in this case, no appeal has been provided. All that has been provided is some kind of revision by the Board of Revenue to see that the order is just and expedient. We are of opinion that this provision cannot take the place of appeal in a proceeding which is not of the nature of a suit.
16. The third test which the Privy Council has laid down is whether the law makes the order, which may not have been passed in a proceeding of the nature of a suit and which may even not be open to appeal, a final order. There is nothing in the Ordinance which lays down that the order shall be final. The conclusion, therefore, to which we come is that the proceedings under the Ordinance are summary and are not of the same character as a suit. There is no appeal from the order of the Sub-Divisional Officer and the revision to the Board provided under Section 10 (2) is only for the purpose of seeing whether the order was just and expedent
17. Lastly, there is no provision in the Ordinance which makes the order final.
18. As we read the decision in Babu Bhagwan Din's case (A), we think it lays down that if any of the three conditions mentioned by their Lordships of the Privy Council are present, the order in the previous proceedings might be res judicata on general principles. But if none of those three conditions are present, the order in the previous proceedings cannot be res judicata even on general principles. In the present case, none of these three conditions is satisfied. The proceedings are summary and are not of the same character as a suit.
There is no provision for appeal and there is no provision in the Ordinance making the order final. In these circumstances, we are of opinion that the decision arrived at in proceedings under the Ordinance cannot be res judicata in a subsequent suit between the same parties. The decision, therefore, of the Board of Revenue holding that the previous decision in proceedings under the Ordinance is res judicata on two of the issues arising in the suit is erroneous.
By arriving at this erroneous decision, the Board has precluded the revenue Court from exercising jurisdiction and deciding the suit after taking evidence of the parties on issues Nos. 4 and 5 and hearing them. The ordermust, therefore, be set aside and the suit sent back for decision, after giving opportunity to the parties to lead evidence on these as well as other issues.
19. We, therefore, allow the application and send the case back to the Assistant Collector concerned for decision according to law, as explained above. In view of the circumstances, we order parties to bear their own costs of the application in this Court.