1. The State of Madras represented by the District Collector of Ramanathapuram at Madurai has preferred these appeals App. Nos. 427 of 1964 and 446 of 1964, against the decrees and judgment in O. S. Nos.26 of 1962 and O. S. No. 13 of 1962 respectively of the file of the Subordinate Judge's Court, Sivaganga, decreeing the suits for declaration and injunction as prayed for with costs. The properties comprised in these suits are situate in Chittikurichi Village and they are claimed by the plaintiff in the suits as ryoti lands, which were punja from prior to the enactment of Madras Act I of 1908. The Additional Assistant Settlement Officer, Arupppukottai, ordered the issue of ryotwari pattas to the plaintiff in each of the suits under the Madras Act XXVI of 1948. But the Settlement Officer in suo Motu proceedings set aside the orders on the ground that the suit lands are part of tank bed. After unsuccessfully invoking the writ jurisdiction of this Court, The respondent-Plaintiff in each of these appeals filed the above suits. The learned Subordinate Judge found that the suit lands are ryoti lands and not tank bed and rejected the contentions of the appellant that the Civil Court had no jurisdiction to try the suits, that by virtue of Section 64-C of Madras Act XXVI of 1948 the decision of the Settlement Officer that the suit lands are tank bed lands is final and cannot be questioned in any Court of law and that the decision of this Court in the writ petitions filed by the respondent-Plaintiff in each of these appeals will operate as res judicata and in the result decreed the suits as prayed for with costs.
2. The learned Assistant Government Pleader mainly argued the appeals on two grounds, namely, that the finding of the Settlement Officer that the suit lands are tank bed lands is final and can not be questioned in a Civil Court and that the decision of this court in the writ petitions filed by the plaintiffs will operate as res judicata. On the evidence in this case, there can be no doubt that the learned Subordinate, Judge has correctly found that the suit lands are ryoti lands.
3. We shall first consider the character of the suit lands in O. S 26 of 1962 on the file of Subordinate Judge's Court. Sivaganga Ex. A-1 is a registration copy of a lease deed dated 27-10-1901 executed by Thirumania Pillai in favour of Alagirisami Reddiar. It is clear from the recitals in the document that Alagirisami Reddiar purchased the property in a Court auction held on 10-10-1986 in execution of the decree in O. S 1083 of 1896 on the file of the District Munsif's Court. Manamadurai. It has been produced by the plaintiff as his document of title, and his son-in-law P.W.1 Sundararaja Reddiar referred to it in his evidence, though he does not personally know about the transaction. The property covered by Ex-A-1 is described as lying to the north of peria Kamoi Sluice and the upper bund of Kanmoi and east of the kanmoi bund. The total extent of the land is given as 16 1/2 kulis in inam paimash No. 73 Ex A-2 is a registration copy of a sale deed dated 28-6-1909 executed by one Annamalai Chettiar in favour of Thiruvengada Reddiar, the father of P.W.1 Sundaraja Reddiar and Subba Reddiar, the father of the plaintiff P.W.2 Balamanaval Reddiar. It is clear from the recitals in the document that the property was purchased by Somasundara Chettiar vagaira in a sale held in execution of the decree in O. S. No. 1900 of 1933 on the file of the Subordinate Judge's Court, Madurai. The sale deed in favour of Annamalai Chettiar has not been produced in this case. Though it is clear from the description of the property that it relates to Paimash No. 73, it is also described as lying south of the punja lands of Alagiriswami Reddiar, evidently referred to in Ex. A-1. The property is described as lying to the north and east of the kanmoi bund. Ex. A-3 is a registration copy of a sale deed executed by Subba Reddiar in favour of his Balamanavala Reddiar the plaintiff in this suit, in respect of his share. Ex. A-4 is a registration copy of a sale deed executed by Thiruvengada Reddiar, the father of P. W. 1. in favour of Ethiraj Chettiar and Ethiraj Chettiar has in his turn sold the property to the plaintiff under Ex. A-5 dated 29-4-1935. Thus the plaintiff claims title to the property claimed by him by virtue of the above title deeds relied on by him. He has produced the pattas Exs. A-6 to A-20 issued by the Rameswaram Devastanam as the melwaramdar to him and his predecessors-in-title and they range from the year 1911 onwards. The plaintiff has also produced the receipts showing payment of kist by him and his predecessors-in-title....... ............ ............ .............
(Discussion of evidence omitted).
The learned Subordinate Judge has rightly rejected the evidence of the defence witnesses and found on ample materials that the plaintiff and her predecessors-in-interest were in possession of the suit land as ryoti land.
4. Section 11 of the Madras Estates (Abolition and Conversion into Ryotwari) Act XXVI of 1948, hereinafter referred to as the Abolition Act deals with grant of ryotwari pattas in respect of ryoti lands. Every ryot is entitled to a ryotwari patta in respect of his ryoti lands which immediately before the notified date were properly included, or ought to have been included in his holding, subject to the proviso that a person who has been admitted into possession of any land by a landholder on or after 1st July 1945 cannot claim any such ryotwari patta without prior examination by the Government of all the circumstances of his case. Under Section 2(1) of the Abolition Act all expressions defined in the Estates Land Act shall have the same respective meanings as in that Act with the modifications, if any, made by the Abolition Act. Under S. 3(16) of the Madras Estates Land Act, 'ryoti land' is defined as follows:
"Ryoti land means cultivable land in all estate, other than private land but does not include-(a)beds and bunds of tanks and supply, drainage surplus or irrigation channels; (b)threshing-floor, cattle-stands, village sites, and other lands situated in any estate which are set apart for the common use of the villagers; (c)lands granted on service tenure either free of rent or on favourable rates of rent if granted before the passing of this Act or free of rent if granted after that date, so long as the service tenure subsists".
Having regard to the above definition of ryoti land, it is obvious that it clearly excludes beds and bunds of tanks and of supply, drainage, surplus or irrigation channels. It has been pointed out in Meerali Ambalam v. Shanmugha Rejeswara Sethupathi 66 Mad LJ 338 at p. 341= (AIR 1934 Mad 221) that a certain land is either ryoti or tank-bed and unless it ceases to possess the character of a tank-bed, it cannot be ryoti. In Narayanasami v. Kamanna, AIR 1920 Mad 893 a Bench of this Court has held that a land which is a tank-bed, i.e. which has been continuously used for the storage of water, is not ryoti and a suit to eject a tenant from such land is cognisable by the Civil Court. It has however been held in that decision that where the user of the tank for that purpose has been abandoned and the land has lost its character as tank-bed at the date of the suit, the suit is not cognisable by the Civil Court. It is observed in that decision that Section 3(16) of the Madras Estates Land Act suggests its application to land which had not lost its character as tank-bed when the Act came into force. But the words 'tank' and 'tank-bed' are not defined either in the Madras Estates Land Act, or in the Abolition Act. Difficulties can arise only when there are no survey and settlement records clearly showing the nature of the land as tank, or tank-bed, or ryoti land. Though the landholder as the proprietor of the bed of the tank normally allows persons to cultivate the same without prejudice to the rights of the ryots under its ayacut, he cannot convert what was really a tank-bed into either his private land, or ryoti land.
5. In Valathar Moopanar v. Board of Revenue, 1966-1 Mad LJ 354, it has been held that a patta can issue under Section 11 of the Abolition Act only in respect of ryoti lands and that it is too much to contend that a tank is a ryoti land as it is outside the purview of a ryoti land as defined in the Estates Land Act. It is clear from the facts of that case that the landholder had allowed the applicant for the ryotwari patta to cultivate the tank-bed, which was not actually used as an irrigation source of that time. In 66 Mad LJ 338 = (AIIR 1934 Mad 221) it was held that lands in an estate did not cease to be tank-bed merely because cultivation was carried on. It is pointed out in the decision that cultivation or absence of cultivation is not the proper test for determining the tank-bed and that tank-bed would include all the lands that will be submerged when water is stored in the tank to its full level. But as pointed out in State of Madras v. Estates Abolition Tribunal 1958-2 Mad LJ 585 it is only an initial presumption that lands near a tank-bed that are liable to submersion when the tank is at full level from part of the tank-bed and that it is rebuttable as in many cases it may not be so as even lands that are liable to submersion can be privately owned. It is pointed out at page 589 of the decision that the above initial presumption may not apply when the land is shown to be included in the patta of a ryot even though the land is registered only as dry. It is pointed out at page 588 of the decision that the initial presumption that lands liable to submersion are tank-bed lands would lose much of its strength whenever it appears that the depth of the water likely to stand on the land would be very little or that the period of submersion would be very short.
6. There is clear distinction between tank-bed lands and foreshore lands and this has been recognised in a number of decisions. In Nallamuthu Pillai v. Thirumalai Iyengar, 1942-1 Mad LJ 49 = (AIR 1942 Mad 258) a Bench of this Court affirmed the judgment of Wadsworth. J. in S. A. No. 542 of 1937 which is also reported in the same page. The decision deals with rights of persons owning lands on patta within the water spread of a Government tank to construct bunds on their patta lands so as to protect those lands from damages due to submersion. It was held in that decision that the ryots in the ayacut having become entitled to have their lands irrigated with water standing on the said foreshore lands, any one who interfered with the customary supply interfered with rights recognised by law and was therefore subject to the injunction of the Court. It is clear from the decision that submersion of lands on the foreshore of a tank when it is full is no uncommon occurrence and is a feature of the recognised irrigation system. In 1958-2 Mad LJ 585 the claim of one Peria Papammal was rejected by the Additional Assistant Settlement Officer solely on the ground that the lands are foreshore lands liable to submersion and that as water may stagnate on them, it is not desirable to allow the lands to be cultivated and that the lands are required for the tank. Balakrishna Iyer. J. has, if we may say so with respect, rightly commented that as an officer of the Revenue Department, he should have been aware of the significance of what constitute the foreshore lands as distinct from the tank-bed. The tribunal in that case did not consider whether the lands were part of the tank-bed, or whether, though these lands lay in the foreshore of the tank, they did not form part of the bed of the tank and hence the learned Judges remanded the matter to the Tribunal. It is also pointed out in that decision that it would be desirable to have plans prepared showing the levels and the other details. If the decision in these appeals had depended merely on cultivation of the lands, we would have been put to the necessity of adopting a similar course of remanding the suits and directing the parties to furnish such data. In W. P. 704 of 1958, on the file of this Court, it is pointed out that there is a clear distinction between a tank or eri proper and a land liable to submersion forming the foreshore of such tank and this Court refused to interfere with the order of the Tribunal confirming the order of the Assistant Settlement Officer granting patta to the landholder in respect of the said foreshore land as his private land.
7. The learned Subordinate Judge has rightly relied on the following passage in 1958-2 Mad LJ 585, 589, as applying to the facts of the present suits aptly and with considerable force :--
" When land liable to submersion is registered in the zamindar's accounts as patta (ryoti land) and there is no reason to suppose that the registration has been brought about improperly and with a view to avert the consequences of impending legislation, it would be of considerable evidentiary value in deciding whether the land is ryoti or patta land. Again, where the land has been shown to be continuously cultivated for a long period of years. Here one word of caution is necessary. It is customary in several parts of the State to allow ryots to cultivate beds of tanks during periods when water has receded in the tank and such cultivation will not interfere with the effective use of the tank as a source of irrigation. Such fugitive cultivation however, should not be treated as evidence that the land is patta land".
It could not be said that the cultivation of the suit land s by the plaintiff in these suit and their predecessors-in-title from long prior to the Madras Estates Land Act, 1908, coming into force is fugitive cultivation which can be attributed to inaction or connivance on the part of the landholder. Apart from the fact of cultivation of the lands from the beginning of the century, the predecessors-in-interest of the plaintiff had dealt with the suit properties by way of sale and obtained pattas from the landholder under Madras Act I of 1908. The plaintiff have mentioned in the plaints about the grant of patta by the landholder and the appellant has not pleaded in the written statements that such pattas were granted improperly without regard to the provisions of the Madras Seats Land Act.
8. In Gopala Chettiar v. Arasappa Pillai, 1940 Mad LJ 791 at p. 794 = (AIR 1940 Mad 523) it has been held that having regard to Chapter IV of the Madras Estates Land Act, a patta granted by a landholder in respect of a ryot's holding is strong prima facie evidence of title and, as pointed out by the Privy Council in Raja Srinath v. Maharaja Pratap, 1923 Mad WN 702 = (AIR 1923 PC 217) a patta granted by a zamindar to his ryot is practically a title deed to the latter in respect of his holding. Such a patta stands on a totally different footing from a ryotwari patta granted by the revenue authorities in respect of lands in a Government village, which is only a bill showing the assessment of the land and not a title deed. Thus there can be no doubt in this case that the suit lands were ryoti lands and they were not tank bed lands even at the commencement of the Madras Estates Land Act.
9. The learned Assistant Government Pleader referred to the finality of the orders of the Board of Revenue under Section 64-C of the Abolition Act. In State of Madras v. Ramaligasmigal Madam (1969) 2 Mad LJ 281,a Bench of this Court, to which one of us was a party, has held that the finality under Section 64-C of Abolition Act is only in respect of matters to be determined for the purpose of that Act, that the decision of a Settlement Officer whether a land is ryoti land or not is only for the purpose of granting a ryotwari patta and that it is only an incidental determination for the purpose of granting patta and hence Section 64-C of the Abolition Act cannot be held to bar a suit for declaration for title and injunction. The scope of the above decision has been considered at length by Natesan, J in S.A No.1773of 1964 (Mad), on the file of this court. It is really unnecessary to reiterate the several grounds on which the ratio of the above Bench decision is based. It is enough to refer to a few leading decisions as to the effect of such finality clause in similar provisions contained in the Madras Estates Land Act.
10. In Swaminatha Odayar v. Asan Md. Rowther, ILR (1947) Mad 505 = (AIR 1947 Mad 276)(FB) it has been held by a Full Bench of this Court that a Civil Court has the right to enquire into question of title to land forming part of an estate within the meaning of the Estates Land Act, and to give consequential relief, provided that the relief provided that the relief is not one in respect of which the revenue Court has exclusive jurisdiction. A reference to the Full Bench was made on account of the conflict of decisions between Apparao v. Gurraju, ILR 43 Mad 859 =(AIR 1920 Mad 558) and Raja Rajeswari Sethupathi v. Muthudayan, ILR 52= Mad 332 = (AIR 1928 Mad 1122). It is pointed out in the above Full Bench decision that the conflict is merely with regard to the effect of a decision of a revenue court on a suit filed subsequently in a Civil Court and what the Court had to consider in the case before the Full bench was whether the suit was one which fell within Section 189(3) of the Madras Estates Land Act. It has been pointed out in the decision that a perusal of the schedule to that Act makes it clear that it is not a suit which is triable by a revenue court, that the Civil Court has the right to enquire in to the question of title to land forming part of an estate within the meaning of the Estates Land Act and to give consequential relief provided that the relief is not one in respect of which the revenue court has exclusive jurisdiction.
11. In Venkatarama Rao v. Venkayya, 1954-2 Mad LJ 1,a reference was made to Full Bench to resolve the conflict between ILR 43 Mad 859 =(AIR 1920 Mad 558) and ILR 53 Mad 332 = (AIR 1928 Mad 1122) which was left open in the earlier Full Bench decision. It has been held in this decision that the decision of a revenue court as to occupancy right is not on a matter falling within its exclusive jurisdiction and therefore, it is not res judicata in subsequent civil proceedings.. The decision in ILR 52 Mad 322 = (AIR 1928 Mad 1122) was held to have been wrongly decided as it was opposed to a considerable body of judicial opinion as to the correct interpretation of Section 189(3) of the Madras Estates Land Act. On a proper interpretation of Section 189(3) of the Madras Estates Land Act, it has been held by the Full Bench that it is only in respect of disputes or matters exclusively within the jurisdiction of a revenue court that its decision would be binding on the parties in a subsequent civil proceeding and not its decision on incidental disputes or matters which arise in the course of an adjudication on disputes and matters falling exclusively within its jurisdiction.
12. In App.416 of 1946 on the file of this court, the suit was for declaration of title and permanent injunction. The plaintiff claimed title to certain property from the mittadar of the estate who was in possession of the property as his private property. The defendants in that suit, who were ryots, contended that the suit properly formed part of a tank-bed and therefore, the mittadar had no right to confer any rights on the plaintiff. It was held that the plaintiff was holding the land under a patta from the mittadar and was entitled to maintain the suit as against the defendants, who were infringing her right. It was argued on behalf of the defendants that the suit was not maintainable by reason of Section 20 of the Madras Estates Land Act which has prescribed a special procedure for deciding disputes with regard to the question whether the land was of the description mentioned under S. 3, clause 16 of the Madras Estates Land Act. It has been pointed out in that decision that Section 189 of the Madras Estates Land Act indicates that the dispute mentioned in Section 20 of that Act is not one of those disputes in regard to which the legislature intended to oust the jurisdiction of the Civil Court and that the plaintiff had an undoubted right to get a declaration of her title to the suit land in a Civil Court. It is true that by reason of Section 11 of the Abolition Act, the plaintiffs in those suits cannot invoke the jurisdiction of the Civil Court for obtaining a ryotwari patta, but they are certainly entitled to get a declaration of their title to safeguard their possession of the suit lands, which was left undisturbed by virtue of the provisions of the Abolition Act.
13. The only other contention urged before us by the learned Asst. Government Pleader is that the dismissal of the writ petitions filed by the plaintiffs would operate as res judicata in the present suits. In our opinion, the learned Subordinate Judge has rightly rejected this contention. It is true their Lordships of the Judicial Committee have repeatedly held that Section 11, Civil P. C. is not exhaustive of the circumstances in which an issue is res judicata and that although the section did not in terms apply, the plea of res judicata could be invoked. Thus it has been invoked in execution proceedings, writ proceedings etc. In Virudhunagar S. R. Mills Ltd. v. Govt. of Madras, the Supreme Court has pointed out that it is now
well-settled law that once a petition under Article 226 of the Constitution of India is dismissed it will operate as a bar to the petitioner seeking the same relief under Article 32 of the Constitution before the Supreme Court, and the principles of res judicata would apply to such cases. It is, however, pointed out in the decision that it is only an order on merits that would operate as a bar. In Joseph v. State of Kerala, it was held that where the decision in a petition under Article 226 of the Constitution was not given on merits, the same would not operate as res judicata for maintainability of an application under Article 32 for similar relief.
14. In Daryao v. State of U.P., , the Supreme Court
has pointed out that the general rule of res judicata is founded on and embodies principles of public policy and so is an essential part of the rule of law; it cannot therefore be argued that the rule is irrelevant or inadmissible in dealing with petitions under Art. 32 of the Constitution of India. It is clearly pointed out in the decision of the High Court will operate as res judicata in a subsequent petition under Art. 32 of the Constitution.
15. The question for consideration in these appeals is whether the decision in the writ petitions filed by the plaintiff will operate as res judicata in the subsequent suits filed by them. In Gulabchand v. State of Gujarat, , it has been held by the majority of the Judges that a decision in an earlier writ petition on merits will operate as res judicata in a subsequent suit involving the same questions and for same reliefs on the general principles of res judicata. The appellant in that case stood surety for various contractors and he filed a writ petition on the ground that he was discharged from his suretyship in respect of the said contractors since the State allowed the contractors to sell their properties. The writ petition was heard on merits and it was dismissed, and it held that the decision operated as res judicata in the subsequent suit filed by the appellant. It is clear from paragraph 24 of the judgment of the Supreme Court that it was urged for the appellant that in the writ petition the contention about the appellant's liability as a surety having come to an end was based on the terms of the contract, which was based on the conditions of auction sales between the appellant and the State of Baria while in the present suit the contention with respect to the cession of his liability as a surety was based on the auction rules. It has been held by the Supreme Court that the distinction sought to be made has no substance. Thus it is clear from the above decision that if a writ petition was disposed of on merits it would operate as res judicata in a subsequent suit between the same parties.
16. In Sobhag Singh v. Jai Singh, the question of res judicata arose under the following circumstances. The Board of Revenue rejected the claim of J to recognise him as the adopted son of S, a jagirdar of Thikana in the State of Jaipur on the ground that the previous sanction of the Government for the adoption was not obtained in accordance with the rules. But on the writ petition filed by J, the High Court set aside the order of the Board of Revenue on the ground that the Board should decide the validity of the adoption in accordance with general law and issued a writ of certiorari. The Supreme Court held that the decision of the High Court had become final and would operate as res judicata, though the High Court had wrongly refused to grant leave to appeal to the Supreme Court on the ground that it did not finally dispose of the matter. It has been held inUnion of India v. Nanak Singh, that the decision on the writ
petition challenging the order of termination of the temporary service of the petitioner will operate as res judicata in a subsequent suit filed by the said petitioner for a declaration that the termination was by an authority lower in rank than the competent authority. It should be noted that the writ petition was allowed in the first instance on the ground that the order terminating the employment of the petitioner amounted to imposing of punishment and it could not be done without affording him an opportunity to show cause against the action proposed to be taken in regard to him and that the officer who passed the order of dismissal was not competent to do so. In the writ appeal it was held that by the order determining the employment of the petitioner no punishment was imposed, but the other question was not considered as it was argued. The Supreme Court held that what operates as res judicata is the decision and not the reasons given by the court in support of the decision and that the decision in the writ appeal should be taken as rejecting both the grounds on which the writ petition was allowed. It is however pointed out in the decision that in order that the previous adjudication between the parties may operate as res judicata the question must have been heard and decided or that the parties must have an opportunity of raising their contentions thereon. Thus these decisions no doubt show that even a decision in writ proceedings could operate as res judicata in the subsequent suit.
17. We have already dealt with the question how far the finality of orders under Section 64-C of the Abolition Act are final and pointed out that the finality is only for the purposes of that Act and that they have no effect in a suit for declaration of title. The decision of the Settlement Officer whether a land is a ryoti land or not is an order passed in summary proceedings solely for the purpose of granting ryotwari patta. In Babu Bhagwandin v. Gir Har Saroop, 67 Ind App 1 at 5 = (AIR 1940 PC 7) the Privy Council has held that the decision of a District Judge on an application under Section 3 of the Charitable and Religious Trusts Act, 1920 for an order directing accounts to be furnished in respect of certain temple property is a decision in a summary proceeding which is not a suit or of the same character as a suit; it has not been made final by any provision in the Act; and the doctrine of res judicata does not apply, even in the case of a person who was a party to the proceedings on the application under the Act, so as to bar a regular suit, by persons claiming that the temple property was not impressed with a public trust, but was their private property.
18. The plaintiffs in these suits filed writ petitions for the issue of writs of certiorari to set aside the proceedings commencing with those of the Settlement Officer and ending with the orders of the Commissioner refusing to grant ryotwari pattas to them. The limited scope of these writ petitions is clear from the several observations made in the judgments in the writ petitions. Thus in the order and judgment in the writ petition filed by the plaintiff Balamonavala Reddiar, it is pointed out that in the writ proceedings under Article 226 of the Constitution, the jurisdiction of this court is very limited and that this court cannot embark upon a fresh investigation of facts. In fact, the decision proceeded on the ground that the suit lands once formed the bed of a tank. It is observed that mere cultivation of the lands is not sufficient to convert them into ryoti lands. Whether independently of the statutory rights to patta, the plaintiff could claim that he was not liable for eviction was not even made clear in those proceedings as would appear from the observations contained in the judgment.
19. In the judgment in the other writ petition filed by Angammal the limited scope of the writ proceedings has been made more clear. Thus it is observed, in the judgment that since the jurisdiction of this court under Art. 226 of the Constitution is very limited one, this Court has merely to verify whether the statutory authorities, particularly the Commissioner, had material on record to justify the conclusion that the lands were part of Chettikurichi small tank, A reading of the judgment in that writ petition shows that there was nothing wrong in the settlement authorities having proceeded on the footing that the suit lands formed part of the tank. In fact there is a comment in the judgment about the paucity of evidence. Sale deeds, pattas and the other records produced in the suits do not appear to have been filed in those writ proceedings, evidently on account of the fact that the Assistant Settlement Officer issued ryotwari pattas to the plaintiffs in the first instance and the Settlement Officer took action suo motu. These writ petitions were disposed of by Rajagopalan, J. and Balakrishna Iyer, J. Rajagopalan, J. in Thiruvaduthurai Mutt v. Estates Abolition Tribunal, 1956-1 Mad LJ 382 dealt with the contention urged before him that this court should not interfere with the findings of the Estates Abolition tribunal in exercise of its jurisdiction under Article 226 of the Constitution because the petitioner had other remedies open to him and he could file a suit to establish his claim. But he proceeded to quash the order in that case on the ground that an error apparent on the face of the record could be rectified in the exercise of the powers vested in the court by Article 226 of the Constitution.
20. In P. D. Sharma v. State Bank India, it has been held by the Supreme Court that the scope of an appeal under Article 136 of the Constitution in proceedings arising under the Industrial Disputes Act is much wider than a petition under Article 226 of the Constitution, that in such an appeal under Article 226 of the Constitution the Supreme Court can go into questions of fact as well as law whereas the High Court in the writ petition could have only considered questions which would have been strictly relevant in an application for a writ of certiorari and that an appeal under Article 136 of the Constitution against an order can succeed even if no case is made out to issue a writ of certiorari and hence no question of res judicata arises. The principle of this decision could be clearly invoked on the facts of the present case. The decision of this Court on the writ petitions filed by the plaintiffs went against them mainly on account of the limited jurisdiction of this court in the writ proceedings, namely to see whether there was an error apparent on the face of the record in the orders of the Settlement Officer in refusing to grant patta to the plaintiffs. The decisions are not based on all the materials which were considered in the subsequent suits filed by the plaintiffs. In fact, there can be no question of res judicata so long as the parties have a right to a suit to establish their title which could not be lawfully taken away by summary proceedings under the Abolition Act intended merely to determine the question about the grant of ryotwari patta.
21. For the foregoing reasons, we find that the decisions in the writ proceedings cannot operate as res judicata in these suits.
22. In the result, the decrees and judgments in O. S. Nos. 13 and 26 of 1962, on the file of the Subordinate Judge's Court, Sivaganga are correct and they are confirmed and the appeals are dismissed with costs.
23. Appeals dismissed.