REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOs.7184-7185 OF 2001       

Ramchandra Dagdu Sonavane (Dead) by L.Rs. & Ors.                                                                                   …….Appellants

Versus

Vithu Hira Mahar (Dead) by LRs. & Ors.                          ……..Respondents  

   JUDGMENT  

H.L. Dattu,J.  

                        These appeals are directed against a common  judgment and  

order  passed  by  the  High  Court  of  Judicature  at  Bombay  in  Writ  

Petition No.3667 of 1985 and Second Appeal No.87 of 1986 dated  

01.7.1999, whereby and whereunder the writ petition and the second  

appeal  filed  by  the  respondents  herein  are  allowed  and  the  order  

passed by Additional Commissioner in Appeal No. A/WIN/SR/9/80  

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dated 6.4.1985 and the judgment and decree passed by the trial court  

in  Civil  Suit  No.  2353 of  1979 dated  10.2.1984 and confirmed in  

Appeal No. 535 of 1984 dated 18.6.1985 are set aside.    

2) To appreciate the contentions of the parties, the facts in extenso requires  

to be noticed and they are:-  The suit land was of the category of Mahar  

Watanlands situated in village Pimpre Khurd, Purandhar Taluk, District  

Pune.   The suit  lands  originally  belonged to  Ramabai,  wife  of  Pandu  

Sonawane and Radhabai wife of Sawale Sonavane.  Both of them did not  

have any issues.  The appellants had claimed that  their forefathers were  

the nearest relatives of both the ladies and the property being watanlands,  

the same vested in them.  The appellants had further claimed that Vithu  

Hira  Mahar  (for  short  `Vithu’)  had  no  right,  title  or  interest  in  the  

watanlands,  however,  was  cultivating  the  suit  lands  after  getting  the  

entries  made  in  the  records   of  rights.   It  was  the  case  of  the  

plaintiffs/appellants before the trial court, that, when it came to the notice  

of  respective  fathers  of  the  plaintiffs,  as  well  as  plaintiff  No.2,  an  

application  dated  14.08.1940,  was  filed  before  the  District  Deputy  

Collector  for  resumption  of  watanlands  which  were  in  possession  of  

Vithu.  In the application filed, it was the stand of the applicants that they  

were the nearest relatives of Ramabai and that Vithu got his name entered  

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in the record of rights fraudulently after the death of Ramabai. They had  

further  contended  that  Vithu  is  an  outsider  and  belongs  to  different  

family and as such his name could not have been entered in the Peta  

Account  Book.  After recording the statement  of both the parties,  the  

Deputy District Collector had passed an order dated 18.06.1941, directing  

the suit lands be returned to the applicants on the ground that the entries  

in the Peta Account Book made in Vithu’s name pursuant to an order said  

to have been passed in the year 1931 was not traceable and therefore,  it  

is not clear how the name of a person not connected with the family of  

Watandar was entered in the cash allowance register and, therefore, the  

watanland requires to be resumed and handed over to the applicants who  

are the nearest family members of the deceased Watandar and further had  

directed that the circumstances under which Vithu’s name came to be  

entered in the revenue records was suspicious and the same should be  

investigated.

3) Vithu  (respondent  no.1)  was  the  grandson  of  Ramabai.   It  is  his  

assertion that  he had filed an application on 16.07.1931 before the  

Mamlatdar under Section 15 and 18 of the Bombay Hereditary Office  

Act, 1874, to recognize him as the Watandar with respect to the suit  

lands.  The Mamlatdar said to have passed an order dated 22.10.1931  

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in  favour  of  Vithu  under  Section  15  and  18  of  the  said  Bombay  

Hereditary Office Act, to enter  his name in the Peta Account Book, in  

the place of Ramabai after declaring that Vithu was the adopted son of  

Ramabai.   

4) Sometime  in  the  year  1953,  the  appellants  had  filed  a  suit,  O.S.  

No.104 of 1953, against Vithu and others for an order of permanent  

injunction before the Court of Civil Judge, Junior Division, Saswad,  

to restrain Vithu and the other respondents from interfering with their  

peaceful possession of the suit land, on the ground that the Deputy  

District Collector had passed an order in their favour and that Vithu  

and others were obstructing their peaceful possession of the suit land.  

The appellants had also based their claim on the finding arrived at by  

the Collector of Pune in his order dated 18.6.1941,  that they were the  

representative of Watandars with respect to the suit land. Vithu and  

the other respondents had resisted the relief sought in the suit, inter-

alia contending that there was an earlier suit filed by the appellants  

against their tenant to whom the suit land had been leased and they  

have  not  obtained  valid  permission  to  withdraw  the  said  suit  and  

therefore the present suit is barred by res judicata. The Trial Court in  

its judgment and decree after considering the rival contentions of the  

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parties  to  the  lis,  had  concluded,  apart  from others,  that  the  Prant  

Officer  had  issued  a  notice  in  1951 to  the  respondents  restraining  

them from obstructing the vahiwat of the appellants; that the doctrine  

of res judicata did not apply as the previous suit filed by the appellants  

was different from the present suit. The trial court while considering  

the other rival contentions of the parties had specifically framed the  

following  two  important  issues  for  its  consideration  and  decision.  

They were:

         (i) Do the plaintiffs prove that they were in possession of the  

suit  property as Watandars as alleged?

         (ii) Do defendants prove that defendant no.1 (Vithu) was he  

adopted son of his grandmother and as such was in possession  

of the suit property?

5) The  trial  court  after  considering  the  pleadings  and  the  oral  and  

documentary evidence on record had answered the first issue in the  

affirmative and the second issue in the negative. In so far as the first  

issue, the trial Court had concluded that the plaintiffs are in possession  

of the suit lands as Watandars. While answering the second issue of  

adoption, the trial court  had observed, that,  even though Vithu had  

stated in the cross examination that he had the necessary documents to  

prove the adoption, the same was never produced, and the testimony  

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of the Vithu and his witnesses with regard to the year of adoption was  

inconsistent. Therefore the trial court held that the adoption of Vithu  

had not been proved. Accordingly, the trial court had decreed the suit  

and  thereby  had  permanently  restrained  the  respondents  from  

obstructing the Vahiwat of the plaintiffs/appellants in the suit lands.   

6) Vithu, being aggrieved by the judgment and decree passed by the trial  

court  in O.S. No.104 of 1953 dated 24.10.1955, had preferred first  

appeal  before  the  District  Court,  Pune  in  Civil  Appeal  No.578  of  

1955.   The said appeal  was dismissed  by the  District  Court  by its  

order dated 22.02.1958, by confirming the findings of the trial court.

7) Being aggrieved by the said order,  Vithu had approached the High  

Court  in  Second  Appeal  No.962  of  1958.  In  the  appeal,  it  was  

contended that, in the year  1931, Mamlatdar of Purandar had held an  

inquiry under the Watan Abolition Act in which Vithu was recognized  

as a representative Watandar and that order had attained finality, since  

neither  the  appellant  nor  any other  person had questioned the said  

order  before any forum within the period of limitation.  The court  

declined to answer this contention mainly on two grounds.  Firstly,  

this issue was never raised in the trial court nor before the appellate  

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court and the same cannot be permitted to be raised and argued for the  

first time in second appeal, since the issue is purely a question of fact,  

though it is sought to be raised as a question of law.  The court had  

also taken note of the fact, that, the order said to have been passed by  

Mamlatadar in the year 1931 was not produced, for the reason that the  

record for the relevant year had been destroyed.  The second issue that  

was also not entertained by the court was the reference made to 1931  

order in the order made by the Deputy District Collector dated 21st  

August, 1941, by which the appellants/plaintiffs were recognized as  

the  representative  of  Watandar  in  an  enquiry  held  under  Watan  

Abolition Act, on the premise that, the same is raised for the first time  

in second appeal and it cannot be permitted, since answer to that issue  

requires the factual foundation before the trial court.  Ultimately, the  

court had observed that the only issue that was agitated before the trial  

court was, whether Vithu was the adopted son of Pandu Mahar or not  

and since  there  was  concurrent  finding  by  the  trial  court  and first  

appellate court and since that finding does not appear to be perverse  

finding, it is not  possible to interfere with the findings of fact and,  

accordingly,  had  dismissed  the  second  appeal  by  its  order  dated  

20.10.1964.

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8) The  appellants  during  the  pendency  of  the  proceedings  before  the  

High Court had filed application for regrant of watanlands under the  

provisions  of  the  Bombay  Inferior  Village  Watans  Abolition  Act,  

1958, before the Collector who is the competent authority under the  

Act,  to  decide  the  question  whether  any  land  is  watan  land  and  

whether  any  person  is  Watandar.  The  Collector  after  holding  an  

inquiry had passed an order dated 03.6.1963, regranting the suit lands  

in favour of the appellants.

9) It  is  pertinent  to  note  at  this  stage  itself,  that,  Vithu had made an  

application dated 24.5.1941 to the Mamlatdar, requesting for a supply  

of the certified copy of the order passed in his favour, recognizing him  

as the Watandar with respect to the suit land in the year 1931. By a  

reply  dated  15.6.1941,  the  Mamlatdar  had  informed  him  that  the  

concerned  papers  had  been  destroyed  previously  and  therefore  

certified copy of the same cannot be supplied.  

10) Vithu had filed another application in the year 1976, requesting for  

supply of certified copies of the order passed in the year 1931 before  

Mamaltadar.  After  obtaining the xerox copy of  the said order,  had  

filed application before the State Government, inter-alia stating that he  

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had been dispossessed on the basis of not being in possession of the  

relevant documents relating to the 1931 order passed in his favour by  

the Mamlatdar after holding an inquiry under Section 15 and 18 of the  

Bombay Hereditary Offices Act, 1874, and, therefore, had requested  

the State Government to direct the Collector to initiate proceedings to  

regrant  and restore possession of suit land.  

11)   Pursuant  to the direction  issued by the State  Government,  the Sub  

Divisional  Officer,  Baramati  Division,  (hereinafter  referred  to  as  

`SDO’), had made an inquiry under Section 3(1)(b) of the Bombay  

Inferior Village Watan Abolition Act, 1958 (hereinafter referred to as  

the Watan Act) to decide as to who was the rightful Watandar with  

respect to the suit land. The SDO relying on the xerox copy of the  

order passed in the year 1931 by the Mamlatdar, which according to  

him conclusively proves, that, Vithu was the adopted son of Ramabai,  

in spite of the contention of the appellants that the civil court in O.S.  

No. 104 of 1953 has concluded that he was not the adopted son of the  

deceased Watandar.  The SDO had also observed in his order, that the  

finding of the trial court which was affirmed by the High Court, was  

for the reason that Vithu was unable to produce the order passed by  

Mamlatdar  dated 22.10.1931,  and the  findings  and the conclusions  

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reached by the civil court will not have any bearing in a proceeding  

under the provisions of Bombay Inferior Village Watan Abolition Act,  

1958. Accordingly, had allowed the claim of Vithu and had declared  

that Vithu was the watandar of the suit lands.

12) The appellants being aggrieved by the order passed by the SDO dated  

22.11.1979,  had  preferred  an  appeal  before  the  Additional  

Commissioner and also had filed a civil suit, O.S. No.2353 of 1979  

before the Civil Judge, Junior Division, Pune, for a declaration that  

the  said  order  of  the  SDO  was  illegal  and  void  ab  initio.  The  

appellants  had  also  prayed  for  permanent  injunction  against  the  

respondents from taking possession of the suit lands.  

13) The trial court while passing the judgment and decree in the suit filed  

by the  appellants  has  noticed that,  once the  issue of  adoption was  

conclusively decided by the civil  court  in the suit  filed in the year  

1953 by the appellants against Vithu, the same would operate as res-

judicata and thereby preclude Vithu from raising the issue of adoption  

again  before  the  Sub  Divisional  Officer.   Secondly,  ignoring  the  

judgment and decree passed by the civil  court,  the SDO could not  

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have allowed the claim of  Vithu and recognized him as  watandar,  

since he was not the adopted son of deceased watandar.

14) The  Additional  Commissioner,  Pune  Division,  by  his  order  dated  

06.04.1985, had allowed the appeal and had set aside the order passed  

by  Additional  Commissioner  in  view  of  the  judgment  and  decree  

passed by the civil court in O.S. No. 2353 of 1979.  

15) Being aggrieved, the respondents had filed first appeal before District  

Court, Pune, in Civil Appeal No.535 of 1984. The primary contention  

of the respondents was that, the order passed by the SDO under the  

Act was binding on the civil courts and therefore, civil court has no  

jurisdiction  to  decide  the  matter  of  Watandari  rights.  Further  the  

findings  of  the  civil  court  in  the  earlier  round   of  litigation  with  

respect to adoption of Vithu is not conclusive and in fact it was left  

open to be investigated. Since the SDO has decided the matter in the  

light  of the documents  which Vithu managed to obtain in the year  

1976, the finding is conclusive and binding on the parties. The first  

appellate court after a detailed consideration of the issues raised had  

dismissed the appeal by its order dated 18.06.1985.

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16) Being aggrieved by the findings of the lower appellate court, Vithu  

and others had filed a second appeal under Section 100 of Code of  

Civil Procedure, 1908, before the High Court.  Simultaneously, they  

had  also  filed  a  writ  petition  against  the  order  passed  by  the  

Additional Commissioner, Pune Division, dated 06.04.1985.

17) The primary contention of the respondents before the High Court was  

that, when Vithu initiated proceedings before the SDO for declaration  

of his Watandari rights, Vithu had in his possession the documents of  

the  proceedings  before  the  Mamlatdar  in  the  year  1931,  which  

included  the  order  of  Mamlatdar  who  had  recognized  Vithu  as  

watandar of the suit lands,  being the adopted son of Ramabai and  

since the Deputy District Collector had in his order dated 18-6-1941,  

had  kept  open  the  issue  regarding  status  of  Vithu,  the  SDO  was  

justified  in  allowing  the  application  of  Vithu  and  conferring  upon  

Vithu the rights of Watandar in respect of the suit lands.  Secondly,  

the subject matter in both the suits are not identical. While the Suit  

filed  in  the  year  1953,  the  only  relief  that  was  sought  for  was  

permanent injunction, restraining Vithu and others from obstructing  

peaceful possession of the appellants and the relief that was prayed in  

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the Suit filed in the year 1979 was to set aside the order passed by  

Sub-Divisional officer dated 22.11.1979.  

18) To answer the aforesaid contentions,  the High Court has observed,  

that, no relief of declaration that Vithu was not the adopted son of  

Ramabai was claimed by the respondents in the civil suit filed in the  

year 1953. Further, in a suit for injunction the only question that was  

relevant and important was about the possession and as such the other  

questions  raised  by  Vithu  in  defence  was  only  an  incidental  and  

ancillary question. The High Court has further relied on the law laid  

down by this court, that the issue of res judicata was to be decided on  

the basis of the pleadings produced by the parties in the earlier suit  

and not by mere recitals of the allegations in the judgment. Therefore  

in  the  absence  of  the  pleadings  of  the  previous  suit,  the  lower  

appellate court had erred on deciding the issue of res judicata on the  

basis of recitals of allegations in the judgments of the 1953 suit. The  

High  Court  has  also  observed  that  the  jurisdiction  of  deciding  

wantandari rights are vested in the revenue authorities, and therefore,  

finding  of  the  civil  court  in  the  1953  suit  will  not  operate  as  res  

judicata in the 1979 suit.  

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19)    Before the High Court, it was also contended that the civil court had  

no  jurisdiction  to  decide  the  Watandari  rights  by  virtue  of  the  

provisions of The Bombay Inferior Watans Abolition Act, 1958, The  

Bombay  Hereditary  Offices  Act,  1874,  and  The  Bombay  Revenue  

Jurisdiction Act,  1876. Section 3 of the Bombay Watans Abolition  

Act,  1958, lays down that if a question arises,  whether any land is  

watan land, whether any person is a Watandar or whether any person  

is an unauthorised holder, the Collector shall decide the question after  

holding an inquiry. As per sub-section (2) right of appeal is provided  

to  the  State  Government  and  sub-section  (3)  lays  down  that  the  

decision  of  the  Collector,  subject  to  an  appeal  shall  be  final.  The  

contention  by  the  counsel  for  the  respondents  was  that  even  if  a  

watanship is abolished by this Act, the Collector was still empowered  

to make an enquiry under section 3(1)(b) as to whether a person is a  

Watandar and to evict an unauthorised holder under section 9 of the  

Act. The contention raised by the appellants was that after abolition of  

Watandari rights, Collector had no power firstly to recognise Vithu as  

Watandar being adopted son of Ramabai and secondly the Collector  

had no power to evict the respondents who were authorized holders of  

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suit  lands  pursuant  to  the  order  passed  by  the  Deputy  District  

Collector dated 18.6.1941.  

20) The  High  Court  after  referring  to  the  relevant  provisions  has  

concluded, that the decision of the Collector regarding a person being  

Watandar or an adopted son of Watandar is made final and conclusive  

and therefore, it is the Revenue Court alone which was competent to  

decide the right  of Vithu as a Watandar of the suit  land being the  

adopted son of Ramabai. Accordingly, has allowed the second appeal  

and the writ petition, by setting aside the judgment and decree passed  

by the trial court in O.S. No.2353 of 1979 dated 10.02.1984 and the  

judgment of the lower appellate court in Appeal No.535 of 1984 dated  

18.06.1995 and the order passed by Additional Commissioner dated  

06.04.1985. The common judgment passed by the High Court is the  

subject matter of these appeals.

21) We have heard learned counsel Shri Vinay Navare for the appellants  

and  Shri  Shekhar  Naphade,  learned  senior  counsel  for  the  

respondents.   The learned counsel for the appellants has submitted,  

that,  the  civil  court  in  a  properly  constituted  suit  has  decided  that  

Vithu is not the adopted son of deceased Watandar and that finding  

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has become final in view of the order passed by the High Court in the  

regular  second  appeal  filed  by  Vithu  and,  therefore,  the  revenue  

authorities could not have examined and decided the issue of adoption  

once over again.  It is further submitted that the High Court was not  

justified in relying on the order passed by the Mamlatdar in the year  

1931, which was discarded both by the trial  and the first  appellate  

court,  on  the  ground  that  Vithu  had  failed  to  adduce  oral  and  

documentary evidence in support of his claim that he is the adopted  

son of the deceased Watandar. It is further contended that the Sub-

Divisional Officer had no jurisdiction under the Act, to review and  

modify  the  regrant  order  passed  by  the  Deputy  District  Collector  

under  Section  5(1)  of  Watan  Abolition  Act,  1958.   It  is  further  

submitted that the issue regarding adoption decided by the civil court  

and  confirmed  by  the  High  Court  in  the  regular  second  appeal  

between the same parties operates as res-judicata and, therefore, the  

High  Court  was  not  justified  in  re-examining  the  same  issue  and  

taking a different view in the matter.  It is also submitted that the High  

Court erroneously has  come to the conclusion that the subject matter  

of 1953 suit and 1979 was different and, therefore, Principles of re-

judicata   are not attracted.  

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22) Per  contra,  learned  senior  counsel  Shri  Shekhar  Naphade  for  the  

respondents would submit, that, Vithu without proving the issue of  

adoption,  can  still   be  Watandar  in  view of  the  specific  provision  

under the provisions of The Bombay Hereditary Offices Act, 1958.  

The learned counsel would further contend that, the Bombay Revenue  

Jurisdiction Act, 1876, the Bombay Hereditary Offices Act, 1958 and  

the Bombay Inferior Village Watans Abolition Act, 1958, constitute  

one code and therefore those Acts must be read together and not in  

isolation.  The learned senior counsel would also submit that the order  

passed by the Mamlatdar dated 22.10.1931, on the application filed by  

Vithu cannot be faulted, even assuming there was some defects in the  

procedure adopted at the time of adoption of Vithu  by his adopted  

parents.  In support of this contention, the learned counsel has placed  

reliance on the observations made by this Court in the case of L. Devi  

Prasad (Dead) by L.Rs. Vs. Smt. Triveni Devi and Others (AIR 1970  

SC 1286).  The learned senior counsel would further contend, that, the  

order  passed in the year  1931, is  not  annulled or  modified by any  

forum and, therefore, the full effect must be given to that order.  It is  

further contended that the order passed by the authorities under the  

Bombay Hereditary  Offices  Act,  1874 sometime  in  the  year  1941,  

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recognizes the order passed in the year 1931 and therefore, there is no  

reason  to  disbelieve  the  existence  of  1931  order  passed  by  

Mamaltadar.   It  is  further  submitted  that  all  the  authorities  have  

decided  against  the  respondent  on  the  basis  of  the  judgment  and  

decree  passed  by  the  trial  court  in  the  original  suit  filed  by  the  

appellants in the year 1953, without realising the doctrine of principle  

of res judicata is not attracted both on the procedural stand point as  

well as substantive law point as the issue of recognition of Watandar  

was within the exclusive jurisdiction of the authorities under Watan  

Abolition  Act,  1958,  and  other  cognate  Acts.   Alternatively,  it  is  

contended  that  since  civil  court  had  no  jurisdiction  to  decide  

Watandari rights, any decision rendered by the civil court on that issue  

would  not  operate  as  res  judicata  in  any  subsequent  proceedings.  

While summing up his submissions, the learned senior counsel would  

contend,  that,  since  the  reasoning  adopted  by  the  High Court  is  a  

possible view, the same need not be interfered with by this Court in  

exercise of its power under Article 136 of the Constitution of India.

23) Mr. Sushil Karanjkar, learned counsel appearing for some of the legal  

representatives of deceased respondent would submit, that, the order  

passed  by  the  competent  authority  in  the  year  1931  was  after  

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following the procedure prescribed under Section 15 and 18 of the  

Bombay Hereditary Offices Act, 1874, and since that order has not  

been challenged by the appellants in any proceedings at any point of  

time, the same must be given effect to.  It is further contended that  

SDO in the year 1979 while reviewing the order passed in the year  

1941,  had  relied  upon  xerox  copies  of  the  order  recognizing  the  

respondent as Watandar in the year 1931 and since the appellants had  

not objected to the production of the xerox copies and based on those  

records and documents, the SDO has rightly passed an order in the  

year 1979, recognizing the respondent as Watandar of the suit lands  

and, therefore,  the learned counsel submits that the High Court was  

justified in setting aside the order passed by the Appellate Court and  

also the Additional Commissioner.

24) Questions of Law :- The following questions of law would arise for  

our consideration and decision:  

i) Whether  the  provisions  of  Bombay  Hereditary  

Offices Act, 1874 and Bombay Inferior Village  

Vatan  Abolition  Act,  1858,  exclude  the  

jurisdiction of the Civil Court under Section 9 of  

the Code of Civil Procedure to decide the plea of  

19

adoption  and,  consequently,  Watandari  rights  

under the Act?  

ii) Whether  the  Judgment  and  Decree  in  O.S.  

No.104/1953 holding that the respondent – Vithu  

was  not  the  adopted  son  of  the  deceased  

Watandar would be binding on the parties in the  

subsequent suit and other proceedings?  

iii) Whether the Judgment and Decree passed in O.S.  

No.104 of 1953 would operate as res judicata in  

subsequent  proceedings,  including  the  

proceedings before the High Court in the second  

appeal and writ petition filed by the respondents?  

iv) Whether  the  order  passed  in  the  year  1941,  

holding that the plaintiffs are the representatives  

of  Watandars,  accepted  by  the  High  Court  in  

Regular Second Appeal No.962 of 1958, would  

debar  the  right  of  the  respondent-Vithu  in  

approaching the State Government in re-agitating  

the matter?   

v) Whether the State Government disregarding the  

decision of the Civil Courts in earlier Suits and  

the  Judgment  and  Decree  passed  therein  was  

justified in directing the Sub-Divisional  Officer  

(SDO) to decide the matter afresh?   

20

vi) Whether the Sub-Divisional Officer was justified  

in passing the order dated 22.11.1989, despite the  

Judgment and Decree of the Civil  Court  in the  

year  1953  and  the  order  of  regrant  passed  in  

favour  of  the  appellants  under  Section  5(1)  of  

Watan Abolition Act, 1958 dated 03.6.1963?    

25)Law regarding Watanland and Scheme of Bombay Hereditary Offices  

Act, 1874 :-  The Bombay Hereditary Offices Act, 1874 (the `Act’ for  

short) is an act to amend the law relating to Hereditary Offices. It extends  

to the Regulation Districts and to all villages therein, whether alienated  

or otherwise. Section 4 of the Act is the interpretation clause. Under the  

Act, `Watandar’ means a person having an hereditary interest in a watan.  

It includes a person holding watan property acquired by him before the  

introduction of the British Government into the locality of the watan, or  

legally acquired subsequent to such introduction, and a person holding  

such property from him by inheritance.  It includes a person adopted by a  

owner of a watan, subject to the conditions specified in Section 33 to 35  

of the Act.   Section 64 of the Act empowers the Collector subject to  

general  control   of  the  State  Government,  to  register  the  names  of  

individual Watandars as holders of the office or to register it as held by  

the  whole  body  of  Watandars.   The  collector  is  also  empowered  to  

21

amend the entry in the register, when he is satisfied that a person who  

produces a decree or order of the competent court is entitled to have his  

name entered in the register as nearest heir of a deceased Watandar in  

preference to the name of a person already entered in the said register as  

such heir, provided that the said order or decree is produced within six  

years of the date of the entry in the said register sought to be amended.  

Under  sub-section  (3)  of  Section  64,  the  Collector  is  empowered  to  

delegate  to  the  Mamlatdar  or  Mamlakari  to  register  the  names  of  

individual  Watandars  as  holders  of  the  office.  Apart  from  other  

functions, the Mamlatdars or Mamlakaris are empowered to pass orders  

in regard to the appointment, remuneration, period of office etc.

26)Scheme of the Bombay Inferior Village Watan Abolition Act, 1958: The  

object of the Watan Abolition Act is to provide for abolition of inferior  

village watans prevailing in certain parts of State of Bombay. Section  

2(XI) of the Act, defines the meaning of the expression “Watandar” to  

mean  a  person  having  hereditary  interest  in  an  inferior  village  watan  

under  the  existing  watan  law.  Section  3  of  the  Act  empowers  the  

Collector to decide whether any land is watan land, whether any person  

is Watandar, whether any person is an unauthorized holder after holding  

an inquiry and after affording an opportunity of hearing to the parties  

22

who may be affected by the order.  Any person aggrieved by an order  

passed under sub-section (1), may file an appeal to the State Government  

within the time limit prescribed.  The decision of the Collector, if not  

appealed,  and  the  decision  of  the  State  Government  shall  be  final.  

Section 4 of the Act provides for abolition of inferior watans together  

with incidents thereof.   Section 5 of the Act, provides for Regrant of  

watanlands  to  holders  of  watan  on  fulfilling  certain  conditions  by  

Watandars.  

27)Scheme of the Bombay Revenue Jurisdiction Act, 1876 :  The object of  

the Bombay Revenue Jurisdiction Act, 1876, is to limit the jurisdiction of  

the civil courts throughout the Bombay Presidency in matters relating to  

land revenue and for other purposes. Section 4 of the Act, specifically  

puts  an  embargo  on  the  civil  courts  in  exercising  its  jurisdiction  in  

matters  where claims against  the government  relating to any property  

appertaining  to  the  office  of  any  hereditary  officer  appointed  or  

recognized under Bombay Act No. III of 1874.  Section 5 of the Act, is  

an exception  to Section 4 of the Act.  Section 5(b) of the Act authorizes  

the civil courts from entertaining the suits between private parties for the  

purpose of establishing any private right, although it may be affected by  

any entry in any record of revenue survey or settlement or in any village  

23

papers.  However, the said suit can only be entertained in the districts  

mentioned in Second Schedule.   

28)Our Analysis :-  Under Section 3 of the 1958 Act, the power is conferred  

on  the  Collector  to  decide  the  rights  regarding watanlands.  Watandar  

means a person having hereditary interest  in an inferior village watan  

under the existing watan law.  The Collector can only decide whether a  

person has got a hereditary interest in an inferior village of watan under  

the existing watan law.  The learned counsel for the appellant contends  

that after the Bombay Inferior Village Watans Abolition Act, 1958 was  

notified on 20.1.1959, the appellants had approached the Collector with a  

request to regrant the watanlands, since they are holders of watan and  

pursuant to the request made, the Collector had passed an order dated  

03.6.1963 in exercise of his powers under Section 5(1) of the Act, and if  

any person was aggrieved by that order, could have filed an appeal as  

provided under the Act within the time limit prescribed. Since that was  

not done by any person including Vithu, that order has become final and,  

therefore,  the  Sub-Divisional  Officer  could  not  have  entertained  the  

application filed by Vithu in the year 1979 and further could not have  

passed any order under Section 5(1) of the Act.

24

29)We have seen the scheme of the Act.  Section 3 of the Act authorizes  

the Collector  to decide any question as  to whether  any land is  watan  

land; whether any person is a Watandar; and whether any person is an  

unauthorized holder. The order passed by the Collector can be subject  

matter of appeal before the State Government. The order passed by the  

Collector, if in case no appeal is filed, and in case appeal is filed then the  

order passed by the State Government in the appeal, is final. Section 5 of  

the Act speaks of regrant of watanlands to the holders of watan subject to  

fulfillment  of  certain  conditions  provided  in  the  Section  itself.  It  has  

come on record, that the appellants after the Act was notified had filed an  

application for regrant of watanlands, since they were holders of watan  

pursuant to an order passed by Deputy District Collector dated 18.6.1941  

and the District Collector after necessary inquiry had passed an order of  

regrant dated 03.6.1963 of the suit lands in favour of the appellants under  

Section  5(1)  of  the  Watans  Abolition  Act,  1958,  and  that  order  has  

become final, since nobody had questioned the same before any forum.  

The  Act  does  not  provide  for  the  review of  the  regrant  order  nor  it  

provides denovo enquiry to decide whether any person is a Watandar.  

Therefore, we agree with the submission of the learned counsel for the  

appellants that the Sub-Divisional Officer could not have entertained the  

25

application  filed  by  the  respondents  in  the  year  1979  for  regrant  of  

watanlands, since the Act does not provide for review of any earlier order  

passed under Section 5(1) of the Act.  

30)Question regarding adoption :- As regards whether there is valid adoption  

or  not,  that  question  pertains  to  the  status  and  legal  character  of  an  

individual, which falls within the purview of Section 34 of the Specific  

Relief  Act,  1963,  and  a  suit  for  declaration  before  a  civil  court  is  

maintainable.  Therefore,  the  question  whether  a  particular  person  has  

been given in adoption or  not  is  different  from whether  a  person has  

hereditary  interest  or  rights  in  respect  of  a  watan  property.   If  this  

distinction  is  drawn,  there  is  no  exclusion  of  civil  courts  jurisdiction  

under the Act.  When a person claims on the basis of adoption, such an  

adoption cannot be decided by the Collector as the same involves legal  

status/character of a person which can only be decided by the civil court.  

Whether Vithu is an adopted son or not is concluded and decided in O.S.  

No.104 of 1953.  A specific issue had been framed and a finding was  

recorded though it was a suit for injunction and the findings on this issue  

has been confirmed by the Appellate  Court and by the High Court in  

Regular Second Appeal.   

26

31)Res-judicata and Code of Civil Procedure :-  It is well known that the  

doctrine of res- judicata is codified in Section 11 of the Code of Civil  

Procedure.  Section 11 generally comes into play in relation to civil suits.  

But  apart  from  the  codified  law,  the  doctrine  of  res-judicata  or  the  

principle of the res-judicata has been applied since long in various other  

kinds of proceedings and situations by courts in England, India and other  

countries.   The  rule  of  constructive  res-judicata  is  engrafted  in  

Explanation IV of Section 11 of the Code of Civil Procedure and in many  

other  situations  also  Principles  not  only  of  direct  res-judicata  but  of  

constructive res-judicata are also applied, if by any judgment or order any  

matter  in  issue  has  been  directly  and  explicitly  decided,  the  decision  

operates  as  res-judicata  and  bars  the  trial  of  an  identical  issue  in  a  

subsequent proceedings between the same parties.  The Principle of res-

judicata comes into play when by judgment and order a decision of a  

particular issue is implicit in it, that is, it must be deemed to have been  

necessarily  decided  by  implications  even  then  the  Principle  of  res-

judicata  on  that  issue  is  directly  applicable.  When  any  matter  which  

might and ought to have been made a ground of defence or attack in a  

former proceeding but was not so made, then such a matter in the eye of  

law, to avoid multiplicity of litigation and to bring about finality in it, is  

27

deemed to have been constructively in issue and, therefore, is taken as  

decided [See AIR 1978 SC 1283].  

32)In  Swamy  Atmandanda  vs.  Sri  Ramakrishna,  Tapovanam [(2005)  10  

SCC 51], it was held by this court :  

“26. The  object  and  purport  of  the  principle  of  res  judicata  as  contended  in  Section 11 of the Code of Civil Procedure  is to uphold the rule of conclusiveness of  judgment, as to the points decided earlier  of  fact,  or of  law, or of fact and law, in  every subsequent suit between the same  parties.  Once  the  matter  which  was  the  subject-matter of lis stood determined by  a competent court, no party thereafter can  be permitted to reopen it in a subsequent  litigation. Such a rule was brought into the  statute-book  with  a  view  to  bring  the  litigation to an end so that the other side  may not be put to harassment.

27. The principle of res judicata envisages  that a judgment of a court of concurrent  jurisdiction  directly  upon  a  point  would  create a bar as regards a plea, between  the same parties in some other matter in  another court, where the said plea seeks  to  raise  afresh  the  very  point  that  was  determined in the earlier judgment.”

33)When the material issue has been tried and determined between the same  

parties in a proper suit by a competent court as to the status of one of  

them in  relation  to  the  other,  it  cannot  be  again  tried  in  another  suit  

between them as laid down in Krishna Behari Roy vs. Bunwari Lal Roy  

reported in [1875 ILR (IC-144)], which is followed by this Court in the  

28

case of Ishwar Dutt  Vs. Land Acquisition Collector & Anr. [(2005) 7  

SCC 190], wherein the doctrine of  `cause of action estoppel’ and `issue  

estoppel’ has been discussed.  It is laid down by this Court, that if there is  

an issue between the parties that is decided, the same would operate as a  

res-judicata  between  the  same  parties  in  the  subsequent  proceedings.  

This court in the case of Isher Singh vs. Sarwan Singh, [AIR 1965 SC  

948] has observed :

“11. We thus  reach the  position  that  in  the  former suit the heirship of the respondents to  Jati deceased (a) was in terms raised by the  pleadings,  (b)  that  an  issue  was  framed  in  regard  to  it  by  the  trial  Judge,  (c)  that  evidence was led by the parties on that point  directed towards this issue, (d) a finding was  recorded on it by the appellate court, and (e)  that  on  the  proper  construction  of  the  pleadings  it  would  have  been  necessary  to  decide  the  issue  in  order  to  properly  and  completely decide all the points arising in the  case to grant relief  to the plaintiff.  We thus  find that every one of the conditions necessary  to  satisfy  the  test  as  to  the  applicability  of  Section  11  of  the  Civil  Procedure  Code  is  satisfied.”

34)So far as the finding drawn in the suit for injunction in O.S. No.104 of  

1953,  regarding adoption would also operate as a res-judicata in view of  

the  judgment  of  this  Court  in  the  case  of  Sulochana  Amma  Vs.  

Narayanan Nair [(1994) 2 SCC 14].  It is observed:  

“The decision in earlier case on the issue between  the same parties or persons under whom they claim  

29

title or litigating under the same title, it operates as  a  res-judicata.  A plea decided even in a suit  for  injunction touching title between the same parties,  would operate as res-judicata.   

It is a settled law that in a Suit for injunction when  title  is  in  issue,  for  the  purpose  of  granting  injunction,  the  issue  directly  and  substantially  arises  in  that  suit  between  the  parties  when  the  same is put in issue in a later suit  based on title  between  the  same  parties  or  their  privies  in  a  subsequent  suit,  the  decree  in  injunction  suit  equally operates as a res-judicata.”   

35)The same view is reiterated in the case of Gram Panchayat of Village  

Naulakha Vs. Ujagar Singh & Ors.  [AIR 2000 SC 3272].  This Court has  

stated, that, even in an earlier suit for injunction, there is an incidental  

finding  on  title,  the  same  will  not  be  binding  in  the  later  suit  or  

proceedings, where title is directly in question, unless it is established,  

that it was “necessary” in the earlier suit to decide the question of title for  

granting  or  refusing  injunction  and  that  the  relief  for  injunction  was  

found or based on the bindings of title.   Even the mere framing of an  

issue may not be sufficient as pointed out in that case.   

36)The appellants had filed O.S. No.104 of 1953 before the civil court inter-

alia seeking an order of permanent injunction against respondent – Vithu  

and others, on the ground that they are Watandars of suit lands and they  

30

are in peaceful possession and enjoyment of the suit lands.  Respondent –  

Vithu  had  set  up  a  defence  that  since  he  is  the  adopted  son  of  the  

deceased Watandar, he has the right, title and interest in the watanlands.  

Therefore,  the Trial Court had framed an issue, whether the defendants  

prove that defendant No.1 was the adopted son of his grandmother and as  

such was in possession of the suit property. The trial court after elaborate  

discussion has answered the issue against Vithu and had concluded that  

Vithu failed to prove that he was the adopted son of deceased Watandar  

and, therefore, he cannot have any right, title or interest in the suit lands  

as Watandar. In this case, though the suit was bare injunction, title to the  

properties was put on issue by the defendant-Vithu claiming that he is the  

adopted son of deceased Watandar and, therefore, he has Watandar rights  

in the suit lands. In order to decide the prayers made in the suit, the issue  

of  adoption  had  to  be  decided.   The  issue  falls  within  the  exclusive  

jurisdiction of the civil court.  In the subsequent proceedings before the  

Sub-Divisional Officer, the issue was whether Vithu was the adopted son  

of deceased Watandar and, therefore, having hereditary interest  in any  

inferior village watan under Watan Abolition Act, 1958. To decide this  

issue, the Sub-Divisional Officer firstly has to decide the issue, whether  

Vithu is the adopted son of deceased Watandar. This issue is one which  

31

does not fall within the jurisdiction of the revenue court but falls within  

the exclusive jurisdiction of the civil court.  Since the issue of adoption  

was already decided between the same parties by a competent civil court,  

the Sub-Divisional Officer cannot decide that issue and without giving  

any  decision  on  that  issue  could  not  have  allowed  the  claim  of  the  

respondent  Vithu.   Therefore,  in  our  opinion,  the  Principles  of  Res-

judicata  would  apply  to  the  proceedings  before  the  Sub-Divisional  

Officer.  

37)In a suit for injunction, the issues and the decision would be confined to  

possessory  aspect.   If  the  right  to  possession  of  property  cannot  be  

decided  without  deciding  the  title  to  the  property  and  a  person  who  

approaches the Court, his status itself is to be adjudicated then without  

declaring his status, the relief could not be granted.  In earlier suit Vithu  

claimed his right as an adopted son.  Therefore, since he did not prove the  

adoption, there was no subsisting right or interest over the immovable  

property and as such the issue on adoption was a relevant issue in 1953  

suit and, therefore, the said issue which has been decided in earlier suit  

and which has been confirmed in the regular second appeal and the issue  

decided therein was whether he was an adopted heir of Watandar was  

32

binding on the parties.  The similar  question has to be decided by the  

S.D.O. to decide the claim, right or interest in respect of the hereditary  

office.   Therefore,  the  issue  was  raised  and  it  was  decided  and  it  is  

binding on the parties.   

38)Reference  may  be  made  to  the  decision  of  this  court  in  the  case  of  

Sulochana Amma vs. Narayanan Nair,  [(1994) 2 SCC 14 Para 9] on the  

issue between the same parties or persons under whom they claim title or  

litigating  under  the  same  title,  it  operates  as  a  res-judicata.   A  plea  

decided even in suit for injunction touching the title between the same  

parties, would operate as res judicata :

“It is a settled law that in a suit for injunction when  title  is  in  issue,  for  the  purpose  of  granting  injunction  the  issue  directly  and  substantially  arises in that suit between the parties.  When the  same is put in issue in a later suit  based on title  between  the  same  parties  or  their  privies  in  a  subsequent  suit,  the  decree  in  injunction  suit  equally operates as a res judicata.”

39)To the same effect, the judgment  of this court in the case of Sulochana  

Amma vs. Narayanan Nair,  [(1994) 2 SCC 14 Para 9] in which it has  

been held that the issue between the same parties or persons under whom  

they claim title  or litigating under the same title,  it  operates as a res-

33

judicata.   A plea decided even in suit  for injunction touching the title  

between the same parties, would operate as res judicata.

40)The  learned  senior  counsel  Sri  Naphade  by  placing  reliance  on  the  

observation made by this court in the case of Syed Mohd Salie Labbai  

(Dead) by LRS vs. Mohd. Hanifa (Dead) by LRS [(1976) 4 SCC 780],  

that  the best  method to decide the question of res-judicata  is first   to  

determine the case of parties as put forward in their respective pleadings  

of their previous suits and then to find out as to what had been decided  

by the judgments which operate as res-judicata. It is the contention of the  

learned senior counsel  that  the pleadings of  the suit  of  1953 was not  

available to the civil court while deciding the second suit of 1979 and,  

therefore, the High Court was justified in holding that the finding of the  

civil court in the second suit of 1979 and the appellate court against that  

order regarding res-judicata cannot be upheld.   

41)In  Syed Mohd’s case,  this  court  has  stated  that  before a  plea  of  res-  

judicata can be given effect the four conditions requires to be proved.  

They are, that the litigating parties must be the same; that the subject  

matter of the suit also must be identical; that the matter must be finally  

decided between the parties; and that the suit must be decided by a court  

34

of competent jurisdiction.  This court while analyzing those conditions as  

matter of fact found that the parties had not even filed the pleading of the  

suits instituted by them. In that factual scenario, this court has to observe  

that the pleadings cannot be proved merely by recitals of the allegations  

mentioned in the judgment.  

42)It is true that if an earlier judgment has to operate as res-judicata in the  

subsequent proceedings, then all the necessary facts including pleadings  

of  the  earlier  litigation  must  be  placed  on  record  in  the  subsequent  

proceedings.  In the judgment and decree in O.S. No. 2353 of 1979,  the  

trial Judge in extenso has referred to the pleadings of the parties in the  

earlier suit with reference to the copy of the judgment and decree passed  

in O.S. No.104 of 1953 which was produced by the appellants along with  

the other documents and it is only thereafter has observed that the issue  

regarding adoption of Vithu was one of the issues framed in the 1953 suit  

and the court after referring to the pleadings of both the parties and the  

evidence  adduced has  specifically  answered the  issue by  holding that  

Vithu  has  failed  to  prove  that  he  is  adopted  son  of  the  deceased  

Watandar. Therefore, we cannot accept the contention of learned senior  

counsel Sri Shekhar Naphade.  In fact, the High Court, while deciding on  

this issue had observed that the pleadings of the parties in O.S. No.104 of  

35

1953 were not available before the civil court in the subsequent suit and,  

therefore, there is non-compliance of mandatory and basic requirements,  

as laid down by this Court in the case of Syed Mohd.  In our view, this  

reasoning of the High Court is fallacious and we cannot agree.  In our  

view, each one of the conditions necessary to satisfy the test as to the  

applicability of Section 11 of Civil Procedure Code is satisfied.

43)Validity of Direction for Enquiry:-  Once 1941 proceedings is accepted  

by the civil court and a decree was passed, the said decree becomes final  

and  binding  on  the  parties.   The  respondent-Vithu  was  disentitled  to  

approach the State  Government nearly  after  14 years.   The  period of  

limitation provided under Section 27 of the Limitation Act, if a right to  

property is  not exercised within 12 years from the date on which the  

cause of action accrues to him, he would lose his right of remedy under  

the  Limitation  Act.  But  in  the  instant  case,  the  right  of  Vithu  was  

adjudicated and it was culminated in the decree in Second Appeal which  

was decided in RSA on 20.10.1964 and after he suffered an order, he  

remits three times assessment to the Government in the year 1966  and  

his intention was to keep the issue alive,  despite he suffered an order of  

decree by the civil court which was also confirmed by the High Court  

and again  moves an application before the Government in 1978, and  

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obtains  a  direction  in  1979 for  the  Sub-Divisional  Officer  to  hold an  

enquiry, whether he is Watandar or not.  The Scheme of Watan Abolition  

Act,  1958,  does  not  empower  the  State  Government  to  issue  such  

direction. What is not provided under the statute ought not to have been  

exercised by the State Government.   Therefore,  the State Government  

had no power to direct the Sub-Divisional Officer to  hold an inquiry to  

decide  question  of  Watandar,  notwithstanding the  decree  passed by  a  

competent  civil  court  which has  been affirmed  by the  High Court  in  

Regular Second Appeal.  The abolition of watan is by a legislative decree  

and  not by executive action.  Its consequences must be sought under the  

Statute which effectuates the abolition.  It is, therefore, resumption and  

regrant must be within the statutory framework.   

44)We,  therefore,  set  aside  the  judgment  of  the  High  Court  in  all  the  

appeals.  The result is that the appeals are allowed, but in the peculiar  

circumstances of the case, there will be no order as to costs.  

 …………………………………J.

                                                                                      [ B.N. AGRAWAL ]

…………………………………J.

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                                                                                      [ G.S. SINGHVI ]

                                                                                   …………………………………J.                                                                                        [ H.L. DATTU ]

New Delhi, October 9, 2009.

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