Asharfi Lal vs Rajaswa Parishad & Others
2018 Latest Caselaw 356 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 11
 
Case :- WRIT - B No. - 27687 of 2004
 
Petitioner :- Asharfi Lal
 
Respondent :- Rajaswa Parishad & Others.
 
Counsel for Petitioner :- Mahesh Chandra Joshi,Ajay Kumar Srivastava.
 
Counsel for Respondent :- C.S.C.,Anuj Kumar,Arun Kumar Srivastav.
 

 
Hon'ble Salil Kumar Rai,J.

1. Heard Sri Ajay Kumar Srivastava, learned counsel for the petitioner and Sri Rajesh Kumar Yadav, Advocate holding brief of Sri Arun Kumar Srivastav, learned counsel for the respondent no. 9.

2. The present writ petition was filed in the year, 2004. From a perusal of the order-sheet it appears that till date the case was never comprehensively argued by any counsel for the petitioner and therefore, notices have not yet been issued to respondent nos. 3 to 7, who would have been contesting respondents in the writ petition. Since 2011, the case has been continuously adjourned either on the oral request of the counsel for the petitioner or on illness slips sent on his behalf. Today again, the counsel for the petitioner requested for an adjournment to enable him to file a supplementary affidavit, which if permitted, would have been the fourth supplementary affidavit filed by the petitioner in the case. However, as the matter is pending since, 2004, the Court has proceeded to hear the case on merits to consider whether it was a fit case for issuing notice to respondent nos. 3 to 7.

3. Counsel for the petitioner states that second supplementary affidavit annexing certain documents was filed by him in the present writ petition in 2012. As the said supplementary affidavit was not on record, therefore, a copy of the said supplementary affidavit has been supplied by the counsel for the petitioner to the Court, which is taken on record as certain documents annexed with the supplementary affidavit have been referred by the counsel for the petitioner during the course of arguments.

4. The facts of the case are that Asharfi Lal, i.e. petitioner, Ram Singh i.e. respondent no. 7 and Khem Chandra i.e. father of the respondent nos. 3 to 6 were the sons of one Bhola Ram. Sibia was the widow of Bhola Ram and the mother of Asharfi Lal, Ram Singh and Khem Chandra. Bhola Ram was the tenure holder of disputed plot no. 41. After the death of Bhola Ram, the names of Ram Singh, Khem Chandra and Sibia were recorded in the revenue record and therefore, the petitioner in 1976 filed a suit under section 229-B of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as, 'Act, 1950') for a decree declaring that he was a co-tenure holder of the disputed plot alongwith Ram Singh, Khem Chandra and Mst. Sibia. The original number of the aforesaid case has not been disclosed in the writ petition, but it was subsequently renumbered as Case No. 75/87-88. Ram Singh, Khem Chandra and Sibia were defendants in the aforesaid case. In Case No. 75/87-88 Ram Singh filed a written statement admitting the case of the petitioner but Khem Chandra contested the case and filed a written statement denying the plea of the petitioner. The claim of Khem Chandra was based on a registered Will dated 9.3.1970 allegedly executed by Bhola Ram in favour of Ram Singh, Khem Chandra and Sibia bequeathing 1/3 share in the disputed Plot No. 41 to each of the aforesaid beneficiaries of the Will. The Trial Court i.e. Sub-Divisional Magistrate (hereinafter referred to as, 'S.D.M.'), vide its judgment and order dated 31.12.1979 dismissed the case of the petitioner. Aggrieved by the judgement and order dated 31.12.1979, petitioner filed an appeal under Section 331 of the Act, 1950, which was allowed by the Additional Commissioner Moradabad Division, Moradabad vide his judgment and order dated 29.4.1983 and the matter was remanded back to the S.D.M. for a fresh decision in accordance with law.

5. While the appeal under Section 331 of the U.P.Z.A. & L.R. Act, 1950 was pending before the first appellate court, Mst. Sibia died. Before her death, Mst. Sibia had executed a Will dated 17.12.1977 bequeathing her share in certain properties, including the disputed plot, to the petitioner and on the basis of the said Will the petitioner filed a civil suit being Original Suit No. 653/1982 before the Civil Court, Rampur for partition of the suit property, i.e. the property involved in Original Suit No. 653/1982 claiming 1/3 share in the same on the basis of Will dated 17.12.1977. In the aforesaid case Khem Chandra and Ram Singh were impleaded as defedants.

6. In Original Suit No. 653/1982, written statements were filed by the defendants. While Ram Singh admitted the case of the petitioner/plaintiff as alleged in the plaint instituting Original Suit No. 653/1982, Khem Chandra filed a written statement denying the right of the petitioner over the suit property on the ground that by virtue of Will dated 9.3.1970 Mst. Sibia got only life interest in the suit property and therefore, the Will dated 17.12.1977 executed by Sibia was invalid and petitioner can not claim any right in the suit property on the basis of Will dated 17.12.1977. Original Suit No. 653/1982 was dismissed by the Trial Court through its judgment and decree dated 2.5.1983. Civil Appeal No. 142 of 1983 filed against the judgment and decree of the Trial Court was also dismissed by the first appellate court vide its judgment and order dated 29.3.1984. It has been stated by counsel for the petitioner that no second appeal was filed against the judgment and order dated 29.3.1984 of the first appellate court.

7. A perusal of the judgments dated 2.5.1983 and 29.3.1984 passed by the Civil Courts show that in the aforesaid proceedings before the Civil Court the petitioner/plaintiff had admitted the execution of the Will dated 9.3.1970. A perusal of the judgements of Civil Court shows that the said admission was part of the plaint instituting Original Suit No. 653/1982. It is also evident from the judgement dated 29.3.1984 passed in Civil Appeal No. 142 of 1983 that in the civil proceedings, the counsel for the petitioner had not called for a proof of Will dated 9.3.1970. In its judgement dated 29.3.1984, the appellate Court has recorded the fact that, the counsel for the petitioner had recorded his endorsement on the copy of the Will dated 9.3.1970 filed by the respondents/defendants in the Trial Court discharging the respondents/defendants from proving the Will dated 9.3.1970 and consequently the Will was marked as Exhibit A-4 in the Trial Court. In its judgement dated 29.3.1984, the Civil Appellate Court has also recorded the statement of the petitioner that Bhola Ram had, through a Will, bequeathed the ancestral house to the petitioner. Relying on the aforesaid statement of the petitioner, the appellate Court recorded a finding that the petitioner was excluded by Bhola Ram in the Will dated 9.3.1970 and denied a share in the suit property because, through a different Will, the ancestral house was settled in his favour by Bhola Ram. The recitals in the judgment and order dated 2.5.1983 passed by the Trial Court recording the contents of the plaint and the admission of the petitioner/plaintiff regarding execution of the will dated 9.3.1970 was not contested by the petitioner before appellate Court in Civil Appeal No. 142 of 1983 and has not been denied either in the writ petition or in the supplementary affidavits filed in the present case. The judgments of the Civil Courts dismissing the claims of petitioner/plaintiff are based on the existence and validity of Will dated 9.3.1970, which was admitted by the petitioner.

8. It is noticeable that the right of Mst. Sibia to execute the Will dated 17.12.1977 was dependent on the interpretation of the terms of the Will dated 9.3.1970 whereby Bhola Ram had bequeathed 1/3 share in certain properties, including the suit property to Mst. Sibia. The relevant terms of the Will dated 9.3.1970 were interpreted by the Civil Courts as conferring only life estate on Mst. Sibia and denied her the right to transfer or bequeath her share in the suit property to anyone and it was held that according to the terms of the Will dated 9.3.1970, the share of Mst. Sibia in the suit property, after her death, would revert in equal share to the defendants, i.e. Khem Chandra and Ram Singh. Consequently, the Civil Courts rejected the claim of the petitioner for partition of the suit property holding that the petitioner had no share in the same. It is apparent that suit property originally belonged to Bhola Ram. Petitioner is the son of Bhola Ram. If the Will dated 9.3.1970 had not been executed by Bhola Ram or the petitioner had successfully challenged the same after the death of Bhola Ram, the petitioner alongwith his two brothers (the defendants in the case) and Mst. Sibia (the widow of Bhola Ram) would have been entitled to 1/4 share in the suit property after the death of Bhola Ram and 1/3 share in the same after the death of Mst. Sibia. However, any such result would have been possible if the petitioner had challenged the Will dated 9.3.1970 in Original Suit No. 653/1982, as the claim of petitioner had been rejected by Civil Courts relying on the Will dated 9.3.1970. Original Suit No. 653/1982 was for partition of suit property on the ground that the petitioner had 1/3 share in it and therefore the petitioner, in the alternative, had a right in the said suit to challenge the Will dated 9.3.1970. During the proceedings in the Trial Court in Original Suit No. 653/1982 and in his plaint instituting the aforesaid case, the petitioner not only admitted the execution of Will 9.3.1970 but his counsel also discharged the defendants/respondents from proving the said Will by making an endorsement to that effect on the copy of Will filed by the defendants as a result of which the copy of the Will dated 9.3.1970 was marked as an exhibit by the Trial Court. It appears from the judgment dated 29.3.1984 passed by the appellate court in Civil Appeal No. 142 of 1983 that, in appeal, the petitioner tried to wriggle out of the legal effects of his admission and endorsement of his counsel and also attempted to challenge the Will dated 9.3.1970. However, the aforesaid challenge was repelled by the appellate Court. The consequences of the failure of the petitioner to challenge the Will dated 9.3.1970 in the Civil Court will be considered later in the judgement.

9. After the judgements dated 2.5.1983 and 29.3.1984 of the Civil Courts passed in Original Suit No. 653/1982 and Civil Appeal No. 142/1983, proceedings before the revenue courts were revived and the S.D.M. vide his judgement dated 17.6.1992 decreed Case No. 75/87-88 (instituted under Section 229-B of the Act, 1950) by rejecting the Will dated 9.3.1970 and held the petitioner to be a co-tenure holder of the disputed plot alongwith Ram Singh and Khem Chandra. Aggrieved by the judgment and order dated 17.6.1992 passed by the trial court, Khem Chandra i.e. the father of respondent Nos. 3 to 6, filed an appeal under Section 331 of the Act, 1950, which was numbered as Appeal No. 25/1992-93 and the same was allowed by Additional Commissioner (Administration) vide his judgment and order dated 31.12.1993. The judgment and order dated 31.12.1993 of the first appellate court setting aside the judgment and decree dated 17.6.1992 was passed relying upon the judgments of the civil court upholding the validity of the will dated 9.3.1970. Consequently, the petitioner filed Second Appeal No. 17/1993-94 before the Board of Revenue, U.P. at Allahabad, which was dismissed by the Board of Revenue vide its judgment and order dated 19.9.1996. Subsequently, a Review Application No. 18/1996-97 was filed by the petitioner, which was also dismissed by the Board of Revenue vide its judgment and order dated 12.5.2004. The Judgment and order dated 31.12.1993 passed by the Additional Commissioner (Administration), i.e. the first appellate court and orders dated dated 19.9.1996 and 12.5.2004 passed by the Board of Revenue, U.P. at Allahabad have been challenged in the present writ petition.

10. Counsel for the petitioner has raised four arguments to assail the judgments and orders dated 31.12.1993, 19.9.1996 and 12.5.2004.

11. The first argument of the learned counsel for the petitioner is that the Board of Revenue had acted illegally in dismissing Second Appeal No. 17/1993-94 vide its order dated 19.9.1996 without framing any substantial question of law inasmuch as under Section 331 (4) of the Act, 1950 read with Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'C.P.C.') the Board of Revenue could have considered the appeal filed by the petitioner on merit only after framing substantial question of law involved in the appeal. In support of his contention the counsel for the for the petitioner has relied on the judgements of this Court in Mst. Sita Devi Vs. Board of Revenue, U.P., Allahabad (2012) All. C.J. 100 and Ghanshyam and others Vs. The Board of Revenue and others (2010) All. C.J. 1992.

12. The second argument of the learned counsel for the petitioner is that the deceased Bhola Ram was Sirdar of the disputed plot, and therefore, had no right to execute the Will dated 9.3.1970, and thus, the Additional Commissioner and Board of Revenue had committed an error of law apparent on the face of record in rejecting the claim of the petitioner on the basis of Will dated 9.3.1970. In support of his arguments, the counsel for the petitioner relied upon a judgment of this Court reported in Smt. Munia Vs. The Deputy Director of Consolidation, Varanasi and others, 1986 All. L.J. 1499.

13. The third argument of the learned counsel for the petitioner is that the admission of Ram Singh, a co-defendant in the case, denying the execution of the Will dated 9.3.1970 was binding on Khem Chandra, the father of respondent Nos. 3 to 6, as Khem Chandra and Ram Singh had a joint interest in the disputed plot, and therefore, the Will dated 9.3.1970 could not be relied upon while deciding the suit under Section 229-B of the Act, 1950. In support of his argument, the counsel for the petitioner has relied upon the judgement of this Court reported in Girdhari Lal and others Vs. D.D.C. and others, 1985 R.D. 135.

14. The fourth argument of the counsel for the petitioner is that the Will dated 9.3.1970 was not proved as required by law having regard to Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act. In support of his argument, counsel for the petitioner has relied on the judgment of Supreme Court reported in Janki Narayan Bhoir Vs. Narayan Namdeo Kadam, (2003) All C.J. 952.

15. I have considered the submission of the learned counsel for the petitioner and also perused the record.

16. So far as the argument of the learned counsel for the petitioner that the Board of Revenue had illegally dismissed Second Appeal No. 17/1993-94 without framing a substantial question of law is concerned, a joint reading of Section 100 C.P.C. and Section 331(4) of the Act, 1950 shows that a second appeal would lie in the Board of Revenue from the decree passed by the subordinate Revenue Courts only if the Board is satisfied that a substantial question of law is involved in the case. The aforesaid section merely implies that the Board shall interfere in the decree passed by the subordinate Revenue Courts only after framing substantial questions of law involved in the case and does not imply that the Board cannot dismiss an appeal without framing a substantial question of law. The mandatory requirement of framing a substantial question of law, by the very nature of requirement, would be applicable only where the Board is satisfied that the case involves a substantial questions of law and not where the Board summarily dismisses the Second Appeal. It is not the case of the petitioner that any substantial question of law was formulated by him and was involved in the Second Appeal and the Board had failed to exercise its jurisdiction according to law by not considering any of the said substantial questions. No such ground has either been taken in the writ petition or argued by the counsel during the course of argument. The judgments reported in Mst. Sita Devi (Supra) and Ghanshyam (Supra) are not applicable in the present case. In Ghanshyam (Supra) it is evident that the Board of Revenue allowed the appeal filed by the respondents in the case without framing any substantial question of law. In Mst. Sita Devi (Supra) also the Board had allowed the appeal and the Court in that case held that the Board of Revenue had not acted in conformity with the principles of Section 100 C.P.C. by treating all questions raised by the appellant as substantial questions of law without examining whether the material available gave rise to the substantial questions of law. In the present case the Board of Revenue dismissed the Second Appeal summarily and refused to interfere in the judgement of the first appellate court, and therefore, it was not required to frame substantial questions of law and no illegality was committed by the Board in dismissing the Second Appeal without framing any substantial questions of law.

17. The second argument of the learned counsel for the petitioner is that deceased had only Sirdari Rights over the disputed land, therefore the Will dated 9.3.1970 was invalid and the Additional Commissioner as well as Board had committed an error of law apparent on the face of record in rejecting the claim of the petitioner relying on the Will dated 9.3.1970. A perusal of the plaint instituting Case No. 75/87-88 annexed as Annexure No. 1 to the writ petition as well as the judgements of the revenue courts show that the argument relating to the right of the deceased to execute the Will dated 9.3.1970 on the ground that the deceased had only Sirdari rights over the same was not raised by the petitioner before the revenue courts at any stage. In fact, in the plaint instituting Case No. 75/87-88, the petitioner had stated that the deceased was a Bhumidhar of the disputed plot. The statement of the petitioner before this Court, i.e., the deceased had only Sirdari rights over the disputed plot is contrary to the aforesaid averment made in the plaint instituting Case No. 75/87-88. It is also evident that, in the Revenue Courts, the petitioner did not file any document to establish that the deceased had only Sirdari Rights over the disputed plot. The petitioner cannot be permitted to raise new grounds in proceedings under Article 226 of the Constitution of India, based on statement of facts, contrary to the pleadings and stand of the petitioner in the courts below.

18. Before considering the third and fourth arguments of the counsel for the petitioner regarding admission of the co-defendant denying the execution of the Will dated 9.3.1970 and proof of the said Will in accordance with Section 68 of the Indian Evidence Act read with Section 63 of the Indian Succession Act, it would be appropriate to recapitulate the sequence of events leading to the present writ petition. While the appeal filed by the petitioner against the order passed by the S.D.M. dismissing Case No. 75/87-88 was pending before the Additional commissioner, proceedings in Civil Court were instituted by the petitioner through Original Suit No. 653 of 1982. In Original Suit No. 653 of 1982, petitioner admitted the Will dated 9.3.1970 and discharged the defendants/respondents from proving the same whereupon the said Will was marked as an exhibit in the Civil Court. As stated in the earlier part of the judgement, in Original Suit No. 653 of 1982 the petitioner could have challenged the Will dated 9.3.1970 for the relief sought in that case. While Original Suit No. 653 of 1982 was pending in the trial court, the Additional Commissioner vide his order dated 29.4.1983 allowed the appeal filed by the petitioner and remanded back the matter to the S.D.M. While the matter remained pending before the S.D.M., the Civil Court vide its judgement and order dated 2.5.1983 dismissed Original Suit No. 653/1982 and the appeal, i.e., Civil Appeal No. 142 of 1983 was dismissed by the Civil Appellate Court vide its judgement and order dated 29.3.1984 rejecting the claim of petitioner for partition of the suit property by holding that he had no share in the same because of the Will dated 9.3.1970. Eight years after the decisions of Civil Courts, the S.D.M. decreed Case No. 75/87-88 vide his judgement dated 17.6.1992 by rejecting the defense of contesting defendant Khem Chandra (father of respondent Nos. 3 to 6) based on Will dated 9.3.1970. For rejecting the Will dated 9.3.1970, the S.D.M. relied on the alleged admission of a co-defendant (respondent No. 7) who had denied the execution of Will dated 9.3.1970. In his judgement dated 17.6.1992, the S.D.M. refused to consider the effect of the judgements of the civil courts. The decree dated 17.6.1992 passed by the S.D.M. was set aside by the Additional Commissioner vide his judgement and order dated 31.12.1993 passed in Appeal No. 25/1992-93 and the consequential Second Appeal No. 17/1993-94 filed by the petitioner was dismissed by the Board of Revenue vide its judgement and order dated 12.5.2004. A perusal of the judgement of the appellate courts would show that they have been passed relying on the findings of the Civil Court regarding the Will dated 9.3.1970 and for the reason that the revenue courts were bound by the findings and judgements of civil courts in matters of Will. Consequently Case No. 75/87-88 instituted by the petitioner under Section 229-B of the Act, 1950 stood dismissed, hence the present writ petition.

19. Proceedings in the Civil Courts are crucial for a decision of the present writ petition and the claim of the petitioner as raised before the revenue courts. It is apparent from the facts narrated above that the proceedings in the Civil Court intervened after the order dated 29.4.1983 was passed by the Additional Commissioner remanding back the matter to the S.D.M. It is also apparent that the entitlement of the petitioner over 1/3 share in the suit property in Original Suit No. 653/1982 was dependent either on the acceptance of the Will dated 17.12.1977 allegedly executed by Mst. Sibia in favour of the petitioner or, in the alternative, on the rejection of the Will dated 9.3.1970 allegedly executed by Bhola Ram and set up as defense by the defendants/respondents. Evidently, in Original Suit No. 653/1982, the petitioner ought to have challenged the Will dated 9.3.1970. The petitioner failed to challenge the Will dated 9.3.1970 in Original Suit No. 653/1982. The issue regarding validity of the Will dated 9.3.1970 attained finality between the parties after the judgement dated 29.3.1984 passed by the civil appellate court in Civil Appeal No. 142/1983. The failure of the petitioner to challenge the Will dated 9.3.1970 in Original Suit No. 653/1982 barred the petitioner, by the principle of res-judicata, from challenging the aforesaid Will in the revenue courts. The argument relating to Section 68 of the Indian Evidence Act read with Section 63 of the Indian Succession Act and admission of co-defendant would be relevant in the revenue courts only if an inquiry into the validity of the Will dated 9.3.1970 by the revenue courts was legally permissible. By the principle of res-judicata, the revenue courts were barred from inquiring into the validity of Will dated 9.3.1970 inasmuch as the principle of res-judicata ousts the jurisdiction of a Court to try a case or to re-open the matter which has already been adjudicated upon and thereby precludes an enquiry at the very threshold. Section 11 of Code of Civil Procedure, 1908 (hereinafter referred to as, 'C.P.C.') which recognises the doctrine of res-judicata is reproduced below :-

"11. Res judicata.- No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit' between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.

Explanation I: The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.

Explanation II : For the purposes of this section, the competence of a court shall be determined irrespective of any provisions as to a right of appeal from the decision of such court.

Explanation Ill: The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.

Explanation IV: Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.

Explanation V: Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.

Explanation VI: Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.

Explanation Vll: The provisions of this section shall apply to a proceeding for the execution of a decree and reference in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.

Explanation VlIl :An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent Suit, notwithstanding that such court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been Subsequently raised."

(Emphasis added)

The basis of doctrine of res-judicata is public interest and not absolute justice. Explanations I and IV of Section 11 C.P.C. are relevant in the present case as would be evident from reasons and sequence of events leading to the present writ petition narrated before. Explanation IV incorporates the principle of constructive res-judicata.

The Supreme Court in M. Nagabhushana Vs. State of Karnataka & Others (2011) 3 SCC 408, while explaining the rationale behind the principle of res-judicata stated that the principle prevents oppressions which may result under the pretence of law inasmuch as, in the absence of such a principle, there would be no end of litigation and a rich and malicious litigant may scced in compelling the weaker party to relinquish his right by instituting repetitive suits and actions. The relevant extracts from the judgement of Supreme Court are reproduced below :-

"12. The principles of Res Judicata are of universal application as it is based on two age old principles, namely, interest reipublicae ut sit finis litium which means that it is in the interest of the State that there should be an end to litigation and the other principle is nemo debet bis vexari, si constat curiae quod sit pro una et eademn causa meaning thereby that no one ought to be vexed twice in a litigation if it appears to the Court that it is for one and the same cause. This doctrine of res judicata is common to all civilized system of jurisprudence to the extent that a judgment after a proper trial by a Court of competent jurisdiction should be regarded as final and conclusive determination of the questions litigated and should for ever set the controversy at rest.

13. That principle of finality of litigation is based on high principle of public policy. In the absence of such a principle great oppression might result under the colour and pretence of law in as much as there will be no end of litigation and a rich and malicious litigant will succeed in infinitely vexing his opponent by repetitive suits and actions. This may compel the weaker party to relinquish his right. The doctrine of res judicata has been evolved to prevent such an anarchy. That is why it is perceived that the plea of res judicata is not a technical doctrine but a fundamental principle which sustains the Rule of Law in ensuring finality in litigation. This principle seeks to promote honesty and a fair administration of justice and to prevent abuse in the matter of accessing Court for agitating on issues which have become final between the parties.

16. It is nobody's case that the appellant did not know the contents of the FWA. From this it follows that it was open to the appellant to question, in the previous proceeding filed by it, that his land which was acquired was not included in the FWA. No reasonable explanation was offered by the appellant to indicate why he had not raised this issue. Therefore, in our judgment, such an issue cannot be raised in this proceeding in view of the doctrine of constructive res judicata.

17. It may be noted in this context that while applying the principles of res judicata the Court should not be hampered by any technical rules of interpretation. It has been very categorically opined by Sir Lawrence Jenkins that :

"...the application of the rule by Courts in India should be influenced by no technical considerations of form but by matter of substance within the limits allowed by law".

18. Therefore, any proceeding which has been initiated in breach of the principle of res judicata is prima-facie a proceeding which has been initiated in abuse of the process of Court.

19. A Constitution Bench of this Court in Devilal Modi Vs. S.T.O., has explained this principle in very clear terms : (AIR p. 1152, para 7)

"7...But the question as to whether a citizen should be allowed to challenge the validity of the same order by successive petitions under Article 226 cannot be answered merely in the light of the significance and importance of the citizens' fundamental rights. The general principle underlying the doctrine of res judicata is ultimately based on considerations of public policy. One important consideration of public policy is that the decisions pronounced by courts of competent jurisdiction should be final, unless they are modified or reversed by appellate authorities; and the other principle is that no one should be made to face the same kind of litigation twice over, because such a process would be contrary to considerations of fair play and justice (vide Daryao Vs. State of U.P.)"

(Emphasis added)

While dealing with the principle of res judicata the Supreme Court has also held that the principle of finality of litigation would apply not only to matters actually determined but also to matters which properly belong to the subject of litigation and which were within the legitimate purview of the original action, both in respect of the matters of claim or defense. In Forward Construction Co. and Others Vs. Prabhat Mandal (1986) 1 SCC 100, the Supreme Court, in paragraph 20 of the judgement held as under :-

"19. The second question for consideration is whether the present writ petition is barred by res judicata. This plea has been negatived by the High Court for two reasons: (1) that in the earlier writ petition the validity of the permission granted under r.4(a)(i) of the Development Control Rules was not in issue; and (2) that the earlier writ petition filed by Shri Thakkar was not a bona fide one in as much as he was put up by some disgruntled builder, namely, of M/s. Western Builders.

20. So far as the first reason is concerned, the High Court in our opinion was not right in holding that the earlier judgment would not operate as res judicata as one of the grounds taken in the present petition was conspicuous by its absence in the earlier petition. Explanation IV to Section 11 C.P.C. provides that any matter which might and ought to have been made ground of defense or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. An adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to or essentially connected with the subject matter of the litigation and every matter coming with the legitimate purview of the original action both in respect of the matters of claim or defense. The principle underlying Explanation IV is that where the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided. It is true that where a matter has been constructively in issue it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided. The first reason, therefore, has absolutely no force."

(Emphasis added)

Subsequently, in State Of Karnataka & Another Vs. All India Manufacturers Organization & Others (2006) 4 SCC 683, the Supreme Court explained the principle as follows :-

"32. Res judicata is a doctrine based on the larger public interest and is founded on two grounds: one being the maxim nemo debet bis vexari pro una et eadem causa ("No one ought to be twice vexed for one and the same cause" ) and second, public policy that there ought to be an end to the same litigation. It is well settled that Section 11 of the Civil Procedure Code, 1908 (hereinafter "the CPC") is not the foundation of the principle of res judicata, but merely statutory recognition thereof and hence, the Section is not to be considered exhaustive of the general principle of law. The main purpose of the doctrine is that once a matter has been determined in a former proceeding, it should not be open to parties to re- agitate the matter again and again. Section 11 of the CPC recognises this principle and forbids a court from trying any suit or issue, which is res judicata, recognising both 'cause of action estoppel' and 'issue estoppel'. There are two issues that we need to consider, one, whether the doctrine of res judicata, as a matter of principle, can be applied to Public Interest Litigations and second, whether the issues and findings in Somashekar Reddy constitute res judicata for the present litigation.

36. We will presently consider whether the issues and findings in Somashekar Reddy actually constitute res judicata for the present litigation. Section 11 of the CPC undoubtedly provides that only those matters that were "directly and substantially in issue" in the previous proceeding will constitute res judicata in the subsequent proceeding. Explanation III to Section 11 provides that for an issue to be res judicata it should have been raised by one party and expressly denied by the other:

"Explanation III. - The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other."

37. Further, Explanation IV to Section 11, states:

"Explanation IV. Any matter which might and ought to have been made ground defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit."

38. The spirit behind Explanation IV is brought out in the pithy words of Wigram, V.C. in Henderson v. Henderson as follows:

"The plea of res judicata applies, except in special case (sic), not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time."

39. In Greenhalgh v. Mallard (hereinafter "Greenhalgh"), Somervell L.J. observed thus:

"I think that on the authorities to which I will refer it would be accurate to say that res judicata for this purpose is not confined to the issues which the Court is actually asked to decide, but that it covers issues or facts which are so clearly part of the subject matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the Court to allow a new proceeding to be started in respect of them."

(Emphasis added)

In light of the aforesaid judgements of the Supreme Court explaining the principle of constructive res-judicata, the failure of the petitioner to challenge the Will dated 9.3.1970 in Original Suit No. 653/1982 is fatal to his claim in revenue courts based on his challenge to the Will dated 9.3.1970 as the same is barred by Explanation IV to Section 11 C.P.C. which incorporates the doctrine of constructive res-judicata and the Additional Commissioner as well as the Board of Revenue, in their impugned judgements dated 31.12.1993 and 19.9.1996 rightly held that the revenue courts were bound by the judgement of civil courts and were precluded from enquiring into the validity of Will dated 9.3.1970. Thus, the third and fourth arguments of the petitioner regarding proof of Will dated 9.3.1970 also have no force and are rejected.

20. In view of the aforesaid reasons, the writ petition lacks merit and it is not a fit case for interference by this Court under Article 226 of the Constitution of India.

21. The petition is, accordingly, dismissed.

Order Date. :- 4.5.2018

A. Pt. Singh/Anurag