Maruti S/O Shiva Madne, Died, ... vs Vimalabai W/O Phulchand Gandhi, ...
2002 Latest Caselaw 262 Bom

JUDGMENT

D.G. Karnik, J.

1. Heard the learned Counsel for both the parties.

2. The petitioner claims that he is the owner of the land and the Respondent No.1 is the mortgagee in possession. This fact, of course, is denied by the Respondent No.2, who claims the ownership. The property, being an agricultural land, the petitioner filed an application purportedly under Sub Section (2) of Section 103 of the Hyderabad Tenancy and Agricultural Lands Act, 1950 (hereinafter referred to as "the Tenancy Act") for restoration of the possession to him. The application was filed before the Collector, who assigned it to the Additional Collector, Osmanabad. The learned Additional Collector, by his order dated 29th December, 1967, allowed the application and directed redemption. The Respondent No.1 filed an appeal before the Divisional Revenue Commissioner, Aurangabad, who by an order dated 31st July, 1968, allowed the appeal. The learned Commissioner held that it is not within the ambit of the Revenue Court to decide the ownership of the land nor to decide as to whether the relationship of mortgagor and mortgagee exists between the parties. In this view of the matter, the appeal was allowed and the application made by the petitioner was dismissed. The petitioner was directed to approach the Civil Court for an appropriate relief.

3. This order passed by the Commissioner was not challenged by the petitioner and has become final. In fact, the petitioner followed the order and filed a Suit bearing Civil Suit No.35/70 in the Court of Civil Judge, Junior Division, Omerga. Initially the said suit was decreed ex parte. Subsequently, it appears that, the ex parte order was set aside and the suit was heard on merits. By an order dated 20th September, 1972, the learned Civil Judge, Junior Division, dismissed the suit of the petitioner. This judgment of the learned Civil Judge, Junior Division was not challenged by filing an appeal and this judgment has also become final.

4. Instead of challenging the judgment of the Civil Judge, Junior Division, the petitioner filed fresh application on 04.01.1982 under Section 103 of the Tenancy Act for the same relief as was claimed in the original application. The learned Additional Collector allowed the said application. However, on appeal, the learned Additional Commissioner, Aurangabad, by an order dated 30th November, 1984, reversed the order of the Additional Collector. It is this order of the Additional Commissioner dated 30.11.1984, which is challenged in this writ petition.

5. The learned Additional Commissioner has given cogent reasons for allowing the appeal and I am in agreement with them. There is one more reason, why the Additional Commissioner was right in allowing the appeal and reversing the order of the Additional Collector. Once an application under Section 103 of the Tenancy Act was made and that application was dismissed and the petitioner was directed to file a Civil Suit for establishing his ownership. This order passed by the Additional Commissioner became final, as no appeal was filed against it. This order would operate as res judicata and second successive application under Section 103 of the Tenancy Act on the same facts would not be maintainable.

6. Rule discharged with no order as to costs.