Vs. Prasony Bai & Anr  Insc 479 (20 November 2002)
Pal & S.B. Sinha. S.B. Sinha, J:
Singh (since deceased) and the 1st Respondent herein, were originally residents
of Pakistan. As a displaced person in India, Mangal Singh was allotted land
measuring 11 bighas 16 biswas in Village Shorba, Tehsil Kishangarhbas, District
Alwar. The said Mangal Singh died, whereafter a report was made by the village Patwari
on or about 31.3.1978 to the effect that he had died intestate without any
thereto and in furtherance thereof, escheat proceedings were initiated by the Tehsildar,
Kishangarhbas on or about 12.3.1979. The possession of the land in question was
taken by the Patwari from the 1st Respondent on 28.3.1979. A part of the land
in question was allotted to the appellant by the Tehsildar on 11.5.1979. The
1st Respondent herein questioned the said allotment of land made in favour of
the appellant herein. The Additional Collector by his order dated 24.8.1979 set
aside the order of taking possession and restored possession thereof to Prasony
Bai, the 1st Respondent herein, and cancelled the allotment of land to the
appellant. Against the said cancellation order dated 24.8.1979 made in favour
of the 1st Respondent, an appeal was preferred by the appellant herein before
the Board of Revenue. The Board of Revenue by its order dated 28.11.1985 while
maintaining the said order of cancellation of allotment observed that :
the order was passed behind the back of the party i.e. Parsony Bai;
that Tehsildar should not have allotted the land to Abdul Rahman without giving
notice to persons in whose name the land already stood;
it was therefore, clear that Tehsildar, Kishangarhbas Harish Chandra had acted
in most irresponsible manner while allotting the land to Abdul Rahman; and
for the highhandedness the disciplinary proceedings should be initiated against
appellant herein questioned the said order of the Board of Revenue before the
High Court by way of filing a writ petition which was marked as S.B. Civil Writ
Petition No.2274 of 1985 which was dismissed.
mutation proceeding was also initiated for mutating the name of the 1st
Respondent which was also contested by the appellant. The name of the 1st
Respondent was ultimately directed to be mutated by order dated 31.5.1993 by
the Board of Revenue. An application for review was filed there-against by the
appellant but the same was also dismissed by order dated 14.6.1999. Although it
does not appear from the records, the appellant herein in his written
submissions, (although not contended in oral argument) alleges that the escheat
proceeding is still pending.
time in the year 1999, the appellant herein filed a suit in the Court of the
Civil Judge (Junior Division), Kishangarhbas, which was marked as Civil Suit
No.17 of 1999, praying, inter alia, for the following reliefs :
declare that Prasony Bai is not the daughter of Mangal Singh;
the plaintiff is in adverse possession even during the life of Mangal Singh;
said suit, having regard to the pleadings of the parties thereto the following
three issues were framed :
Whether the dispute of the civil suit in question had already been decided and
adjudicated upon by the courts and whether it is hit by the principles of res judicata
Whether the suit is beyond limitation ?
Whether the plaintiff had no locus standi to file the suit ?
additional issue was framed on 10.8.1999 by the trial court, as regards the
jurisdiction of the Civil
Court to try the said
suit. Being aggrieved by and dissatisfied therewith, the appellant filed a
civil revision application before the High Court as regards the legality of the
order of the trial court framing the 4th issue. By an order dated 24.10.2000,
the said civil revision application was allowed by the High Court. The said
order was passed, inter alia, on the ground that counsel for the 1st the
Respondent stated that his clients who are ladies were being harassed on one or
the other count and they had no objection if Issue No.4 in regard to
jurisdiction of the civil court is deleted.
thereafter the 1st Respondent filed an application that suitable direction be
issued to the Civil Judge, (Junior Division), Kishangarhbas, Alwar to decide
Suit No.17 of 1999 as expeditiously as possible and the order dated 24.10.2000
be modified to the said extent.
the said petition was dismissed, the High Court having noticed that the
previous litigations between the parties also related to the property in suit
observed in its order dated 21.12.2000, as under:
the reason that the judicial process be not abused by one or the other party. I
deem it proper that the trial court issue required to decide the case at the
earliest. Counsel for the petitioner states that the plaintiff would take at
least 18 months 2 years for leading his evidence.
parting with the order, I suo motto (sic for 'suo motu') order that the record
of the trial court of suit No.17/99 be summoned immediately through special
messenger on or before 4.1.2000 for passing necessary orders in the circular
(sic) of the case.
this stage Mr. Khutetia states that he has no instruction from his client.
for both the parties undertakes to inform the counsel for the plaintiff who is
conducting the case of plaintiff in the trial court of the next date."
Case be listed on 4.1.2001." On or about 6.8.2001, the parties appeared in
person before the learned Judge with their respective counsel. It is not
disputed that the appellant herein did not question the jurisdiction of the
High Court to withdraw the said suit on its own file. It also appears that
during the pendency of the said proceedings, the 1st Respondent herein
expressed her desire to sell the property in suit in favour of the appellant,
whereupon the Tehsildar, Kotkasim, District Alwar, was directed by order dated
6.8.2001 to submit a report as regards the market price of the agricultural
land in the said village. The relevant portion of the aforesaid order is as under
parties are present in person along with their counsel.
though, in my opinion, there is hardly any equity in favour of respondent, but
the petitioner is prepared to sell the land to respondent on market
price/reasonable price. Both the parties agree that Tehsildar, Kotkasim,
District Alwar, shall submit his report in regard to market price of
agriculture land in village Shorba, Tehsil Kotkasim after verifying the same on
spot. The report shall be submitted by the Tehsildar in person in court on
27.8.2001. The order shall be complied with literally by Tehsildar." The Tehsildar
submitted his report on 27.8.2001, on which date the following order was passed
per the previous order the Tehsildar concerned is present in person and he has
submitted his report.
need not appear again.
of the trial court has been received.
the case be listed for final decision and further agreements (sic) on
12.9.2001." The learned Single Judge thereafter by order dated 29.11.2001,
upon hearing the counsel for the parties, dismissed the said suit inter alia, holding
having lost in two bouts in the revenue courts and right upto the High Court,
the present plaintiff Abdul Rahman is still perhaps not satisfied and has filed
the present suit virtually on the same facts and for the same relief which
already stood adjudicated by the courts below for which a preliminary issue has
already been framed by the court.
opinion, it is a fit case where the inherent powers u/s 151 r/w Section 24 CPC
are required to be invoked by this court. The suit record has already been
received in this court.
going through the pleadings and the admitted documents i.e. judgment and decree
placed on record, I find that the matter is fully covered by the principles of res
judicata. Parties have been litigating right from 1979 and it had culminated
into two bouts of cases right upto High Court and again review application of
the plaintiff was dismissed by the Board of Revenue in 1999.
plaintiff is definitely misusing the process of law in the said case by filing
and approaching the courts repeatedly on the same issues.
preliminary issue to the effect whether the dispute to the present civil suit
in question has already been decided and adjudicated by the court and is barred
by the principles of res judicata, is fully answered by various orders and
judgment passed by various courts and upheld right upto the High Court and,
therefore, the issue stands decided against the plaintiff. It has already been
decided by the court that Parsony Bai etc. were legally entitled to retain the
land in their possession being the daughter of Mangal Singh. The escheat
proceedings illegally initiated against Parsony Bai in regard to property of
her father Mangal Singh have been rightly dropped and land restored to her.
also decided by the courts that the present appellant was not entitled to the
part of the land out of the land allotted to him in question. The present
plaintiff despite having lost two times on the same issue in regard to same
property is still dropping the petitioner in the third round of litigation in
the civil suit for declaration as mentioned above." A letters patent
appeal filed by the appellant herein being D.B. Civil Special Appeal (Civil)
No.191 of 2001 was dismissed by a Division Bench of the High Court by order
dated 4.12.2001 holding :
find that in the facts of the case, the learned Single Judge has rightly
applied the principle of constructive res judicata. The real controversy was
with regard to the same property and the same parties were litigating
present appellant having failed to establish his claim of allotment and such
allotment having been cancelled by the orders of the competent courts, which
was upheld by the High Court has again restored to file a suit afresh against
respondent Prasony Bai, this time in the guise of showing that she was not the
daughter of Mangal Singh. This issue was also substantially involved in the
revision petition. Once it is found that present appellant was entitled to have
allotment in his name, the allotment had been cancelled, he admittedly has no
locus standi now to challenge the fact that Smt. Prasony Bai was not the
daughter of Mangal Singh.
facts and circumstances of the case, we find that the learned Single Judge has
rightly exercised the powers under Section 151 read with Section 24 of Code of
Civil Procedure so as to put an end to the abuse of process of the court and to
bring end of the frivolous litigation. In our opinion, such an approach was
necessary in the facts and circumstances of the present case. Facts of the
present case depict a very dismal state of affairs in which party having
litigious perseverance has already been able to prolong the matter had to keep
the controversy alive for more than 24 years by move and is still desirous to
continue third round of litigation. Litigious perseverance is not to be
rewarded rather it is to be discouraged. In our opinion learned Single Judge has
rightly exercised the power under Section 151 read with Section 24 of Code of
facts and circumstances such an approach is the need of the hour. There is no
merit in this special appeal. The same is hereby dismissed." Hence, this
petition for grant of special leave to appeal to this Court has been filed
questioning the said order.
Sharan, learned senior counsel appearing on behalf of the appellant, had raised
the following contentions in support of this appeal :
High Court had no jurisdiction to withdraw the suit and dispose of civil
revision application purported to be in exercise of its power under Section 24
of the Code of Civil Procedure;
any event, the procedure for determining the issues in the suit having not been
followed by the High Court, the impugned order must be held to be without
the revenue court had no jurisdiction to adjudicate upon the question of
status, the principles of res judicata cannot be said to have any application
submitted that the appellant herein was a tenant of Mangal Singh. According to
the learned counsel, although it is not disputed that the said Mangal Singh was
the original allottee, as the appellant had been cultivating the land in
question, he acquired title by adverse possession. According to the learned
counsel, the proceedings for cancellation of allotment could not have been
initiated by the 1st Respondent as she was an imposter.
aforementioned situation, it was urged that the Board of Revenue could not have
determined the said question as regards the status of the 1st Respondent vis--vis
the original allottee, Mangal Singh, and thus the impugned judgment cannot be
be true that normally the High Court does not pass an order under Section 24 of
the Code of Civil Procedure in a disposed of proceeding. However, in terms of
Section 24 of the Code of Civil Procedure, indisputably the High Court had the
requisite jurisdiction to withdraw any suit pending in any court subordinate to
it and try or dispose of the same inter alia on its own motion; wherefor even
no notice is required to be issued.
24 of the Code of Civil Procedure reads as under :
General power of transfer and withdrawal.
the application of any of the parties and after notice to the parties and after
hearing such of them as desired to be heard, or of its own motion, without such
notice, the High Court or the District Court may, at any stage
transfer any suit, appeal or other proceeding pending before it for trial or
disposal to any Court subordinate to it and competent to try or dispose of the
any suit, appeal or other proceeding pending in any Court subordinate to it;
or dispose of the same; or
the same for trial or disposal to any Court subordinate to it and competent to
try or dispose of the same; or
the same for trial or disposal to the Court from which it was withdrawn.
Where any suit or proceeding has been transferred or withdrawn under
sub-section (1), the Court which is thereafter to try or dispose of such suit
or proceeding may, subject to any special directions in the case of an order of
transfer, either retry it or proceed from the point at which it was transferred
For the purposes of this section (a) Courts of Additional and Assistant Judges
shall be deemed to be subordinate to the District Court;
includes a proceeding for the execution of a decree or order.
The Court trying any suit transferred or withdrawn under this section from a
Court of Small Causes shall, for the purposes of such suit, be deemed to be a
Court of Small Causes.
suit or proceeding may be transferred under this section from a Court which has
no jurisdiction to try it.
perusal of the said provision leaves no manner of doubt that the High Court had
the requisite jurisdiction to suo moto withdraw a suit to its file and
adjudicate itself all or any of the issues involved therein.
records of the case furthermore clearly demonstrate that the appellant did not
raise any question as regards the lack of jurisdiction of the High Court to
pass such an order in terms of Section 24 of the Code of Civil Procedure. In
fact, the appellant not only without any demur submitted himself to the
jurisdiction of the High Court by taking part in the proceedings, but as
noticed hereinbefore, he even made an offer to purchase the property in
question. Eventually, despite a report as regards the market value of the land
in question has been submitted by the Tehsildar, the appellant appears to have
therefore, in the aforementioned premise, do not find any substance in the
contention of Mr. Saran that the High Court had no jurisdiction to withdraw the
suit on its own file for its disposal.
the purpose of disposal of the suit on the admitted facts, particularly when
the suit can be disposed of on preliminary issues, no particular procedure was
required to be followed by the High Court. In terms of Order XIV Rule 1 of the
Code of Civil Procedure, a Civil Court can dispose of a suit on preliminary
issues. It is neither in doubt nor in dispute that the issues of res judicata
and/constructive res judicata as also the maintainability of the suit can be
adjudicated upon as preliminary issues. Such issues, in fact, when facts are
admitted, ordinarily should be decided as preliminary issues.
noticed hereinbefore, the parties did not deny or dispute two earlier
proceedings, namely, (1) the proceedings for cancellation of allotment in favour
of the appellant and (2) the mutation proceedings, were initiated and
adjudicated upon by the revenue authorities.
proceeding to grant settlement of a land can be initiated by the revenue department
of the State. Similarly, the mutation proceedings can also be subject-matter of
revenue proceedings before the revenue authorities of the State.
question as to whether the property in question could have been the
subject-matter of a grant depended on the jurisdictional question, namely,
whether Mangal Singh died intestate without leaving any heir. If Mangal Singh
died leaving his heir or legal representative, the question to treat a property
as 'escheat' would not arise. Such a jurisdictional question, therefore, could
have been raised only before the revenue authorities in the said proceedings.
Once it is held that the revenue authorities had the requisite jurisdiction to
determine the said question subject, of course, to adjudication of the legality
or validity thereof in an appropriate civil suit, the issues which could and
ought to have been raised in the said proceedings but not raised would be
barred by the principles of constructive res judicata; particularly when the
validity or legality of the said proceedings had not been questioned in the
civil suit, as a result whereof, the same attained finality.
matter may not strictly speaking be the subject-matter of the suit itself as
brought out, yet it may relate thereto. A question as to whether the First
Respondent was the daughter of Mangal Singh, thus, is a matter relating to both
the cancellation of allotment proceedings as also mutation proceedings in the
matter heard and adjudicated upon by the Board of Revenue.
cannot further be any doubt or dispute whatsoever that the appellant in the
first proceedings was entitled to question the locus of the 1st Respondent
herein on the ground that she was not the daughter of the aforementioned Mangal
Singh. Admittedly, no such contention was raised by the appellant. In the
aforementioned situation, the application for cancellation of allotment made in
favour of the appellant herein was entertained by the revenue authorities at
the instance of the 1st Respondent as it was found that she was interested in
the subject-matter of the land in question and she had a right of hearing
before an order of allotment could be passed in favour of the appellant.
Furthermore, the right of the 1st Respondent to get back the possession of the
land as also to get her name mutated in relation thereto, has been upheld by
the Board of Revenue on two occasions. Even the appellant's prayer for review
of the order of the Board of Revenue was dismissed.
be true that only because the property in dispute had been mutated in the name
of one of the parties to the suit, the same would not be conclusive and binding
between the parties. But although by reason of entry in the record of right one
does not derive any title in relation to the property in dispute, as has been
held in State of U.P. v. Amar Singh & Ors.[(1997) 1 SCC 977] and [(1997) 7
SCC] & Balwant Singh & Anr. v. Daulat Singh (Dead) by L.Rs. (1997) 7
SCC 137] whereupon Mr. Sharan placed strong reliance, but in the instant case,
as noticed hereinbefore, the title of Mangal Singh vis--vis the First
Respondent herein had never been in dispute. The question which has been raised
in the suit is as to whether the appellant herein had acquired any right, title
or interest in the property by adverse possession. As the appellant claims
acquisition of title by prescription, it would necessarily lead to the
conclusion that Mangal Singh had title in respect of the property in dispute.
peculiar facts and circumstances of the case, therefore, if the learned Single
Judge of the High Court had withdrawn the suit and disposed of the same on the
admitted facts; we do not find any illegality therein.
learned Single Judge as also the Division Bench have held that the suit was not
maintainable, inter alia, on the ground that the appellant herein had no locus standi
to question the relationship of the 1st Respondent with the admitted owner of
the property, namely, Mangal Singh.
has strongly relied upon a decision of this Court in Khushro S. Gandhi &
Ors. v. N.A. Guzder (dead) by L.Rs. & Ors. [AIR 1970 SC 1468] but the said
decision is not applicable to the facts of the case inasmuch as therein no
order in terms of Section 24 of the Code of Civil Procedure was passed. The
question which arose for consideration in the said case was as to whether an
interim order could be passed in a pending civil revision application which had
nothing to do with the issue involved therein.
contention of the appellant that the revenue court could not have determined
the question of status of the 1st Respondent herein may be viewed from another
angle. The issue as regards the status of the 1st Respondent has never been
raised before the revenue authorities . As the appellant herein claimed himself
to be a tenant of Mangal Singh, there was no reason as to why he could not be
said to be aware of the relationship between the 1st Respondent and the said Mangal
Singh. He allowed the proceedings of the Board of Revenue to be determined
against him. The decision of the Board of Revenue attained finality. His writ
petition was also dismissed. Be it also noted that the civil suit was filed
three years after the adjudication of the rights of the parties in the mutation
aforementioned situation, in our opinion, the appellant must be held to have
taken recourse to abuse of process of court underlying the principle that the
litigation should be allowed to attain finality in public interest. Although
the concept of issues estoppel or estoppel by records are distinct and separate
from the concept of abuse of process in public interest, the court may refuse
the plaintiff from pursuing his remedy in a court of law. See Johnson v. Gore
Wood & Co. [(2002) 2 AC 1].
this case, we are also satisfied that having regard to the fact that the appellant
himself was the tenant of Mangal Singh, he could not have raised the plea of
adverse possession. As a tenant he could not have questioned the title of Mangal
Singh. The very fact that escheat proceedings were initiated at the instance of
the State also points out that the State proceeded on the premise that Mangal
Singh had the right title in relation to the land in question and as he died
intestate without leaving behind him any legal heir/representative, the same
vested in the State. The appellant, as noticed hereinbefore, was allotted the
land in question admittedly on the aforementioned premise, namely, Mangal Singh
at the time of his death had title to the land in question or the suit
property, but he died intestate. He, therefore, cannot be permitted to
prevaricate from his stand at this stage.
are, further, of the opinion that no case has been made out for interference
with the impugned judgment in exercise of jurisdiction of this Court under
Article 136 of the Constitution of India, even it be held that the High Court
had committed some irregularities in withdrawing the suit and disposing the
not find any merit in this appeal. The appeal is accordingly dismissed with