Holding

The High Court had jurisdiction under Section 24 CPC to withdraw and dispose of the suit, and the doctrine of constructive res judicata barred the appellant's claim, leading to dismissal of the appeal.

Summary

Abdul Rahman (appellant) claimed that Prasony Bai (respondent) was not the daughter of the original land allottee Mangal Singh and that he had acquired the land by adverse possession. The dispute stemmed from earlier escheat proceedings, cancellation of an allotment to the appellant and mutation proceedings, all of which had been decided by revenue authorities and upheld by the High Court. The High Court, invoking Section 24 of the Code of Civil Procedure, withdrew the civil suit from the trial court and dismissed it on the ground of constructive res judicata, without following any special procedure. The appellant appealed, arguing that the High Court lacked jurisdiction to withdraw the suit, that the proper procedure was not observed, and that the revenue courts could not decide the status of the first respondent, so res judicata should not apply. The Supreme Court held that the High Court indeed had jurisdiction under Section 24 to withdraw and try the suit suo motu, that disposal on admitted facts and preliminary issues does not require a special procedure, and that the principles of constructive res judicata barred the suit. Consequently, the appeal was dismissed with costs.

Issues considered

The High Court's jurisdiction under Section 24 CPC to withdraw a pending suit and dispose of it suo motu.
Whether the procedure followed by the High Court for disposing of the suit on preliminary issues was proper.
Whether the doctrine of constructive res judicata applies despite the revenue court's involvement and the appellant's claim of lack of locus standi.
Whether the appellant could claim adverse possession given his status as a tenant.
Whether the proceedings constitute an abuse of process.

Legislation cited

Code of Civil Procedure, 1908s. 151, s. 24

Subjects

constructive res judicataSection 24 CPCjurisdictionwithdrawal of suitpreliminary issuesabuse of processadverse possessionland disputeescheatmutation

Judgment

A ABDUL RAHMAN
v.
PRASONY BAI AND ANR.

NOVEMBER 20, 2002

B [RUMA PAL AND S.B. SINHA, JJ.]

Code of Civil Procedure, I 908:

Section I I-Principle of constructive res judicata-Applicability of-
C The issue which could and ought to have been ra.ised in a proceeding, but not
raise.[/ would be barred by the principle ofconstructive res judicata, particularly
when the validity or legality of the proceedings had not been questioned as
a result whereof. the same attained finality.

D Section 24-Withdrawal ofpending suit from subordinate Court by High
Cout;,t-Jurisdiction of High Court-Held, the Court has jurisdiction to
withdraw and dispose of the same on its own motion without issuing any
notice.

Suit-Disposal of-Requirement to follow procedure for disposal-Held,
E for the purpose ofdisposal ofsuit on admitted facts, particularly when it could
be disposed of on preliminary issues, no particular procedure is required to
be followed-Code of Civil Procedure Order XIV Rule I.

Escheat proceedings were initiated in respect of the property in
question declaring that he died intestate and the possession of the land
F was taken from respondent No.I 'by the Patwari. Thereafter a part of the
land was allotted in favour of the appellant who was tenant therein.
Respondent N~.I questioned the allotment in favour of the appellant before
the revenue authority who restored possession thereof of respondent No. I
and cancelled the allotment to appellant. Board of Revenue in appeal
maintained the order of cancellation of allotment. Writ Petition before
G High Court against order of revenue authority was dismissed.

In mutation proceeding, Board of Revenue directed mutation of land
in favour of Respondent No.I. Application for review against the order
of mutation was dismissed.
H 260
ABDUL RAHMAN v. PRASONY BAI 261
Appellant filed a suit for declaring that respondent No. I was not A
daughter of the original allottee; and that the plaintiff was in adverse
possession of the land. The litigation in the suit, when reached High Court
regarding preliminary issues, the Court having noticed that the previous
litigation between the parties also related to the property in suit, withdrew
the suit from the trial court and dismissed the same holding that the same
was not maintainable as being covered by principles of res judicata. L.P.A. B
against the order of the Single Judge was dismissed by Division Bench of
High Court.

Jn appeal to this Court appellant contended that High Court had
no jurisdiction to withdraw the suit and dispose of civil revision application C
in exercise of its power under Section 24 C.P.C.; that the procedure for
determining the issues in the suit having not been followed by High Court,
the impugned order was without jurisdiction; and that since revenue court
had no jurisdiction to adjudicate upon the question of status of respondent
No. I vis-a-vis the original allottee, the principles of res judicata cannot be
said to have any application. D
Dismissing the appeal, the Court

HELD: I.I. It may be true that normally High Court does not pass
an order under Section 24 C.P.C. in a disposed of proceeding. However,
in terms of Section 24 of the Code of Civil Procedure, indisputably the E
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.
(270-C-D(

1.2. The records of the case clearly demonstrate that the appellant F
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 C.P.C. In fact, the
appellant without any demur submitted himself to the jurisdiction of the
High Court by taking part in the proceedings. High Court had the
jurisdiction to withdraw the suit on its own file for its disposal. (271-D-F] G
Khushro S. Gandhi and Ors. v. N.A. Guzder (dead) by l.Rs. and Ors.,
AIR (1970) SC 1468, distinguished.

2. For 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 H
262 SUPREME COURT REPORTS (2002] SUPP. 4 S.C.R.

A terms of Order XIV Rule 1 of the Code of Civil Procedure, a Civil. Court
can dispose of a suit on pre~iminary issu.es. 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
B,, decided as preliminary issues. (271-G, HI
3.1. The question as to whether the property in question could have
been the subject-matter of a grant depended on the jurisdictional question,
namely, whether the original allottee died intestate without leaving any
heir. If he died leaving his heir or legal representative, the question to treat
C a property as 'escheat' would not arise. Such a jurisdictional question,
therefore, c.ould 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. legalit}'..,. or validity thereof in an appropriate civil suit,
the issues which could "and ought to have been raised in the said
D proceedings but not rafsed 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. (272-C-E]

3.2. A matter may not strictly speaking be the subject-matter of the
E suit itself as brought out yet it may relate thereto. A question as to whether
the first respondent was the daughter of the original allottee 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. Appellant in the first proceedings was entitled to
F question the locus of the 1st Respondent on the ground that she was not
the daughter of the original allottee. Admittedly, no such contention was
raised by the appellant. 1272-E-Gl

4.1. I.t may 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
G not be condusive and binding between the parties. Although by reason of
entry in the record of right one does not derive any title in relation to the
property, but in the instant case, the title of the o.riginal allottee vis-a-vis
the first respondent had never been in dispute. The question which has
been raised in the suit is as to w.hether the appellant herein had acquired )-

any right, title or interest in the property by adverse possession. As the
H appellant claims acquisition of title by prescription, it would necessarily
ABDUL RAHMAN v. PRASONY BAI 263

lead to the conclusion that the original allottee had title in respect of the A
property in dispute. 1273-B-DI

State of UP. v. Amar Singh and Ors., 1199711SCC734 and Ba/want
Singh and Anr. v. Dau/at Singh (dead) by L.Rs., 119971 7 SCC 137, referred
to.
B
4.2. In the peculiar facts and circumstances of the case if the Single
Judge of the High Court had withdrawn the suit and disposed of the same
on tile admitted facts, there is no illegality therein. 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 first respondent with the admitted owner of the C
property. 1273-D, El

4.3. The issue as regards the status of the first respondent has never
been raised before the revenue authorities. As the appellant claimed
himself to be a tenant of the original allottee, there was no reason as to D
why he could not be said to be aware of the relationship between the first
respondent and the original allottee. 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. Civil
suit was filed three years after the adjudication of the rights of the parties
in the mutation proceedings. 1273-G, H; 274-A, Bl E
4.4. 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 F
from pursuing his remedy in a court of law. 1274-B-q

Johnson v. Gore Wood and Co., 120021 2 AC I, referred to.

5. Having regard to the fact that the appellant himself was the tenant
of the original allottee, he could not have raised the plea of adverse G
possession. As a tenant he could not have questioned the title of the original
allottee. 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 the original allottee had the right title .in relation to the land
in question. The appellant was allotted the land in question admittedly on H
264 SUPREME COURT REPORTS [2002] SUPP. 4 S.C.R.

A the premise that the original allottee, 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.
1274-D-EI

6. No case has been made out for interference with the impugned
B 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 irregularties in withdrawing the suit and disposing the same.
(274-F)

C CIVIL APPELLATE JURISDICTION Civil Appeal No. 7497 of
2002.

From the Judgment and Order dated 4.12.2001 of the Rajasthan
High Court in D.B.C.S.A. 191 No. 2001.

A. Sharan, Amit umar and S. Chandra Shekhar, for the Appellant.
D
Goodwill Indeevar, P.K. Yadav, Ms. Kamakshi S. Mehlwal (NP) for
the Respondents.

The Judgment of the Court was delivered by

E S.B. SINHA, J. Leave granted.

Mangal 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
F 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 heir. Pursuant 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 I st Respondent on 28.3 .1979. A part of the land in
G 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
H
ABDUL RAHMAN v. PRASONY BAI [S.B. SINHA. J.] 265

favour of the 1st Respondent, an appeal was preferred by the appellant herein A
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 :

"(I) the order was passed behind the back of the party i.e. Parsony
Bai; (2) that Tehsildar should not have allotted the land to Abdul B
Rahman without giving notice to persons in whose name the land
already stood; (3) that it was therefore, clear that Tehsildar,
Kishangarhbas Harish Chandra had acted in most irresponsible manner
while allotting the land to Abdul Rahman; and (4) that for the
highhandedness the disciplinary proceedings should be initiated against C
the Tehsildar."

The 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.

A mutation proceeding was also initiated for mutating the name of the
D
I st Respondent which was also contested by the appellant. The name of the
I st Respondent was ultimately directed to be mutated by order dated 3 l.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 E
written submissions, (although not contended in oral argument) alleges that
the escheat proceeding is still pending.

Some 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: F
(I) to declare that Prasony Bai is not the daughter of Mangal Singh;

(2) that the plaintiff is in adverse possession even during the life of
Mangal Singh;

(3) permanent injunction. G
In the said suit, having regard to the pleadings of the parties thereto the
following three issues were framed :

(I) Whether the dispute of the civil suit in question had already been
decided and adjudicated upon by the courts and whether it is hit H
266 SUPREME COURT REPORTS [2002] SUPP. 4 S.C.R.

A by the principles of res judicata ?

(2) Whether the suit is beyond limitation ?

(3) Whether the plaintiff had no locus standi to file the suit ?

An additional issue was framed on 10.8.1999 by the trial comt, as
B 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 CoUtt as regards the legality of the order of the trial court
framing the 4th issue. By an order dated 24. I 0.2000, 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 Respondent stated that his clients
C who are ladies were being harassed on one or the other count and they h.ad
no objection if Issue No.4 in regard to jurisdiction of the civil court is deleted.

However, thereafter the I st Respondent filed an application that suitable
direction be issued to the Civil Judge, (Junior Division), Kishangarhbas, Alwar
D to decide Suit No.17 of 1999 as expeditiously as possible and the order dated
24.10.2000 be modified to the said extent. Although 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:

"For the reason that the judicial process be not abused by one or
E
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.

Before parting with the order, I suo motto (sic for 'suo motu')
F
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.

At this stage Mr. Khutetia states that he has no instruction from
G his client.

Counsel 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."
H
ABDUL RAHMAN v. PRASONY BAI [S.B. SINHA. J.] 267

On or about 6.8.200 I. the parties appeared in person before the learned A
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 I st Respondent herein expressed her desire to sell the property in suit in
favour of the appellant, whereupon the Tehsildar, Kotkasim, District Alwar, B
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 :

"The parties are present in person along with their counsel.

Even though, in my opinion, there is hardly any equity in favour C
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 D
·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 :
E
"As per the previous order the Tehsildar concerned is present in
person and he has submitted his report.

He need not appear again.

Record of the trial court has been received.
F
Let 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 G
"After 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
beld'w for which a preliminary issue has already been framed by the H
court.
268 SUPREME COURT REPORTS [2002) SUPP. 4 S.C.R.

A In my 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. After 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
B 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. The plaintiff is definitely misusing the process
of law in the said case by filing and approaching the .courts repeatedly
on the same issues.
c The 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
D 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. It was also decided by the courts that the present appellant was
E 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."
F
A letters patent appeal filed by the appellant herein being D.B. Civil
Special Appeal (Civil) No.191 of 200 I was dismissed by a Division Bench
of the High Court by order•dated 4.12.2001 holding :

"We find that in the facts of the case, the learned Single Judge
has rightly applied the principle of constructive res judicata. The real
G
controversy was with regard to the same property and the same parties
were litigating throughout. The 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
H respondent Prasony Bai. this time in the guise of showing that she
ABDUL RAHMAN v. PRASONY BAI [S.8. SINHA, J.] 269

was not the daughter of Mangal Singh. This issue was also substantially A
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.

In the facts and circumstances of the case, we find that the learned B
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 C
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 D
of Code of Civil Procedure. In the 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. E
Mr. Amarendra Sharan, learned senior counsel appearing on behalf of
the appellant, had raised the following contentions in support of this appeal:

(I) The High Court had no jurisdiction to withdraw the suit and
dispose of civil revision application purported to be in exercise of its F
power under Section 24 of the Code of Civil Procedure;

(2) In 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 jurisdiction;
G
(3) As 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 whatsoever.

Mr. Sharan submitted that the appellant herein was a tenant of Mangal
Singh. According to the learned counsel, although it is not disputed that the H
270 SUPREME COURT REPORTS [2002] SUPP. 4 S.C.R.

A 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 I st Respondent as she was an imposter.

In the aforementioned situation, it was urged that the Board of Revenue
B could not have determined the said question as regards the status of the I st
Respondent vis-a-vis the original allottee, Mangal Singh, and thus the
impugned judgment cannot be sustained.

It may 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. ·
C 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. Section 24 of the
Code of Civil Procedure reads as under :
D
"24, General power of transfer and withdrawal. (I) On 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
E
(a) transfer any suit, appeal or other proceeding pending before it for
trial or disposal to any Court subordinatt! to it and competent to try
or dispose of the same; or

(b) withdraw any suit, appeal or other proceeding pending in any
F Court subordinate to it; and

(i) try or dispose of the same; or . -
(ii) transfer the same for trial or disposal to any Court subordinate to
it and competent to try or dispose of the same; or

G (iii) re-transfer the same for trial or disposal to the Court from which
it was withdrawn.

(2) Where any suit or proceeding has been transferred or withdrawn
under sub-section (I), the Court which is thereafter to try or dispose
of such suit or proceeding may, subject to any special directions in
H the case of an order of transfer, either retry it or proceed from the
ABDUL RAHMAN v. PRASONY BAI [S.B. SINHA. J.] 27i
point at which it was transferred or withdrawn. A
(3) For the purposes of this section

(a) Courts of Additional and Assistant Judges shall be deemed to be
subordinate to the District Court;

(b) "proceeding" includes a proceeding for the execution of a decree B
or order.

(4) 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.
c
(5) A suit or proceeding may be transfeJTed under this section from
a Court which has no jurisdiction to try it.

A bare 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. D
The 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 E
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 backtracked therefrom.
F
We, 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.

For 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 G
was required to be followed by the High Court. In terms of Order XIV Rule
I of ihe 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 adm;tted, ordinarily should be decided as preliminary issues. H
272 SUPREME COURT REPORTS [2002] SUPP. 4 S.C.R.

A As noticed hereinbefore, the parties did not deny or dispute two earlier
proceedings, namely, (I) 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.

A proceeding to grant settlement of a land can be initiated by the
B revenue department of the State. Similarly, the mutation proceedings can also
be subject-matter of revenue proceedings before the revenue authorities of
the State.

The question as to whether the property in question could have been
C 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
D 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.
E
A matter may not strictly speaking be th~ 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 Mangat Singh, thus, is a matter relating
to both the cancellation of allotment proceedings as also mutation proceedings
F in the matter heard and adjudicated upon by the Board of Revenue.

There cannot further be any doubt or dispute whatsoever that the
appellant in the first proceedings was entitled to question the locus of the I st
Respondent herein on the ground that she was not the daughter of the
aforementioned Mangal Singh. Admittedly, no such contention was raised by
G the appellant. rn 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 I st 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 I st Respondent to get back the
H possession of the land as also to get her name mutated in relation thereto, has
ABDUL RAHMAN v. PRASONY BAI [S.B. SINHA. J.] 273

been upheld by the Board of Revenue on two occasions. Even the appellant's A
prayer for review of the order of the Board of Revenue \Vas disn1issed.

It may be true that only because the property in dispute had been
111utated in the na111e of one of the parties to the suit, the san1e \vould not be
conclusive and binding betv,reen the parties. But although by reason of entry
in the record of right one does not derive any title in relation to the property B
in dispute, as has been held in State of UP. v. Amar Singh and Ors., (1997]
I SCC 734 and [1997] 7 SCC and Ba/want Singh and Anr. v. Dau/at Singh
(Deact) 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-a-vis the First Respondent herein had never been in dispute. The C
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.
D
In the 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. The
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 E
locus standi to question the relationship of the !st Respondent with the admitted
owner of the property, namely, Mangal Singh.

Mr. Sharan has strongly relied upon a decision of this Court in Khushro
S. Gandhi and Ors. v. N.A. Guzder (dead) by L.Rs. and Ors., AIR (1970) SC
I 468 but the said decision is not applicable to the facts of the case inasmuch F
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.

The contention of the appellant that the revenue court could not have G
detennined the question of status of the I st 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 hi1nself to be a tenant of Mangal Singh, there was no reason a~ to
why he could not be said to be aware of the relationship between the I st H
274 _SUPREME COURT REPORTS [2002] SUPP. 4 S.C.R.

A Respondent and the said Mangal Singh. He allowed the proceeclings 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 proceedings. In the aforementioned
B 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 Qf law. See Johnson v. Gore Wood & Co.
C (2002) 2 AC 1.

In this case, we are also satisfied that having regard to the fact that the
appellant himself was the tenant of Mangat Singh, he could not have raised
the plea of adverse possession. As a tenant he could not have questioned the
t~tle of Mangal Singh. The very fact that escheat proceedings were initiated
D 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
E aforementioned premise, namely, Mangat 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.

We are, further, of the opinion that no case has been made out for
interference with the impugned judgment in exercise of jurisdiction of this
F 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 same.

We do not find any merit in this appeal. The appeal is accordingly
G dismissed with costs.

K.K.T. Appeal dismissed.