Holding

The Supreme Court held that the adoption issue was finally decided by the civil courts, thereby invoking res judicata and precluding the Sub‑Divisional Officer from re‑examining it, and that the re‑grant order under the Watan Abolition Act, 1958 is final and not subject to review.

Summary

The appellants, heirs of a Watandar, sued the respondents for a permanent injunction, asserting their right to the watan lands based on a 1941 declaration. The respondents claimed they were the adopted son of the deceased Watandar, relying on a 1931 order of the Mamlatdar, and sought re‑grant of the land. The trial court and subsequent appellate courts held that the adoption claim was not proved, rendering the respondents without Watandar rights, and the land was re‑granted to the appellants under the Bombay Inferior Village Watan Abolition Act, 1958. The respondents later obtained a direction from the State Government for the Sub‑Divisional Officer to re‑examine the adoption issue, which the High Court allowed, setting aside the earlier judgments. The Supreme Court held that the adoption issue had been finally decided by the civil courts, invoking res judicata, and that the re‑grant order under s.5(1) of the Watan Abolition Act was final and could not be reviewed by revenue authorities; consequently the High Court’s order was set aside and the appeals were allowed.

Issues considered

Whether the Bombay Hereditary Offices Act, 1874 and the Bombay Inferior Village Watan Abolition Act, 1958 exclude the civil court's jurisdiction under CPC s.9 to decide adoption and Watandari rights.
Whether the judgment in O.S. No.104/1953 holding that the respondent was not the adopted son operates as res judicata in subsequent proceedings.
Whether the High Court could set aside the civil court's decree and allow a revenue officer to re‑examine the adoption issue.
Whether the State Government had authority to direct the Sub‑Divisional Officer to revisit the matter despite the final re‑grant order.
Whether the Sub‑Divisional Officer's order of 22.11.1979 (or 1989) was valid in view of the earlier judgments and statutory scheme.

Legislation cited

Bombay Hereditary Offices Act, 1874s. 15, s. 18, s. 33, s. 34, s. 35, s. 64
Code of Civil Procedure, 1908s. 11
Limitation Act, 1963s. 27
Specific Relief Act, 1963s. 34

Subjects

adoptionres judicataWatandarWatan Abolition Actcivil court jurisdictionSpecific Relief ActLimitation Actre‑grant orderinheritancerevenue law

Judgment

~..,·

[2009] 15 (ADDL.) S.C.R. 222

A RAMCHANDRA DAGDU SONAVANE (DEAD) BY LRS. &
ORS. ~ >
v. •
VITHU HIRA MAHAR (DEAD) BY LRS. & ORS.
(Civil Appeal No. 7184-7185 of 2001) ~

B ....
·-.
OCTOBER 9, 2009 L

[B.N. AGRAWAL, G.S. SINGHVI AND H.L. DATTU, JJ.]

Bombay Inferior Village Watan Abolition Act, 1958 - ",\>' \.

c s.3(1)(b) - Suit against defendants for injunction from
interfering with possession of Watan Land - Plaintiffs claiming
to be Watandar declared by the competent authority in the ..
year 1941, being nearest relatives of deceased Watandar -
Defendants claiming to be Watandar on the basis of order of
D competent authority passed in the year 1931 declaring him
to be adopted son of the deceased Watandar - Suit decreed, ~

concluding that defendant was not the adopted son of
deceased Watandar - Re-grant of land to plaintiffs By
Revenue Authorities uls.5(1) of the Act - Subsequently
/

E defendant initiated proceedings before Revenue Authorities ;.
(SDO) and was declared as Watandar on the basis that order
of 1931 proved that he was the adopted son - Plaintiffs' ...
second suit for declaration of order of SDO illegal ab initio -
Suit decreed and upheld by first appellate court - High Court )

F
setting aside the decree - On appeal, held: Defendant was ,_
precluded from raising the issue of adoption before SDO -
Issue of adoption having been decided in previous suit, would ..l

operate as res-judicata - The finding in previous suit wa.~ '
binding on the defendant - Jurisdiction of c;ivil court not .,.)_

excluded as the claim before Revenue Authorities was based
G
on the factum of adoption - Issue of adoption was decided
by civil competent court, SDO could not have decided that
issue -Land re-granted to plaintiffs u/s. 5(1 ), having become +
final, cannot be reviewed de novo by SDO - Defendants'

H 222
RAMCHANDRA DAGDU SONAVANE (DEAD) BY LRS. & ORS. v. 223
VITHU HIRA MAHAR (DEAD) BY LRS. & ORS.

action was time\ barred in approaching the authority after 14 A
i::.. years from the date the decree in previous suit attained finality
- Code of Civil Procedure, 1908 - s. 11 - Principles of res-
judicata - Jurisdiction - Jurisdiction of civil court vis-a-vis
Revenue Court - Limitation Act, 1963 - s. 27.
B
Appellants-plaintiffs filed a suit, against respondent
No. 1 and others for an order of permanent injunction.
Plaintiffs claimed that they being the nearest relatives of
.) the Watandars of the suit land were their representatives.
Their right as Watandar was declared by the Collector in C
the year 1941. Respondent No. 1 contested the suit
claiming that his right as Watandar had been established
in 1931 by Mamlatdar, on his application ulss. 15 and 18
of Bombay Hereditaryc-Office Act, 1874, to recognize him
as Watandar, after declaring that respondent No. 1 was
the adopted son of the deceased Watandar. Trial Court D
decreed the suit concluding that plaintiffs were in
possession of the suit land; that respondent No. 1 was
not the adopted son of the deceased Watandar. The order
of trial court was confirmed in appeal. Second appeal
against the same was also dismissed. E

During pendency of the second appeal, on
application by the appellants-plaintiffs under Bombay
Inferior Village Watans Abolition Act, 1958, the competent
authority, after inquiry, passed order u/s. 5 (1) of the Act .F
in 1963 regranting the suit lands in favour of plaintiffs.

Respondent No. 1 made application in 1976, for
supply of certified copies of the order passed in 1931 by
Mamlatdar. He received xerox copy of the said order. In
a similar application made in 1941, respondent No. 1 was G
informed that the relevant papers were not available as
+ the same were destroyed.

On the basis of the order of 1931, respondent No. 1
filed application before State Government for direction to H
224 SUPREME COURT REPORTS [2009] 15 (ADDL) S.C.R.

A the competent authority to regrant the suit land to him as
in earlier proceeding in 1941, he was dispossessed on
the ground that he was not having relevant documents.

After direction of State Government, the competent
authority (SDO}, after inquiry, u/s. 3(1 )(b) of Bombay
B
Inferior Village Watan Abolition Act, 1958, concluded that
the copy of the order of 1931 proved that he was the
adopted son of the deceased Watandars; and that order
of the civil court would not have any bearing on the ,;
)
proceedings under the Act.
c
Appellants filed an appeal before appellate authority
as well as a suit for declaration that the order of SDO was
illegal ab initio and for permanent injunction.

D Trial court decreed the suit, holding that issue of
adoption having been decided conclusively in the
previous suit, the order therein would operate as res
judicata precluding respondent No. 1 from raising the
issue of adoption before SDO. In view of the decision in
the suit, appellate authority allowed the appeal.
E
First appeal against the judgment of trial court was
dismissed. Respondents filed second appeal against the
order of first appellate court and a writ petition
challenging the order passed by the appellate ~uthority.
F High Court allowed the appeal and the writ petition.
Hence the present appeals.

Allowing the appeals, the Court

HELD: 1. Appellants were holders of Wetan pursuant
G to an order passed by Deputy District Collector, dated
18.6.1941 and the District Collector after necessary
inquiry had passed an order of regrant of the suit lands -+
'
in their favour u/s. 5(1) of Bombay Inferior Village Watans
Abolition Act, 1958, and that order has become final, since
H
RAMCHANDRA DAGDU SONAVANE (DEAD) BY LRS. & ORS. v. 225
VITHU HIRA MAHAR (DEAD) BY LRS. & ORS.

4.. nobody had questioned the same before any forum. The A
Act does not provide for the review of the regrant order
nor it provides denovo enquiry to decide whether any
person is a Watandar. Therefore, the Sub-Divisional
,(-
Officer could not have entertained the application filed by
the respondents in the year 1979 for regrant of Watan B
lands, since the Act does not provide for review of any
earlier order passed u/s. 5(1) of the Act. [Para 29] [245-8-
~
E]

2. The question regarding validity of adoption
pertains to the· status and legal character of an individual,
c
which falls within the purview of Section 34 of the
Specific Relief Act, 1963, and a suit for declaration before
a civil court is maintainable. Therefore, the question
whether a particular person has been given in adoption
or not is different from whether a person has hereditary D
interest or rights in respect of a Watan property. If this
distinction is drawn, there is no exclusion of civil courts
jurisdiction under the Act. When a person makes a claim
on the basis of adoption, such an adoption cannot be
decided by the Collector as the same involves legal E
status/character of a person which can only be decided
by the civil court. Whether respondent No. 1 is an
• adopted son or not, is concluded and decided in the
previous suit. A specific issue had been framed and a
finding was recorded though it was a suit for injunction F
and the findings on this issue has been confirmed by the
appellate court and by the High Court in Regular Second
Appeal. [Para 30] [245-E-H; 246-A]
~

3.1 The Principle of res-judicata comes into play when
G
by judgment and order, a decision of a particular issue
+ is implicit in it, that is, it must be deemed to have been
necessarily decided by implications even then the
principle of res-judicata on that issue is directly applicable.
When any matter which might and ought to have been
H
226 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A made a ground of defence or attack in a former
proceeding but was not so made, then such a matter in
the eye of law, to avoid multiplicity of litigation and to
bring about finality in it, is deemed to have been
constructively in issue and, therefore, is taken as decided.
s When the material issue has been tried and determined
between the same parties in a proper suit by a competent
court as to the status of one of them in relation to the
other, it cannot be again tried in another suit between
them. If there is an issue between the parties that is
c decided, the same would operate as a res-judicata
between the same parties ·in the subsequent
proceedings. [Paras 31 and 33] [246-D-F; 247-C-E]

Workmen of Cochin Port Trust vs. The Board of Trustees
of the Cochin Port Trust AIR (1978) SC 1283; Swamy
D Atmandanda vs. Sri Ramakrishna, Tapovanam (2005), 10
SCC 51; Krishna Behari Roy v~. Bunwari Lal Roy 1875 ILR
(IC-144); lshwar Dutt vs. Land Acquisition Collector and Anr.
(2005) 7 SCC 190; /sher Singh vs. Sarwan Singh, AIR 1965
SC 948, relied on.
E
3.2 In the instant case, the finding drawn in the suit
for injunction in the earlier suit regarding adoption would
also operate as a res-judicata. In this case, though the suit )
was bare injunction, title to the properties was put on
F issue by the defendant no. 1 claiming that he is the
adopted son of the deceased Watandar and, therefore, he
has Watandar rights in the· suit lands. In order to decide
the prayers made in the ,suit, the issue of adoption had
to be decided. The issue falls within the exclusive
G jurisdictior1 of the civil court. In the subsequent
proceedings before the Sub-Divisional Officer, the issue
was whether respondent No. 1 was the adopted son 1 of +
' the deceased Watandar and, therefore, having hereditary
interest in any inferior village Watan under Watan
H Abolition Act, 1958. To decide this issue, the Sub-
RAMCHANDRA DAGDU SONAVANE (DEAD) BY LRS. & ORS. v. 227
VITHU HIRA MAHAR (DEAD) BY LRS. & ORS.

..
/ Divisional Officer firstly has to decide the issue, whether
respondent No. 1 is the adopted son of the deceased
A

Watandar. This issue is one which does not fall within the
jurisdiction of the Revenue court but falls within the
exclusive jurisdiction of the civil court. Since the issue of
adoption was already decided between the same parties B
by a competent civil court, the Sub-Divisional Officer
cannot decide that issue and without giving any decision

• on that issue could not have allowed the claim of
respondent No. 1. Therefore, the Principles of res-judicata
would apply to the proceedings before the Sub-Divisional c
Officer. [Paras 34 and 36] [248-8, 249-C-H]

Su/ochana Amma vs. Narayanan Nair (1994) 2 SCC 14;
Gram Panchayat of Village Naulakha vs. Ujagar Singh and
Ors. AIR 2000 SC 3272, relied on
°I" D
3.3 In a suit for injunction, the issues and the decision
would be confined to possessory aspect. If the right to
possession of property cannot be decided without
deciding the title to the property and a person who
approaches the court, his status itself is to be adjudicated E
then without declaring his status, the relief could not be
granted. In earlier suit respondent no. 1 claimed his right
.{ as an adopted son. Therefore, since he did not prove the
adoption, there was no subsisting right or interest over
the immovable property and as such the issue on F
adoption was a relevant issue in the earlier suit and,
therefore, the said issue whichI has been decided in
earlier suit and which has been confirmed in the regular
second appeal and the issue decided therein whether he
~

- .... was an adopted heir of Watandar was binding on the
G
parties. The similar question has to be decided by the
S.D.O. to decide the claim, right or interest in respect of
the hereditary office. Therefore, the issue was raised and
it was decided and it is binding on the parties. [Para 37]
[250-A-D]
H
228. ,SUPREME COURT REPORTS [2009) 15 (ADDL.) S.C.R. .
...

A Syed Mohd Salie Labbai (Dead) by Lrs. vs. Mohd.
~·
Hanifa (Dead) by Lrs. (1976) 4 SCC 780, referred to

Sulochana Amma vs. Narayanan Nair (1994) 2 SCC 14
Para 9, relied on
B 3.4 The ple.adings cannot be proved merely by
recitals of the allegations mentioned in the judgment. It
is true that if an earlier judgment has to operate as res-
judicata in the subsequent proceedings, then all the ,.
necessary facts including pleadings of the earlier
c litigation must be placed on record in the subsequent
proceedings. In the judgment and decree in the present
suit, the trial Judge in extenso has referred to the
pleadings of the parties in the earlier suit with reference
to the copy of the judgment and decree passed therein
D y.thich was produced by the appellants along with the ""!
other documents and it is only thereafter, he has
observed that the issue regarding adoption of respondent
No. 1 was one of the issues framed in the earlier suit and
the court after referring to the pleadings of both the
E parties and the evidence adduced has specifically
answered the issue by holding that respondent No. 1 has
failed to prove that he is adopted son of the deceased
Watandar. Each one of the conditions necessary to )
satisfy the test as to the applicability of Section 11 CPC
F is satisfied. [Paras 41 and 42) [251-F-H, 252-A-B-D]
4. Once proceedings initiated-at the instance of the
appellant in 1941, is accepted by the civil court and a
decree was passed, the said decree becomes final and
binding on the parties. Respondent No. 1 was disentitled _._..
~
G to approach the State Government nearly after 14 years.
The period of limitation provided under Section 27 of the
Limitation Act, if a right to property is not exercised within
12 years from the date on which the cause of action
accrues to him, he would lose his right of remedy under
H
- (..
RAMCHANDRA DAGDU SONAVANE (DEAD) BY LRS. & ORS. v.
VITHU HIRA MAHAR (DEAD) BY LRS. & ORS.

the Limitation Act. [Para 43] [252-E-F]
229

A

5. The State Government had no power to direct the
-(
Sub-Divisional Officer to hold an inquiry to decide
question of Watandar, notwithstanding the decree passed
by a competent civil court which has been affirmed by the B
High Court in Regular Second Appeal. The abolition of
watan is by a legislative decree and not by executive
action. Its consequences must be sought under the
Statute which effectuates the abolition. It is, therefore,
resumption and re-grant must be within the statutory
framework. [Para 43] [253-B-C]
c
Case Law Reference :

JI
AIR 1978-SC 1283 Relied on Para 31
¥ (2005) 1o sec 51 Relied on Para 32 D

1875 ILR (IC-144) Relied on Para 33
c2005) 1 sec 190 Relied on Para 33
AIR 1965 SC 948 Relied on Para 33 E
(1994) 2 sec 14 Relied on Paras 34 & 38
AIR 2000 SC 3272 Relied on Para 35
(1976) 4 sec 1ao Referred to Para 40
F
CIVIL APPELLATE JURISDICTION : Civil Appeal No(s).
7184-7185 of 2001.

From the Judgment & Order dated 01.07.1999 of the High
Court of Judicature at Bombay in Writ Petition No. 3667 of
1985 and Second Appeal No. 87 of 1986.
G

Vinay Navare, Kailash Pandey, V.B. Joshi, for the
Appellants.
"' Shekhar Naphade, Mahesh Agaiwal, Rishi Agrawala, E.C. H
230 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A Agrawala, Amit Kumar Sharma, Sushil Karanjkar, Dr. Nafis A. ~
Siddiqui, for the Respondents.

The Judgment of the Court was delivered by

H.L. DATTU, J. 1.These appeals are directed against a
8 common judgment and order passed by the High Court of
Judicature at Bombay in Writ Petition No.3667 of 1985 and
Second Appeal No.87 of 1986 dated 01.7.1999, whereby and
whereunder the writ petition and the second appeal filed by the _ r•
respondents herein are allowed and the order passed by
c Additional Commissioner in Appeal No. A/WIN/SR/9/80 dated
6.4.1985 and th·e judgment and decree passed by the trial court
in Civil Suit No. 2353 of 1979 dated 10.2.1984 and confirmed
in Appeal No. 535 of 1984 dated 18.6.1985 are set aside.
~
.
D 2. To appreciate the contentions of the parties, the facts >(
in extenso requires to be noticed and they are:- The suit land
was of the category of Mahar Watanlands situated in village
Pimpre Khurd, Purandhar Taluk, District Pune. The suit lands
originally belonged to Ramabai, wife of Pandu Sonawane and
Radhabai Vlfife of Sawale Sonavane. Both of them did not have
E
any issues. The appellants had claimed that their forefathers
were the nearest relatives of both the ladies and the property
being watanlands, the same vested in them. The appellants had
further claimed that Vithu Hira Mahar (for s,hort 'Vithu') had no
right, title or interest in the watanlands, how~ver, was cultivating
F the suit lands after getting the entries made in the records of
rights. It was the case of the plaintiffs/appellants before the trial
court, that, when it came to the notice of respective fathers of
the plaintiffs, as well as plaintiff No.2, an application dated
14.08.1940, was filed befqre the District Deputy Collector for
G resumption of watanlands which were in possession of Vithu.
,,
In the application filed, it was the stand of the applicants that
they were the nearest relatives of Ramabai and that Vithu got
his name entered in the record of rights fraudulently after the
death of Ramabai. They had further contended that Vithu is an •:-
H
.... 'RAMCHANDRA DAG DU SONAVANE (DEAD) BY LRS. & ORS. v. 231
VITHU HIRA MAHAR (DEAD) BY LRS. & ORS. [H.L. DATTU, J.]

outsider and belongs to different family and as such his name A
' could not have been entered in the Peta Account Book. After
recording the statement of both the parties, the Deputy District
Collector had passed an order dated 18.06.1941, directing the
'.
,
suit lands be returned to the applicants on the ground that the
entries in the Peta Account Book made in Vithu's name B
pursuant to an order said to have been passed in the year 1931
was not traceable and therefore, it is not clear how the name
of a person not connected with the family of Watandar was
'
~
"" entered in the cash allowance register and, therefore, the
watanland requires to be resumed and handed over to the c
applicants who are the nearest family members of the
deceased Watandar and further had directed that the
circumstances under which Vithu's name came to be entered
.. in the revenue records was suspicious and the same should
be investigated.
t' D
3. Vithu (respondent no.1) was the grandson 9f Ramabai.
.l It is his assertion that he had filed an application on16.07.1931
before the Mamlatdar under Section 15 and 18 of the Bombay
Hereditary Office Act, 1874, to recognize him as the Watandar
with respect to the suit lands. The Mamlatdar said to have E
passed an order dated 22.10.1931 in favour of Vithu under
Section 15 and 18 of the said Bombay Hereditary Office Act,
to enter his name in the Peta Account Book, in the place of
Ramabai after declaring that Vithu was the adopted son of
Ramabai. F
4. Sometime in the year 1953, the appellants had filed a
suit, O.S. No.104of1953, against Vithu and others for an order
of permanent injunction before the Court of Civil Judge, Junior
Division, Saswad, to restrain Vithu and the other respondents
G
from interfering with their peaceful possession of the suit land,
-f on the ground that the Deputy District Collector had passed an
order in their favour and that Vithu and others were obstructing
their peaceful possession of the suit land. The appellants had
also based their claim on the finding arrived at by the Collector
of Pune in his order dated 18.6.1941, that they were the H
232 SUPREME COURT REPORTS [2009] 15 (AOOL.) S.C.R.

A representative of Watandars with respect to the suit land. Vithu '4
and the other respondents had resisted the relief sought in the
suit, inter-alia contending that there was an earlier suit filed by
the appellants against their tenant to whom the suit land had
been leased and they have not obtained valid permission to
8 withdraw the said suit and therefore the present suit is barred
by res judicata. The Trial Court in its judgment and decree after
considering the rival contentions of the parties to the lis, had
concluded, apart from others, that the Prant Officer had issued
r•
a notice in 1951 to the respondents restraining them from
c obstructing the vahiwat of the appellants; that the doctrine of
res judicata did not apply as the previous suit filed by the
appellants was different from the present suit. The trial court
while considering the other rival contentions of the parties had
specifically framed the following two important issues for its
consideration and decision. They were:
D 't
(i) Do the plaintiffs prove that they were in possession of
the suit property <::5 Watandars as alleged? j.

(ii) Do defendants prove that defendant no.1 (Vithu) was
E he adopted son of his grandmother and as such was in
possession of the suit property?

5. The trial court after considering the pleadings and the
oral and documentary evidence on record had answered the
first issue in the affirmative and the second issue in the negative.
F In so far as the first issue, the trial Court had concluded that
the plaintiffs are in possession of the suit lands as Watandars.
While answering the second issue of adoption, the trial court
had observed, that, even though Vithu had stated in the cross
examination that he had the necessary documents to prove the
G adoption, the same was never produced, and the testimony of
the Vithu and his witnesses with regard to the year of adoption
was inconsistent. Therefore the trial court held that the adoption
of Vithu had not been proved. Accordingly, the trial court had
decreed the suit and thereby had permanently restrained the
H
RAMCHANDRA DAGDU SONAVANE (DEAD) BY LRS. & ORS. v. 233
,-'
VITHU HIRA MAHAR (DEAD) BY LRS. & ORS. [H.L. DATIU, J.]

respondents from obstructing the Vahiwat of the plaintiffs/ A

' appellants in the suit lands.
\
6. Vithu, being aggrieved by the judgment and decree
passed by the trial court in O.S. No.104 of 1953 dated
•• 24.10.1955, had preferred first appeal before the District Courtt B
Pune in Civil Appeal No.578 of 1955. The said appeal was
dismissed by the District Court by its order dated 22.02.1958,
by confirming the findings of the trial court.
J,
• 7. Being aggrieved by the said order, Vithu had
approached the High Court in Second Appeal No.962 of 1958. c
In the appeal, it was contended that, in the year 1931,
Mamlatdar of Purandar had held an inquiry under the Watan
Abolition Act in which Vithu was recognized as a representative
... Watandar and that order had attained finality, since neither the
appellant nor any other person had questioned the said order D
t' before any forum within the period of limitation. The court
declined to answer this contention mainly on two grounds. Firstly,
- this issue was never raised in the trial court nor before the
appellate court and the same cannot be permitted to be raised
and argued for the first time in second appeal, since the issue E
is purely a question of fact, though it is sought to be raised as
a question of law. The court had also taken note of the fact, that,
the order said to have been passed by Mamlatadar in the year
~ 1931 was not produced, for the reason that the record for the
relevant year had been destroyed. The second issue that was F
~
also not entertained by the court was the reference made to
1931 order in the order made by the Deputy District Collector
dated 21st August, 1941, by which the appellants/plaintiffs were
recognized as the representative of Watandar in an enquiry
held under Watan Abolition Act, on the premise that, the same
G
is raised for the first time in second appeal and it cannot be
-'(- permitted, since answer to that issue requires the factual
foundation before the trial court. Ultimately, the court had
observed that the only issue that was agitated before the trial
court was, whether Vithu was the adopted son of Pandu Mahar
H

-
234 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R. · I

A or not and since there was concurrent finding by the trial court
and first appellate court and since that finding does not appear 4,
to be perverse finding, it is not possible to interfere with the
findings of fact and, accordingly, had dismissed the second
appeal by its order dated 20.10.1964. tf
B
8. The appellants during the pendency of the proceedings
before the High Court had filed application for regrant of
watanlands under the provisions of the Bombay Inferior Village
Watans Abolition Act, 1958, before the Collector who is the ;..- -4-
competent authority under the Act, to decide the question
c whether any land is watan land and whether any person is
Watandar. The Collector after holding an inquiry had passed
an order dated 03.6.1963, regranting the suit lands in favour
of the appellants.
.,,__
D 9. It is pertinent to note at this stage itself, that, Vithu had
made an application dated 24. 5.1941 to the Mamlatdar, '1
requesting for a supply of the certified copy of the order passed
in his favour, recognizing him as the Watandar with respect to
the suit land in the year 1931. By a reply dated 15.6.1941, the
E Mamlatdar had informed him that the concerned papers had
been destroyed previously and therefore certified copy of the
same cannot be supplied.

10. Vithu had filed another application in the year 1976, '1
requesting for supply of certified copies of the order passed in
F the year 1931 before Mamaltadar. After obtaining the xerox copy
of the said order, .had filed application before the State
Government, inter-alia stating that he had been dispossessed
on the basis of not being in possession of the relevant
documents relating to the 1931 order passed in his favour by •
G the Mamlatdar after holding an inquiry under Section 15 and
18 of the Bombay Hereditary Offices Act, 1874, and, therefore, _,.
had requested the State Government to direct the Collector to
initiate proceeding~ to regrant and restore possession of suit
land.
H
- ...,. RAMCHANDRA DAGDU SONAVANE (DEAD) BY LRS. & ORS. v. 235
VITHU HIRA MAHAR (DEAD) BY LRS. & ORS. [H.L. DATTU, J.]
'""'
11. Pursuant to the direction issued by the State A
... i Government, the Sub Divisional Officer, Baramati Division,
,
(hereinafter referred to as 'SDO'), had made an inquiry under
Section 3(1 )(b) of the Bombay Inferior Yillage Watan Abolition
Act, 1958 (hereinafter referred to as the Watan Act) to decide
t
~
~s to who was the rightful Watandar with respect to the suit land. B
he SDO relying on the xerox copy of the order passed in the
year 1931 by the Mamlatdar, which according to him
conclusively proves, that, Vithu was the adopted son of
~ Ramabai, in spite of the contention of the appellants that the
civil court in O.S. No. 104 of 1953 has concluded that he was c
not the adopted son of the deceased Watandar. The SDO had
also observed in his order, that the finding of the trial court
which was affirmed by the High Court, was for the reason that
Vithu was unable to produce the order passed by Mamlatdar
dated 22.10.1931, and the findings and the conclusions
" ~
'·
reached by the civil court will not have any bearing in a
D

.. proceeding under the provisions of Bombay Inferior Village
Watan Abolition Act, 1958. Accordingly, had allowed the claim
of Vithu and had declared that Vithu was the watandar of the
suit lands.
E
12. The appellants being aggrieved by the order passed
by the SDO dated 22.11.1979, had preferred an appeal before
" the Additional Commissioner and also had filed a civil suit, O.S.

.... '
No.2353 of 1979 before the Civil Judge, Junior Division, Pune,
for a declaration that the said order of the SDO was illegal and F
void ab initio. The appellants had also prayed for permanent

' injunction against the respondents from taking possession of
the suit lands.

-· 13. The trial court while passing the judgment and decree
G
in the suit filed by the appellants has noticed that, once the
issue of adoption was conclusively decided by the civil court
~· in the suit filed in the year 1953 by the appellants against Vithu,
... the same would operate as res-judic~ta and thereby preclude
Vithu from raising the issue of adoption again before the Sub
H

.....l
t-:
236 SUPREME COURT REPORTS (2009) 15 (ADDL.) S.C.R. """.1'

A Divisional Officer. Secondly, ignoring the judgment and decree
passed by the civil court, the SDO could not have allowed the )
it:
claim of Vithu and recognized him as watandar, since he was
not the adopted son of deceased watandar.
14. The Additional Commissioner, Pune Division, by his
B order dated 06.04.1985, had allowed the appeal and had set
aside the order passed by Additional Commissioner in view
"
of the judgment and decree passed by the civil court in O.S.

c
No. 2353 of 1979.
15. Being aggrieved, the respondents had filed first appeal
•
before District Court, Pune, in Civil Appeal No.535of1984.·Th~
primary contention of the respondents was that, the order • fl
passed by the SDO under the Act was binding on the civil courts
and therefore, civil court has no jurisdiction to decide the matter
of Watandari rights. Further the findings of the civil court in the >
D ~~
earlier round of litigation with respect to adoption of Vithu is ~
not conclusive and in fact it was left open to be investigated.
Since the SDO has decided the matter in the light of the
documents which Vithu managed to obtain in the year 1976,
the finding is conclusive and binding on the parties. The first
...
E appellate court after a detailed consideration of the issues .
raised had dismissed the appeal by its order dated
18.06.1985. ;.

16. Being aggrieved by the findings of the lower appellate )

F court, Vithu and others had filed a second appeal under Section
100 of Code of Civil Procedure, 1908, before the High Court. ~
Simultaneously, they had also filed a writ petition against the
order passed by the Additional Commissioner, Pune Division,
dated 06.04.1985.
"
G 17. The primary contention of the respondents before the
High Court was that, when Vithu initiated proceedings before
the SDO for declaration of his Watandari rights, Vithu had in
his possession the documents of the proceedings before the ~
....
Mamlatdar in the year 1931, which included the order of
H Mamlatdar who had recognized Vithu as watandar of the suit

. ~?!"
'f-i
RAMCHANDRA DAGDU SONAVANE (DEAD) BY LRS. & ORS. v. 237
VITHU HIRA MAHAR (DEAD) BY .LRS. & ORS. [H.L. DATTU, J.]

lands, being the adopted son of Ramabai and since the Deputy A
District Collector had in his order dated 18-6-1941, had kept
open the issue regarding status of Vithu, the SDO was justified
in allowing the application of Vithu and conferring upon Vithu
the rights of Watandar in respect of the suit lands. Secondly,
the subject matter in both the suits are not identical. While the B
Suit filed in the year 1953, the only relief that was sought for
was permanent injunction, restraining Vithu and others from
, .-l
obstructing peaceful possession of the appellants and the relief
that was prayed in the Suit filed in the year 1979 was to set
aside the order passed by Sub-Divisional officer dated c
22.11.1979.

18. To answer the aforesaid contentions, the High Court
has observed, that, no relief of declaration that Vithu was not
the adopted son of Ramabai was claimed by the respondents
in the civil suit filed in the year 1953. Further, in a suit for D
injunction the only question that was relevant and important was
about the possession and as such the other questions raised
by Vithu in defence was only an incidental and ancillary
question. The High Court has further relied on the law laid down
by this court, that the issue of res judicata was to be decided E
,..

on the basis of the pleadings produced by the parties in the
earlier suit and not by mere recitals of the allegations in the
\ judgment. Therefore in the absence of the pleadings of the
previous suit, the lower appellate court had erred on deciding
the issue of res judicata on the basis of recitals of allegations F
in the judgments of the 1953 suit. _The High Court has also
observed that the jurisdiction of deciding wantandari rights are
vested in the revenue authorities, and therefore, finding of the
civil court in the 1953 suit will not operate as res judicata in the
1979 suit. G
-t 19. Before the High Court, it was also contended that the
civil court had no jurisdiction to decide the Watandari rights by
virtue of the provisions of The Bombay Inferior Watans Abolition
Act, 1958, The Bombay Hereditary Offices Act, 1874, and The
H

-
.'.;,.F:H'"
238 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R

A Bombay Revenue Jurisdiction Act, 1876. Section 3 of the )
Bombay Watans Abolition Act, 1958, lays down that if a
question arises, whether any land is watan land, whether any
person is a Watandar or whether any person is an unauthorised
holder, the Collector shall decide the question after holding an
B inquiry. As per sub-section (2) right of appeal is provided to
the State Government and sub-section (3) lays down that the
decision of the Collector, subject to an appeal shall b!3 final.
The contention by the counsel for the respondents was that even l.
I '
if a watanship is abolished by this Act, the Collector was still
c empowered to make an enquiry under section 3(1)(b) as to
whether a person is a Watandar and to evict an unauthorised
holder under section 9 of the Act. The contention raised by the
appellants was that after abolition of Watandari rights, Collector
had no power firstly to recognise Vithu as Watandar being
adopted son of Ramabai and secondly the Collector had no
D "i-
power to evict the respondents who were authorized holders .-
of suit lands pursuant to the order passed by the Deputy District
Collector dated 18.6.1941. ..<

20. The High Court after referring to the relevant provisions
E has concluded, that the decision of the Collector regarding a
1:'.i
person being Watandar or an adopted son of Watandar is
made final and conc_lusive and therefore, it is the Revenue Court
alone which was competent to decide the right of Vithu as a )
Watandar of the suit land being the adopted son of Ramabai.
F Accordingly, has allowed the second appeal and the writ
petition, by setting aside the judgment and decree passed by
the trial court in O.S. No.4353 of 1979 dated 10.02.1984 and .
the judgment of the lower appellate court in Appeal No.53i:: of ~-.

1984 dated 18.06.1\995 and the order passed by Additional
G Commissioner dated 06.04.1985. The common judgment ·.-·:-.
-·
passed by the High Court is the subject matter of these appeals.
. . .....
~.·-
~
.i"M..::...,
21. We have heard learned counsel Shri Vinay Navare for ...
'-'
the appeUants and Shri Shekhar Naphade, learned senior . ·'\.~

.~
counsel for the respondents. The learned counsel for the
H

1'~~+11
•
(

·" RAMCHANDRA DAGDU SONAVANE (DEAD) BY LRS. & ORS. v. 239
VITHU HIRA MAHAR (DEAD) BY LRS. & ORS. [H.L. DATIU, J.]

.. ' appellants has submitted, that, the civil court in a properly
constituted suit has decided that Vithu is not the adopted son
of deceased Watandar and that finding has become final in
A

- view of the order passed by the High Court in the regular
second appeal filed by Vithu and, therefore, the revenue
authorities could not have examined and decided the issue of B
adoption once over again. It is further submitted that the High
Court was not justified iri relying on the order passed by the
Mamlatdar in the year 1931, which was discarded both by the
........ ....• trial and the first appellate court, on the ground that Vithu had
failed to adduce oral and documentary evidence in support of c
_(
his claim that he is the adopted son of the deceased Watandar.
( It is further contended that the Sub-Divisional Officer had no
jurisdiction under the Act, to review and modify the regrant
order passed by the Deputy District Collector under Section
5(1) of Watan Abolition Act, 1958. It is further submitted that
D
+ the issue regarding adoption decided by the civil court and
confirmed by the High Court in the regular second appeal
K. between the same parties operates as res-judicata and,
~
therefore, the High Court was not justified in re-examining the
same issue and taking a different view in the matter. It is also
submitted that the High Court erroneously has come to the
E
conclusion that the subject matter of 1953 suit and 1979 was
different and, therefore, Principles of re-judicata are not
~ attracted.

22. Per contra, learned senior counsel Shri Shekhar F
Naphade for the respondents would submit, that, Vithu without
proving the issue of adoption, can still be Watandar in view of
the specific provision under the provisions of The Bombay
Hereditary Offices Act, 1958. The learned counsel would further
contend that, the Bombay Revenue Jurisdiction Act, 1876, the G
Bombay Hereditary Offices Act, 1958 and the Bombay Inferior
~
Village Watans Abolition Act, 1958, constitute one code and
therefore those Acts must be read together and not in isolation.
The learned senior counsel would also submit that the order
passed by the Mamlatdar dated 22.10.1931, on the application H
240 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R. -.,

A filed by Vithu cannot be faulted, even assuming there was some
defects in the procedure adopted at the time of adoption of \
Vithu by his adopted parents. In support of this contention, (he
learned counsel has placed reliance on the observations made
by this Court in the case of L. Devi Prasad (Dead) by L.Rs.
'
B vs. Smt. Triveni Devi and Others (AIR 1970 SC 1286). The
learned senior counsel would further contend, that, the order
passed in the year 1931, is not annulled or modified by any
forum and, therefore, the full effect must be given to that order.
It is further contended that the order passed by the authorities ;. ;(
c under the Bombay Hereditary Offices Act, 1874 sometime in
the year 1941, recognizes the order passed in the year 1931
and therefore, there is no reason to disbelieve the existence
of 1931 order passed by Mamaltadar. It is further submitted that
all the authorities have deCided against the respondent on the
basis of the judgment and decree passed by the trial court in
D
the original suit filed by the appellants in the year 1953, without --+
realising the doctrine of principle of res judicata is not attracted
both on the procedural stand point as well as substantive law
point as the issue of recognition of Watandar was within the
exclusive jurisdiction of the authorities under Watan Aboli_tion
·-
E Act, 1958, and other cognate Acts. Alternatively, it is contended
that since civil court had no jurisdiction to decide Watandari
\
rights, any decision rendered by the civil court on that issue
would not operate as res judicata in any subsequent )
proceedings. While summing up his submissions, the learned
F senior counsel would contend, that, since the reasoning ..
adopted by the High Court is a possible view, the same need f-

not be interfered with by this Court in exercise of its power
under Article 136 of the Constitution of India.

23. Mr. Sushil Karanjkar, learned counsel appearing for
,
G
some of the legal representatives of deceased respondent
would submit, that, the order passed by the competent authority >-
in the year 1931 was after following the procedure prescribed
under Section 15 and 18 of the Bombay Hereditary Offices Act,
1874, and since that order has not been challenged by the
H
RAMCHANDRA DAGDU SONAVANE (DEAD) BY LRS. & ORS. v. 241
VITHU HIRA MAHAR (DEAD) BY LRS. & ORS. [H.L. DATTU, J.]

1 appellants in any proceedings at any point of time, the same A
must be given effect to. It is further contended thatSDO in the
year 1979 while reviewing the order passed in the year 1941 ,
had-reli~d upon xerox copies of the ..order recognizing the
respondent as Watandar in the year 1931 and since the
appellants had not objected to the production of the xerox B
copies and based on those records and documents, the SDO
has rightly passed an order in the year 1979, recognizing the
___.. ~. respondent as Watandar of the suit lands and, therefore, the
learned counsel submits that the High Court was justified ·in
setting aside the order passed by the Appellate Court and also c
the Additional Commissioner.

24. Questions of Law :- The following questions of law
would arise for our consideration and decision:

t (i) Whether the provisions of Bombay Hereditary D
Offices Act, 1874 and Bombay Inferior Village
Vatan Abolition Act, 1858,. exclude the jurisdiction
of the Civil Court under Section 9 of the Code of
Civil Procedure to decide the plea of adoption and,
consequently, Watandari rights under the Act? E

(ii) Whether the Judgment and Decree in O.S. No.104/
1953 holding that the respondent - Vithu was not
the adopted son of the deceased Watandar would
be binding on the parties in the subsequent suit and
F
other proceedings?

(iii) Whether the Judgment and Decree passed in O.S.
No.104 of 1953 would operate as res judicata in
subsequent proceedings, including the proceedings
before the High Court in the second appeal and writ G
petition filed by the respondents?

(iv) Whether the order passed in the year 1941,
holding that the plaintiffs are the representatives of
Watandars, accepted by the High Court in Regular
H
242 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A Second Appeal No.962 of 1958, would debar the
')-
right of the respondent-Vithu in approaching the
State Government in re-agitating the matter?

(v) Whether the State Government disregarding the
decision of the Civil Courts in earlier Suits and the
B
Judgment and Decree passed therein was justified
in directing the Sub-Divisional Officer (SDO) to
decide the matter afresh?
).- :
(vi) Whether the Sub-Qivisional Officer was justified in
c pas~ing the order dated 22.11.1989, despite the
Judgment and Decree of the Civil Court in the year
1953 and the order of regrant passed in favour of
the appellants under Section 5(1) of Watan
Abolition Act, 1958 dated 03.6.1963?
D
25. Law regarding Watanland and Scheme of Bombay 't·
Hereditary Offices Act, 1874 :- The Bombay Hereditary Offices
Act, 1874 (the 'Act' for short) is an act to amend the law relating
to H~reditary Offices. ltextends to the Regulation Districts and
to all villages therein, whether alienated or otherwise. Section
E
4 of the Act is the interpretation clause. Under the Act,
·watandar' means a person having an hereditary interest in a
watan. It includes a person holding watan property acquired by
him before the introduction of the British Government into the J
locality of the watan, or legally acquired subsequent to such
F introduction, and a person holding such property from him by
inheritance. It includes a person adopted by a owner of a watan,
subject to the conditions specified in Section 33 to 35 of the
Act. Section 64 of the Act empowers the Collector subject to
general control of ii ~e State Government, to register the names
G of individual Watandars as holders of the office or to register it
as held by the whole body of Watandars. The collector is also
?-
empowered to amend the entry in the register, when he is
satisfied that a person who produces a decree or order of the
competent court is entitled to have his name entered in the
H register as nearest heir of a deceased Watandar in preference
•
244 SUPREME COURT REPORTS [2009) 15 (ADDL.) S.C.R.

A property appertaining to the office of any hereditary officer
appointed or recognized under Bombay Act No. Ill of 1874.
Section 5 of the Act, is an exception to Section 4 of the Act.
•
Section 5(b) of the Act authorizes the civil courts from
entertaining the suits between private parties for the purpose
B of establishing any private right, although it may be affected by
any entry in any record of revenue survey or settlement or in
any village papers. However, the said suit can only be
entertained in the districts mentioned in Second Schedule.
~
28. Our Analysis :- Under Section 3 of the 1958 Act, the
c power is conferred on the Collector to decide the rights
regarding watanlands. Watandar means a person having
hereditary interest in an inferior village watan under the existing
watan law. The Collector can only decide whether a person has
got a hereditary interest in an inferior village of watan under the
D existing watan law. The learned counsel for the appellant
contends that after the Bombay Inferior Village Watans Abolition
+
Act, 1958 was notified on 20.1.1959, the appellants had
approached the Collector with a request to regrant the ,t

watanlands, since they are holders of watan and pursuant to
E the request made, the Collector had passed an order dated
03.6.1963 in exercise of his powers under Section 5(1) of the
Act, and if any person was aggrieved by that order, could have
filed an appeal as provided under the Act within the time limit
prescribed. Since that was not done by any person including J
F Vithu, that order has become final and, therefore, the Sub-
Divisional Officer could not have entertained the application filed ~

by Vithu in the year 1979 and further could not have passed
any order under S8ction 5(1) of the Act.

29. We have seen the scheme of the Act. Section 3 of the
G
Act authorizes the Collector to decide any question as to
whether any land is watan land; whether any person is a
;,.
Watandar; and whether any person is an unauthorized holder.
The order passed by the Collector can be subject matter of
appeal before the State Government. The order passed by the
H
RAMCHANDRA DAGDU SONAVANE (DEAD) BY LRS. & ORS. v. 245
VITHU HIRA MAHAR (DEAD) BY LRS. & ORS. [H.L. DATTU, J.]

Collector, if in case no appeal is filed, and in case appeal is A
t filed then the order passed by the State Government in the
appeal, is final. Section 5 of the Act speaks of regrant of
watanlands to the holders of watan subject to fulfillrhent of
,.. certain conditions provided in the Section itself. It has come on

--
~
record, that the appellants after the Act was notified had filed B
an application for regrant of watanlands, since they were
holders of watan pursuant to an order passed by Deputy District
Collector dated 18.6.1941 and the District Collector after
.J. necessary inquiry had passe~an order of regrant dated
03.6.1963 of the suit lands in f vour of the appellants under c
Section 5(1) of the Watans Aboli ·on Act, 1958, and that order
has become final, since nobody had questioned the same
before any forum. The Act does not provide for the review of
the regrant order nor it provides denovo enquiry to decide
....... whether any person is a Watandar. Therefore, we agree with
D
+ the submission of the learned counsel for the appellants that
the Sub-Divisional Officer could not have entertained the
application filed by the respondents in the year 1979 for reg rant
of watanlands, since the Act does not provide for review of any
earlier order passed under Section 5(1) of the Act.
E
30. Question regarding adoption :- As regards whether
there is valid adoption or not, that question pertains to the status
and legal character of an individual, which falls within the
~
purview of Section 34 of the Specific Relief Act, 1963, and a
suit for declaration before a civil court is maintainable. F
Therefore, the question whether a particular person has been
given in adoption or not is different from whether a person nas
hereditary interest or rights in respect of a watan property. If
this distinction is drawn, there is no exclusion of civil courts
,!
jurisdiction under the Act. When a person claims on the basis G
of adoption, such an adoption cannot be decided by the
... Collector as the same involves legal status/character of a
person which can only be decided by the civil court. Whether
Vithu is an adopted son or not is conr-!:.Jded and decided in O.S.
No.104 of 1953. A specific issue had been framed and a H

....
246 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A finding was recorded though it was a suit for injunction and the
findings on this issue has been confirmed by the Appellate
Court and by the High Court in Regular Second Appeal.

31. Res-judicata and Code of Civil Procedure :- It is well
known that the doctrine of res- judicata is codified in Section )
B
11 of the Code of Civil Procedure. Section 11 generally comes
into play in relation to civil suits. But apart from the codified law,
the doctrine of res-judicata or the principle of the res-judicata
has been applied since long in various other kinds of ,,..
I
'
proceedings and situations by courts in England, India and other
c countries. The rule of constructive res-judicata is engrafted in
Explanation IV of Section 11 of the Code of Civil Procedure
and in many other situations also Principles not only of direct
res-judicata but of constructive res-judicata are also applied, if
by any judgment or order any matter in issue has been directly ..
D and explicitly decided, the decision operates as res-judicata
and bars the trial of an identical issue in a subsequent
+
proceedings between the same parties. The Principle of res-
judicata comes into play when by judgment and order a decision
of a particular issue is implicit in it, that is, it must be deemed
E to have been necessarily decided by implications even then the
Principle of res-judicata on that issue is directly applicable.
When any matter which might and ought to have been made a
ground of defence or attack in a former proceeding but was
not so made, then such a matter in the eye of law, to avoid
F multiplicity of litigation and to bring about finality in it, is deemed
to have been constructively in issue and, therefore, is taken as
decided [See AIR 1978 SC 1283].

32._ In Swamy Atmandanda vs. Sri Ramakrishna,
.....
Tapovanam [(2005) 10 SCC 51], it was held by this court :
.:._

G
"26. The object and purport of the principle of res judicata
as contended in Section 11 of the Code of Civil Procedure
is to uphold the rule of conclusiveness of judgment, as to
the points decided earlier of fact, or of law, or of fact and
H law, in every subsequent suit between the same parties.
)
RAMCHANDRA DAGDU SONAVANE (DEAD) BY LRS. & ORS. v. 247
VITHU HIRA MAHAR (DEAD) BY LRS. & ORS. [H.L. DATTU, J.]

Once the matter which was the subject-matter of lis stood A
f ~ determined by a competent court, no party thereafter can
be permitted to reopen it in a subsequent litigation. Such
a rule was brought into the statute-book with a view to bring
the litigation to an end so that the other side may not be
.._ . put to harassment. B

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

33. When the material issue has been tried and
determined between the same parties in a prop~r suit by a
competent court as to the status of one of them in relation to D
+ the other, it cannot be again tried in another suit between them
as laid down in Krishna Behari Roy vs. Bunwar~ Lal Roy
reported in (1875 ILR (IC-144)], which is followed by this Court
in the case of lshwar Dutt Vs. Land Acquisition Collector &
Anr. ((2005) 7 SCC 190], wherein the doctrine of . cause of E
action estoppel' and 'issue estoppel' has been discussed. It
is laid down by this Court, that if there is an issue between the
parties that is decided, the same would operate as a res-
judicata between the same parties in the subsequent
proceedings. This court in the case of /sher Singh vs. Sarwan F
Singh, [AIR 1965 SC 948] has observed :

"11. We thus reach the position that in the former suit the
... heirship of the respondents to Jati deceased (a) was in
...- terms raised by the pleadings-, (b) that an issue was framed
in regard to it by the trial Judge, (c) that evidence was led G
by the parties on that point directed toW,ards this issue, (d)
~
a finding was recorded on it by the appeHate. court, and
(e) that on the proper construction of the pleadings it would
have been necessary to deride the issue in order to
H
248 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A properly and completely decide all the points arising i·n the
case to grant relief to the plaintiff. We thus find that every
one of the conditions necessary to satisfy_ the test as to
the applicability of Section 11 of the Civil Procedure Code
is satisfied."
B
34. So far as the finding drawn in the suit for injunction in
O.S. No.104 of 1953, regarding adoption would also operate
as a res-judicata in view of the judgment of this Court in the
case of Sulochana Amma vs. Na_rayanan Nair [(1994) 2 SCC
,,.' (__
14]. It is observed:
,c
"The decision in earlier case on the issue between the .h
.--
same parties or persons under whom they claim title or
litigating under the same title, it operates as a res-judicata.
A plea decided even in a suit for injunction touching title
D between the s~me parties, would operate as res-judicata. +
It is a s~ttled law that in a Suit for injunction when title is in
· issue, for the purpose of granting injunction, the issue
directly and substantially arises in that suit between the
parties when the same is put in issue in a later suit based
E
on title between the same parties or their privies in a
subsequent suit, the decree in injunction suit equally
operates· as a res-judicata."

35. The same view is reiterated in the case of Gram
F Panchayat of Vil/ageNau/akha vs. Ujagar Singh & Ors. [AIR
2000 SC 3272]. This Court has stated, that, even in an earlier
suit for injunction, there is an incidental finding on title, the same
will not be binding in the later suit or proceedings, where title ,,
is directly in question, unless it is established, that it was '>-

G "necessary" in the earlier suit to decide the question of title for
granting or refusing injunction and that the relief for injunction .,.
was found or based on the bindings of title. Even the mere
framing of an issue may not be sufficient as pointed out in that
case.
H
....,... RAMCHANDRA DAGDU SONAVANE (DEAD) BY LRS. & ORS. v . 249
VITHU HIRA MAHAR (DEAD) BY LRS. & ORS. [H.L. DATTU, J.]

36. The appellants had filed O.S. No.104 of 1953 before A
the civil court inter-alia seeking an order of permanent injunction
against respondent - Vithu and others, on the ground that they
are Watandars of suit lands and they are in peaceful
possession and enjoyment of the suit lands. Respondent -
/'.- Vithu had set up a defence that since he is the adopted son of 8
the deceased Watandar, he has the right, title and interest in
the watanlands. Therefore, the Trial Court had framed an issue,
whether the defendants prove that defendant No.1 was the
-{ adopted son of his grandmother and as such was in
"
possession of the suit property. The trial court after elaborate· c
discussion has answered the issue against Vithu and had
concluded that Vithu failed .to prove that he was the adopted
son of deceased Watandar and, therefore, he cannot have any
right, title or interest in the suit lands as Watandar. In this case,
,~
though the suit was bare injunction, title to the properties was D
+ put on issue by the defendant-Vithu claiming that he is the
adopted son of deceased Watandar and, therefore, he has
Watandar rights in the suit lands. In order to decide the prayers
made in the suit, the issue of adoption had to be decided. The
issue falls within the exclusive jurisdiction of the civil court. In
E
; the subsequent proceedings before the Sub-Divisional Officer,
the issue was whether Vithu was the adopted son of deceased
Watandar and, therefore, having hereditary interest in any
'J, inferior village watan under Watan Abolition Act, 1958. To
decide this issue, the Sub~·Divisional Officer firstly has to decide
the issue, whether Vithu is the adopted son of deceased F
~ '
Watandar. This issue is one which does not fall within the
~
1 jurisdiction of the revenue court but falls within the exclusive

...
..(
....,
jurisdiction of the civil court. Since the issue of adoption was
already decided between the same parties by a competent civil
court, the Sub-Divisional Officer cannot decide that issue and G
without giving any decision on that issue could not have allowed
+ th~ cl~i~f the res~on?ent Vithu. Therefore, in our opinion, the
Principle of Res-Jud1cata would apply to the proceedings
before the Sub-Divisional Officer.
H
250 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A 37; In a suit for injunction, the issues and the decision would
be confined to p_ossessory aspect. If the right to possession of
property cannot be decided without deciding the title to the
property and a person who approaches the Court, his status
itself is to be adjudicated then without declaring his status, the
..,
B relief could not be granted. In earlier suit Vithu claimed his right
as an adopted son. Therefore, since he did not prove the
adoption, there was no subsisting right or interest over the
immovable property and as such the issue on adoption was a /

>--
relevant issue in 1953 suit and, therefore, the said issue which
c has been decided in earlier suit and which has been confirmed
in the regular second appeal and the issue decided therein was
whether he was an adopted heir of Watandar was binding on
the parties. The similar question has to be decided by the
S.D.O. to decide the claim, right or interest in respect of the
hereditary office. Therefore, the issue was raised and it was
D +
decided and it is binding. on the parties.

38. Reference may be made to the decision of this court
in the case of Sulochana Amma vs. Narayanan Nair, [(1994)
2 SCC 14 Para 9] on the issue between the same parties or
E persons under whom they claim title or litigating under the same
title, it operates as a. res-judicata. A plea decided even in suit
for injunction touching the title between the same parties, would
operate as res judicata : )t

F ''lt'is a settled law that in a suit for injunction when title is in
i~sue, for the purpose of granting injunction the issue
.
c;Jirectly and substantially arises in that suit between the
parties. When the same is put in issue in a later suit based ,
,-
on title between the same parties or their privies in a
subsequent suit, the decree in injunction suit equally
•
G
operates as a res judicata."

39. To the same effect, the judgment of this court in the
+
case of Sulochana Amma vs. Narayanan Nair, [(1994) 2 SCC
14 Para 9] in which it has been held that the issue between
H
'·
f
RAMCHANDRA DAGDU SONAVANE (DEAD) BY LRS. & ORS. v. 251
VITHU HIRA MAHAR (DEAD) BY LRS. & ORS. [H.L. DATIU, J.]

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

40. The learned senior counsel Sri Naphade by placing B
reliance on the observation made by this court in the case of
Syed Mohd Salie Labbai (Dead) by LRS vs. Mohd. Hanifa
(Dead) by LRS [(1976) 4 SCC 780], that the best method to
• ~
decide the question of res-judicata is first to determine the case
of parties as put forward in their respective pleadings of their
previous suits and then to find out as to what had been decided
c
by the judgments which operate as res-judicata. It is the
contention of the learned senior counsel that the pleadings of
the suit of 1953 was not available to the civil court while
;
deciding the second suit of 1979 and, therefore, the High Court
+ was justified in holding that the finding of the civil court in the D
second suit of 1979 and the appellate court against that order
regarding res-judicata cannot be upheld.

41. In Syed Mohd's case, this court has stated that before
a plea of res- judicata can be given effect the four conditions E
requires to be proved. They are, that the litigating parties must
be the same; that the subject matter of the suit also must be
.... identical; that the matter must be finally decided between the
parties; and that the suit must be decided by a court of
competent jurisdiction. This court while analyzing those F
conditions as matter of fact found that the parties had not even
filed the pleading of the suits instituted by them. In that factual
scenario, this court has to observe that the pleadings cannot
I·.
be proved merely by recitals of the allegations mentioned in the
judgment.
G
+ 42. It is true that if an earlier judgment has to operate as
res-judicata in the subsequent proceedings, then all the
necessary facts including pleadings of the earlier litigation must
be placed on record in the subsequent proceedings. In the
judgment and decree in O.S. No. 2353of1979, the trial Judge H
....
.,

252 SUPREME·COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A in extenso has referred to the pleadings of the parties in the
earlier suit with reference to the copy of the judgment and
decree passed in O.S. No.104 of 1953 which was produced
by the appellants along with the other documents and it is only
thereafter has observed that the issue regarding adoption of
B Vithu was one of the issues framed in the 1953 suit and the
court after referring to the pleadings of both the parties and the
evidence adduced has specifically answered the issue by
holding that Vithu has failed to prove that he is adopted son of ,,,
the deceased Watandar. Therefore, we cannot accept the >-
c contention of learned senior counsel Sri Shekhar Naphade. In
fact, the High Court, while deciding on this issue had observed
that the pleadings of the parties in O.S. No.104 of 1953 were
not available before the civil court in the subsequent suit and,
therefore, there is non-compliance of mandatory and basic
requirements, as laid down by this Court in the case of Syed
D -+
Mohd. In our view, this reasoning of the High Court is fallacious
and we cannot agree. In our view, each one of the conditions '•..'
'
necessary to satisfy the test as to the applicability of Section
11 of Civil Procedure Code is satisfied.

E 43. Validity of Direction for Enquiry:- Once 1941 .~

proceedings is accepted by the civil court and a decree was
passed, the said decree becomes final and binding on the
parties. The respondent-Vithu was disentitled to approach the ~
State Government nearly after 14 years. The period of limitation
F provided under Section 27 of the Limitation Act, if a right to .' /

property is not exercised within 12 years from the date on which
the cause of action accrues to him, he would lose his right of
remedy under the Limitation Act. But in the instant case, the t
~
right of Vithu was adjudicated and it was culminated in the ~

G decree in Second Appeal which was decided in RSA on
20. 10.1964 and after he suffered an order, he remits three •'
times assessment to the Government in the year 1966 and his j,. j;

.intention was to keep the issue alive, despite he suffered an

..
order of decree by the civil court which was also confirmed by
·H the High Court and again moves an application before the
RAMCHANDRA DAGDU SONAVANE (DEAD) BY LRS. & ORS. v. 253
VITHU HIRA MAHAR (DEAD) BY LRS. & ORS. [H.L. DATIU, J.]

Government in 1978, and obtains a direction in 1979 for the A
t Sub-Divisional Officer to hold an enquiry, whether he is
Watandar or not. The Scheme of Watan Abolition Act .. 1958,
does not empower the State Government to issue such
direction. What is not provided under the statute ought not to
have been exercised by the State Government. Therefore, the B
State Government had no power to direct the Sub-Divisional
Officer to hold an inquiry to decide question of Watanda'r,
notwithstanding the decree passed by a competent civil court
which has been affirmed by the High Court in Regular Second
Appeal. The abolition of watan is by a legislative decree and c
not by executive action. Its consequences must be sought under
the Statute which effectuates the a~olition. It is, therefore.
resumption and regrant must be within the statutory framework.

44. We, therefore, set aside the judgment of the High Court
... in all the appeals. The result is thaUhe appeals are allowed, D
but in the peculiar circumstances of the case, there will be no
order as to costs.

K.K.T. Appeals allowed.