A RAMCHANDRA DAGDU SONAVANE (DEAD) BY LRS & Ors. v. VITHU HIRA MAHAR (DEAD) BY LRS & Ors.

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:

Appellants were holders of Wetan pursuant 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 -+ ' G H RAMCHANDRA DAGDU SONAVANE (DEAD) BY LRS. & ORS. v. VITHU HIRA MAHAR (DEAD) BY LRS. & ORS. 225

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] D

The question regarding validity of adoption c 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. Therefore, the question whether a particular person has been given in adoption or not is different from whether a person has 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 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 the subsequent between proceedings. [Paras 31 and 33] [246-D-F; 247-C-E] the same parties ·in 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 ) F

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 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. VITHU HIRA MAHAR (DEAD) BY LRS. & ORS. 227 .. / °I" .{ Divisional Officer firstly has to decide the issue, whether A respondent No. 1 is the adopted son of the deceased 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]