S.N. Awasthi, J.
1. This is plaintiffs' second appeal.
2. The plaintiffs' suit for possession of 8 survey numbers mentioned in the plaint and for account has been dismissed by the trial Court as well as by the first appellate Court. Hence this second appeal.
2-A. Anandi Prasad and Ranjit Singh were tenants of survey numbers mentioned in the plaint. They granted a Patta to defendants 1, 2 and 3 who were members of joint Hindu family. The question involved in this suit is : whether the Patta creates sub-tenancy in favour of the defendants. The plaintiffs' contention is that it was not sub-lease but merely a partnership. Hence sub-tenancy was not created.
3. The Zamindari in Madhya Bharat was abolished on 2-10-1951. The defendants made application before-the revenue authorities on 27-4-1953 stating therein that tenancy right has been acquired by them under Section 38 of that Act. The plaintiffs' case is that there had been a partition between Anandi Prasad and Ranjit Singh, The name of Anandi Prasadwas mutated in the revenue records on 19-3-1948. The suit lands fell to the share of Anandi Prasad, who alleged himself to be a disabled person entitled to lease his land. On 12-11-1954, Tehsildar found that partition had taken place and further that Anandi Prasad was a disabled person. The application of the defendants was, therefore, dismissed. The S.D.O. also dismissed the appeal, but the Second Appeal preferred therefrom by the defendants was allowed on 2-4-1958. Anandi Prasad died on 26-5-1958. His legal representative Brijdevi filed a revision before the Board of Revenue which was allowed, but on 19-7-1963 re-hearing on review application was done and the revision was dismissed on 15-1-1-964. A writ petition (M.P. No. 17/64) was, filed against that order which was dismissed. It is reported in Brijdevi v. Manakchand, 1969 Jab LJ556 : 1969 RN 290.
4. A notice was given by the heirs of Anandi Prasad on 23-11-1967 and the present suit was filed on 29-4-1968.
5. The defendants asserted that they have acquired that status of the Bhumiswami. The suit is barred by constructive res judicata and is also barred by limitation. The plea of constructive res judicata as well as of limitation prevailed with both the Courts below. Hence this appeal.
6. The first contention of Shri Sanghi, the learned counsel for the appellant, is that only the Civil Court has jurisdiction to decide whether the Patta creates any sub-tenancy. Even, on a proper construction of Patta it would be clear that no sub-tenancy was created. Findingsgiven by the Revenue Courts were not binding on the Civil Courts. Further submission of Shri Sanghi is that under Section 38(2) of the Zamindari Abolition Act, the revenue authorities had no jurisdiction to decide title of the parties and, therefore, the decision of the High Court in the writ petition would also be deemed to be one arising out of those proceedings only. It is further submitted that the question of limitation being a mixed question of law and fact would require evidence of the parties and it was an error on the part of the Courts below to hold that the, suit was barred by limitation. Learned counsel also submitted that the question whether theamount deposited by the respondents for acquiring the right under Section 38 was proper evidence would be necessary as it is a disputed question of law and fact. Further the question regarding the interpretation of the terms of the Patta as well as disability of Anandi Prasad would require evidence. Lastly it is submitted that the Courts below should have held that the suit was maintainable and within limitation.
7. The argument of Shri Sanghi is that under Section 86(4), M.B. Land Revenue and Tenancy Act. Samvat 2007 which came into force on 6-6-52. Order passed in mutation proceedings shall not debar any person from establishing such right in any land as he may claim by a regular suit in a competent Civil Court, It is similar to Section 111 of the M.P. Land Revenue Code, 1959 which reads as under:--
''111. Jurisdiction of Civil Courts. -- The Civil Courts shall have jurisdiction to decide any dispute to which the State Government is not a party relating to any right which is recorded in the record-of-rights.'
Thus, it is submitted by Shri Sanghi that the Civil Courts only will have jurisdiction to decide the dispute pertaining to the rights of the parties. He relied on the case of Sujan Singh v. Dwarkaprasad, 1959 MPLJ738. This case has reference to Section 38 of the M.B. Zamindari Abolition Act (13 of 1951). Section 38 of the Act has been reproduced on page 741 of the case of Sujan Singh (supra). It is held by the Division Bench of this Court that the duty of Tehsildar is confined to receiving the deposit. Enquiry is not contemplated, but if composite application is filed that is for mutation as well, the Tahsildar has to make an enquiry and such an order would be under the Tenancy Act. The question whether a sub-tenancy has a right of Pakka tenancy would have to be decided in proceedings other than those under Section 38 of the M.B. Zamindari Abolition Act. After depositing the amount under Section 38 of the Act, the sub-tenant has to apply for mutation under the Tenancy Act and then the Tahsildar would be competent to declare if the sub-tenant has acquired the status of a Pakka tenant and that order would beappealable. It is submitted by the learned counsel that the application filed by the defendants was a composite application. Section 86 of the M.B. Tenancy Act would be applicable. Shri Sanghi relied on the Full Bench view in the case of Ayyub Khan v. Pundilal Baxilal, 1967 MPLJ 904 : (AIR 1968 Madh Pra 57) and submitted that the Civil Court only has jurisdiction to decide such matters. He also relied on the case of Pyare v. Sykhlal, 1962 Rev Nirnaya 502.
8. Shri Sanghi placed before me the case of Narayan Prasad v. Sukhlal, 1970 Rev Nirnaya 111 and emphasised that the order of the Tahsildar in mutation claimed on the basis of the right occuring under Section 38 of the M.B. Zamindari Abolition Act gives a right to the aggrieved party to file a civil suit and to get his right determined He also cited the case of Jange Singh v. Board of Revenue, 1978 Rev Nirnaya 28 and submitted that under Section 111 of the M. P. Land Revenue Code, it has been held that the aggrieved party has got a right to file a suit to set aside the order of mutation.
9. The learned counsel submitted the case of Bhujbalsingh v. Arjunsingh, 1971 Jab LJ 377 : (AIR 1971 Madh Pra 200). In this case it has been held that'...... the revenueauthorities were certainly competent to enquire whether by depositing money under Section 38, he had acquired the rights of a pucca tenant or not. The enquiry, of course, was not under Section 38 of the former Act but under Section 86 of the latter Act. In deciding the question of mutation they had to bear in mind the provisions of Section 38 of the former Act and then had to see whether under Section 38, the non-petitioner 1 who is deemed to have become a pucka tenant had or had not acquired the rights of a pucka tenant.'
10. Thus the contention of the appellant, herein, in that civil suit is competent in spite of the decision of the Revenue Court pertaining to the status of the parties. As regards the decision in the writ petition is concerned, the learned counsel relied on the case of Mangu Ram v. Venkataraman, (1987) 2 SCC 228. It lays down'..... Theonly effect of the order dismissing the writ petition passed by the High Court was thatthe order passed by the settlement officer under Section 15 of the Act to the extent that he could have determined the question before him was legal and binding to the parties. The rejection of the writ petition did not and could not clothe the order with jurisdiction which the legislature had not conferred. That being the case, the decision rendered by the Settlement Officer could not operate as res judicata in a subsequent proceeding under Section 56 in the course of which alone the right to ryotwari patta could be determined. The view taken by the High Court is, therefore, irreproachable. .....'
11. Learned Counsel for the appellant then relied on the case of M. Venkalaratnam v. M. Ramadas, AIR 1971 Andh Pra 281 and submitted that in applying the principles of res judicata it is the competency of the original Court which must be considered -- if the decision of the original Court is not within its jurisdiction, the fact that the decision was confirmed in appeal or in writ petition will not make it valid and binding.
12. Shri Sanghi also submitted that the trial Court had found that the ad valorem court-fee on the market value of the land was payable and on the basis of the valuation of the suit jurisdiction of the Court would be determined. Since, the plaintiff did not pay the ad valorem court-fee nor valued suit as such the other findings recorded by the Court below were without jurisdiction and the matter should go back to the trial Court for getting proper valuation made and court-fee fixed which shall also determine the jurisdiction of the Court.
13. Shri Chitale argued that on 27-4-1953, the defendants made an application under Section 38 of the Act and deposited the amount for acquiring the right of a tenant. Patta was granted on 15-7-1953. Even the plaintiffs had admitted in reply that the defendants were Upkrishak. In the revenue proceedings their status was declared. The plaintiffs did not succeed in their attempt to show that the amount deposited by the defendants was not correct. His submission is that the decision of the High Court in M.P. No. 17/64 is res judicata and binding on this Court. His submission is that the defendants wereasserting their title from the very beginning and specially from the date Patta was granted in their favour. The suit should have been filed within 12 years from that date. Hence the suit is barred by limitation.
14. Shri Chitale submitted that the decision of the Revenue Court as well as the High Court in writ jurisdiction as found in Brijdevi's case (1969 Jab LJ 556) (supra) would be binding on the parties.
15. In the case of Piyare v. Sukhlal, 1960 MPLJ 276, it has been held that :
'Section 86, M.B. Land Revenue and Tenancy Act, 1950, is comprehensive enough to include every possibility where mutation of names is to be effected consequent upon legal right vesting or devolving upon a person whose names is not entered and the cessation of interest of another person whose name appears in the revenue papers.....'
'Even assuming that the rights conferred on tenants under Section 38 of the M.B. Zamindari Abolition Act are altogether new rights created for the first time by that law and every tenant on the commencement of the Act, became a tenant of the Government, the question of mutation still arises. The name of the outgoing proprietor or any one else whose name appears in the revenue papers is to be removed and the name of tenant in whom vest or devolve tenancy rights under Section 38 is to be entered in his stead. This is 'mutation' and is to be effected under Section 86 of the M.B. Land Revenue and Tenancy Act. Hence where an applicant claims to have become a Pakka tenant and to be recorded as such in the revenue papers, such an application is a composite one and must be dealt with under both Section 38, M.B. Zamindari Abolition Act and Section 86, M.B. Land Revenue and Tenancy Act.....'.
16. Shri Chitale reliedon the case of State of U.P. v. Nawab Hussain, AIR 1977 SC 1680 and submitted that a plea which was not raised in the writ petition and subsequently raised in a suit was barred by constructive res judicata. Shri Sanghi has distinguished this case on the basis that where a person has alternative remedies, one by filing a suit and the other by filing a writ petition and he chooses one of them, the other would bebarred by the principles of res judicata. He submitted that, in the present case, the right to file the suit is specifically provided in spite of the proceedings in the Revenue Court and petition was filed to quash the order of the Revenue Court only and not for establishing the right. Hence, the citations relied by Shri Chitale would not be applicable to the present case.
17. Shri Chitale then referred to the case of Daryao v. State of UP., AIR 1961 SC 1457 and submitted that'..... The rule ofres judicata as indicated in Section 11 of the C.P.C. has no doubt some technical aspects, for instance the rule of constructive res judicata may be said to be technical; but the basis on which the said rule rests is founded on considerations of public policy. It is in the interest of the public at large that a finality should attach to the binding decisions pronounced by Court of competent jurisdiction, and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation......'
18. Shri Chitale relied on the case of Union of India v. Nanak Singh, AIR 1968 SC 1370 and submitted that the writ petition filed by respondent Nanak Singh challenging the order of his termination was dismissed. Subsequently, he filed a suit challenging the termination order on the ground that it was by an authority lower in rank than the competent authority, his suit was held to be barred by the principles of constructive res judicata He submitted that what operates as res judicata is the decision and not the reasons given by the Court in support of the decision.
19. Shri Chitale also cited the case of Gulab Chand v. State of Gujarat, AIR 1965 SC 1153 and submitted that the nature of the former proceeding is immaterial There is no good reason to preclude such decisions on matters in controversy in writ proceedings under Article 226 or 32 of the Constitution from operating as res judicata in subsequent regular suit on the same matters in controversy between the same parties and thus to give limited effect to the principle of finality of decisions after full contest. Consequently onthe general principles of res judicata the decision of the High Court in a writ petition under Article 226 of the Constitution on the merits after contest will operate as res judicata in a subsequent regular suit between the same parties with respect to the same matter.
20. Shri Chitale further cited the case of State of Punjab v. B. D. Kaushal, AIR 1971 SC 1676 and argued that the view taken in the case of Union of India (supra) has been approved in this decision as well Further it has been held that the plea of res judicata is not waived if necessary facts were present in the mind of the parties and gone into by the Court. Absence of specific plea in the written statement and framing of specific issue of waiver by the Court is immaterial
21. For meeting the arguments of both the parties it is necessary to see as to what was the prayer in M.P. No. 17/64, decided on 22-9-1965 (reported in Brijdevi v. Nanakchand, 1969 Jab LJ 556. The petition was for quashing the order of the Additional Commissioner (ultimately upheld by the Board of Revenue in revision) that the opposite parties 1 to 3 were entitled under Section 38(2) of the Madhya Bharat Zamindari Abolition Act, Samvat 2008 (Act of 1951), to be recorded as the pakka tenant on payment of the compensation according to the prescribed formula. It is thus clear that the writ petition was not for declaration, of any status or right between the parties but for quashing the order of mutation passed by the revenue authorities. Since the enactment itself provides that an aggrieved party can file a suit, the remedy of filing a suit was open to the petitioner of that writ petition. The jurisdiction of the High Court in that writ petition was only confined to the grounds raised for quashing the order of mutation. Since, the jurisdiction on Civil Court has specifically been conferred by the statute, it cannot be taken away on filing a writ petition Since the questions raised by the plaintiffs require evidence to prove them, the decision in the writ petition would not bar the subsequent suit on principles of res judicata, therefore, disagree with the lower Courtsand the learned counsel for the respondents and hold that suit is not barred by the principles of res judicata.
22. The next question raised by the learned counsel for the appellant is that the view of this Court in numerous decisions was that question of Court-fees and jurisdiction should be decided first. Once the Court held that the suit was not properly valued, it should have directed the plaintiffs to value the suit as directed by the trial Court and in case, the plaintiffs failed to do it, the plaint should have been rejected. After giving the finding on the valuation of the suit, the trial Court did not pursue it and allowed the matter to proceed. Both the parties took up the matter as if there was no order passed by the trial Court on the preliminary issue and proceeded with the trial not only in the trial Court but in first appeal as well. The submission of the counsel for the plaintiffs is that the matter must go back to the stage from where the trial Court committed the error.
23. The reply of Shri Chitale is that the plaintiffs having committed the default can-_ not take advantage of their own wrong. He submitted that the Court had jurisdiction as both the parties acquiesced to and after getting any unfavourable decision the appellant cannot make a capital out of it. He further submitted that remand should not be made under the aforesaid circumstances.
24. Shri Chitale relied on the case of R. Subrao v. S. Venkatrao, AIR 1918 PC 188 and submitted that the Court-fees Act does not arm a litigant with a weapon of technicality against his opponent, but to secure revenue for the benefit of the State. It is not competent to a defendant in a suit to utilise the provisions of the Act at the appellate stage, not to safeguard the interests of the State, but to obstruct the other party from proceeding with the list at appellate stage. He further relied on the cases of Shri Ratnavarmaraja v. Smt. Vimla, AIR 1961 SC 1299 and Kiran Singh v. Chaman Paswan, AIR 1954 SC 340. He submitted that when a case had been tried by a Court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of justice, and the policy ofthe legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate court, unless there has been a prejudice on the merits.
25. I fully agree with the arguments off learned counsel for the respondents and hold that the suit cannot be returned to the trial Court with directions as prayed for by the learned counsel for the appellant.
26. Now, the question of Limitation is to be decided The argument of Shri Sanghi is that the question of Limitation is a mixed question of law and fact both. Unless the suit is tried and the facts as stated by the plaintiffs are either proved or disproved it cannot be held that the suit is barred by Limitation.
27. Shri Sanghi, learned counsel for the appellant, stated that the present suit is governed by the Limitation Act of 1963 which came into force on 1-1-1964. He cited the case of C. Beepathuma v. Shankaranarayana, AIR 1965 SC 241 and submitted that the Law of Limitation is a procedural law and the provisions existing on the date of the suit shall apply to it. He also cited the case of Bhagavathy v. Savarimuthu, AIR 1976 Mad 124 and submitted that the burden of proof is on the defendant who claims the right to property by way of adverse possession or says that the suit is barred by limitation. His submission is that the pleas raised by the plaintiffs would require evidence and unless he is given an opportunity to substantiate his allegations, the suit cannot be said to be barred by Limitation. His submission is that he has to demonstrate that the plaintiffs were merely partners (Bataidars) and not sub-lessors which fact could be established by construction of the document coupled with other material evidence which is to be brought on record. While appreciating the evidence, the Court shall be entitled to take into consideration the alleged admissions made by the plaintiffs or their predecessors, but unless the entire evidence is recorded the suit cannot be held to be barred by Limitation. His submission is that whether the plaintiffs would succeed or the suit would ultimately be dismissed is not the consideration of the Court at this stage. His further submission is that all the issuesmust be tried and decided at one time as held in the cases of Ramdayal Umraomal v. Pannalal Jagannathji, AIR 1979 Madh Pra 153 (FB), Sardar v. Municipal Corporation Ujjain, 1985 MP WN (Note) 351 and State of M.P. v. Kana, 1983 MP WN (Note) 55.
28. I am of the view that the pleadings raised by the plaintiffs d6 require evidence which shall determine whether the suit was within limitation or not and all the issues must be tried together. The pleas raised by the defendants shall be considered by the Courts and findings on all issues based on Readings and evidence shall be given by them.
29. I allow the appeal and set aside the judgment and decree passed by the Courts below. The suit shall go back to the trial Court which shall decide all the issues in the suit on merits. The parties are directed to bear their own costs of the entire litigation till now. Since the case is very old the trial Court is directed to dispose of the suit as expeditiously as possible. The parties are directed to appear before the trial Court on 18-8-1988. The record of the case be sent to the trial Court.